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

December 10, 2018

Defense Digest, Vol. 24, No. 4, December 2018

Casualty Department

Andrew Rhoads (Harrisburg, PA) prevailed on preliminary objections, resulting in the dismissal of a punitive damages claim that was based upon allegations of texting while driving. The plaintiff claimed that the defendant failed to stop for a traffic light and rear-ended another vehicle, causing it to strike the rear of the plaintiff’s vehicle. The plaintiff asserted that the defendant was not looking at the roadway because she was distracted—looking at and/or texting on her cell phone. Recklessness was alleged and punitive damages were sought. The defendant filed preliminary objections pursuant to Pa.R.C.P. 1028(a)(2), contending that allegations of cell phone use alone, absent other indicia of recklessness, were insufficient to support an award of punitive damages. The court held that preliminary objections under Pa.R.C.P. 1028(a)(2) were the proper vehicle to attack a claim for punitive damages, as the pleading did not conform to law or rule of court or included scandalous or impertinent matter. The court also rejected the plaintiff’s public policy argument that texting while driving should constitute per se recklessness. Lastly, in reviewing the complaint, the court concluded that the additional allegations presented by the plaintiff were simply boilerplate—that the defendant was inattentive and driving too fast—all of which could only amount to negligence, not recklessness.

Frank Baker (Allentown, PA) obtained a unanimous defense verdict on liability in a case arising from a rear-end motor vehicle accident. ​It was snowing at the time of the accident. Even though all the other cars in line at the traffic light had stopped without incident, the jury was persuaded that the defendant had acted prudently: that he had not encountered any problems with traction prior to the accident scene and was traveling below the speed limit at the time he applied his brakes. The decision not to concede liability, even for a rear-end collision, paid off.

Jason Sandler and Steve Christman (New York, NY) 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 and 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 the 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.

Ryan Burns (Fort Lauderdale, FL) and Shane Haselbarth (Philadelphia, PA) successfully reinstated a favorable trial jury verdict, reversing the trial court’s ruling on post-trial motions. The firm represented a movie theater where the plaintiff was injured when patrons rushed out of a theater after an individual shouted what appeared to be fighting words to himself and/or someone else. The plaintiff charged the movie theater with negligence for failing to prevent this situation. Ryan and Shane argued that the other individual should be listed on the verdict sheet for apportionment purposes. The trial judge agreed and put him on the verdict sheet. The jury then apportioned 60 percent of the liability to that individual on a substantial verdict. But in post-trial motions, the plaintiff convinced the trial court to vacate the apportionment and to allocate 100 percent of the liability on the movie theater, increasing its share by over $1 million. On appeal, Ryan and Shane convinced the appellate court to vacate the trial court’s order, thus voiding the jury’s apportionment, and to reinstate the full 60 percent share to that other individual.

Keith Andresen (New York, NY) and Harold Moroknek (Westchester, NY) obtained summary judgment on all direct and cross-claims in favor of our client. ​In this action, the plaintiff slipped and fell on dust and construction debris at 386 Park Avenue South. Our client was performing work at an adjacent building. The plaintiff alleged the dust and debris was created by our client’s work, as well as by subcontractors who were performing work within the subject building. Deposition testimony established that our client did not produce the white powdery substance that the plaintiff claimed caused her to fall. Neither the plaintiff nor any co-defendants raised any triable issues of fact, and the court granted our summary judgment motion.

Rachael von Rhine (Mt. Laurel, NJ) obtained summary judgment in a wrongful death case arising from an alleged drowning in a whirlpool at a spa. ​The plaintiff’s 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. Rachael produced an expert liability report stating the client was in compliance with all applicable codes and standards. She 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, concluding that the plaintiff could not simply rely upon the Medical Examiner’s conclusions as to the cause of death because he was not an expert in cardiology.

Sang Lee, David Wolf, Elyse Cohen and Theresa Lounsbery (Philadelphia, PA) obtained a defense verdict after a jury trial in Philadelphia County. The plaintiff, a visitor at a friend’s home, alleged to have tripped and fallen down a set of stairs due to an exposed cable wire. The fall resulted in a broken clavicle, requiring surgery with plates and screws, and scarring. The defendant was the homeowner. The co-defendant was judgment proof and did not appear for trial. Sang tried the case to verdict. Theresa handled the trial director and read in the co-defendant’s deposition transcript from the witness stand. The jury found the co-defendant 30 percent negligent, the plaintiff 70 percent negligent and awarded damages of $0.

