Results

We received a favorable decision from the Philadelphia County Court of Common Pleas Commerce Program. Our motion to strike the plaintiffs’ class action certification was granted, effectively dismissing the plaintiffs’ attempts at a class action lawsuit against a transportation authority.

The lawsuit involved claims of child abuse committed by a pastor that occurred during church-based camp activities. We obtained a dismissal of all counts for abuse filed by all plaintiffs against our client, one of the church defendants. Our client did not employ the pastor when the abuse occurred and had no knowledge of the claims asserted.

We obtained a defense verdict in a two-week jury trial in Middlesex County, New Jersey, in a case against a tavern alleged to have violated the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (aka The Dram Shop Act). The plaintiff claimed the bar violated the Act by serving a patron—a settled co-defendant—alcohol while he was visibly intoxicated, resulting in that patron driving drunk and colliding with the plaintiff’s vehicle. The plaintiff suffered significant injuries to her neck, requiring two cervical fusion surgeries. Police were unable to obtain objective proof of the patron’s blood alcohol concentration (BAC) via a blood sample or breathalyzer. The tavern had no record of the patron, who paid cash for his beverages, and first learned of the accident upon being served with a complaint more than nine months later.  At trial, the plaintiff relied on the patron’s deposition testimony as to the timing of three different drinks he consumed at the bar, as well as a toxicology expert, to prove liability. The expert, in providing an opinion as to what the patron’s BAC would have been “while at or when leaving the bar,” used a dose reconstruction methodology based upon the patron’s testimony. However, on cross-examination, we were able to establish that the expert’s calculations of the amount of pure alcohol ingested by the patron were erroneous and unreliable and that the expert never provided an opinion as to whether the patron was visibly intoxicated at the time of service—the key issue in any Dram Shop case.  We also presented a credible toxicology expert on behalf of the defendant, who provided the jury a visual timeline of events to demonstrate that at the time the patron was last served alcohol (more than an hour before the accident), his BAC would have been well below the .15 threshold whereby most people would show visible signs of intoxication. We further argued that, despite any sympathy the jury may feel for the plaintiff, she failed to meet her burden of proving that the patron was exhibiting “clear signs of intoxication” at the time of service, as required by the statute. The jury agreed.  

We convinced the Commonwealth Court to affirm a workers’ compensation judge’s decision. The judge had denied the claimant’s petition to review a Utilization Review (UR) determination and rejected the claimant’s argument that the judge was barred from ruling on UR petitions by the rules of collateral estoppel and issue preclusion.

We persuaded the Pennsylvania Supreme Court to deny a claimant’s petition for allowance of appeal. In this workers’ compensation matter, the claimant challenged the constitutionality of Act 111 and its Impairment Rating Evaluation (IRE) provisions.

In a case that was closely watched by other Public Housing Authorities (PHAs), we obtained a defense verdict after a six-day jury trial in the U.S. District Court for the Southern District of Ohio where we defended a PHA accused of discrimination against disabled persons under the ADA and FHA.  The dispute surrounded the PHA’s failure to apply to the U.S. Dept. of Housing and Urban Development (HUD) for Veterans Affairs Supportive Housing (VASH) vouchers as requested by a developer. The plaintiff claimed that the PHA arbitrarily, capriciously, intentionally, and based on discriminatory animus blocked funding and financing for 60 units of affordable housing for veterans, most of whom were disabled, which stood in violation of the ADA and the Fair Housing Act of 1968 (FHA). For background, the PHA’s administrative plan required it to issue a RFP. The developer argued the PHA should have amended its administrative plan to allow it to choose a developer and that the PHA’s refusal to apply for VASH vouchers on the developer’s behalf was discrimination against disabled persons under the ADA and FHA.  In defense of the allegations we argued: The developer never claimed to be acting on behalf of disabled persons; the only request was for a letter of intent, which the PHA could not submit since it would have violated its Administrative Plan and federal regulations; and the request was not necessary to enable disabled persons equal access since the PHA’s decision had the same effect on non-disabled persons. The jury unanimously agreed that the plaintiff developer failed to prove all the necessary prima facie elements of discrimination and issued a verdict for the defendant Housing Authority.   

