Results

Defense award in a binding FINRA arbitration in Boca Raton, Florida on behalf of a broker-dealer. ​The broker-dealer was sued in arbitration by two retired broker claimants who sought $5 million in past and future benefits, under a retirement program that paid override fees to retired brokers on books of business they had developed decades ago.

We obtained dismissal of the plaintiff’s complaint and all cross claims against our client, a commercial plumbing contractor, on a motion for summary judgment in a construction defect case. ​The case involved claims by a homeowners association for property damage and replacement costs allegedly in excess of $6 million as a result of construction defects in the design and installation of plumbing, water collection, drainage, grading, and other water runoff and drainage systems. In addition to our client, the named defendants were the project architects, the general contractor, various plumbing, electric, concrete and grading trades, and the water and electric utilities, all of whom asserted cross claims. We were granted summary judgment on grounds that the plaintiff’s breach of contract claim failed due to lack of privity and proof that the plaintiff was not a third-party beneficiary of our subcontract. All claims and cross claims for negligent installation/breach of warranty were dismissed upon proof that our client’s work was performed in accord with project specs and in accord with the applicable building code, and that none of its work contributed to any drainage issues or resulting property damage.

We defended an insurance agency and agent in the Twelfth Appellate District of Ohio. The plaintiffs contacted the insurance agent to obtain insurance for two residential properties. The agent obtained the requisite information for the insurance applications from the plaintiffs, including their primary mailing address, a post office box address. The agent advised them that their only insurance option was through the Ohio Fair Plan (OFP), as neither property had been insured in the prior three years. The plaintiffs gave the agent a check for the premium. The agent explained that the OFP would inspect both properties prior to issuing coverage and that coverage would be cancelled if any required repairs were not made. The OFP sent a notice of cancellation to the post office box listed on the insurance application. It also sent a refund check to the agent. The plaintiffs claimed that they never received the notice of cancellation or the refund check. They sued OFP, the agent and insurance agency. After written briefs and oral argument, the court of appeals affirmed summary judgment in favor of the agent and agency on the grounds that there was no evidence that the agent represented to the plaintiffs that the property had insurance coverage prior to a fire at one of the properties. Further, although the plaintiffs claimed that they never received notice of cancellation, the insurance application indicated that they would be informed directly from the insurer whether or not coverage was going to be provided. Therefore, the agent was not required to inform the plaintiffs of the cancellation. The court also held that the plaintiffs failed to present any evidence the agent fraudulently concealed the refund check from them, even if they did not receive the check.

We obtained summary judgment in favor of a borough, its police chief, a detective, a lieutenant and a school resource officer in a civil rights lawsuit. ​The plaintiff, a local high school teacher, alleged that no probable cause existed to charge him with witness intimidation, arising from an alleged incident involving a female student who was a victim of institutional sexual assault by another teacher. In its opinion granting summary judgment, the court determined that the Affidavit of Probable Cause, which was the basis for charges against the plaintiff, was supported by the evidence at the time the affidavit was prepared. The court also held that, because no violation of Section 1983 existed, all claims against the individuals and the municipality must be dismissed. Finally, the court ruled that the individual defendants enjoyed qualified immunity because no constitutional violation existed.

The case involved a woman with significant cardiac problems who suffered cardiac arrest and death. Her estate alleged that our clients, a medical resident and an intern, improperly administered certain pharmaceuticals, leading to her death. The plaintiff originally named two physicians as experts, a cardiologist who was offered to testify to the standard of care, and a physician board certified in occupational medicine, medical toxicology and emergency medicine, who was initially named to give testimony on causation. Before deposition, the expert cardiologist withdrew, and the plaintiff did not obtain the services of another expert, choosing instead to attempt to proceed with the other expert providing both standard of care and causation testimony. The Appellate Division affirmed the decision of the trial court which dismissed the case, finding that because the expert did not devote the majority of his professional time in the year prior to the decedent’s death in a clinical practice that encompassed the medical condition or procedure at issue, he was not qualified under New Jersey law to offer standard of care testimony. As such, the dismissal of the complaint was affirmed.