Dean Aronin (New York, NY) obtained summary judgment in Supreme Court, Bronx County, New York. ​The plaintiff, resident of an apartment, stepped on an alleged nail in her living room while renovations were being performed. She brought a premises liability suit against the owner, the managing agent, the general contractor and various subcontractors. Dean represented the electrical subcontractor. He filed a motion for summary judgment, requesting dismissal of the plaintiff’s complaint and the general contractor’s third-party complaint for indemnification. The court granted Dean’s motion for summary judgment, finding that the plaintiff had failed to meet her prima facie burden of negligence because Dean established that the subcontractor was not working in the apartment on the date of the incident and did not utilize nails to perform its work, and concluding that the general contractors had not shown that the alleged injury arose from the work of the subcontractor.

Adam Calvert (New York, NY) prevailed on an appeal before the Appellate Division, Second Department, reversing a lower court order that had denied summary judgment to our client. ​The plaintiff was a patron at the defendant’s movie theater, where he got into a fight with another patron over a parking spot. The plaintiff sued the theater for negligent security. Adam was able to show that there was no notice to the theater because the incident was sudden and unexpected, based on the short duration of the altercation, and the lack of similar prior incidents at the theater. The appellate court held that summary judgment should have been granted to the theater.

Tony Michetti and Colin Drummond (Doylestown, PA) obtained a summary judgment in a Montgomery County, Pennsylvania landlord out of possession case. ​The plaintiff was shot several times while attending a party coordinated by the tenant’s son. There were approximately 200 guests at the party, all crowded into a small row-style residence. For the price of admission, the guests were provided alcohol and music. The tenant’s son had staged several similar parties over the year preceding the subject event. Although there was no evidence of prior fights/shootings, the police had been called for noise and crowd control on at least one prior occasion. The defendant landlord testified at deposition that he had no knowledge of the party or the ones that preceded it. The landlord was never contacted by police or neighbors concerning any conduct of the tenant or her family.

Walter Klekotka, Adam Fogarty and Kiera McGroarty (Mt. Laurel, NJ) obtained summary judgment for the residential owner-occupants in two fall-down premises liability cases. The first lawsuit was filed by a neighbor who claimed personal injuries from a slip and fall on ice on the sidewalk abutting the defendants’ residential property. It had snowed five days prior, at which time the defendants had shoveled the snow from the sidewalk onto the adjacent lawn. The plaintiff alleged the resulting snow pile subsequently melted back onto the sidewalk and eventually refroze, creating the ice on which the plaintiff would eventually fall. At the conclusion of discovery, the defendants moved for summary judgment based on the argument that New Jersey residential property owners have no duty to maintain sidewalks from naturally occurring conditions. The court granted the motion, agreeing that, even though the defendants had created the snow pile adjacent to the sidewalk, snow melting and refreezing is a naturally occurring phenomenon and, therefore, is not within the scope of a residential property owner’s duty of care owed to pedestrians. As such, the court found there was no legal basis on which one could reasonably conclude that the defendants were responsible for the plaintiff’s injuries.

The second lawsuit was filed by an individual claiming injuries from an incident in the backyard of the defendants’ residential property. The plaintiff had entered the property in an attempt to contact the owner of an undeveloped lot where a tree had supposedly fallen across the access road that leads to an adjacent lot the plaintiff owned. The plaintiff believed the owner of the lot lived at the subject premises, but had never spoken with anyone from, nor ever been to, the premises before. After entering the premises and observing yellow caution tape hanging across the steps leading to the front porch, the plaintiff walked around the house and began ascending steps leading to the rear deck. The plaintiff claimed that as he reached the top of the steps, he touched a handrail that was allegedly unhinged. He claims the unhinged rail fell on him, causing him to fall from the stairs, lose consciousness and sustain other injuries. At the conclusion of discovery, the court granted summary judgment for the defendants upon finding that the plaintiff was a trespasser at the time of the alleged incident. As a trespasser, the plaintiff was owed only a limited duty of care by the defendants. The court found the motion record lacked sufficient evidence from which a trier of fact could reasonably conclude such a duty had been breached.