The claims arose from the alleged occurrence of an unrecognized left tibial/medial plantar nerve injury during left ankle deltoid ligament reconstruction. Despite challenging liability issues the defense was able to significantly discredit the plaintiff at her videotaped discovery deposition based on the findings of an extensive pre-suit investigation. After testifying to having no criminal history, the plaintiff was confronted with multiple guilty pleas for writing bad checks. Also, we were able to get the plaintiff to admit that she had asked a subsequent treating orthopedic surgeon to change his documentation in the records to enhance her lawsuit. Further, we established that much of the plaintiff’s testimony was inconsistent with the medical record documentation. Finally, although the plaintiff certainly has a component of nerve damage in her left foot, we elicited favorable testimony on damages, which suggested that the primary cause of her pain and debility was unrelated and due to preexisting mechanical conditions. The plaintiff’s demand pre-deposition was $450,000; we resolved the case after the deposition for a de minimus payment of $30,000.

The plaintiff brought a professional negligence claim against our client arising from the firm’s representation of the plaintiff in a lease agreement dispute. After the deadlines passed for the completion of discovery and the production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument, that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report but failed to act with due diligence and could not substantiate each element of its claim without an expert report. True Railroad Realty v. McNees Wallace and Nurick, LLC, _ A.3d _, 2022 PA Super 70 (April 19, 2022).

A FINRA arbitration panel recommended the expungement of a customer complaint from a financial advisor’s public record.  The complaint involved an allegedly unsuitable sale of an equity indexed annuity with a nine-year surrender period.  

We successfully defended an appeal of a trial court grant of summary judgment in favor of a nail salon in a slip-and-fall case. The plaintiff alleged she fell in an untreated wet area inside the salon on a rainy day. However, the plaintiff failed to produce any evidence about the source of the “wet area,” or that the salon had actual or constructive knowledge of the wet area prior to the plaintiff’s fall. The trial court granted summary judgment in favor of the salon and the Ohio Court of Appeals affirmed that decision.

The plaintiff’s decedent was shot and killed while allegedly on his way home from school. We  were able to prove that the young man was a trespasser on the common area of the property where he was shot, even though his aunt was a tenant in the apartment complex. The decedent’s family claimed he was on his way to see her. Our investigation revealed that he was connected to local gangs and that, at the time of his shooting, he was wearing a ski mask (in Florida) and carrying a hand gun.

We prevailed on a lengthy case on behalf of a trash collection company. The case involved testimony from seven employer witnesses, in addition to medical expert testimony. We successfully defended all petitions pertaining to the claim, including review and penalty petitions. This high-exposure case—the claimant had an average weekly wage of $2,846 with a maximum compensation rate—was the result of the claimant being terminated for failure to timely report a work-related injury as per company policy.

The applicant, a major medical provider, filed joint arbitration matters in the aggregate amount of $46,095.41, claiming our client owed it for the claimant’s unpaid medical bills. The claimant had been involved in a motor vehicle accident and sought payment for medical treatment. Counsel for the medical provider argued that the original denial basis was insufficient to deny the payment of the claims. However, after our successful argument at the arbitration hearing, our client’s policy of insurance was found to be completely and properly exhausted. Therefore, the arbitrator found in full favor of our client and denied the applicant’s entire claim, on both matters.

During early morning hours, a vehicle was observed by police officers driving straight through a turning lane. The officers attempted a traffic stop, but the driver took off and led police onto an interstate highway. A high-speed pursuit ensued, reaching speeds in excess of 115 mph. The plaintiff was a passenger in the vehicle. Due to the high speed and an upcoming construction zone, officers broke off the chase. The driver attempted to exit the interstate via an off ramp, but turned too fast and crashed. Although the driver died on impact, the plaintiff-passenger was thrown from the rear of the vehicle and wedged under the dashboard. The plaintiff sued several municipalities under a negligence theory. Following discovery, Mark filed motion for summary judgment on behalf of our client, arguing that the plaintiff’s claim was barred and the township was immune from suit pursuant to the Pennsylvania Political Subdivision Tort Claims Act. Following oral argument, the court granted our motion.

