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

March 1, 2019

Defense Digest, Vol. 25, No. 1, March 2019

Casualty Department

Brooks Foland (Harrisburg, PA) received a defense verdict from a Schuylkill County, Pennsylvania jury in a case involving an accident on a haunted hayride and a claim of Complex Regional Pain Syndrome. We represented a volunteer fire company that hosts an annual haunted hayride on its property to raise money. The plaintiff, then a 12-year-old, went to the hayride event as an invitee and was convinced by other teens to help scare people on the wagons at one of the skits in the woods. Without the knowledge of the fire company, the plaintiff joined the teens, got into costume, and began scaring people in wagons as they passed by. She did this for about an hour, until one of the wagons allegedly ran over her left foot. The plaintiff sued the fire company. In defending the fire company, Brooks raised the many defenses available under the Political Subdivision Tort Claims Act. At trial, the plaintiff was required to prove either that the driver of the tractor pulling the wagon did so negligently or that the accident resulted from a dangerous condition of real property in the care, custody and control of the fire company. The plaintiff suffered no fracture, but was soon diagnosed with Complex Regional Pain Syndrome. Her treatment regimen ran approximately seven to eight weeks. Thereafter, she returned to school and resumed playing sports. In the following years, the plaintiff suffered subsequent episodes of CRPS, sometimes in different limbs, sometimes associated with new trauma, but often not associated with any trauma at all. On causation and damages, the defense retained a renowned pediatric rheumatologist from CHOP. The jury was captivated by this doctor’s unique style and presentation. The initial demand had been $450,000. At the time of the pre-trial, the demand was lowered to $250,000, and a nominal amount was offered by the carrier for the fire company prior to trial. The jury found no negligence on the part of the fire company.

Paul Lees (Allentown, PA) successfully obtained the dismissal of a local college from a wrongful death lawsuit involving a pedestrian killed in a motor vehicle accident while attempting to cross a street on our client’s campus. ​The decedent had attended a soccer game at the college campus and had parked in one of the campus parking lots. While attempting to return to his vehicle after the game, he was struck and killed by the co-defendant driver as he crossed a city-owned street on the defendant’s campus. The plaintiff’s complaint alleged the college had voluntarily assumed the duty to provide safe crossing by encouraging visitors to use its campus lots. Parking in those lots required one to cross the street at issue. The college had previously provided assistance through the use of traffic devices, campus police, and city police to direct and control traffic. The court held that the college did not owe its invitees any duty to control traffic on a municipal street. After being afforded the opportunity to amend the complaint, a second motion to dismiss was pursued on behalf of the college and was granted by the court.

Lori Quinn and Lindsay Korn (Melville, NY) obtained summary judgment in a slip and fall case in the New York Supreme Court, Queens County. After falling on a sidewalk, the plaintiff alleged that the defendants, the homeowners of the abutting property, were negligent in failing to maintain and/or repair a raised and uneven sidewalk. The plaintiff alleged the defendants were liable under theories of special use and violation of New York City Administrative Code §§ 7-210. Our defense strategy cited the exception in § 7-210, where the owner of a two-family residential property is statutorily exempt from liability for the sidewalk when the property is owner-occupied and used for exclusively residential purposes. The court agreed that our client was not liable for the condition of the sidewalk under New York City Administrative Code § 7-210. Summary judgment was granted against the plaintiff and on all cross-claims of the city.

Claire Ventola and Carol Vanderwoude (Philadelphia, PA) prevailed on a motion for summary judgment in Philadelphia Court of Common Pleas in a catastrophic injury case involving two adult plaintiffs and their two minor children. The four plaintiffs were struck by a vehicle while crossing a public roadway after leaving our client’s banquet hall. One plaintiff sustained a permanent and significant traumatic brain injury and orthopedic injuries and will require lifelong medical care. The remaining three plaintiffs, including the children, sustained orthopedic injuries. Two lawsuits were filed and consolidated. In each, the plaintiffs sued the driver of the striking vehicle (who died several months after the lawsuits were filed), the banquet hall operator (our client) and the owner of the premises. After several rounds of preliminary objections, the remaining allegations against our client were that it was negligent in failing to provide adequate parking and in allowing vehicles to double-park in front of its premises. There was no evidence that our client instructed or directed the vehicle drivers to double-park in front of its premises. Our summary judgment motion was granted, following the precedential decision of the Pennsylvania Superior Court in Newell v. Montana West, 154 A.3d 189 (Pa. Super. 2017), which squarely held that no duty of care is owed by a property owner/operator under these circumstances.