Richard Imbrogno and Mark Wellman (New York, NY) were granted partial summary judgment in a Labor Law case venued in New York Supreme Court, Bronx County. The plaintiff was installing new floors in a large residential building in Manhattan. The project involved a large-scale renovation of a penthouse and several lower levels. Our client was the building owner. During the renovation, the plaintiff fell through an opening in the floor and sustained injuries to his knee and back. The plaintiff moved for summary judgment under New York Labor Law Section 240(1). We cross-moved for summary judgment, seeking a dismissal of all claims. Our expert concluded that the plaintiff could have avoided the accident and that proper safety equipment was provided. The court denied the plaintiff’s motion and granted our motion in part by dismissing the plaintiff’s Labor Law Section 200 claim and numerous 241(6) industrial code violations.

Tony Michetti (Doylestown, PA) obtained a defense verdict at arbitration in a case where the plaintiff slipped and fractured her arm in a supermarket. The plaintiff claimed that the floor was slippery because floor wax was improperly applied by the defendant, a cleaning company. The defendant testified that he used a high-quality commercial floor wax and had followed the manufacturer’s instructions. The coefficient of friction data supported the defendant’s position that the floor was not slippery.

After a three-day trial in Philadelphia County, Matthew Noble and Amy Wolensky (Philadelphia, PA) obtained a defense verdict in favor of an automobile manufacturer. ​TChe plaintiffs purchased a new Dodge Durango truck. The plaintiff claimed this vehicle 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.

 

Health Care Department

Steve Ryan (King of Prussia, PA) and Michelle Wilson (Allentown, PA) won, for the second time, the now infamous case of Shinal v. Toms, M.D. ​The defense verdict from the first trial had been overturned by the Pennsylvania Supreme Court, which ruled that Pennsylvania surgeons cannot delegate any part of the task of obtaining informed consent. (Prior case law permitted qualified assistants to participate but left the ultimate duty with the surgeon.) The case has been seen as a thorn in the side of doctors and hospitals throughout the Commonwealth. It was determined that a retrial would guarantee another appeal, but with little hope of a change in the law—a legislative solution may be the only hope for change. Accordingly, the retrial was referred to binding arbitration and tried over three days with live experts on liability and damage experts on paper. In a close case, the arbitrator, after deliberating over ten days, found that the neurosurgeon did obtain informed consent prior to attempting to fully remove a craniopharyngioma, which had recurred after a subtotal resection and was threatening vision and pituitary function. The plaintiffs theory was that the surgeon had a duty to disclose to the patient that the surgical option of “attempting getting it all” (gross total resection), when the tumor was intimately adherent to vital neural and vascular structures (as this one was), was very controversial, with many believing the potential benefit was outweighed by the risks. Our client did not agree with this school of thought and testified that he was guided by the patient’s desire to accept some increased risk to prolong her life, as she hoped to watch her son grow up. During surgery, the patient’s carotid artery ruptured, and she suffered a stroke, leaving her totally disabled, mostly blind, depressed and with cognitive deficits.

Missy Minehan (Harrisburg, PA) obtained an order granting the licensure application of a Utah psychologist who petitioned to be licensed in Pennsylvania. ​Although the client’s training did not technically comply with the Pennsylvania Psychology Act, we were able to produce enough evidence of her excellent reputation and experience and the need for her services in the Commonwealth that the Board made an exception in her case.

