Professional Liability

We achieved summary judgment on behalf of an art store chain in a racial discrimination suit over a caricature drawing of a Black woman and her infant son. She, her father and her father’s girlfriend, all visitors of HersheyPark, sued the owner of the kiosk for race discrimination, retaliation and interference under 42 U.S.C. Section 1981, alleging that they were drawn with exaggerated and offensive features rooted in harmful racial stereotypes. The kiosk owner argued that while the caricatures might have been poorly drawn, they were not drawn in any manner intended to be offensive. Judge Bloom determined on summary judgment that no reasonable jury could find in favor of the plaintiffs on all three claims and dismissed the action.

We won a motion dismissing all claims with prejudice against our clients in a case involving a major remediation project for environmental violations. We filed a motion for summary judgment to dismiss the plaintiff’s complaint based on its failure to provide an affidavit of merit within the prescribed time, and because the agreed upon liability waiver clause precludes litigation against the individual defendants. We argued that public policy recognizes limitation of liability clauses when they are reasonable and when they incentivize the licensed professional to perform. Further, we argued that the affidavit of merit statute’s text and legislative purposes require the affidavit to be served within 60 days (extendable for good cause to 120 days) from the date when the licensed professional files its answer, regardless of whether the pleadings are subsequently amended to name other defendants or assert additional claims. Under New Jersey law, the plaintiff’s failure to provide an affidavit of merit confirmed that their claims must be dismissed with prejudice. The court agreed that: (1) the agreed upon exculpatory waiver clause was reasonable and not against public policy; and (2) the plaintiff’s failure to provide an affidavit of merit was fatal. The court dismissed all claims as to our client and their individual employees with prejudice.

We won summary judgment on behalf of a company that provided software for the overall design of roof trusses in a design defect case. The plaintiff owned the apartment complex being built and hired Turnbull Wahlert to construct the building. 84 Lumber was subcontracted by Turnbull to build and install the roof trusses. 84 Lumber contracted with our client to use its software for the design of the roof trusses and to provide truss connect plate hangers. The building experienced severe water damage allegedly because the roof trusses were not sloped properly and the HVAC units were misplaced on the roof. Damages were estimated at over $1.2 million. 84 Lumber demanded that our client defend and indemnify it against Turnbull’s allegations. The court granted our motion for summary judgment.

In a case where an insurance broker faced claims of professional negligence, Carol VanderWoude (Philadelphia) successfully defended the plaintiff’s appeal from a verdict obtained by Tim Ventura and Dana Gittleman (Philadelphia). The verdict against our client, an independent insurance broker, was well below the lost value of UIM coverage (i.e., $1 million), which the plaintiff sought to recover based on an alleged breach of the professional standard of care in failing to procure an endorsement for $ 1 million in UIM coverage on the plaintiff’s decedent’s commercial auto policy.  The verdict is notable because, at trial, the client gave unexpected testimony which impacted liability, and when confronted with the client’s new trial testimony, our standard of care expert conceded a breach of the professional standard of care. Still, causation/damages were contested, and it was disputed at trial that the plaintiff’s decedent would have actually received $1 million in coverage. Tim elicited testimony on cross-examination of the plaintiff’s expert to show that there was no evidence establishing the insurer would have provided additional UIM coverage even if the endorsement had been purchased.  Prior to trial the parties entered into a stipulation stating that damages were capped at the value of the lost coverage, $1 million. Plaintiff’s counsel challenged the low verdict on various grounds, focusing on the fact that our expert conceded a breach of a standard of care based on the client’s unexpected trial testimony. He argued that, as a matter of law, the damages amount was the lost value of the coverage and the verdict should be increased to $1 million. The trial court agreed with our arguments, raised in opposition to the plaintiff’s post-trial motions, that the low verdict amount was supported by the record and that the plaintiff’s requests for post-trial relief were otherwise waived for various reasons.  The Superior Court affirmed in a unanimous decision.   

Obtained dismissal of claims in a civil rights action brought against their attorney client in the Middle District of Pennsylvania. The plaintiff brought claims for Deprivation of Rights (42 U.S.C. § 1983), Conspiracy Against Rights (42 U.S.C. § 1985), and Civil Conspiracy against their client. Jake and Josh filed a motion to dismiss pursuant to F.R.C.P. 12(b)(6), arguing that the plaintiff had failed to state a claim upon which relief could be granted. The Magistrate Judge agreed, issuing a report and recommendation for the claims to be dismissed, which the District Judge then adopted as the Court’s decision. No timely appeal was taken.