The plaintiff, a part-time police officer, alleged that she told her Police Chief that she believed the hiring/promotions of three male police officers to full-time positions were illegal. After that meeting, the plaintiff claimed she was not assigned to higher-paying assignments like the male police officers in the department. She sued the borough and the police chief for First Amendment retaliation under Section 1983, and gender-based discrimination and retaliation pursuant to Title VII of the Civil Rights Act, and the Pennsylvania Human Relations Act. Following a six-day trial and five hours of deliberation, the jury returned a complete defense verdict on all counts against both defendants.

The plaintiff alleged that a physician in the Lehigh County jail failed to properly treat his chronic back pain, and that the physician exhibited a deliberate indifference to his serious medical needs. Specifically, the plaintiff contended that he should have received a spinal cord stimulator during his incarceration. After two days of testimony, the jury returned a defense verdict, agreeing with the defense’s position that the physician did not exhibit a deliberate indifference to the plaintiff’s serious medical needs.

We effectively shut down a Maryland Insurance Department investigation of a life insurance agent who was the subject of a customer complaint. The complaint alleged the agent oversold life insurance to a couple who contended the amount of insurance was excessive, unsuitable and unnecessary. We were able to demonstrate to the regulators that the agent did a thorough job in explaining the need and purpose for the coverage, and that the couple could afford the coverage and actually drove the decision to purchase the coverage, only changing their mind later, after the client was criticized by a subsequent insurance agent. We also defeated a Certified Financial Planner Board investigation involving the same matter. 

We successfully argued for the dismissal of an action in Wyoming County on a matter involving the sale by an agent of a number of mutual funds (with IRA retirement funds). In this case, the plaintiff contended the mutual funds were excessive and unsuitable. We convinced the trial court judge that plaintiff’s counsel’s lack of activity for several years on the case, and his failure to respond to long-outstanding discovery, warranted dismissal of the lawsuit.

The plaintiff fell while walking and sued the owners of the property and York City, alleging the City was negligent in failing to maintain the sidewalk and in failing to inspect, correct or repair it. The defense argued that the plaintiff did not establish that York had any actual or constructive notice of the alleged defect, and that the plaintiff failed to meet her burden under the sidewalks exception to the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541, et seq.

We obtained a directed verdict in a medical malpractice case after successfully challenging the plaintiff’s nursing expert’s qualifications to render standard of care opinions against a certified emergency nurse. The plaintiff, a 61-year-old female with an undisclosed history of seizures, returned to the emergency department with complaints of nausea, vomiting and abdominal pain. While she was being worked up, she got out of bed without calling for assistance, had a seizure and fell face forward. She sustained a subarachnoid hemorrhage and subdural hygromas.

We were successful in having a case dismissed on summary judgment in Brooklyn, New York. The plaintiff was a ticket agent for an international airline at LaGuardia airport. Our client was the cleaning service for the airport terminal. The plaintiff claimed she tripped and fell over a “worn/torn defective” floor mat behind the ticket counter. Depositions of the defendant indicated that they did not own, control, maintain or supervise the mats behind the airlines’ ticket counter. Summary judgment was filed in 2020. After two lengthy oral arguments in February 2022, the court granted the defendant’s motion for summary judgment, dismissing the action.

The arbitration panel found in favor of the defendant in a motor vehicle accident case where the plaintiff was driving a dump truck and claimed he was side-swiped by a tractor-trailer. The plaintiff filed suit against the driver of the tractor-trailer and his employer, both of whom were represented by Marshall Dennehey. It was the defendants’ position that the plaintiff was not side-swiped, but that the plaintiff actually rear-ended the tractor-trailer because he was going too fast to stop as the tractor-trailer moved from the right lane into the left lane. At the arbitration, plaintiff’s counsel attempted to introduce photographs that were not produced in discovery and were only shown by the plaintiff to his attorney the morning of the arbitration. Plaintiff’s counsel also attempted to enter into evidence the police report. We were successful in getting both items of evidence precluded. The key piece of evidence was that the plaintiff admitted, both in his written responses to discovery and during his testimony, that he first noticed the defendant’s vehicle merging into his lane when the defendant’s vehicle was 30-40 feet ahead of him.