We successfully defended a petition for permanent total disability benefits, supplemental benefits and penalties, interest, costs and attorneys fees. The judge entered a Final Compensation Order, finding the claimant was not permanently and totally disabled despite a substantial, but not exhaustive, job search. The judge found the claimant’s job search was not sufficient or reasonable in light of the totality of the circumstances, including her physical impairment, age, employment history, training, education, motivation, work experience, work record, and diligence to establish entitlement to permanent and total disability benefits. The judge held the testimony of the employer/carrier’s vocational experts was persuasive in his decision to deny PTD benefits, finding the claimant was employable with the assistance of vocational counseling.

We obtained summary judgment in favor of our insurance company client. The plaintiff sought UIM coverage from our client as a resident relative of the client’s named insured. The plaintiff was a named insured on another policy which provided UM/UIM coverage. The court granted our motion for summary judgment based upon an exclusion in the client’s policy that excluded UIM coverage for any family member if that family member is a named insured on another policy providing UM/UIM motorists coverage. The court found this exclusion to be clear and unambiguous and to reasonably inform the plaintiff that he was not entitled to UIM coverage under the policy. The court rejected the plaintiff’s argument that the exclusion was vague, ambiguous and unenforceable.

On the eve of trial, we obtained summary judgment for our attorney-client, dismissing a complex legal malpractice case in which damages were sought in connection with the underlying land transaction. ​This case included allegations that our client had multiple conflicts. The plaintiffs’ claim for damages included an allegation of $8 million in lost profits due to our client advising the plaintiffs to sell out of this business deal early, while another client of the attorney made $40 million in this deal! We were successful in obtaining dismissal by demonstrating that the plaintiffs’ experts could not prove their lost profit claim due to New Jersey’s New Business Rule and due to the fact that they could not prove any out-of-pocket damages in this case.

We successfully defended a Northeastern Pennsylvania manufacturing and supply company in an appeal involving high medical and indemnity exposure. ​The claimant suffered a shoulder strain while lifting at work. She returned to the job only to allege a recurrence of her shoulder disability shortly thereafter. She filed a reinstatement petition that was denied when the Workers’ Compensation Judge accepted our argument that the recurrence was due to a non-work-related motor vehicle accident. Thereafter, the claimant traveled to Florida and underwent cervical disc surgery. Nearly a year after the surgery, she filed a petition, alleging that the cervical disc herniation was caused by the original work injury and the neck surgery and resultant disability were work related. The judge found the cervical disc herniation was not caused, aggravated, accelerated or worsened by the work injury and the surgery was not payable. The claimant then filed an appeal to the Workers' Compensation Appeal Board, arguing that the judge disregarded substantial evidence of causation. The Board heard oral argument and ruled that the judge's ruling is free of error.

We successfully defended a Philadelphia-based university in an action by a local medical provider for submissions of compound cream medication. The provider submitted the medication to the carrier via three medical specialists from the same medical group. The first doctor submitted an expensive bill for the compound cream to the carrier for payment. A second doctor from the same office submitted another expensive bill for the same compound cream, allegedly based on an exam that took place on the same day as the first doctor’s exam. Then a physician’s assistant submitted an expensive bill for the same compound medication, allegedly arising out of an exam she had with the claimant on the same day as the first two doctors. The carrier refused payment of the bills and filed a Utilization Review Request against all three providers. The UR requests came back in the carrier’s favor, and the providers’ attorney filed a review petition to challenge the UR determinations. We defended the review by establishing that the providers illegally billed the carrier for exams that allegedly took place on the same day, resulting in the same medication being prescribed and submitted for payment three separate times by three separate practitioners. The judge found the medical providers not to be credible and upheld the UR determination in its entirety.