Keith Andresen and Adam Calvert (New York, NY) obtained summary judgment in a case where the plaintiff alleged he tripped and fell at a Manhattan restaurant. He allegedly tripped while leaving his table and sustained a serious leg fracture that required surgery. We represented the building developer and the alleged property manager. We obtained the leases and proved that our client did not own or operate the restaurant or manage that specific portion of the building at the time of the accident. The co-defendant, the restaurant operator, and the plaintiff opposed our motion, citing that discovery had not yet taken place. The court agreed with our argument and dismissed all direct and cross claims.

Ralph Bocchino and Colin O’Brien (Philadelphia, PA) obtained summary judgment in Philadelphia County in a case that involved alleged serious injury as a result of a fall at a shopping center. Our clients not only had a triple net lease in effect, but they also had indemnity and insurance clauses in their lease. The summary judgment request was granted, providing our client, the shopping center, with contractual indemnity, and ordered the additional defendant to defend and indemnify them at trial.

Health Care Department

Walter Kawalec and Lynne Nahmani (Mount Laurel, NJ) were victorious in the New Jersey Appellate Division. ​The case involved a woman with significant cardiac problems who suffered cardiac arrest and death. Her estate alleged that our clients, a medical resident and an intern, improperly administered certain pharmaceuticals that lead to her death. The plaintiff originally named two physicians as experts, a cardiologist, who was offered to testify to the standard of care, and a physician board certified in occupational medicine, medical toxicology and emergency medicine, who was initially named to give testimony on causation. Before deposition, the expert cardiologist withdrew. The plaintiff did not obtain the services of another expert, choosing instead to attempt to proceed with the other expert providing both standard of care and causation testimony. The Appellate Division affirmed the decision of the trial court which dismissed the case, finding that because the expert did not devote the majority of his professional time in the year prior to the decedent’s death in a clinical practice that encompassed the medical condition or procedure at issue, he was not qualified under New Jersey law to offer standard of care testimony. As such, the dismissal of the complaint was affirmed.

Daniel Sherry (King of Prussia, PA) obtained a defense verdict after a week-long jury trial in Montgomery County. Dan defended an obstetrician/gynecologist in a suit involving complications from a C-Section. The plaintiff had a major post-partum hemorrhage two weeks later and underwent a hysterectomy, thereby losing the opportunity and ability to have additional children. The case was defended on both standard of care and causation, the defense position being that the care was appropriate and that taking the plaintiff back to the OR carried significantly more risks in this situation. The jury deliberated for 45 minutes and found the physician not negligent.

Professional Liability Department

James McGovern (Pittsburgh, PA) prevailed in an arbitration proceeding on behalf of an engineering firm that had designed a 30-foot high segmented retaining wall at a craft brewery in Pittsburgh. During construction, the supplier of the blocks used to construct the wall raised issues with the engineer’s design. The project owner, block supplier and general contractor jointly retained another engineer to review the original design, and it was alleged the original design was faulty in several respects. Our client refuted the criticisms of his design but agreed to redesign the wall. The wall was torn down and rebuilt with product obtained from another supplier. Litigation ensued after completion to recover additional costs incurred by all parties. The arbitration panel unanimously ruled in favor of the engineer and denied all claims and cross claims against our client.

Ray Freudiger (Cincinnati, OH) successfully defended an insurance agency and agent in the Twelfth Appellate District of Ohio. The plaintiffs contacted the insurance agent to obtain insurance for two residential properties. The agent obtained the requisite information for the insurance applications from the plaintiffs, including their primary mailing address, a post office box address. The agent advised them that their only insurance option was through the Ohio Fair Plan (OFP), as neither property had been insured in the prior three years. The plaintiffs gave the agent a check for the premium. The agent explained that the OFP would inspect both properties prior to issuing coverage and that coverage would be cancelled if any required repairs were not made. The OFP sent a notice of cancellation to the post office box listed on the insurance application. It also sent a refund check to the agent. The plaintiffs claimed that they never received the notice of cancellation or the refund check. They sued OFP, the agent and insurance agency. After written briefs and oral argument, the court of appeals affirmed summary judgment in favor of the agent and agency on the grounds that there was no evidence that the agent represented to the plaintiffs that the property had insurance coverage prior to a fire at one of the properties. Further, although the plaintiffs claimed that they never received notice of cancellation, the insurance application indicated that they would be informed directly from the insurer whether or not coverage was going to be provided. Therefore, the agent was not required to inform the plaintiffs of the cancellation. The court also held that the plaintiffs failed to present any evidence the agent fraudulently concealed the refund check from them, even if they did not receive the check.