Jeffrey Bates and Rachel Freedman (Philadelphia, PA) obtained non-suit in a dental malpractice case in the Philadelphia County Court of Common Pleas. ​The plaintiff filed dental negligence and lack of informed consent claims against our clients, a dentist and his dental practice, for an alleged improperly placed dental implant on the plaintiff’s front right tooth. Trial proceeded on the dental negligence claim only. The plaintiff withdrew her lack of informed consent claim after argument on our motion in limine to preclude the lack of informed consent claim due to insufficient expert testimony on the subject. The plaintiff retained one expert, an oral pathologist, on the standard of care, causation and damages. However, the plaintiff’s expert had no specific training or experience in oral surgery or the placement of dental implants and had never personally placed a dental implant. After voir dire on the plaintiff’s expert’s credentials, we moved to strike the expert’s testimony. The judge granted our motion and precluded the plaintiff’s expert from providing any testimony on the standard of care on the placement of dental implants. In a final attempt to obtain expert testimony on the standard of care, which is required in a dental malpractice case, the plaintiff attempted to elicit testimony from a subsequent treating dentist. The subsequent treating dentist was critical of the aesthetic of the implant placed, however, he specifically testified that he was not providing any testimony that the defendant-dentist breached the standard of care. At the conclusion of the plaintiff’s case, we presented a motion for compulsory non-suit on the basis that the plaintiff did not provide the requisite expert testimony: (1) identifying the standard of care in placing dental implants; and (2) opining that the defendant-dentist breached that standard. Ultimately, the judge granted our motion for both the defendant-dentist and his practice, agreeing that the plaintiff failed to provide competent expert testimony on the standard of care.

Robert Aldrich (Scranton, PA) obtained a nonsuit in a dental malpractice action venued in the Luzerne County, Pennsylvania Court of Common Pleas. 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 nonsuit and dismissed the plaintiff’s claims.

Steve Ryan and Joseph Hoynoski (King of Prussia, PA) 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 central Pennsylvania health system and its chief of urology who performed major cancer surgery upon the plaintiff. 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. The residents had not informed the attending physician about the temperature or the white blood cell count. 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. Joseph Hoynoski, through motions, secured the dismissal of corporate negligence and future medical expense claims, and he also, 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. Although the arbitrator found the medical center that employed the residents negligent through them, he found no causation and specifically rejected the opinion of the plaintiff’s expert on that issue.

 

Professional Liability Department

Tonya Lindsey and Mark Wellman (New York, NY) obtained summary judgment in a case venued in New York Supreme Court, Kings County (Brooklyn). The plaintiff was injured when he was using a partially disabled zip line located in a school playground. Our client, the New York School Construction Authority, had approved the design of the new playground, including the zip line. The renovated playground was completed approximately two years before the plaintiff’s accident. Under the direction of the school administrators, the school maintenance staff removed portions of the zip line. The court granted our motion for summary judgment as our client had no involvement with the maintenance and alteration of the playground equipment.

Armand Della Porta (Wilmington, DE) drafted and argued a motion for summary judgment before the U.S. District Court for the District of Maryland on behalf of our client. ​The court granted our motion, thereby ending the case in favor of our client. The settlement demand prior to the argument of the motion was $1.8 million, and we had offered $10,000. The case involved a claim that our client, the general contractor, had committed numerous construction deficiencies during the construction of an addition to a hospital and had committed fraud in attempting to conceal those deficiencies from the owner of the hospital. The court agreed that our client did not commit fraud, and hence, the suit was barred by the accrual clause in the contract, which stated that the statute of limitations began to run upon substantial completion of the work.

William Waldron and Patricia McDonagh (Roseland, NJ) obtained a victory in the New Jersey Appellate Division. ​The family of a worker who died after an accident at a bridge construction site brought suit against the County of Middlesex and our client, an engineering consultant. The County sought contractual and common law indemnity against our client for reimbursement of the legal expenses it incurred defending the underlying lawsuit. We moved for summary judgment, arguing that the County incurred its litigation expenses solely in defending against claims of its own independent negligence, as opposed to defending against claims of derivative or vicarious liability of our client. The trial court agreed and granted our client summary judgment, dismissing the County’s indemnity claims. On the appeal brought by the County, the New Jersey Appellate Division affirmed the trial court’s grant of summary judgment.