We won a defense verdict in a legal malpractice case arising from an underlying civil rights claim. The plaintiff was arrested in August 2015 following a physical altercation with her daughter and her daughter’s friends. The plaintiff alleged that, while she was being searched at the Philadelphia Police Detention Unit, a City employee struck her, causing her to fall into a “split” and suffer a hamstring avulsion. The defendant attorneys represented the plaintiff in a lawsuit against the City. The plaintiff was never able, during the underlying case, to identify the employee who allegedly assaulted her. She did not respond to communications from the defendant attorneys regarding the arbitration award and the appellate deadline; thus, no appeal was filed. During the legal malpractice trial, we presented evidence that the plaintiff could not have won the underlying case-within-the-case because she lacked corroborating evidence of the alleged assault. We also presented evidence that the plaintiff could not prove damages arising from the alleged injury. The court agreed and entered a defense verdict following a bench trial.

We successfully defended against the plaintiff’s appeal in the Appellate Division, Second Department. The appeal challenged an order that adhered to a prior ruling by the Supreme Court, Westchester County, which had granted the defendant’s motion for summary judgment, dismissing the complaint. In our brief, we argued that the appeal should be dismissed due to the plaintiff’s failure to assemble a proper record on appeal. The plaintiff omitted critical documents relied upon by the motion court, including submissions supporting and opposing the defendant’s motion. At oral argument, we persuasively presented the case before a panel of four justices. The Appellate Division ruled in favor of the defendant, dismissing the appeal without reaching the merits. The court reaffirmed that it is the appellant’s responsibility to provide a complete record containing all relevant materials from the lower court. The plaintiff’s failure to do so, the court held, made meaningful appellate review impossible. The decision was unanimous, and no further appeal is available—securing a decisive victory for our client.

We successfully obtained summary judgment for a county in a lawsuit alleging disability discrimination and failure to accommodate under the New Jersey Law Against Discrimination. After being sent for a fitness-for-duty examination, a medical professional determined that the plaintiff was not fit for duty, leading to his termination. The court ruled in favor of the county, granting summary judgment on all claims and dismissing the case with prejudice.

We successfully defended an architect against a $7 million claim brought by a general contractor in connection with the renovation of a historic, city-block-sized building in Philadelphia. The contractor alleged design errors and sought additional damages under the Contractor and Subcontractor Payment Act, inflating its claim to $16 million. During contentious discovery, we exposed contradictions and falsehoods in the contractor’s testimony, leading to a partial summary judgment that dismissed the bulk of claims against our client. Facing a looming trial and a remaining $4 million claim, we worked with the building owner’s counsel to convince the settlement judge of the claims’ lack of merit. The plaintiff filed for bankruptcy, and the final settlement had to be approved in the Bankruptcy Court. The case settled for just $362,500, with our client paying only $181,250—an outstanding result in a high-stakes dispute.

We won dismissal of a charge filed by the Ohio Civil Rights Commission (OCRC) against our client, a public housing authority. A tenant claimed the housing authority discriminated against him based upon race, disability, sex, and sexual orientation or engaged in retaliation. The OCRC determined there was no discrimination and dismissed the charge against the housing authority.

After four hearings, we obtained the dismissal of a complex legal malpractice action arising out of litigation in the U.S. District Court over the failed purchase of a Kia dealership in New Jersey. The plaintiff’s claims against our client, a well-known transactional lawyer with one of the largest firms in the United States, involved hundreds of thousands of dollars in fees and losses related to the investment in the dealership. Following the hearings, and a re-hearing, we obtained the dismissal because the plaintiff’s expert failed to tie in the damages to the alleged deviations in connection with the handling of the underlying transaction. Following the hearings, the court rejected the expert’s opinion on damages and then granted our application for a dismissal of the entire case.   

We obtained summary judgment on behalf of several Philadelphia narcotics police officers in a Section 1983 malicious prosecution and fabrication of evidence lawsuit. The U.S. District Court for the Eastern District of Pennsylvania dismissed the case, with prejudice, finding the record was barren of any fabricated evidence by any of the defendant officers that was ever used in or influenced any criminal proceeding against the plaintiff, the officers possessed probable cause to charge the plaintiff, and the plaintiff tendered no evidence of an underlying constitutional violation.   

We successfully defended an appeal of a trial court decision dismissing a defamation claim against a suburban mayor. The plaintiff, a former police officer, brought actions against a former city mayor and related defendants, asserting defamation, false light and related claims. The plaintiff alleged that statements made during a press conference disparaged him and violated a non-disparagement clause in his separation agreement. The court ruled the defamation and false light claims were correctly barred by the one-year statute of limitations under R.C. 2305.11(A) where the saving statute, R.C. 2305.19(A), permitted refiling in federal court, but did not toll limitations for subsequent state filings after the federal court dismissal. The appellate court also found the former mayor’s statements, regarding police leaders who allegedly retaliated against her, were deemed truthful and, thus, not defamatory or disparaging.   

