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On the Pulse… Important and Interesting Litigation Achievements…We Are Proud of Our Attorneys for Their Recent Victories*

March 1, 2017

Defense Digest, Vol. 23, No. 1, March 2017

 

Casualty Department

Alicia Smith (Cherry Hill, NJ) and Teagan Allen (Roseland, NJ) obtained summary judgment on behalf of a skating rink in Middlesex County, New Jersey. The plaintiff made a claim for injuries from a roller skating fall at the defendant’s arena under the theory that his rental skates were the wrong size and too old to be in circulation. He claimed the worn leather was insufficiently “stiff” to support his ankle. The court dismissed the case, finding that the plaintiff failed to have an expert to support his position.

Ralph Bocchino (Philadelphia, PA) received an order granting his motion for summary judgment. The plaintiff had four surgeries to a severely broken ankle after a fall on ice and snow. The plaintiffs sued the landlord, its leasing agent and the snow removal company. Demands were in excess of the policy for $2.6 million. We represented the landlord and argued the Hills and Ridges Doctrine. The Philadelphia Court of Common Pleas agreed with us.

Summary judgment was won by Jason Banonis (Allentown, PA) in the Court of Common Pleas of Pike County, Pennsylvania. ​ Following an alleged trip and fall at a home rented by the plaintiffs from the defendants, the plaintiff alleged unsafe elevations of the driveway and surrounding lighting conditions. The court determined that the defendants owed no legal duty based upon a lease that expressly stated that the tenant (the plaintiffs), not the landlord (the defendants), was responsible for repairing the leased premises. The court also found that the lease stated that the tenant had inspected the premises and that they were in good order and repair and took the premises “as is.” Further, the court noted that the plaintiff wife stated in her deposition that she was aware of the difference in elevation between the driveway surface and abutting ground surface, and that she was aware of the lighting at night at the location, yet failed to use a flashlight.

In their successful petition to the Supreme Court, State of New York, Suffolk County, Neil Higgins and Mark Agin (Long Island, NY) obtained dismissal of an action for serious leg fractures and injuries by the plaintiff and her husband. ​The case was dismissed due to the plaintiff’s repeated discovery failures. The plaintiff, a real estate broker, allegedly fell and fractured her femur because of the dangerous and slippery condition of the wooden foyer in the defendants’ residence. Despite at least two court orders, the plaintiff only partially complied with the defendants’ discovery requests. Despite arguments by plaintiffs’ counsel that the lengthy delay was due to law office inadvertence and his purported medical conditions, Neil and Mark were able to convince the court that these proffered excuses were insufficient as a matter of law and that the defendants were prejudiced by the plaintiff’s delays. The case was dismissed in its entirety before any depositions were conducted.

Walter Klekotka and William Reiley (Cherry Hill, NJ) obtained the dismissal of the plaintiff’s complaint, with prejudice, on a motion for summary judgment. The plaintiff was working for a contractor in our clients’ building. He slipped on what he alleged was our clients’ improper waxing of the floor and sustained a wrist fracture. He filed a workers’ compensation claim for this injury and had a lien in the amount of $55,000. He then filed his original complaint in the Law Division against his employer and fictitious parties. After expiration of the statute of limitations, the plaintiff successfully moved to amend his complaint to name our clients as defendants. Will successfully argued before the court that the plaintiff knew the identity of our clients prior to expiration of the statute of limitations, thereby making the plaintiff unable to avail himself to the fictitious party rule.

Health Care Department

Stacy Delgros (Cleveland, OH) obtained a defense verdict in a complicated medical malpractice case in Akron, Ohio. ​Stacy represented a radiologist who interpreted a brain MRI for a woman who was believed to have suffered a Transient Ischemic Attack. The radiologist did not report any significant abnormalities on the brain MRI, but the patient went on to have a devastating stroke six weeks later. The co-defendants were the family physicians who ordered the brain MRI, but who did not order a carotid artery study, the study of choice to determine the source of a TIA. There was significant animosity between Stacy’s client and the co-defendants. The co-defendants hired an expert to criticize Stacy’s client, in addition to the plaintiff’s expert, who was likewise critical. After a two-week trial, the jury found in favor of all the defendants, despite this conflict.