Lila Wynne and Kevin Bright (Mt. Laurel, NJ) prevailed on a motion for summary judgment as to liability in an environmental case involving claims related to a leaking underground storage tank (UST). ​In this environmental subrogation case, our client sued a fuel delivery company under the New Jersey Spill Compensation and Control Act for delivering fuel oil to the UST while the UST was leaking. Our client also asserted claims for negligence and breach of contract. The defendant also moved for summary judgment, seeking to dismiss our client’s claims on the basis of a disclaimer printed on the delivery tickets, which were subsequently mailed to the insured. Following oral argument, the court granted our motion and denied the defendant’s motion. In granting our motion, the court found that the plain language of the Spill Act requires a finding of liability where it is shown that the delivery company made deliveries to the UST while it was leaking, even absent actual or constructive notice of the leak. In denying the defendant’s motion, the court found that the pre-printed disclaimer constituted an unenforceable adhesion contract, contrary to public policy, and that such a defense would not apply to a Spill Act claim, even if the provision were otherwise enforceable.

James McGovern (Pittsburgh, PA) successfully represented an insurance agent in an investigation conducted by the Pennsylvania Insurance Department. ​The agent’s clients filed a complaint in which they alleged the agent failed to advise them of a waiver of premiums rider on the husband’s life insurance policy in the event of a disability of the insured. As a result, they claimed they had incurred ten years’ of premiums expenses that could have been waived. The investigator concluded that the claim was without merit and that no action would be taken by the Insurance Department against the agent.

Brooks Foland and Allison Krupp (Harrisburg, PA) obtained summary judgment in the Court of Common Pleas of Wayne County Pennsylvania for a large insurer. ​The parties had filed cross-motions for summary judgment in this breach of contract case. 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 should be covered. The carrier 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 carrier asserted that they were not covered. The court agreed with the carrier 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.

Edwin Schwartz and Nicole Ehrhart (Harrisburg, PA) obtained summary judgment on behalf of a law firm in the Court of Common Pleas of Huntingdon County. ​The dispute arose out of an underlying will contested by a disgruntled brother who was excluded from his brother’s Last Will and Testament. The decedent made two specific bequests to his office assistants, but the bulk of his estate was distributed equally between two specific charities. The decedent’s brother filed caveats to the estate. The case proceeded to a bench trial, and the judge ruled in favor of the estate, dismissing the claims of the decedent’s brother. As a result, the decedent’s brother filed suit against his attorney, alleging legal malpractice and breach of contract. The claims were filed too late, and the court found that the claims were barred by the statute of limitations.

Edwin Schwartz (Harrisburg, PA) and Alesia Sulock (Philadelphia, PA) 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 landowners and 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 the former clients on the basis of the statute of limitations.

Jack Slimm (Mt. Laurel, NJ) obtained the dismissal of a legal malpractice/fraud action filed 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. Accordingly, Jack argued that the legal malpractice/fraud action was barred under New Jersey’s Entire Controversy Doctrine, which Jack actually helped develop in this state in Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 310 (1995). The court agreed and dismissed the legal malpractice action, with prejudice.

April Cressler (Pittsburgh, PA) drafted preliminary objections to a complaint filed in the Court of Common Pleas of Crawford County in which a pro se litigant brought suit against a Meadville police officer and the Crawford County District Attorney. ​Paul Krepps (Pittsburgh, PA) presented oral argument. The plaintiff was court ordered into an out-patient program for violent sexual predators upon his release from prison. He was later discharged from the program because he was not following its rules and it was determined that he was not a suitable candidate for the program. Personnel in the Crawford County District Attorney’s office learned of his discharge and contacted a Meadville police detective and instructed him to arrest the plaintiff for violation of Pennsylvania’s Megan’s Law. The detective, in turn, requested the officer to detain the plaintiff if he was located. The officer saw the plaintiff walking down a street and detained him. The plaintiff was arrested, but later the charges were nolle prossed by the District Attorney. The plaintiff alleged in his complaint that the officer (not the detective) falsely imprisoned him. The court held that, considering what was reasonably known to the officer at the time, the arrest was based upon a reasonable belief that he had committed a crime.

Christopher Boyle (King of Prussia, PA) obtained dismissal of our clients, a local police department and two of its detectives, on a motion to dismiss. ​The plaintiff, who had been acquitted of the sexual assault of an emotionally disturbed teenage girl, sued the detectives and their department alleging the detectives should not have arrested him, even in the face of an identification of him as the rapist, his own inconsistent statements, and documentation that he and his victim had checked in to a local motel on the date of one of the assaults. His reasoning was that the victim was not a credible witness, given her drug use (some of which he had provided) and her troubled past.

