Thought Leadership

CASUALTY DEPARTMENT

Ray Freudiger and Donielle Willis (Cincinnati, OH) obtained summary judgment in favor of our client in a personal injury action for injuries that occurred on municipal property. The plaintiff was knocked unconscious by a falling tree at a local park and alleged her injuries should be covered under the theory of negligence. Ray and Donielle successfully argued that any injuries were not covered due to Ohio’s immunity statute, R.C. 2744, and the recreational user statute. The court reiterated the recreational user statute language, which states that no owner, lessee, or occupant of premises owes any duty to a recreational user to keep the premises safe for entry or use. R.C. §1533.181(A). Further, “Premises” includes land owned by municipalities and the state. Thus, the court awarded summary judgment in favor of our insured.

Ray and Donielle also won summary judgment in a Hamilton County slip and fall case where the plaintiff alleged severe injuries and damages against a retail grocery store because she slipped and fell on an unknown wet substance in the store. Ray and Donielle argued there was no evidence that the plaintiff knew what caused her fall, that the store created the hazard, or that the store had actual or constructive notice of the hazard. The court agreed and granted summary judgment in favor of our client.

Finally, Ray and Donielle obtained a complete summary judgment in favor of our client in a slip and fall case against a liquor store. The plaintiff alleged her damages should be covered after she stepped into the store’s entrance doorway and slipped and fell. At best, the plaintiff related the cause of her fall to be rain tracked in from the outside. Ray and Donielle successfully wrote and argued that rain is an open an obvious condition. The court determined that plaintiff had not presented any contrary evidence and, thus, awarded summary judgment in favor of our insured.

Harold Moroknek and Ephraim Fink (Westchester, NY) obtained a defense verdict in a trial in a case against Greyhound for alleged for breach of contract. The plaintiff claimed he and his family were subjected to many alleged unsavory conditions and ordeals during their trip from Tennessee to Connecticut when they had to purchase public transportation tickets after their car broke down. The plaintiff claimed the bus depots along the way were unsafe, failed to enforce mask mandates and exposed his children to people exhibiting odd behavior. The plaintiff asserted this was a violation of the terms that Greyhound promised customers when they purchased tickets, by what is contained on their website, and by what their customer service department orally promised over the phone. The plaintiff eventually refused to ride the bus to Connecticut by getting off in North Carolina. Harold and Ephraim argued, and presented client testimony, that the plaintiff had used Greyhound many times before, had purchased non-refundable tickets, and was not permitted to claim emotional damages from a breach of contract claim. They also maintained, absent provisions in the contract language of the ticket or elsewhere, Greyhound could not be held responsible for breach of any customer travel condition promises that were beyond its control, including unavoidable COVID-19 pandemic issues, which caused limited depot hours, crowding of non-customers into depots, and difficulty with 100% compliance with mask mandate enforcement—it has been common for the public to pull down masks below their nose from time to time. Magistrate Moyher of the Superior Court in Middletown, Connecticut, ruled for the defendants on the same day as the hearing.

Christopher Power (Long Island, NY) won a summary judgement motion in New York County. The plaintiff was an employee at a restaurant in the Empire State Building. As he exited a freight elevator on the 28th floor, he slipped and fell on a foreign substance on the cement floor. The plaintiff sued the Empire State Building and LinkedIn, which leased office space on the 28th floor. LinkedIn impleaded our client, ISS, the cleaning service for the premises. The plaintiff and the Empire State Building then impleaded ISS as well. Chris argued that ISS was only responsible for cleaning the leased space of LinkedIn, and he proved that where the plaintiff fell was not within that leased space. LinkedIn then voluntarily let ISS out of the case. The plaintiff and the Empire State Building failed to put in any opposition papers to Chris’s motion. The court granted summary judgment, dismissing the complaint against ISS.