The order involved multiple petitions filed by a pro se claimant for compensability of contact dermatitis and concrete burns allegedly sustained while working. The judge ruled in favor of the employer on all petitions, finding compensability was previously resolved and the ongoing issues were moot. The judge denied and dismissed, with prejudice, claims for temporary total and temporary partial disability benefits, authorization of medical care, and all corresponding penalties and interest. Most significantly, the judge granted the employer's defense of medical non-compliance from March 21, 2017, present and found that the claimant required no further treatment for his work-related injury. The employer can recover taxable costs against the claimant pursuant to Florida Statute 440.34 as the prevailing party on all petitions.

Successfully defended a petition for permanent total disability benefits, supplemental benefits and penalties, interest, costs and attorneys fees. The judge entered a Final Compensation Order, finding the claimant was not permanently and totally disabled despite a substantial, but not exhaustive, job search. The judge found the claimant’s job search was not sufficient or reasonable in light of the totality of the circumstances, including her physical impairment, age, employment history, training, education, motivation, work experience, work record, and diligence to establish entitlement to permanent and total disability benefits. The judge held the testimony of the employer/carrier’s vocational experts were persuasive in his decision to deny permenant total disability benefits, finding the claimant was employable with the assistance of vocational counseling.    

We were granted partial summary judgment in a Labor Law case venued in the New York Supreme Court, Bronx County. The plaintiff was installing new floors in a large residential building in Manhattan that was owned by our client. The project involved a large-scale renovation of a penthouse and several lower levels. During the renovation, the plaintiff fell through an opening in the floor and sustained injuries to his knee and back. The plaintiff moved for summary judgment under New York Labor Law Section 240(1). We cross-moved for summary judgment, seeking a dismissal of all claims. Our expert concluded that the plaintiff could have avoided the accident and that proper safety equipment was provided. The court denied the plaintiff’s motion and granted our motion in part by dismissing the plaintiff’s Labor Law Section 200 claim and numerous 241(6) industrial code violations.

We prevailed on an appeal before the Appellate Division, Second Department, NYC, reversing a lower court order that denied summary judgment to our client, the owner of a movie theater. The plaintiff was a patron at the movie theater, where he got into a fight with another patron over a parking spot. The plaintiff sued the theater for negligent security. The defense was able to show that there was no notice to the theater because the incident was sudden and unexpected, based on the short duration of the altercation, and the lack of similar prior incidents at the theater. The appellate court granted summary judgment to the theater.  

We obtained a nonsuit in a dental malpractice action. The plaintiff alleged negligence against our client, a prosthodontist, for failing to properly place dental crowns and for negligently treating posterior bite collapse. At jury selection and day one of trial, the plaintiff’s counsel sought to withdraw from representation of the plaintiff, asserting that she terminated him the day before as there was a breakdown in the relationship. A continuance of trial was sought. We opposed the continuance and moved for nonsuit on the basis that the plaintiff was not ready for trial and did not have a sufficient excuse. The court granted our request for nonsuit and dismissed the plaintiff’s claims.

We obtained summary judgment in the Supreme Court of Rockland County, New York. The plaintiff slipped and fell while walking to her mailbox during a severe winter storm in January 2016. The plaintiff initiated a lawsuit against her homeowners association and its snow removal contractor. We moved for summary judgment on behalf of the defendants, asserting that the plaintiff’s claim was barred by the storm-in-progress doctrine. In opposition to our motion, the plaintiff alleged the defendants failed to adequately salt the premises, that the defendants were aware of the icy conditions, and that the storm had ended prior to the plaintiff’s accident. In granting the defendants’ motion for summary judgment, the court found the defendants established that there was a storm in progress at the time of the plaintiff’s accident and that their efforts to prevent ice accumulation and remove snow did not create a hazardous condition. According to the court, the plaintiff’s testimony was self-serving, contradictory and a feigned attempt to create a material issue of fact as to when the storm came to an end.