Nicole Ehrhart (Harrisburg, PA) obtained a dismissal of our attorney client on a motion to dismiss. The plaintiff commenced this 42 U.S.C. § 1983 civil rights action by filing a fourteen-count complaint against our client and co-defendant, the plaintiff’s estranged wife. The plaintiff alleged that the co-defendant retained our client to represent the co-defendant’s interests in a divorce proceeding. The complaint alleged the defendants conspired to deprive him of his constitutionally protected rights to due process and equal protection under the Fourteenth Amendment in connection with the pending divorce proceeding in state court. It was argued that the complaint lacked plausible factual allegations of state action sufficient to subject these private actors to § 1983 liability. The court agreed and found that the plaintiff’s sweeping theory of state action, which was premised on a private actor’s mere availment of state court process to obtain an immediately enforceable judgment, was problematic and unavailing.

Christian Marquis and April Cressler (Pittsburgh, PA) obtained summary judgment on behalf of their clients, who were township supervisors and a township zoning officer. The plaintiffs claimed that the supervisors had wrongfully approved conditional use permits for unconventional oil and gas development on neighboring properties. The plaintiffs argued that recent developments in case law imposed trustee duties upon the township supervisors and that recent decisions had established that unconventional oil and gas drilling is an industrial use. Through discovery, the record clearly established that the supervisors were immune from the claims on the basis of High Public Official Immunity. The township zoning officer was likewise immune for his alleged failures to enforce as his enforcement was discretionary pursuant to well-established case law.

Donald Carmelite (Harrisburg, PA) and April Cressler (Pittsburgh, PA) obtained dismissal of their clients, a local township and its fire marshal, on claims of violations of the plaintiff’s procedural and substantive due process rights as well as a Monell claim. The plaintiff owned and operated a personal care home, whose license was subsequently revoked after an issue with the facility’s fire alarm system. The plaintiff appealed the revocation. However, the appeal was denied, and the plaintiff filed suit. The plaintiff’s claims were dismissed on behalf of the township defendants due to the lapse of the statute of limitations. The claims against the other defendants were also dismissed by the court (sua sponte) as they, too, were time barred. The plaintiff filed an amended complaint in which she argued that tolling provisions applied. We filed a second motion to dismiss. We successfully argued that no tolling provisions applied and that the plaintiff had missed the statute of limitations by 21 days, thus leading to the dismissal of her claims in their entirety, with prejudice.

Ray Freudiger (Cincinnati, OH) secured a significant victory in the United States Court of Appeals for the Sixth Circuit. ​The appellate court affirmed the award of summary judgment granted to our client, one of the nation’s largest grocers, in a federal civil rights action involving noteworthy Second Amendment implications. In that case, an individual walked into a Cincinnati-area grocery store in a suspicious manner while openly carrying his firearm on his hip. At the time, the grocer maintained an unwritten policy of allowing customers to open carry firearms in its stores. Immediately after entering the store, he was approached by the grocer’s independent contractor security guard, who instructed the man to return his gun to his vehicle to avoid panic; otherwise, he would not be allowed to shop inside the store. After becoming confrontational, the man was asked to leave the premises. The man disregarded the command and walked hurriedly into the store. He was subsequently arrested and charged for criminal trespassing. The plaintiff filed suit against the grocery store, two of the grocer’s employees, the security guard, the guard’s employer, the two arresting police officers and the City of Cincinnati, asserting a variety of claims. The claims were premised upon the plaintiff’s contention that the defendants lacked probable cause to arrest him for criminal trespass and that the defendants violated his Second Amendment rights for revoking his privilege to remain in the store while he was open carrying his handgun. The district court judge granted summary judgment in favor of Ray’s clients on all causes of action asserted against the grocery store and its two employees. On appeal, the Sixth Circuit held that the defendants possessed probable cause to believe the plaintiff was criminally trespassing as a result of his failure to leave the store after the security guard revoked his privilege to remain on the grocer’s property. In addition, the Sixth Circuit rejected the plaintiff’s argument that his Second Amendment rights were violated.