Christopher Power also obtained a voluntary discontinuance from a plaintiff’s attorney after taking the plaintiff’s deposition and subpoenaing an investigator who took physical evidence from the insured’s premises. The plaintiff was a corporate attorney for an affiliate of our client. While standing in the lobby of her office during a hurricane, a piece of metal flew off an adjacent building and through the plate glass window of the lobby, shattering the glass and severely cutting the plaintiff on her face and body. She sued our client and the landlord of the building. Before the plaintiff’s deposition, Chris’s client advised him that a few weeks after the incident, the plaintiff had an investigator come to their office, take photographs and measure the window. The investigator was also taken to a utility room (with the plaintiff present) and was given possession of the piece of metal that struck the window. At her deposition, the plaintiff testified she didn’t know what caused the window to break. Chris asked her many questions about this piece of metal and even showed her a photo of it. She denied any knowledge of it. Chris’s last question to the plaintiff was, “Is it your sworn testimony that the private investigator did not take this piece of metal from my client’s premises?” The plaintiff’s answer, “That’s correct.” Because of the COVID pandemic, the client was logging everyone that came into their office. The client had the name and a copy of the investigator’s driver’s license. Chris served a subpoena on the investigator. The following day, the plaintiff’s attorney called Chris and asked him to withdraw the subpoena, or he was filing a motion to quash it. Chris offered some advice to the plaintiff attorney: “You have too much of a good reputation. Pack up this file, give it back to the plaintiff, and tell her you are not representing her.” Two hours later, Chris received a call from the plaintiff’s attorney: “I’m taking your advice. I’m discontinuing the lawsuit.” A stipulation of discontinuance was received and filed with the court. The file was closed with no payment.

HEALTH CARE DEPARTMENT

Dean Aronin (New York, NY) obtained dismissal in New York Supreme Court, Westchester County, on behalf of a distributor of a medical product. An individual sued various medical facilities and physicians for medical malpractice, alleging the treatment fell below the standard of care. A rehabilitation facility filed a third-party complaint against the distributor, seeking common law indemnification and contribution. The rehabilitation facility claimed the distributor distributed a recalled product containing bacteria that contributed to the individual’s injuries. Prior to the deposition of his client, Dean filed a motion for summary judgment to dismiss the third-party complaint based on an affidavit from the distributor attesting to the fact that it did not distribute the recalled product to the injured party. After the motion was fully briefed, the court granted Dean’s motion for summary judgment, dismissing the distributor from the case. The court determined there was no admissible evidence that the distributor distributed the recalled product to the individual.

PROFESSIONAL LIABILITY DEPARTMENT

Brigid Alford and Christopher Woodward (Harrisburg, PA) obtained a dismissal via summary judgment of an auto coverage lawsuit that had challenged a client’s denial. The insured purchased a vehicle and obtained insurance from our client/insurance carrier. The insured later discovered the vehicle was stolen, and he was unable to register the vehicle with PennDOT. The insured then made a claim for “theft or larceny” under his auto policy, which was denied by the client carrier.

Josh Byrne (Philadelphia, PA) obtained the successful dismissal of a Disciplinary Board complaint against an attorney who had been involved in a complex and messy family dispute regarding the creation and operation of a brewery and events venue.

Josh Byrne (Philadelphia, PA) was successful in obtaining the dismissal of a complaint filed in the Middle District of Pennsylvania against a New York attorney. The complaint alleged malfeasance regarding the appointment of a guardian of an elderly woman that is alleged to have resulted in the dissipation of $2.2 million in assets.

Yaël Dadoun and Ed Schwart (Harrisburg, PA) obtained a dismissal of a Disciplinary Board complaint filed against a York County attorney by a sitting judge on the Court of Common Pleas of York County. This matter was related to the attorney’s representation of a client in an underlying hostile divorce action.

Ray Freudiger (Cincinnati, OH) won a defense verdict after a six-day jury trial in U.S. District Court for the Southern District of Ohio. Ray defended a public housing authority accused of discrimination against disabled persons under the ADA and FHA when it did not apply to HUD for VASH vouchers as requested by a developer. It took the jury less than 45 minutes to deliberate.

Howard Mankoff (Roseland, NJ) won summary judgment in a case involving a dispute between a religious denomination and one of its local churches. We represented a religious denomination that invoked its judicial process, allowing it to assume control of a local church due to declining membership. The pastor of the local church refused to vacate the parsonage. The local church asserted the denomination lacked the authority to assume control over it and argued it was never actually part of the larger denomination. The issues involved First Amendment case law, which addressed whether and to what extent the courts can decide ecclesiastical disputes, and whether the religious denomination was a hierarchical church or a congregational church. The court accepted our argument that the local church was part of the denomination, that the denomination was hierarchical, and that the First Amendment allowed the court to decide the dispute. The court granted our request to allow the denomination to assume control of the local church.

Howard also won dismissal of a sexual assault claim against a small college in North Carolina. We represented the college which was being sued in New Jersey under the revival statute, which provides a window during the statute of limitations for sexual assault claims to be waived. The plaintiff claimed that 20 years ago, when she was 15, she was a participant in the Upward Bound program and was sexually assaulted by a counselor during a class trip in New Jersey. The plaintiff also filed suit in North Carolina. We successfully argued that the court should dismiss the New Jersey case based on forum non conveniens, comity and lack of jurisdiction, resulting in a dismissal on the pleadings.           