We received a defense verdict on no causation in a binding arbitration of a matter venued in Montour County, Pennsylvania, involving a bowel leak following urologic cancer surgery. We represented a Pennsylvania health system and its chief of urology who performed major cancer surgery upon the plaintiff (cystoprostatectomy and creation of ileal conduit). The plaintiff was discharged once his bowel function was returning and he was tolerating a normal diet, despite a slightly elevated temperature and white blood cell count (neither of which had the residents informed the attending physician about). Over the next two days, the plaintiff’s wife made multiple calls to the on-call residents, who did not feel readmission was warranted. Ultimately, he was readmitted, underwent a second surgery and then suffered more complications, likely due in part to poor blood supply to the bowel from years of heavy smoking. The defense team, through motions, secured the dismissal of corporate negligence and future medical expense claims and, through internet research, found that the plaintiff’s expert had previously been precluded from testifying by a court in Ohio for “making up facts.” Challenges in the case included that the attending surgeon readily admitted that the patient should have been readmitted sooner. However, he maintained that the outcome would have been no different. The arbitrator found his testimony credible and found no negligence on his part. 

The parties had filed cross-motions for summary judgment. The issue for the court was whether the carrier had breached the terms of the policy when it denied the plaintiff’s first-party benefits claim relating to medical bills for PTSD allegedly caused by the underlying accident. The policy defined “bodily injury” as “accidental bodily harm to a person, and that person’s resulting illness, disease or death.” The plaintiff argued that, because she had sustained both physical and mental injuries as a result of the accident, the treatment related to both types of injuries and should be covered. The defense argued that, per the policy and controlling case law, mental injuries are only covered if they “result from” the physical injury. Because the PTSD stemmed from the plaintiff’s fear of driving following the accident—as opposed to mental injuries that resulted directly from the physical injuries—the defense asserted that they are not covered. The court agreed with the defense and found that the language of the policy was clear and unambiguous. It found that the Superior Court’s holding in Zerr v. Erie Ins. Exchange controlled and that the plaintiff had failed to provide evidence that her mental injuries resulted from her bodily injuries. Absent that connection, there was no coverage for the PTSD, regardless of any collateral physical injuries sustained in the accident.

We obtained summary judgment in a legal malpractice action in Lancaster County. We represented a law firm in the defense of legal malpractice cross-claims arising during underlying litigation. The plaintiff, an environmental consulting company, sued landowners for allegedly withholding information relevant to the clean-up of gasoline spill(s) on the landowners’ property. The landowners sued their attorneys, our clients, claiming that any liability on their part was due to malpractice committed in negotiating the contract between the landowners and the consultant. We successfully argued on summary judgment that the consulting company knew or should have known the allegedly withheld information years earlier, based largely on testimony obtained during the plaintiff’s deposition. The court agreed, dismissing not only the legal malpractice claims due to lack of causation, but also the consulting company’s claims against its former clients on the basis of the statute of limitations.

We obtained the dismissal of a legal malpractice/fraud action brought by a nursing home against an attorney who represented a patient and who assisted the patient in the admission process. The owners of the nursing home claimed the attorney misrepresented his client’s assets in the application and that the nursing/assisted living facility relied on that representation in admitting the patient. However, the patient had previously filed an action against the nursing home for consumer fraud, and that case was still pending when the nursing home filed the legal malpractice/fraud action against the patient’s attorney. The defense argued that the legal malpractice/fraud action was barred under New Jersey’s Entire Controversy Doctrine. The court agreed and dismissed the legal malpractice action, with prejudice.