Christopher Boyle (King of Prussia, PA) obtained summary judgment on behalf of a school district in a fatal automobile accident where a high school student was struck and killed by a third party while crossing the street to board her school bus. ​The striking driver, also a student at the high school, was found criminally liable and sentenced to a prison term but was not sued by the estate. Because a school bus stop is not a “traffic control” and a stationary bus with its red lights activated is not “in operation,” the plaintiffs were unable to fit their arguments within an exception to the Pennsylvania Political Subdivision Tort Claims Act, and the complaint was dismissed.

Joseph Santarone and Jane Kane (Philadelphia, PA) obtained summary judgment in the U.S. District Court for the Eastern District of Pennsylvania. ​We represented a school district that was sued after a chair being used to transport a severely handicapped high school student collapsed as the student was being removed by aides from the school’s pool. The plaintiff claimed that as a result, he lost what limited use he had of his right arm and could no longer operate his computer, his only link with the world. He also complained of neck pain, which he alleged did not exist before the incident. The lawsuit named the school district and the two aides. It stated a 1983 claim, asserting both special relationship and state-created danger theories under the 14th Amendment. The plaintiff argued that, because of the total dependency of the student on the school and the aides, the exception applied. The plaintiff’s demand never went below $5 million, plus attorney fees, even after the oral argument on the motion went very well for our clients.

Hilary Flack (Philadelphia, PA) obtained denial of FINRA forum for our client, a compliance officer for a broker dealer and FINRA arbitrator, in a case where he was sued in FINRA arbitration. The claims against our client included breach of fiduciary duty, fraud, wire fraud and misrepresentation, among others. The claim had previously been heard in FINRA arbitration against another party, and again in Florida State Court. The Florida court dismissed the claim and ordered the plaintiff to file no further litigation related to the case. The plaintiff then filed again with FINRA, naming new parties, including our client, in an apparent attempt to avoid any res judicata issues. FINRA accepted our argument that the plaintiff should be denied a FINRA forum.

 

Workers’ Compensation

Ashley Talley (Philadelphia, PA) successfully prosecuted a petition to modify benefits to recoup benefits that were wrongfully withheld by the claimant. ​The claimant alleged two work-related injuries during the course and scope of his employment with our client, a regional transportation company. On appeal, Ashley was successful in reversing one of the claims while preserving a credit for any benefits that the claimant received in connection with his other injury. A subsequent investigation uncovered that the claimant not only received ancillary income, but he denied that receipt on state-required documentation. Ashley filed a modification petition to enforce the Appeal Board’s award, which was granted. Our client was awarded full relief, despite the claimant’s attempt to use the “rehabilitative” nature of the Workers’ Compensation Act in his favor.

Keri Morris-Johnston (Wilmington, DE) successfully defended a motion filed on behalf of an injured worker seeking fines and sanctions against the defense medical expert and the employer. ​This was an issue of first impression before the Industrial Accident Board. The claimant argued that the defense expert fee was too high and violated the Workers’ Compensation Act and Regulations. She also argued that the employer should be fined for paying the expert fees. According to the claimant, the regulations restrict any physician testifying in a workers’ compensation case from charging more than $2,000 for the testimony. After considering the competing arguments, the Industrial Accident Board found in favor of the employer and refused to impose a fine against the defense expert. The Board agreed with the employer that the regulations at issue were to limit the amount the carrier was required to pay for a claimant’s expert fees, if awarded by the Board, and were not meant to limit an employer from choosing to pay more for its defense expert testimony.

Tony Natale (Philadelphia, PA) successfully defended a transportation authority in the litigation of a claim petition arising out of a trolley accident. ​The claimant, a trolley driver, was video-taped sleeping on the job in the back of a trolley. When he finally awoke, he realized he was behind schedule. He darted to the front of the trolley and began operating the vehicle while keeping his cell phone in hand (which is against regulations). He failed to stop at a stop sign and then exceeded the posted speed limit for the rail line. The claimant then ran through a rail stop light and ultimately struck another trolley. The video-tape inside the trolley was recording the entire time. At the moment of impact, the claimant barely moved and showed no traumatic injury. After a thorough review of the accident, the claimant was disciplined and set for discharge for cause. It was at this point he alleged horrific injuries that permanently disabled him from working. The video-tape was admitted into evidence along with the claimant’s testimony and medical expert testimony. The judge found the claimant did not sustain any injuries, and the claim was dismissed.

