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Defense Digest

On the Pulse…Recent Appellate Victories*

Defense Digest, Vol. 30, No. 1, March 2024

March 1, 2024

Michael Salvati, David Wolf, Shane Haselbarth, and John Hare (all of Philadelphia, PA) won a unanimous precedential decision from the Pennsylvania Superior Court that upheld the venue transfer of a significant case from Philadelphia to Butler County under the doctrine of forum non conveniens. The decision breaks a recent string of appellate reversals of venue transfers out of Philadelphia and distinguishes those contrary cases based upon the substantial record of hardship developed by Mike and Dave in the trial court. The decision also found that Mike and Dave satisfied the necessary showing of why the hardship witnesses were important to the case, a showing that was not even mandated until after Mike and Dave had built their trial court record. The decision has been reported as creating the new standard that defendants must meet to secure a venue transfer based upon forum non conveniens. Smith v. CMS W., Inc., 305 A.3d 593 (Pa. Super. 2023)

Walter Kawalec (Mount Laurel, NJ) succeeded in obtaining an affirmance by the Court of Appeals for the Third Circuit of a judgment as a matter of law for the firm’s client, a local school district. This was an employment discrimination case in which the plaintiffs alleged they suffered age discrimination and unlawful retaliation. The matter concerned the implementation of new rules for teachers’ evaluations. Under the new rules, certain negative performance evaluations would result in the referral of a tenure charge of inefficiency, which has the potential of resulting in the dismissal of the educator. In this case, a number of teachers who faced potential charges of inefficiency chose to resign rather than face tenure charges, as doing so precluded any negative impact on their pensions. Because those teachers resigned, they could not demonstrate that they suffered an adverse employment action, which is necessary to assert a viable discrimination cause of action. The mere fact that they received negative evaluations, without more, does not constitute adverse employment action, and their resignations precluded them from being discharged for inefficiency. The court affirmed the grant of summary judgment in the District Court. Goode v. Camden City School District, 2024 WL 107887 (3d Cir. Jan. 10, 2024).

Kimberly Berman, Jonathan Kanov, and Alan C. Nash (all of Fort Lauderdale, FL) succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a venue order obtained by our client, a school board member. The plaintiff/petitioner/appellant, a convicted felon, had run for a seat on a school board before his rights had been restored and won the election but refused to be sworn in with the other newly elected board members. Since he failed to qualify and refused to accept the seat within 30 days, the Governor issued an executive order that declared a vacancy and appointed our client to the school board instead. The plaintiff filed a writ of quo warranto and a declaratory judgment action in Broward County, urging the trial court to void the executive order and order that the plaintiff take and hold the office of the school board immediately. The Governor and our client moved to transfer the case to Leon County based on the home venue privilege. The trial court granted the motion, and the Fourth District affirmed the nonfinal order on appeal. Velez v. DeSantis, 2023 WL 8636899 (Fla. 4th DCA Dec. 14, 2023).

Kimberly Berman (Fort Lauderdale, FL) and Andrea Diederich (Orlando, FL) obtained an affirmance by the Fifth District Court of Appeal for the firm’s client in an appeal of a nonfinal order denying the plaintiff’s motion to disqualify counsel. The plaintiff’s counsel moved to disqualify our firm and defense counsel for their communications with a post-incident treating physician employee/agent of the client’s owner during the course of a premises liability lawsuit. Our client argued there was no conflict of interest and no violation of the patient-physician privilege to communicate with a post-incident treating physician, who was also an employee/agent of our client. The trial court agreed and denied the motion. The Fifth District affirmed the denial of the nonfinal order on appeal and granted our client’s motion for appellate attorney’s fees on a provisional basis. Figueroa v. OHRI, LLC, 2024 WL 166910 (Fla. 5th DCA Jan. 16, 2024).

Carol Vanderwoude (Philadelphia, PA) and Ray Freudiger (Cincinnati, OH) and won a decision from the U.S. Sixth Circuit Court of Appeals, which affirmed a jury verdict in favor of their client, a municipal housing authority. After written briefing and oral argument, the Sixth Circuit affirmed the jury verdict in which the appellant developer failed to prove that the housing authority discriminated against it (in violation of ADA and FHA) by refusing to apply to HUD for VASH vouchers on behalf of the developer. The developer failed to prove it asked the housing authority for VASH on behalf of disabled persons, the request was not reasonable, and the request was not necessary to enable disabled persons to enjoy their residences as non-disabled persons could.

Audrey Copeland and Judd Woytek (both of King of Prussia, PA) successfully defended the claimant’s appeal from a workers’ compensation judge’s decision (that had been affirmed by the Workers’ Compensation Appeal Board), which found that the claimant’s temporary total disability benefits should be reinstated as of the date he filed his reinstatement petition based upon Protz following a pre-Protz IRE. 

*Results do not guarantee a similar result. 

 

Defense Digest, Vol. 30, No. 1, March 2024, 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. © 2024 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.

Firm Highlights

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

News

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

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. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial