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What's Hot in Workers' Comp

Appellate Division Affirms Dismissal of Construction Zone Death Suit Against employer and Engineering Firms Based on Workers’ Compensation Bar and Failure to Serve Affidavits of Merit.

Estate of Mike Alexander, Deceased, et al. v. Northeast Sweepers, et al., No. A-1486-23 (June 19, 2025)

August 1, 2025

by Kiara K. Hartwell

On July 11, 2014, Michael Alexander was struck and killed by a sweeper truck while working in an active construction zone on the New Jersey Turnpike. Northeast Sweepers owned the truck, which was driven by Christopher Hackett. Crisdel Group, Inc. was the decedent’s employer and was hired as the general contractor. HAKS Engineers, Architects and Land Surveyors, P.C. was retained by New Jersey Transit Authority to provide “professional services” for the resurfacing project, including supervision to ensure compliance. John Schweppenheiser, a HAKS employee and licensed professional engineer, was the project manager. HAKS then subcontracted the construction inspection services to Johnson, Mirmiran & Thompson, Inc. (JMT). Lawrence Fink, a JMT employee and licensed professional engineer, was the supervisor. 

Christopher Hackett drove his sweeper around a milling machine and struck Alexander, who was taken to a hospital and passed away approximately a month later. While it was Crisdel’s practice to assign a dump truck to each sweeper truck, there was none near Hackett’s sweeper at the time of the accident. After the accident, OSHA cited Crisdel for violations; failure to provide a place of employment free from recognized hazards and to establish a pre-planned traffic pattern. It was noted to be a serious violation, but not willful or repeated. 

In October 2014, the plaintiffs filed a complaint, which they amended in January 2016 to add claims against HAKS and JMT. In the amended complaint, the plaintiffs alleged intentional wrongs, noting that HAKS and JMT were responsible for supervision of the site and that they had negligently supervised the project. Because Alexander and his estate received workers’ compensation benefits, Crisdel’s answer asserted the affirmative defense that the plaintiffs’ claims were barred by the Workers’ Compensation Act. HAKS’ answer demanded compliance with the affidavit of merit statute, and JMT’s answer made no reference, but did assert a general defense of failure to state a claim. 

In June 2017, HAKS and JMT moved to dismiss the claims for failure to serve affidavits of merit. After oral arguments, the trial court issued orders dismissing the claims, noting the negligence was in their professional capacities as engineers, therefore, affidavits of merit were needed. The plaintiffs then filed a motion for reconsideration and submitted two affidavits from professional engineers, who certified that the work HAKS and JMT performed only involved supervision, not professional engineering services. The trial court denied the motion for reconsideration in September 2017. 

After the Appellate Division granted leave to appeal, the orders dismissing the claims against HAKS and JMT were reversed for a more complete record on whether the claims required the affidavit of merit requirement. On remand, additional expert discovery was performed, and all parties produced more expert reports. In April 2018, Crisdel moved for summary judgment, and after oral arguments, the trial court granted summary judgment as the plaintiffs failed to produce evidence that Crisdel committed an intentional wrong as this was the type of accident that occurred in constructions areas. 

In May 2019, HAKS and JMT moved for summary judgment, arguing the plaintiffs’ claims involved professional engineering service malpractice claims. The trial court agreed and granted summary judgment, noting the expert reports and deposition testimony revealed the duties of HAKS and JMT were within the practice of engineering. As such, the plaintiffs needed to submit an affidavit of merit and failure to do so required dismissal of their claims. 

The other defendants were all dismissed at various times. In December 2023, the plaintiffs resolved their claims against Northeast Sweepers and Hackett. The plaintiffs then appealed the June 22, 2018, order granting summary judgment to Crisdel and the July 26, 2019, orders granting summary judgment to JAKS and JMT.

The Appellate Division reviewed, under the de novo standard, and delved into the Workers’ Compensation Act as well as case law regarding intentional wrongs. While the plaintiffs identified six areas (work lighting, audible backup alarms, properly functioning mirrors, dedicated dump trucks, use of spotters and written traffic control plan) that were allegedly known and ignored by Crisdel, the Appellate Division found none of them were evidence of an intentional wrong within the meaning of the Workers’ Compensation Act. The Appellate Division also noted the OSHA violations were only “serious” and not “willful.” As such, the Appellate Division affirmed the grant of summary judgment to Cristel.