Tony Natale (Philadelphia, PA) used a violation of law defense centered around a marijuana gummy bear 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—coincidentally, his treating doctor opined that his work-related condition worsened immediately after his discharge, such that the claimant could no longer perform his duties. Tony cross-examined the claimant’s medical expert, exposing the fact that the diagnoses rendered 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. Tony 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.

Michele Punturi (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA) were successful in defending a worldwide manufacturer of automobiles before the Commonwealth Court. ​The claimant suffered a compensable injury that was accepted as a medical-only. The claimant’s wage loss benefits were suspended due to a termination for cause. She sought to reinstate benefits, alleging her condition worsened, resulting in decreased earning power. However, the date alleged for same was changed by her during the litigation. In addition, a termination petition was filed. Ultimately, the Workers’ Compensation Judge granted the reinstatement petition and denied the employer’s termination petition. The Appeal Board reversed the reinstatement petition, and the claimant appealed to the Commonwealth Court, which found that she failed to meet her burden.

Michele Punturi (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA) represented a national car company before the Commonwealth Court and successfully litigated nine medical fee review petitions surrounding the propriety of a chiropractor’s billing for an office visit in addition to charges for treatment provided at the visit. The carrier/employer denied the chiropractor’s bills, citing Regulation 127.105, which states, among other things, “Payment shall be made for an office visit provided on the same day as another procedure only when the office represents a significant and separately identifiable service is performed in addition to the other procedure . . . .” The carrier/employer submitted the provider’s bills and office notes supporting a “double payment,” which is in violation of the regulation. Based upon the carrier/employer’s factual and legal analysis, the Commonwealth Court vacated the decision and remanded back to the Fee Review Hearing Officer. The Commonwealth Court recognized that the carrier/employer introduced evidence to support its burden of proof based upon the office notes that were introduced to support a violation of this regulation.

Raphael Duran (Philadelphia, PA) represented a regional health system in a workers’ compensation claim involving an employee who alleged he was fully disabled as a result of a work incident. ​Prior to litigation, the client brought Raphael in to investigate the claim. In assisting with the investigation, he learned that the alleged injury occurred after the employee had requested time off from work (which was denied due to insufficient PTO). Upon further investigation, it was learned that the claimant worked a second job with a catering company. Several rounds of surveillance showed the claimant’s activities with the catering company, despite what he was reporting to his private doctor. Upon cross-examination at the initial hearing, the claimant acknowledged that he had misled his physician, his employer and even his own attorney. As a result, claimant’s counsel has failed to prosecute the case to date. The client also requested that Raphael participate in the subsequent union grievance and employment arbitration, which will also be attended by their associate general counsel and employment counsel.

Tony Natale (Philadelphia, PA) successfully defended a nationally renowned canning and food corporation headquartered in Berks County, 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 lead 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. Tony 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.

Tony Natale (Philadelphia, PA) also successfully represented a New Jersey-based auto insurance products management company. ​The claimant sustained injuries working for this company in the form of thoracic outlet syndrome and right upper extremity maladies in the performance of her job duties. She began incessant treatment with a chiropractor and was provided modalities such as adjustments, massage, manual traction, electrical stimulation and cold laser treatment. The carrier filed an application for utilization review, claiming the chiropractic treatment was no longer reasonable and necessary. The UR Determination found the treatment to be unreasonable on an ongoing basis. The claimant filed a petition to review the Utilization Review Determination, and litigation ensued. Both parties presented expert and fact testimony in support of their positions. The Workers’ Compensation Judge thoroughly reviewed the evidence and found that the chiropractic treatment was unreasonable and unnecessary. As a matter of first impression in Pennsylvania, the judge also awarded an attorneys fee against the claimant, stating that counsel for the claimant must reimburse Tony’s time and expense to attend a hearing where the claimant’s attorney did not appear in a timely fashion.

 

 

Defense Digest, Vol. 24, No. 4, December 2018. 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. © 2018 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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