In a three-day medical malpractice jury trial in the Court of Common Pleas of Erie County, Pennsylvania, Thomas Lent and Bethany Blood (Erie, PA) secured a defense verdict. ​Our insured, an OB/GYN, initially performed a hysterectomy on a 76-year-old woman due to a Grade 3 uterine prolapse. The day following the hysterectomy, the plaintiff was experiencing symptoms consistent with internal bleeding, and a second surgery was successfully performed by our client to address the bleeding. It was alleged that during this second procedure, the plaintiff suffered a perforation of the small bowel and that the doctor was negligent for failing to examine the bowel for possible injury at the close of the second procedure. It was also alleged that our doctor was negligent for failing to recognize signs and symptoms of a bowel perforation in the nine days following the second surgery, which led to yet a third surgery. Following the third surgery, the plaintiff was diagnosed with and treated for sepsis, respiratory failure that required ventilator support, and renal failure. Ultimately, the plaintiff was in ICU for six weeks, followed by a six-week stay at a rehabilitation facility. Our client testified convincingly that she had closely monitored the plaintiff in the days following the second surgery and was addressing the plaintiff’s medical symptoms as they arose. Our expert, a board-certified general and colorectal surgeon, also testified convincingly that the plaintiff’s post-operative condition and complaints were consistent with those of other elderly patients having just undergone two abdominal surgeries and that the doctor’s treatment of the plaintiff, including her decision not to examine the bowel during the second surgery, met the standard of care. The jury deliberated for approximately two hours before returning a defense verdict.

James Connors, assisted by Tonya Lindsey and Steve Saal (New York, NY), won a unanimous defense verdict after a three-week trial in Supreme Court, State of New York, Richmond County. We defended a dermatologist in a case involving allegations of medical malpractice. The case revolved around the alleged failure to diagnose squamous cell carcinoma (SCC), which had clinically and histologically been classified as a common wart. Due to the alleged delay in diagnosis, the patient was subsequently diagnosed with SCC and underwent an amputation of his toe and part of his foot. The jury’s verdict was 6-0 in favor of the insured doctor.

Professional Liability Department

Martin Schwartzberg (Long Island, NY) was successful on a motion for summary judgment where the plaintiffs claimed that their home sustained damages of at least $500,000 due to the construction taking place at an adjacent property. ​Marty represented the architect who prepared the plans and specifications for the construction of a five-story building next to the plaintiffs’ house, which allegedly sustained damages as a result of the construction. The homeowners sued the architect and others asserting claims for negligence, trespass and nuisance. The court granted the architect summary judgment and dismissed all claims against it, finding that the architect was not the party responsible for the excavation at the site, the alleged cause of the damage, and that its contract did not give rise to tort liability to third parties such as the plaintiffs.

Adam Herman and Robert Garcia (Orlando, FL) successfully obtained summary judgment and final judgment in a construction defect matter. ​A condominium association brought multiple claims against a general contractor and developer. In turn, the contractor brought third-party claims against our client, the foundation subcontractor, for common law indemnity, contribution, contractual indemnity and breach of contract. The court ruled there is no special relationship between a subcontractor and a general contractor and, therefore, no common law indemnity. The court also ruled that the statutory claim for contribution was negated by the abolition of joint and several liability in Florida. Finally, the court found that the general contractor and condominium association could not demonstrate through experts the cause of foundation cracking and, therefore, could not establish damages.

Brooks Foland and Allison Krupp (Harrisburg, PA) secured summary judgment in federal court in a bad faith case against a large insurer. ​This case arose from a pedestrian-motor vehicle accident that occurred in 2008 and dealt with the insurer’s handling of the plaintiff’s UIM claim following that accident. The plaintiff was run over by a rollback truck that was being repossessed on behalf of the owner. The various participants in, and witnesses to, the accident provided conflicting versions of events regarding how the accident occurred. In one version, the plaintiff climbed onto the running board of the rollback truck, fell to the ground and was run over by the rollback. As a result, the issue of liability went to arbitration. The arbitrators found that the plaintiff was 33 1/3% causally negligent for his injuries, and the UIM claim later settled. The plaintiff then pursued a statutory bad faith claim, contending the insurer had delayed its investigation of the UIM claim without a reasonable basis and had unreasonably refused to pay him UIM benefits. At the close of discovery, the insurer filed a motion for summary judgment, which was granted by the court. The court found that the undisputed factual record amply supported the insurer’s defense that “certain ‘red flags’ existed that justified it undertaking a thorough investigation into the cause of the action, the extent of the plaintiff’s injuries, and the insurer’s potential liability for the plaintiff’s claim.” The court found that the delay, if any, stemmed from the underlying criminal investigation and impediments attributable to the plaintiff. As a result, the insurer’s motion for summary judgment was granted in its entirety, and the case was dismissed.