James McGovern (Pittsburgh, PA) was successful in having the plaintiffs voluntarily dismiss their case, with prejudice, against a life insurance agent. The plaintiffs sued the agent who sold them a disability insurance policy, and they also asserted claims against the insurer for wrongful denial of the disability claim. The wife/plaintiff had filed a disability claim based upon her inability to work as a registered nurse due to the alleged gradual worsening problems with her vision. She claimed that she told the agent of her pre-existing eye problems at the time of application, an assertion he denied. Through third-party discovery and her deposition testimony, it became apparent she had given false information to the carrier regarding her pre-existing conditions and employment terminations. She had been terminated from three hospitals for-cause for on-the-job intoxication, but she had asserted that the discharges were due to her inability to perform her duties. Faced with sanctions, the plaintiffs dismissed their case.

Walter Kawalec and Eric Brown (Mount Laurel, NJ) were victorious in the New Jersey Appellate Division. ​In this insurance coverage matter, our client provided additional insured coverage for the landlord of our client’s insured. Suit was brought by an employee of the insured against the landlord, who sought coverage from our client on a primary basis. Coverage was declined. In a subsequent suit seeking defense and indemnification, the Law Division judge found that primary coverage was owed under our client’s policy, finding that the operative language in the lease—that the landlord would be protected from “any and all liability”—must be read to protect against “any and all claims.” The Appellate Division accepted our argument, set out in the appellate brief, that this conclusion was error. Our client’s policy only provided primary coverage if the lease between the landlord and the insured specifically required primary coverage. Nothing in the lease specified required primary coverage, however. We further argued that the Law Division judge erred by reading “any and all liability” to mean “any and all claims,” therefore requiring primary coverage, as “liability” and “claims” are not synonymous. We argued that since the landlord had other primary coverage, the lease terms did not require our client’s policy to provide primary coverage here because the landlord would not suffer any “liability” for any damages or settlement, as its own insurer’s policy unquestionably provided primary coverage and our client’s policy provided excess coverage. The Appellate Division agreed and reversed the trial judge’s decision.

Jack Slimm and Arthur Wheeler (Mount Laurel, NJ) obtained summary judgment in a complex legal malpractice action. The case arose out of two underlying cases in which our client, a well-known plaintiff’s personal injury practitioner, was sued for legal malpractice because he, along with a successor attorney who took over the cases, failed to obtain an appropriate recovery. After motion practice, the court granted our summary judgment motion, finding that the plaintiff failed to prove a deviation from the standard of care in connection with the settlement that was achieved for the plaintiff.

Christopher Boyle (King of Prussia, PA) obtained summary judgment on behalf of a chief of police who investigated embezzlement by the manager of a VFW Post canteen. The chief’s investigation included a forensic accounting report by a local accountant that showed over $60,000 in theft. After the criminal court dismissed the charges, this suit followed. The plaintiff claimed that he could account for the missing money, but he was more than a little murky in response to discovery. At deposition we were able to take apart his personal accounting method and show that he still could not account for $42,000 of the missing money. Summary judgment was granted.

Michael Detweiler (King of Prussia, PA) and Benjamin Levine (Philadelphia, PA) prevailed on a motion to dismiss on behalf of the City of Philadelphia. The plaintiff claimed that she fell at the Philadelphia International Airport and allegedly injured her left shoulder, requiring surgery. The plaintiff’s demand had been $250,000 at the time of the case management conference. It soon became clear that the plaintiff, based in New York, would not cooperate with her counsel in scheduling depositions and independent medical examinations in Philadelphia. Arguing that these events should take place in Philadelphia owing to venue, Ben Levine filed a series of motions to compel, and he obtained several favorable orders, which eventually provided the basis for a motion to dismiss. The court dismissed the entire civil action, with prejudice.