Michelle Michael (Mount Laurel, NJ) and Leonard Leicht (Roseland, NJ) had a whistleblower claim dismissed that had been filed against the New Jersey State Police and eight individual defendants (current and retired members of the State Police). The ruling was especially satisfying as the court had ruled on a prior summary judgment motion that a fact issue existed, and we had to convince the new motion judge not to follow the “Law of the Case” Doctrine and to decide the case based on the record presented in this motion.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) obtained a dismissal of an ethics grievance filed against their client, who was facing alleged ethics violations in connection with the formation of an LLC. This LLC was for a company formed by a family friend. Allegations of ethics violations included the purported self-dealing of the client with the LLC, transferring the LLC to his wife’s name, and stealing the company from the grievant. After a formal interview and response to the grievance, the ethics investigator found that there was a lack of clear and convincing evidence to prove any ethics violations and dismissed the matter. In the ethics grievance response, Jack and Jeremy argued, per the Rules of Professional Conduct, the allegations against their client did not rise to the level of an ethics violation by clear and convincing evidence. There was enough evidence in the record to show that the grievance held no merit and should be dismissed.

Carol VanderWoude (Philadelphia, PA) and Scott Dunlop (Pittsburgh, PA) successfully moved for dismissal, with prejudice, of all claims asserted against the City of New Castle in a lawsuit filed in the U.S. District Court for the Western District of Pennsylvania. The plaintiff, a rental property owner, alleged that from approximately 2006 through January 2019, the City of New Castle: (1) deprived him of his right to rent his units located in New Castle for a period of approximately 30 to 90 days at a time; (2) subjected his properties to “numerous additional, non-permit related inspections” without explanation; and (3) issued to him and/or his realty company at least 50 separate violations of the International Property Maintenance Code. According to the plaintiff, this “radical code enforcement” prevented or discouraged him from renting housing to minorities. The plaintiff further alleged that in or around March 2020, New Castle restricted his ability to purchase property from the Lawrence County repository by refusing to take up the matter at City Council meetings. A second amended complaint that included six counts was subsequently filed. The District Court agreed with New Castle’s argument that all of the claims based on code enforcement decisions, citations and inspections were barred by the relevant statutes of limitations. As for the issue with the repository property, the District Court agreed with New Castle that Pennsylvania law provides no enforceable property right to the highest bidder, such that the U.S. Constitution’s Fourteenth Amendment did not apply to support a procedural due process claim. Because the plaintiff had two previous opportunities to amend the complaint, the District Court dismissed the second amended complaint with prejudice and entered judgment in favor of the City of New Castle.

Jeremy Zacharias (Mount Laurel, NJ) obtained summary judgment on behalf of his client, an amateur baseball league located in Monmouth County, New Jersey. In this matter, the plaintiff, an umpire assigner, filed a lawsuit alleging improper breach of contract, tortious interference and conspiracy to cut this assigner out of his company. The plaintiff also maintained a cause of action for emotional distress and punitive damages. On summary judgment, Jeremy argued that due to discovery deficiencies, as well inadequacies with the substantive claims alleged, the plaintiff could not state any material facts necessary to avoid summary judgment. The court agreed with the defense, holding that the plaintiff failed to properly oppose the summary judgment motion and had not stated any facts in discovery that would support the claims of breach of contract or tortious interference, among other claims. The damages exposure of this case, prior to the dismissal, has been approximately $10 million, especially considering the punitive damage potential in this matter.

WORKERS’ COMPENSATION DEPARTMENT

Michael Duffy (King of Prussia, PA) won on a reinstatement petition filed by the claimant. The claimant alleged he was entitled to reinstatement of indemnity benefits after he voluntarily stopped working due to hand pain. Mike argued the light-duty position available and offered to the claimant was a one-handed position, and he presented employer fact witness testimony and video of the light-duty job in rebuttal.

Tony Natale (Philadelphia, PA) successfully defeated a claim petition filed against a medical device fabrication company located in Chester County. The claimant alleged both pulmonary and physical injuries as a result of workplace exposure to chemicals and heavy lifting of product. Upon cross examination the claimant admitted that her treating physicians found her symptoms to be psychosomatic. Evidence presented by a nationally renowned pulmonary expert and a board certified orthopedic surgeon demonstrated by a preponderance of the evidence the claimant sustained no identifiable work-related injuries of any kind. The claim petition was summarily dismissed.