In a case centered around a marijuana gummy bear, we used a violation of law defense to successfully defend a national can manufacturer in the litigation of a reinstatement petition. The claimant sustained an uncontested crush injury to his foot, which required amputation of one of his toes. The claimant returned to work to his pre-injury job and, sometime later, tested positive for marijuana during a routine employee drug screen. The claimant was discharged for cause thereafter. The claimant filed a reinstatement petition, alleging his total disability arising from his crush injury returned—his treating doctor opined that his work-related condition worsened immediately after his discharge, such that the claimant could no longer perform his duties. The defense cross-examined the claimant’s medical expert, exposing the fact that his diagnoses were unrelated to the accepted work injury. Fact witnesses supported the discharge-for-cause based on the drug violation. The claimant alleged that the marijuana gummy bear was given to him by a friend and that he used it to medicate due to his work injury. He further alleged that he was unaware of the company drug policy. The defense submitted evidence proving the claimant was made aware of the drug policy as contained in the company handbook. The Workers’ Compensation Judge ruled that the claimant was discharged for cause and that the expert testimony of the claimant’s medical witness was not credible. The reinstatement petition was denied.         

We obtained summary judgment in a wrongful death case arising from an alleged drowning in a whirlpool at a spa. The decedent, a 73-year-old woman, was found unresponsive by a lifeguard in the client’s whirlpool. There was no evidence as to how long the decedent had been submerged in the hot tub before she was found. The Medical Examiner conducted an autopsy and listed the decedent’s primary cause of death as hypertensive and arteriosclerotic cardiovascular disease, with cardiomegaly. Drowning was listed as a significant contributing factor. The plaintiff argued that our client was negligent by positioning the lifeguard in such a manner that the lifeguard would not have a direct line of sight to the bottom of the whirlpool from the lifeguard station, and that, had the plaintiff been discovered earlier, she could have been resuscitated. The defense produced an expert liability report stating that the client was in compliance with all applicable codes and standards. The defense also presented an expert medical report from a cardiologist who opined that the plaintiff suffered sudden cardiac death and could not have been resuscitated. Plaintiff’s counsel relied upon the Medical Examiner’s conclusions to prove medical causation and did not serve a liability report. Without reaching the issue of liability, the court found that the plaintiff did not meet the burden of proof on medical causation. The plaintiff could not simply rely upon the Medical Examiner’s conclusions as to the cause of death as he is not an expert in cardiology.

We successfully defended a national home improvement store in the litigation of a claim petition. The petitioner alleged that as a result of his employment at the retailer, he developed back problems and was in need of medical treatment. The defense was able to call into question the petitioner's credibility, as well as that of the petitioner's expert doctor. The judge found that the petitioner did not sustain the burden of proof. Therefore, both the motion for medical and temporary benefits and the claim petition were dismissed, with prejudice.

We obtained summary judgment in the Passaic County Superior Court of New Jersey on behalf of a non-profit shelter for battered women. The plaintiff, who was staying at the shelter at the time of her alleged incident, accused the shelter of negligence with regard to removing snow and ice from their parking lot. The plaintiff attempted to argue that she was not a “beneficiary” of the shelter but was a volunteer, who was not required to help but who chose to work at the shelter in exchange for room and board. Defense counsel successfully argued that the defendant was a qualified non-profit organization and that the plaintiff was clearly benefiting from the non-profit at the time of her incident. Therefore, the plaintiff’s claims were barred under the New Jersey Charitable Immunity doctrine.

Obtained a defense verdict after a three-day trial in Philadelphia County in favor of an automobile manufacturer. The plaintiffs claimed their new truck was purchased with a defect in the truck’s paint called “rail dust.” The plaintiff asserted claims under the Pennsylvania Lemon Law, Magnuson Moss Warranty Act, and Unfair Trade Practices and Consumer Protection law that the “rail dust” either occurred in the manufacturing process or during transportation of the truck by the manufacturer to the dealership. The defense proved through witnesses and expert testimony that the truck was inspected several times during the transportation process by third-party inspectors. Additionally, the vehicle arrived at the dealership and was inspected again, with no problems found. Both the plaintiff and his son inspected the vehicle prior to purchase, and neither of them saw any problems with the vehicle. It was not until the truck was in the plaintiff’s possession for one month when the first spots of “rail dust” were discovered.