We successfully argued and secured summary judgment in favor of a masonic organization, dismissing third-party claims for indemnity and common law contribution. At issue was a third-party complaint for contractual indemnity and common law contribution over an alleged trip and fall due to a structural condition with a rented property. The masonic organization rented the property for a single use event in support of the organization. The plaintiff claimed to be a guest and initiated suit against the commercial property owner, the third-party plaintiff. In support of the third-party complaint, a rental agreement was produced, which was not for the alleged date of loss. The third-party plaintiff argued the rental agreement disclaimed liability on the part of the property owner and turned the property over to the renter’s charge; therefore, the renter was required to inspect the property and warn its guests of dangerous conditions. The court granted summary judgment for the following reasons. First, the rental agreement could not support contractual indemnity because it was not Azurak compliant as there was no explicit language requiring indemnity. Second, the masonic organization’s duty as a short-term lessee did not require inspection prior to the event, nor was there sufficient factual evidence to overcome the masonic organization’s charitable immunity.   

We received a favorable decision from the Court of Appeals for the Third Circuit in a First Amendment case. The circuit court affirmed the District of New Jersey’s denial of a preliminary injunction in which the plaintiff claimed that federal and local officials violated her First Amendment rights through censorship and retaliation after she posted comments on Facebook. In a published decision, the Third Circuit agreed with our arguments that the plaintiff lacked standing since she could not demonstrate a substantial risk of future harm specific to our client, the former chief of police of North Hanover, NJ, as well as the other co-defendants.   

We obtained summary judgment in favor of our client on the plaintiff’s general contractor’s contractual indemnity and defense claims. The general contractor claimed it was owed defense and indemnity under its subcontract with our client. In a prior proceeding, the court entered judgment in favor of the owner against the general contractor for breach of contract and breach of warranty but rejected the owner’s claims of negligence and violation of the Florida Building Code. The court agreed with our arguments that the general contractor was estopped from bringing its contractual defense and indemnity claims against the subcontractor because there was a prior judicial determination that neither the general contractor nor our client was negligent, and the general contractor’s liability was based on its breach of contract and warranties. The court further agreed that the general contractor could not show that the subcontractor was negligent, where it had taken the position that there was no negligence in the construction and it did not present any affirmative evidence to support a claim of negligence on the part of the subcontractor.   

We obtained summary judgment in a Section 1983 substantive due process claim involving a Philadelphia police officer. The officer had taken a photo of the plaintiff’s son after he attempted suicide by jumping off a bridge, and the photo was later circulated on social media. The plaintiff alleged that circulation of the photo violated her substantive due process privacy rights, and she also asserted a claim for intentional infliction of emotional distress. One week before trial began, the Honorable Mark Kearney, U.S. District Court for the Eastern District of Pennsylvania, held, although the plaintiff possessed a viable privacy right, that right was not clearly established at the time of the incident; therefore, the court granted qualified immunity to the officer. Additionally, the court held the plaintiff failed to present competent expert opinion evidence establishing her emotional distress and, therefore, dismissed the state tort claim for intentional infliction of emotional distress.   

We obtained a summary judgment dismissal on behalf of our client, a law firm, that was sued by its former clients for legal malpractice. The plaintiffs, seven affiliated companies and their owners in the business of developing property, had been sued by their bank for defaulting on multiple lines of credit. The bank filed several lawsuits against the property developers, claiming approximately $7 million in damages, plus attorneys’ fees, which were recoverable pursuant to the terms of the promissory notes. The property developers retained our client to defend the lawsuits, arguing the amounts claimed to be owed to the bank were significantly overstated. Our client vigorously defended the bank’s underlying lawsuits. Ultimately, the property developers settled the bank’s lawsuits for the entire amount owed, plus interest and the bank’s legal fees. The developers argued that its attorneys should have advised them to settle the bank’s claims after the lawsuits were commenced and that, had they done so, they would not have had to pay the bank’s legal fees ($825,000), our client’s legal fees ($485,000), expert witness fees ($335,000) or the additional interest on the loan. The property developers also claimed that not settling with the bank earlier caused them lost business opportunities valued at nearly $1 million. The plaintiffs’ legal malpractice claims were dismissed because their expert witness, a Maryland attorney with no business litigation experience, was not qualified to serve as an expert and because their damages claims were speculative.   

