Results

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 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 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.

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 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 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.

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.

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.

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 obtained a defense verdict in a jury trial in Pennsylvania. The defendant was walking her Labrador Retriever, along with her five-year-old cousin. She entrusted the leash to her cousin, who promptly lost grip on the leash, allowing the dog to escape. The dog ran in the direction of the plaintiff and his Shih Tzu, with the defendant in pursuit. The plaintiff claimed that the Labrador Retriever jumped on his chest, knocking him to the ground and causing compression fractures in his lumbar spine. The injuries were confirmed by the defense IME. The defendant, on the other hand, claimed that she was able to regain control of the retriever before any contact with the plaintiff, and she testified that the plaintiff lost his balance and fell after becoming entangled in his own dog’s leash. The defense argued that the plaintiff’s injuries were the result of his failure to maintain control over his own dog, not because of negligence on the part of the defendant. The jury accepted the defendant’s version of the event and found in her favor.  

We obtained a defense verdict after a three-day trial in Philadelphia County in favor of a regional automobile franchise. The plaintiffs purchased a used 2011 Chevrolet Cruze from the defendant. They then claimed that their vehicle was purchased with the undisclosed fact that it had been involved in a flood. They asserted claims under the Unfair Trade Practices and Consumer Protection Law that the vehicle’s prior history was not identified and the vehicle was sold having mud, rust and dirt all over the car. The defense proved, through witness and expert testimony, that the plaintiffs drove the vehicle through high water and mud after purchase, causing the vehicle’s damage. 

We argued successfully before the Pennsylvania Superior Court on behalf of a commercial real estate developer. The case involved a probation officer who fell and badly injured himself during a blizzard. The demand was in excess of $4 million. In its decision that reaffirms the “Hills and Ridges Doctrine,” the court reiterated our argument that, in essence, our client had no duty to remove snow and ice while it was still snowing. The court went further and held that no landowner has a duty to “pre-treat” their premises, and there is no duty to salt or place sand on parking lots during a storm or IMMEDATELY thereafter. It also reaffirmed that oral contracts for snow and ice removal are valid. 

We obtained summary judgment on behalf of an insurance agency and insurance agent in a fraud action. Venued in Cincinnati, the case involved a dispute over the agent’s alleged failure to procure insurance coverage for a residence that sustained extensive, uncovered fire damage. The client had assisted the two homeowners in procuring insurance coverage for their residential properties with the Ohio Fair Plan Underwriting Association, an entity created by the Ohio legislature to provide insurance for property that is not insurable in the normal insurance market. After completing an inspection of the property, Ohio Fair Plan issued a notice that the carrier was cancelling the homeowners’ insurance contract. Ohio Fair Plan also issued a refund check to the homeowners. Sometime thereafter, a fire occurred at the homeowners’ residence. It was later conclusively determined that the homeowners did not have coverage with Ohio Fair Plan for the loss as a result of the cancellation of the contract. The homeowners alleged that they never received the cancellation notice or the refund check from Ohio Fair Plan or their insurance agent. The homeowners filed suit against the insurance agent and his agency, alleging claims of fraudulent misrepresentation and fraudulent concealment as a result of the homeowners’ purported failure to receive the notice or check prior to the time of the fire, which the homeowners alleged would have enabled them to procure alternative coverage. The defense moved for summary judgment, arguing that the fraudulent misrepresentation claim lacked merit because the insurance agent never misrepresented any fact relating to the homeowners’ insurance coverage and never concealed any material fact from the homeowners. The court agreed and granted summary judgment.

We successfully defended a national car company in a case involving the defense of a termination petition, the claimant’s petition for review of the utilization review determination, the claimant’s petition to review compensation benefit off-set, and a petition for penalties. The case involved a 2013 injury involving low back sprain/strain and an aggravation of degenerative disc disease with radiculopathy and facet arthropathy. The defense expert, a board certified orthopedic surgeon, reviewed all of the claimant’s pre- and post-injury medical records and diagnostic study films. The claimant admitted that he had increases of pain with activities not associated with work (long drives out of state, shoveling snow, housework) which he had failed to report to the IME physician or his own treating doctor. The Workers’ Compensation Judge ordered the termination of all the claimant’s benefits. The judge also dismissed the claimant’s petition to review the URO, finding the treating physician’s treatment no longer reasonable and necessary. Finally, the claimant’s penalty petition was dismissed.  