Marshall Dennehey's health care attorneys obtained a defense verdict on behalf of a midwife in a case involving alleged failure to properly manage and care for a patient’s labor and delivery, resulting in catastrophic injury to her child. Counsel for the minor-plaintiff argued that the pregnancy and labor were high risk. Therefore, it was below the standard of care to use intermittent auscultation (IA) during the second stage of labor. The plaintiff argued that the fetus suffered a catastrophic brain injury during the second stage of labor, resulting in cerebral palsy and daily intractable seizures. The child is six years of age, wheelchair bound, unable to speak or feed himself, and will require lifetime supervision and care. The defense argued that the patient’s pregnancy remained low risk; that IA was within the standard of care; a sentinel event did not occur during the second stage of labor; and that the child’s brain injury occurred in the days leading up to the hospital admission for labor. 

We obtained summary judgment in a putative class action lawsuit in the Eastern District of Pennsylvania on behalf of a large insurer. The case dealt with a letter the insurance carrier would send to their insureds following a motor vehicle accident in which they advised their insureds that they would have a rental vehicle for five days. The named plaintiffs argued the letter misrepresented the policy language and they sued for breach of contract, bad faith, declaratory judgment and equitable relief. Per the insurer’s request, the court agreed to stay class action discovery so that the insurer could file a dispositive motion as to the named plaintiffs, which, if granted, would dispose of the entire putative class action case. In its motion for summary judgment, the insurer argued that the named plaintiffs could not meet their individual burdens of proof since it was undisputed they had a rental vehicle for 23 days and had returned the rental the same day they picked up their newly purchased vehicle. The court agreed and granted the insurer’s motion for summary judgment in its entirety and dismissed the action. The court reasoned, in part, that the named plaintiffs’ alleged damages were speculative and that issuance of the rental letter did not constitute a breach of the policy since the plaintiffs could not show that they were not afforded benefits to which they were entitled.

Obtained a defense verdict on behalf of a supermarket in a premises liability case in the Court of Common Pleas of Cumberland County, Pennsylvania. The plaintiff claimed that she was injured when her hand was trapped in a deli case door that was closed by an inattentive employee. She claimed that in an attempt to free her hand from the deli case, she suffered an injury to her shoulder and her neck. MRI scans after the incident did show degenerative disc disease in her neck, as well as multiple herniated discs. Her treating orthopedic surgeon attributed the injuries to the incident in question and recommended a cervical fusion. Through investigation, we learned that the plaintiff had filed a lawsuit in New York as a result of a fall in 2007. We obtained a transcript of the plaintiff’s deposition from the prior lawsuit, which indicated that her treating physician in the New York case had recommended the same health care procedures that had been recommended after this incident. The jury did find the employee who closed the deli case door on the plaintiff’s hand to be negligent. The jury also found that the plaintiff was negligent in sticking her hand in the area of an open deli case and that the plaintiff’s negligence outweighed the defendant’s negligence, barring her recovery. 

Our appellate attorneys were retained shortly before trial. While driving our client’s truck, an employee struck a car from behind that had stopped in the middle of the road after its hood flew open. The collision injured three members of a family and killed a six-year-old child. The Superior Court vacated the judgment and remanded for a new trial on the basis that the trial judge had improperly granted summary judgment to several vehicle repair shops, all of whom knew of but failed to repair the condition that made the car’s hood fly open.

We successfully defended a nationally renowned canning and food corporation headquartered in Pennsylvania. The claimant alleged that she sustained an injury to her upper extremities due to repetitive motion at work. She described her duties to include placing slices of cheese on sandwiches and hand-making pizza in an assembly line, which she alleged led to her injuries. The claimant’s medical expert testified that he was told the job duties involved working with jars of mushrooms, repetitively causing the claimant’s injuries. On cross examination, this expert was pinned down as to the mechanics of the claimant’s job duties. The defense then presented fact witness testimony confirming that the claimant did not use her upper extremities at all in performing job duties—contradicting the claimant’s testimony and the expert’s testimony. The Workers’ Compensation Judge concluded that the claimant did not use her upper extremities repetitively at work and dismissed the claim.