We won summary judgment before the Honorable Anthony Verwey in Chester County, PA. The plaintiff filed suit for breach of contract and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (PAUTPCPL) against the defendants over the installation of an allegedly defective storm water remediation system. Summary judgment was sought on the grounds that the plaintiff could not prove damages without an expert. The court entered judgment in favor of the defendants, finding the plaintiff’s breach of contract claim could not proceed without expert support and the PAUTPCPL claims failed for lack of demonstrated damages.

We secured a decision granting our motion to dismiss an attorney malpractice matter in Orange County, NY. The plaintiff and daughter of the co-defendants sued her parents and our client for breach of contract, breach of fiduciary duty denominated as promissory estoppel, and constructive trust and sought damages of $800,000. The co-defendants allegedly purchased a property for the plaintiff to live and work in and agreed to deed the property to the plaintiff once she paid the mortgage in full. Our client created a family trust naming the plaintiff as trustee, in which the property would be transferred to the plaintiff following the death of both parents. However, following a family dispute, the co-defendants replaced the plaintiff as trustee with our client. Upon the request of the co-defendants and in accordance with the terms of the trust, our client transferred the house to another beneficiary. We filed a motion to dismiss on all counts which the court granted in full.

We successfully defended on appeal the trial court’s grant of compulsory nonsuit in a legal malpractice action following the trial court’s rulings on various motions in limine. The trial court granted our clients’ motions in limine to preclude the plaintiff from introducing into evidence that its attorney sued the wrong parties, that its attorney obtained an uncollectable judgment, and that the plaintiff would have prevailed in a lawsuit against other parties. Following the motion in limine rulings, trial counsel moved for nonsuit—arguing the plaintiff could not carry its burden of proof without the precluded evidence. On appeal, the plaintiff argued the trial court’s evidentiary rulings violated the law of the case set forth in the Superior Court’s decision reversing the trial court’s order sustaining our clients’ preliminary objections and dismissing the amended complaint, and that the trial court erred in granting the motions in limine. The Superior Court rejected both arguments and affirmed the trial court’s denial of the plaintiff’s motion to remove compulsory nonsuit. 

We obtained a reversal in the Pennsylvania Superior Court of the trial court’s denial of preliminary objections to venue. We successfully moved in the trial court for certification of the ruling pursuant to Pa.R.A.P. 311(b) so that an immediate appeal from the interlocutory ruling could be taken, and we subsequently prevailed on appeal. The litigation arose from a helicopter accident that occurred in Afghanistan. Both plaintiffs, husband and wife, resided in Arizona. Our client is a Delaware corporation located in Bucks County, Pennsylvania, that refurbished the helicopter. The codefendant corporation leased the helicopter to the plaintiff-husband’s employer, which was organized and principally operates in Montana. The plaintiffs’ primary focus in seeking to establish venue was on our client and, in particular, on the fact that it purchased two fabric interiors from a Philadelphia vendor. The Superior Court determined that the business dealings of our client did not constitute actual business conducted in Philadelphia County. It stressed that “doing business with a Philadelphia County company does not amount to doing business in Philadelphia County if the obtained goods, services, or personnel are utilized elsewhere to further the defendant’s business activities.” As to the codefendant, the Superior Court concluded the limited venue evidence pointed to a separate but related corporate entity, and that the evidence failed to show the co-defendant regularly conducts business in Philadelphia County. Because there was no evidence to support the imputation of a separate entity’s contacts with Philadelphia on the co-defendant, venue as to the co-defendant was also improper.

We obtained summary judgment on behalf of two school districts in a matter brought by various plaintiffs against the Career and Technology Center of Lackawanna County (CTC) and four of its sending school districts. The plaintiffs had asserted claims under Title IX, the 14th Amendment, and Section 8542(b)(9) of the Pennsylvania Political Subdivision Tort Claims Act based on their sexual abuse by an automotive technology instructor at CTC. While permitting some claims to proceed against CTC, the court dismissed all claims against the sending school districts on the grounds that the plaintiffs failed to demonstrate that any individual at any of the defendant-school districts had actual knowledge of the automotive technology instructor’s conduct, and the instructor was not an employee, independent contractor or ostensible agent of any school district by virtue of his employment by CTC.

We recently obtained a “no cause” verdict in an employment case in the Superior Court of New Jersey. The plaintiff, an employee of a New Jersey State entity, asserted violations of the Contentious Employee Protection Act (CEPA). According to the plaintiff, after reporting purported deficiencies with an environmental permit, he was subject to a retaliatory and hostile work environment. We successfully argued that the plaintiff did not articulate a violation of law or public policy, nor did he prove that the various employment actions he received created a hostile work environment or were even caused by the alleged whistleblowing.