Robert Garcia (Orlando, FL) successfully defended a condominium association in arbitration before the Florida Department of Business and Professional Regulation regarding alleged violations of the Florida Condominium Act. The petitioner’s complaint contended that the Association willfully violated his statutory rights to inspect and make copies of the Association’s records after repeated certified written requests. After several failed attempts by the Department to have the parties settle their dispute, an arbitration proceeding was held in which multiple witnesses were called to testify for both parties. The Department issued its final order, finding that the greater weight of the evidence supported the Association’s position that the records were not willfully denied. The Department awarded the Association attorneys’ fees and costs.

Edwin Schwartz and Nicole Ehrhart (Harrisburg, PA) obtained summary judgment in a legal malpractice action arising from allegations that the defendant attorney failed to properly protect a client’s business property from a tax sale. ​The plaintiff asserted that his attorney had agreed to “take all action necessary” to assist the plaintiff in recovering his business real estate after the purchasers of the property defaulted on the sales agreement. The attorney initiated the foreclosure proceedings, but in the interim, the property was listed and sold at a tax sale. The court determined that the attorney’s representation was limited to the foreclosure action and that he had properly advised and warned the plaintiff to undertake actions to prevent the property from being sold at the tax sale.

Mark Kozlowski (Scranton, PA) obtained dismissal of a municipal defendant in the Middle District of Pennsylvania in a suit challenging the constitutionality of an ordinance requiring property owners to maintain and provide access to private cemetery plots. ​Our township client passed an ordinance requiring all property owners within the township to maintain and provide access to cemeteries and ancient burial grounds on their property. The ordinance provided that the Township Code Enforcement Officer was permitted to inspect properties believed to contain such graveyards. The plaintiff, a resident of the township, is the owner of approximately 90 acres. It was determined that a cemetery exists on her property. She was cited for failing to maintain it. The plaintiff sued the township and the Code Enforcement Officer, arguing that the ordinance was unconstitutional under the Fifth Amendment Takings clause. The court granted our motion to dismiss, finding that the plaintiff’s amended complaint alleged only a physical invasion taking, not a regulatory taking. The court then held that the plaintiff failed: (1) to state a cause of action against the Code Enforcement Officer; and (2) to state a cause of action under the Fifth Amendment since she did not exhaust her available state-level remedies.

Jeffrey Chomko (Philadelphia, PA) obtained a “no action” letter from the Commonwealth of Pennsylvania Office of General Counsel on a regulatory inquiry directed to a real estate broker. ​A real estate investor filed a formal complaint with the Pennsylvania Real Estate Commission alleging negligence, misrepresentation and breach of fiduciary duty in connection with the broker’s handling of the bidding process for a residential sale in the City of Philadelphia. Jeff submitted a formal response to the Commission detailing the handling of the transaction. The Commonwealth concluded there was insufficient evidence against the broker to pursue formal charges.

Workers’ Compensation Department

Judd Woytek (Allentown, PA) successfully defended a claim for Federal Black Lung benefits filed by a coal miner with over 10 years of employment in the coal mining industry. ​The miner had been awarded benefits by the Administrative Law Judge. On appeal to the Benefits Review Board, Judd successfully obtained a reversal of this award. The Review Board also remanded the claim for further findings by the judge. On remand, Judd’s arguments persuaded the judge to find that the miner’s treating physician’s opinion on total disability due to coal workers’ pneumoconiosis was not well-reasoned and could not support an award of benefits to the miner.

Michele Punturi (Philadelphia, PA) obtained a seven-figure reimbursement from the Supersedeas Fund of the Commonwealth of Pennsylvania. This extraordinary recovery of $1,771,961.74 for medical payments stemmed from a complicated fact pattern involving a 2005 injury with a self-insured employer who had excess coverage provided by a carrier that was a reimbursement policy. In 2000, the employer lost its self-insurance status and replaced it with a workers’ compensation self-insurance replacement policy. The claim then pierced to self-insured retention, and the replacement policy carrier became insolvent (liquidated in 2001), and upon liquidation, the claim came under the ongoing payment policy of the Pennsylvania Workers’ Compensation Security Fund administered through its third-party administrator. The TPA administered payment of the ongoing claim benefits and submitted reimbursement requests to the excess carrier under the excess policy originally issued to the employer. A URO request was filed challenging the medical treatment as of April 5, 2000, and a decision was issued finding the treatment reasonable and necessary, which was appealed and remanded back to the judge. The judge ultimately found the treatment to be neither reasonable nor necessary by decision in August 2014. No further appeals were filed. In January 2014, the indemnity aspect of the claim resolved by Compromise and Release. The issue in the case was the right/standing of the excess carrier to secure reimbursement for the medical payments found unreasonable and unnecessary. The analysis for the Supersedeas Fund reimbursement focused on Regulation 127.208(g), which addresses URO decisions and reimbursement from the Fund, and Section 443(A), pertaining to supersedeas requests and denials, and the fact that the excess carrier was ultimately the liable entity. The Supersedeas Fund was in agreement with Michele’s arguments and awarded the significant reimbursement.