Tony successfully defeated a fatal claim petition filed against a national trucking company. The decedent died of a heart attack after a three-day over-the-road run for the trucking company. The decedent’s dependents argued the heart attack was caused by the rigors of the job. Although the decedent died as he was about to execute paperwork denoting his employment status as an independent contractor—he never signed the document. The case, therefore, proceeded to litigation in the workers’ compensation forum. Expert evidence was presented on the issue of whether the decedent’s job duties had any contribution to his death. The court concluded, based on the evidence presented, that the work duties had no relationship whatsoever to the demise of the decedent. The fatal claim was dismissed in its entirety.           

Tony defended a Berks County mushroom facility in a high-exposure alleged amputation/loss-of-leg case. The claimant sustained a severe laceration and tissue loss to one of his legs while inappropriately performing his job duties. Work was made available to the claimant after the injury, which he flat-out refused. The claimant then alleged he lost his leg for all intents and purposes and demanded the court award specific loss benefits. Tony defended this case on factual and medical grounds. The court held that the claimant did not lose his leg, and no specific loss benefits were awarded. Further, the court suspended indemnity benefits for the claimant’s failure to accept the job offer made to him after the injury. Significant exposure was totally eliminated.

Tony successfully prosecuted a termination petition on a 10-year-old back claim with open medical liability. The claimant had been treating with excessive use of narcotic medication. An orthopedic expert examined the claimant and found him fully recovered from the work injury and noted that the use of narcotic medication was unrelated to the injury. During the litigation, the claimant presented a medical expert who opined he was still suffering from the work injury. On cross examination, the expert admitted he was aware his treatment was made the subject of a utilization review and found to be unreasonable and unnecessary. He further admitted his intent to continue the claimant on narcotic medication, despite the UR Determination, and charge the insurer for his services. Additionally, he admitted to moving the claimant to other doctors in his office who were not subject to the UR Decision as a means of continuing the treatment cycle. The court found the claimant’s medical expert not to hold a scintilla of credibility. The court then terminated the claimant’s benefits.

Tony successfully defended a claimant’s appeal of a judge’s decision to terminate benefits based on a full recovery after a horrific trucking accident. The claimant’s attorney argued to the Appeal Board that his litigation costs should have been awarded since the claimant was successful in amending the nature of injury during the litigation and, therefore, earned reimbursement of costs. Tony argued, and the Board agreed, that the amendment to the nature of injury was stipulated to before the termination petition was prosecuted, and no fees or costs were due and owing.

Kristy Salvitti and Adam Huber (Mount Laurel, NJ) successfully argued that the petitioner was not prosecuting his workers’ compensation claim as evidenced by his failure to respond to repeated discovery requests. The judge agreed that the petitioner was not complying with the New Jersey Workers’ Compensation Rules, granted the respondent’s request for dismissal, and entered an order for dismissal without prejudice.

Kacey Wiedt (Harrisburg, PA) successfully defended a claim petition in a case where the claimant was struck by a forklift and alleged the accident caused a back injury. Through employer witness testimony and medical testimony, Kacey was able to show that the claimant did not sustain a back injury and that her medical issues were pre-existing and unrelated to the accident. The judge found the evidence presented by the employer established that, even though the claimant was involved in a forklift incident, the claimant did not sustain a work injury and her ongoing medical issues were unrelated to the forklift accident.

Judd Woytek (King of Prussia, PA) won a favorable decision from the District Director on a Federal Black Lung claim. The claimant had filed an application for benefits alleging 20+ years of coal mine employment and exposure to coal dust. The District Director found that the claimant had only proven four years of qualifying coal mining employment. The District Director also found that the claimant was unable to prove he had developed coal workers’ pneumoconiosis or a totally disabling respiratory impairment.

Judd won a favorable decision from an Administrative Law Judge on a Federal Black Lung claim. The judge credited the claimant with 11 years of qualifying coal mining employment but found that the claimant had failed to prove a totally disabling respiratory impairment and, therefore, denied the claim. Judd presented evidence from our medical expert that the claimant did not contract coal workers’ pneumoconiosis as the result of his work in the coal mines and that he was not disabled by a respiratory impairment. The judge addressed the issue of total respiratory disability first and found the claimant failed to meet the burden of proof with a pulmonary function study, an arterial blood gas study, and medical opinion evidence. The judge credited the opinions of our medical expert over those of both of the claimant’s expert and the independent expert retained by the Department of Labor. The judge found no respiratory disability and, therefore, denied the claim.

Judd received a favorable decision denying the claimant’s claim petition. The claimant alleged hip, back, and leg pain after slipping and falling on his back while going down a flight of steps. The judge found that the claimant failed to present medical evidence to substantiate a work-related injury or any disability. The claim petition was denied and dismissed.

*Results do not guarantee a similar result.

_{Defense Digest, Vol. 28, No. 12, December 2022, 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}