We successfully prosecuted a termination petition and at the same time defended a review petition on behalf of a Berks County mushroom facility in a falling object case. The claimant sustained a strain injury to his neck when he was struck by a stack of falling mushroom baskets at work. Although the baskets only grazed one side of his head and neck, the claimant alleged that his opposite shoulder was injured in the accident to the extent of a fully torn rotator cuff tendon. The claimant also alleged that a calcified longitudinal ligament in his neck was also caused by this accident, resulting in surgery and disability. We convinced the court that the only injury sustained during the incident was a neck strain that fully recovered—all other alleged injuries were found not to be work related.

We obtained summary judgment in a legal malpractice matter where the underlying case concerned a matrimonial representation in a highly contested divorce. In the underlying matter, our clients represented the wife in a contentious divorce from her attorney husband.  At all times, our clients advised the wife regarding litigation strategy and the disputes concerning discovery and failure to provide documents, which delayed the matrimonial case even further. At all times, our clients aggressively represented the wife and retained competent experts to evaluate the husband’s law practice for purposes of equitable distribution. When the wife terminated the representation by our clients, they advised the wife of the risks of settling the case with her husband (an attorney) without counsel present (the advice was not heeded by the wife in the settlement of the claims). We were successful in arguing that our  clients did not deviate from the standard of care and represented the wife adequately up until the point of termination of the representation. This was potentially a multi-million-dollar case based on the size of the marital estate, and the judge granted summary judgment on behalf of the attorney defendants.

We obtained a unanimous defense verdict after a nine-week trial in Suffolk County, New York, where the plaintiff’s counsel requested that the jury award $40 million in damages. The plaintiff was 51 years old when she was diagnosed with peritoneal mesothelioma, allegedly as a result of being exposed to asbestos-containing joint compound manufactured and sold by our client. The plaintiff, who was 56 at the time of trial, testified that she had little or no knowledge of ever being exposed to asbestos. However, her older sister, who served as the only product identification witness at trial, testified that she recalled that their father used asbestos-containing joint compound on two occasions, approximately 50 years ago, when he repaired their home after a fire in 1970 and when he built a home in Florida around 1975. The plaintiff was five years old during the alleged exposures, and her sister was seven years older. The plaintiff’s sister testified that she had a vivid memory of her father using six different joint compounds during the two projects, including our client’s product. She also testified that the plaintiff was present hundreds of times when their father mixed, applied and sanded the joint compound. At trial, we called an industrial hygienist, a toxicologist and an epidemiologist, who testified that the type of asbestos fiber used in our client’s joint compound did not cause or contribute to her mesothelioma because the fibers are too short and do not cause disease. Our epidemiologist testified that the plaintiff’s mesothelioma developed spontaneously and was not the result of asbestos exposure. We also called a construction expert, who testified that the sister’s testimony regarding the amount of joint compound used and the time the sister was exposed were excessive. The jury deliberated an hour before returning the verdict. Post-trial comments from jurors indicated they did not find the sister to be credible.

After suffering severe brain damage in a motor vehicle accident, the plaintiff brought claims of negligence and recklessness against our restaurant client and other various defendants, including the owners and operator of the offending vehicle, who was charged with multiple criminal offenses (still pending) for operating under the influence. On behalf of our client, cross-claims were asserted for contribution and indemnification. The co-defendants first requested revision of the cross-claims, which were complied with, and then moved to strike the cross-claims as not recognized under Connecticut law. We argued, on behalf of the restaurant and sole proprietor owner, that there was a minority view of Superior Court cases of more recent vintage than that cited by the co-defendants’ counsel which supported such cross-claims. We submitted that the rationale behind these cases includes the plain language interpretation that Connecticut General Statutes Sec. 52-572h(c) does not prohibit a defendant from acquiring an apportionment evaluation of another (already named) party’s negligence. We argued this is particularly so under the circumstances of a criminally charged co-defendant operating under the influence as the final conduct in the negligence timeline. The Stamford Superior Court agreed that prohibiting the cross-claims would be absurd, irrational and nonsensical. 