We successfully defended a national home décor manufacturer in the litigation of a review petition, which sought to add a cervical disc herniation and surgery to the nature of injury accepted in the case. The litigation had wide ramifications since the same claimant had attempted to reinstate workers’ compensation benefits based on an accepted shoulder/arm injury a year earlier and failed. As a result, the claimant traveled to Florida and underwent cervical disc surgery, claiming it was part of the same work-related injury. The defense proffered medical evidence to support the fact that the surgery and disc herniation were not caused by the work injury and that the medical bills and disability associated with the surgery were, likewise, not work-related.

We successfully defended an eastern regional can corporation in the litigation of a brain injury case. The claimant was struck in the lower extremities by a form of sheet metal which caused him to become unconscious. Nearly three years later, the claimant filed a petition alleging that he sustained a brain injury with post-concussion syndrome and cervical disc herniations as a result of the incident. The defense presented fact witness testimony from the scene of the accident which directly contradicted the claimant’s version of the facts. Moreover, the defense emphasized the weaknesses in the claimant’s medical expert’s opinions on cross examination as to causation. The Workers’ Compensation Judge found the claimant did not sustain a brain injury, post-concussion syndrome or cervical disc herniations related to employment.  

Defense verdict after a four-day jury trial in northeastern Pennsylvania on behalf of a registered investment advisor and a securities broker dealer who were sued by their former client for investment losses in alternative investments.

We obtained summary judgment on behalf of a wellhead manufacturer in a product liability matter pending in Western Pennsylvania. The plaintiff drill operator alleged a wellhead was defectively designed, causing oil and gas to escape during operation, which led to a fire at the well site. The plaintiff asserted economic losses in excess of $1.4 million. We successfully argued that the plaintiff failed to elicit sufficient expert opinion to support the defect claim and also spoliated evidence in discarding the subject wellhead.

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.

We obtained summary judgment in a general liability case in the U.S. District Court for the Middle District of Pennsylvania. The plaintiff was an employee of a recently-renovated resort when a solid wooden panel fell down and struck her in the head, causing serious injuries. The plaintiff alleged improper design, manufacture, and installation of the panel against a number of the defendant contractors and subcontractors. It was unclear as to which defendant actually installed the panel. However, there was testimony that the panel had fallen down after the renovations were completed and that the resort’s maintenance employees had possibly re-installed the panel before it fell the second time, striking the plaintiff. There was no evidence of record that our client had any role in the design of the panel. The judge granted summary judgment as to our client only on a case where the plaintiff will be putting over $2 million on the board at trial. 

We secured the dismissal of a declaratory judgment action filed in federal court against a large insurer. This case arose from a motor vehicle accident that occurred in 2015. The plaintiff averred that she had sustained injuries in excess of the tortfeasor’s bodily injury liability limits and sought stacked underinsured motorist (UIM) benefits. While the plaintiff had admittedly signed a rejection of UIM coverage form and a rejection of UIM coverage stacked limits form, she argued that her insurer had altered the statutorily required forms by adding additional language. The plaintiff filed a declaratory judgment complaint against her insurer. We filed a motion to dismiss the complaint on behalf of the defendant, which was granted by the federal court. The court reasoned that the UIM rejection form “specifically complied” with the applicable requirements of Pennsylvania’s Motor Vehicle Financial Responsibility Law because the additional language, contained on the same page as the statutorily required rejection language, was “inconsequential.”

We successfully defended a fatal claim petition filed by the widow of a coal miner who had been awarded benefits for totally disabling coal workers’ pneumoconiosis in 1984. Despite the fact the miner had been collecting temporary total disability benefits from 1984 until the time of his death in 2016, we were able to present credible and persuasive medical evidence to the Workers’ Compensation Judge that coal workers’ pneumoconiosis was not a substantial contributing factor to the miner’s death. The fatal claim petition was denied.  

We obtained a dismissal in the U.S. District Court for the District of New Jersey in an extremely complex, multi-party legal malpractice action. The action arose out of two estate litigations filed in state court in which our client was the attorney for the decedent and the temporary administrator. The plaintiff, the nephew of the decedent, filed a breach of fiduciary duty claim against our client in the U.S. District Court. The probate cases went against the nephew. The accountings were all approved over the nephew’s exceptions, in which he did allege that our client breached a fiduciary duty in handling the estate administration in failing to preserve documents, failing to locate the will, selling assets in contravention of his fiduciary role, failing to investigate property in the Bahamas, failing to preserve assets, and obtaining orders from the probate judges through fraud and deception. In its lengthy opinion, the District Court granted the defense’s motion to dismiss all claims against our client.