Estelle McGrath (Pittsburgh, PA) and Audrey Copeland (King of Prussia, PA) obtained the Commonwealth Court’s affirmance of the denial of a claim petition and termination of benefits in an employer’s favor in an alleged occupational exposure case. ​The court rejected the claimant’s assertion that the Workers’ Compensation Judge failed to make essential findings as to the experts’ testimony. Even without a specific finding, it could reasonably be inferred that the judge rejected the testimony of the claimant’s family physician because the judge had rejected the opinion of the claimant’s occupational medicine expert upon whom the family physician had relied. Nor was any error found on the basis of the judge’s failure to make a credibility determination as to the employer’s expert pulmonologist, as the claimant bore the burden of proof and the expert’s opinion was that the claimant did not suffer from occupational asthma.

Ashley Talley (Philadelphia, PA) successfully defended a national broker for delivery services in a workers’ compensation claim. ​The claimant was a contract delivery driver for our client. While en route to a delivery, he was involved in a motor vehicle accident and sustained injuries that resulted in surgical intervention. After receiving the maximum duration of benefits under a personally-funded Truckers Occupational Accident Insurance Policy, the claimant filed a claim petition alleging that he was an employee of the defendant. Ashley argued that the claimant was an independent contractor rather than an employee, thereby barring his ability to pursue benefits under the Workers’ Compensation Act. The parties presented testimonial and documentary evidence on this issue, and the Workers’ Compensation Judge ultimately accepted the defendant’s argument, denying the claim petition in its entirety.

Tony Natale (Philadelphia, PA) successfully defended a national thermographic inspection company in litigation surrounding an employee’s alleged stroke and disability. ​The claimant asserted that, while on a job for the company, he suffered a work-related stroke, secondary to long periods of travel. It was discovered that the claimant had a congenital hole in his heart. He alleged that travelling for the company caused plaques in his circulatory system to dislodge and damage his heart, leading ultimately to a stroke. Tony presented evidence which proved that the claimant was not travelling long distances prior to the occurrence of the stroke and that the stroke condition itself did not arise from a work-related cause or injury. Additionally, Tony argued that the claim had no jurisdictional nexus to the Commonwealth. The Workers’ Compensation Judge dismissed the claim based on lack of causal medical evidence and lack of jurisdiction.

​Kacey Wiedt (Harrisburg, PA) successfully defended a penalty petition seeking more than $100,000 in unpaid medical bills because the defendant allegedly failed to pay the terms of a Compromise and Release Agreement. The claimant asserted that the parties entered into a Compromise and Release Agreement which obligated the defendant to continue to pay ongoing medical treatment if the defendant chose not to proceed forward with payment of a Medicare Set-Aside proposal of $78,624.36. Pursuant to the terms of the agreement, if the amount of the Medicare Set-Aside was found by CMS to be greater than the proposed recommendation, the defendant retained the right to cancel funding of the annuity and would continue paying the claimant’s reasonable and necessary medical expenses related to the work injury. The claimant alleged that there were more than $100,000 in medical expenses not paid by the defendant after they retained their right to cancel funding of the annuity due to CMS finding an amount higher than the MSA proposal. Kacey presented medical evidence which supported that the medical treatment and ongoing treatment for the claimant were not associated with the accepted injury. Additionally, Kacey argued that the description of injury in the Compromise and Release Agreement limited the claimant’s claim and that the medical bills were related to the accepted injury. The Workers’ Compensation Judge dismissed the penalty and review petitions and granted termination of the claimant’s benefits.

*Prior Results Do Not Guarantee A Similar Outcome¤

 

Defense Digest, Vol. 23, No. 1, March 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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