We successfully obtained dismissal of claims brought derivatively and directly by a corporation, including aiding and abetting breach of fiduciary duty and tortious interference with contract. The claims were brought against our client, an out of state attorney who previously represented the corporation and its former director. The Court granted the attorney’s Motion to Dismiss, concluding that the plaintiffs failed to sufficiently allege facts that would confer personal jurisdiction over the attorney under a conspiracy theory.

We successfully obtained dismissal of wrongful use of civil proceedings claims brought against our clients, two attorneys who were alleged to have wrongfully prosecuted a professional negligence claim against the plaintiff, a real estate agent. The plaintiff would not accept any settlement that was less than policy limits. After five years of litigation, the Court granted the attorney defendants’ summary judgment motion, concluding that the plaintiff failed to adduce facts that would reflect that the attorneys prosecuted the underlying action in a grossly negligent manner, or without probable cause. The Court also held that the plaintiff was unable to demonstrate that the underlying lawsuit was prosecuted for an improper purpose.

We obtained dismissal of wrongful use of civil proceedings claims brought against our clients, two attorneys who were alleged to have wrongfully prosecuted a professional negligence claim against the plaintiff, a real estate agent. The plaintiff would not accept any settlement that was less than policy limits. After five years of litigation, the court granted our summary judgment motion, concluding that the plaintiff failed to adduce facts that would reflect that the attorneys prosecuted the underlying action in a grossly negligent manner, or without probable cause. 

We obtained a defense verdict after a bench trial in the Philadelphia Court of Common Pleas, which found the plaintiff did not meet the definition of an insured entitled to underinsured motorist (UIM) coverage. The case arose out of a motor vehicle accident in which the plaintiff was a back seat passenger in a vehicle that was struck by the tortfeasor. After settling his bodily injury claim with the tortfeasor and with the underlying UIM carrier that insured the vehicle he was a passenger in, the plaintiff submitted a UIM claim seeking UIM benefits under his alleged sister’s UIM policy with our client. There was no dispute the plaintiff was living with his “sister” at the time of the accident. Therefore, the only issue was whether the plaintiff could show he was an insured and entitled to coverage by proving he was related to his “sister” by blood, adoption or marriage to meet the definition of a “family member” under the policy. She testified during discovery and at trial that she is not related to the plaintiff by blood, adoption or marriage. As a result of this testimony, the judge found the plaintiff failed to meet his burden of proof and entered a defense verdict for our client. 

In a case where we represented a child care center, a federal district judge from the Western District of Pennsylvania granted our motion to dismiss with prejudice. The plaintiffs were nine minority employees who were involuntarily furloughed in the fall of 2020. They filed suit, alleging their employment was terminated in violation of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Pennsylvania Human Relations Act, the Wage Payment and Collection Law, and Section 1981 of the Civil Rights Act. The court agreed with the arguments made by the center, finding that the plaintiffs’ class claims were not timely exhausted. The court disagreed with the plaintiffs’ arguments that their charges gave notice of their putative class claims because each charge only focused on the individual complainant’s alleged personal disparate treatment. The court also found that the plaintiffs were not entitled to equitable tolling as they did not exercise reasonable diligence in obtaining essential information bearing on their claim. Accordingly, the court dismissed the entire complaint with prejudice, finding no need to address the other bases for dismissal or the center’s request to strike the class action allegations. 

We were successful at the trial and appellate levels in a high-profile legal malpractice action. The Appellate Division’s decision came after a decade of litigation in various courts stemming from a judgment a multinational conglomerate obtained against the plaintiff and his partners in which litigation ensued over debt collection. The plaintiffs alleged the attorneys committed fraud and misrepresentation that led to the plaintiffs’ damages, which they claimed were well in excess of $10 million. We argued that the assignment agreement actually reduced the amount owed to the corporation and asked the court to dismiss the case, arguing that our client was protected by legal privilege, the statute of limitations had passed, and it had no legal duty to the plaintiff. The trial court agreed to dismiss the case, finding that the plaintiff’s claims were not supported by evidence. On appeal, the court upheld the decision, rejecting the plaintiff’s arguments. The Appellate Division found that our clients owed no duty to the plaintiff-debtors as non-clients since the attorneys’ alleged misrepresentations were made during adversarial litigation and, thus, were not intended to induce reasonable reliance by a specific non-client. This decision is extremely important to the trial bar and provides attorneys with a level of protection and immunity in connection with statements and arguments they make as adversaries in litigation.