The plaintiff claimed that our client, an orthopedic surgeon, was negligent (directly or circumstantially under a theory of res ipsa loquitur) in causing a right common peroneal nerve injury during a L4-5 laminectomy and posterior spinal fusion. The plaintiff sought to prove that the peroneal nerve injury was the result of improper positioning and/or monitoring of the plaintiff intra-operatively. Our defense was that the plaintiff’s peroneal nerve condition was indicative of a spontaneous entrapment unrelated to the allegations of negligence, and for which she was predisposed due to a prior total knee replacement. The arbitrator agreed and returned a finding of no negligence.

In this civil rights litigation, we obtained summary judgment and the dismissal of all claims against a Pennsylvania City and one of its police officers. The court found that the traffic stop of the plaintiff was proper and did not violate his constitutional rights. The plaintiff filed a federal civil rights action against the police officer and the City, alleging that his Fourth Amendment rights were violated because of unlawful search and seizure as well as a malicious prosecution. The plaintiff further alleged that the City was liable for the constitutional violation based upon a failure to train its officers. These claims were based, in part, upon the Pennsylvania Supreme Court decision in Commonwealth v. Hicks, which was filed approximately two months before the plaintiff’s arrest. In this civil rights case, the parties agree to forego discovery and instead rely solely upon the record developed in the plaintiff’s state criminal prosecution. After considering the record evidence, the arguments of each side, and the motions and briefs submitted, the District Court issued an opinion finding that the police officer possessed a reasonable suspicion of criminal activity, justifying the traffic stop of the plaintiff’s vehicle. Because the court concluded that the plaintiff’s constitutional rights had not been violated, an analysis of qualified immunity was unnecessary. Finally, after finding that the officer did not violate the plaintiff’s constitutional rights, the court dismissed the Monell claims raised against the City.

Despite dueling expert affidavits, Marshall Dennehey attorneys won summary judgment in a premises matter in the Connecticut Superior Court Middlesex Judicial District. The plaintiff claimed negligence against our client, a mattress retailer, for a hazardous and defective condition in the store. The defect alleged was a tile-carpet transition claimed to be approximately one-half of an inch in differential, as well as a “slope” in the continuing carpet that created a friction co-efficient that caused the plaintiff to fall. We submitted an affidavit from the store owner (whom the plaintiff waived deposing), an affidavit from an engineering expert, photographs from the site inspection, and a detailed memorandum of law outlining Connecticut law on constructive and actual notice. Our engineering expert had researched the history of the premises at the Town Clerk for the time prior to our client’s occupation (eight months leading up to the incident) and observed there were no claims, complaints or code infractions relative to the alleged condition. In other words, our client inherited the premises as is and, although responsible for the floor per the terms of the lease, had no reason or cause to repair anything or to take any corrective action. Our client’s affidavit attested that both he and his customers traversed over the “defect” countless times without feeling, observing, noticing or detecting anything foreseeably dangerous. Moreover, we asserted that because the plaintiff’s expert failed to bring up any mention of a government regulation, code, industry standard or custom that was deviated from with respect to the carpet-tile transition and premises, the expert’s affidavit was tantamount to no affidavit at all. The court granted our summary judgment motion and dismissed the case.

We won a total controvert on a workers’ compensation exposure claim and successfully defended a denial. The claimant alleged exposure to a toxic airplane paint thinner at a plant in Kentucky in December of 2019. He was a subcontractor of the airplane manufacturer, but a Florida employee. The claimant complained of breathing issues and skin rashes. He sought treatment at an emergency room in Kentucky on the date of alleged exposure ,and again approximately 10 months later for skin rashes. However, the claimant was able to continue working without any wage loss the entire time. The employer/carrier denied and defended on the basis that the claimant could not prove causation by clear and convincing evidence pursuant to F.S. 440.02. The claimant obtained an IME, which opined that his breathing issues could be attributable to the alleged exposure, but that the rashes most likely were not. The claimant’s IME physician opined that the claimant needed to undergo additional testing to determine causation. The employer/carrier’s IME opined that the major contributing cause of the claimant’s rashes and breathing issues was not the alleged exposure. The Judge of Compensation Claims accepted the employer/carrier’s IME and held that the claimant failed to prove that a workplace chemical exposure was the major contributing cause of his complaints.