As for the summary judgment granted for HAKS and JMT, the Appellate Division reviewed the case law for a claim against a licensed professional covered by the affidavit of merit statute. The Appellate Division noted it was undisputed that both defendants were engineering and architectural companies and that HAKS was retained by New Jersey Transit Authority for professional engineering services. HAKS then retained JMT, and under the terms of the subcontract, all work performed by JMT was required to be done under the “direct supervision” of “licensed professional” engineers. Given the undisputed evidence showed HAKS and JMT were providing professional engineering services and the plaintiffs failed to timely serve affidavits of merit, the Appellate Division affirmed the grant of summary judgment to HAKS and JMT. 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 8, August 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Legal Update for Special Education Law: Recent Positive Outcomes From the Group

Hearing Officer Confirms District Acted Appropriately Under IDEA and Section 504 William J. McPartland (Scranton) obtained a finding in favor of our client, a school district, on all issues following a due process hearing. The parent had filed a due process complaint alleging that the school district had breached its child find duty under the IDEA and Section 504, that the school district had discriminated against the student on the basis of disability in violation of Section 504, and that the school district had denied a free and appropriate public education to the student both by developing inadequate IEPs and via an actionable procedural violation.  Specifically, the student had received a Section 504 evaluation in October 2023, after a number of behavioral infractions culminating in a fight in September 2023, was identified as having anxiety and a sleep disorder, and received appropriate Section 504 accommodations. The student had never previously demonstrated signs of a learning disability, and the parent denied the school district permission to evaluate the student for special education needs in November 2023, and January 2024. The parent granted the district permission to evaluate the student in October 2024, after a private psychologist diagnosed the student with Attention Deficit Hyperactivity Disorder, possible Oppositional Defiance Disorder, a learning disorder, and anxiety. The school district issued a special education evaluation report in December 2024, finding that the student had an emotional disturbance and other health impairment, and an IEP providing an itinerant level of emotional support, as well as instruction in academics and social skills, was issued in January 2025, and amended in February, March, and April 2025. The student withdrew from the school district in April 2025, to attend a cyber charter school. The hearing officer determined that the school district had not violated its child find duty to the student in violation of either the IDEA or Section 504 where the district developed a Section 504 plan for the student within a month and a half of the parent’s first request for a Section 504 evaluation and where the parent repeatedly denied consent to conduct an IDEA evaluation of the student. The hearing officer noted that the student’s sporadic record of behavioral infractions prior to September 2023, did not suggest that the student had a disability prior to the parent’s initial request for an evaluation. The hearing officer further determined that no evidence had been produced to suggest that the student was discriminated against on the basis of disability in violation of Section 504. Additionally, the hearing officer determined that the IEP offered to the student was substantively adequate and that, to the extent the social and emotional programming offered by the school district was not received by the student, this resulted from the parent’s refusal to accept the same. The hearing officer finally determined that the school district did not commit an actionable procedural violation by delaying development of an IEP for the student where the parent repeatedly denied consent to evaluate the student. Court Dismisses Three of Four Claims Against School District Christopher J. Conrad and Daniel P. McGannon (Harrisburg) achieved a significant early victory on behalf of a school district client in. The team successfully obtained dismissal of three of the four claims asserted in the plaintiff’s amended complaint. The former district superintendent brought multiple claims arising out of his alleged “forced resignation,” including age discrimination under the ADEA, a Section 1983 Equal Protection claim, a Pennsylvania Whistleblower claim, and breach of contract. On behalf of the district, the defense team moved to dismiss the complaint in part, arguing: The plaintiff failed to plead sufficient facts to support a prima facie case of age discrimination. The equal protection claim was barred because the ADEA provides the exclusive federal remedy for age-based employment claims. The breach of contract claim could not stand because the underlying employment agreement had expired prior to the alleged breach. The court agreed, dismissing the ADEA, equal protection, and breach of contract claims in their entirety. As a result, only a single claim under the Pennsylvania Whistleblower Law remains pending. This outcome substantially narrows the scope of the litigation and positions the client for a more efficient defense moving forward.

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.