Christian Marquis (Pittsburgh, PA) obtained summary judgment on behalf of a large municipality that borders the City of Pittsburgh. The plaintiff claimed that a defective condition of a sidewalk caused her to fall. The sidewalk was located at the corner of an intersection of two state roads within that municipality. On summary judgment it was argued that the sidewalk was not located within the right-of-way of a street owned by the municipality and, therefore, the sidewalk exception to governmental immunity did not apply. The plaintiff, in turn, argued that this element of the sidewalk exception was no longer valid in light of the Pennsylvania Supreme Court’s holding in Walker v. Eleby. In response, Christian argued that the holding in Walker only applied to cities of the first and second class and that the municipality in question is a home rule chartered municipality. The court agreed and granted our motion for summary judgment.

Joseph Santarone (Philadelphia, PA) secured dismissal of a police officer on preliminary objections in the Philadelphia Court of Common Pleas. ​The plaintiff claimed that the police officer had defamed him and cast him in a false light when accusations against the plaintiff appeared on a third party’s website. Absent any link between the website material and the police officer, Joe effectively argued there was no indication that our client was the source and that any filings with the EEOC and PHRC were protected. The court agreed and granted the preliminary objections.

William Waldron and Timothy Ryan (Roseland, NJ) obtained dismissal of a civil rights action against a planning board engineer. The plaintiff, a sophisticated commercial real estate developer, brought constitutional claims against a New Jersey borough and its planning board’s engineer, alleging inverse condemnation and violations of due process relating to a 14-acre property. The plaintiff intended to develop the property into residential units, retail and commercial structures, and a large parking deck. The plaintiff alleged the engineer violated its constitutional rights by refusing to accept its site plan application for the development project and by preventing the plaintiff’s application from going before the planning board for approval. The plaintiff claimed he was entitled to just compensation because he alleged the engineer’s actions constituted an unconstitutional taking of its property. Dismissal was granted on the grounds that the engineer, as a consultant for the planning board, did not have the authority or power to determine what applications go before the planning board, and because the plaintiff did not exhaust all of his administrative remedies prior to instituting the civil rights action.

Terrance Bostic (Tampa, FL) and Samuel Cohen (Philadelphia, PA) obtained a defense verdict in a binding FINRA arbitration in Boca Raton, Florida. ​Terry and Sam represented a broker-dealer who was sued in arbitration by two claimants, retired brokers, who sought $5 million in past and future benefits under a retirement program that paid override fees to retired brokers on books of business they had developed decades ago. Terry and Sam defended the case on the basis that their broker-dealer client had no liability to the plaintiffs because the retirement program was already terminated by a predecessor broker-dealer prior to our client’s acquisition of that predecessor broker-dealer. In addition, Terry and Sam defended the case on the basis that the applicable contracts allowed the retirement program to be modified or terminated.

Workers’ Compensation Department

Linda Wagner Farrell (Jacksonville, FL) successfully defended a petition for permanent total disability benefits, supplemental benefits and penalties, interest, costs and attorneys fees. The judge entered a Final Compensation Order, finding the claimant was not permanently and totally disabled despite a substantial, but not exhaustive, job search. The judge found the claimant’s job search was not sufficient or reasonable in light of the totality of the circumstances, which include her physical impairment, age, employment history, training, education, motivation, work experience, work record, and diligence to establish entitlement to permanent and total disability benefits. The judge held the testimony of the employer/carrier’s vocational experts was persuasive in his decision to deny benefits, finding the claimant was employable with the assistance of vocational counseling.

Tony Natale (Philadelphia, PA) defended a Philadelphia-based insurance company with fee review de novo hearing requests made by a psychologist. The requests alleged that the reduction provisions of the Workers’ Compensation Act (which incorporate Medicare reduction codes) are unconstitutional and “unfair.” The medical provider’s attorney attempted to sway the court with a claimant-friendly decision from a well-known judge on the exact same issue. Tony argued that the court is not bound by a decision of a workers’ compensation judge in another action, and he submitted evidence to demonstrate that four of the six original fee review applications were untimely filed, while the other two applications were correctly paid under the reduction provision standards and Medicare standards. The court dismissed all six de novo requests on that basis.

Tony Natale (Philadelphia, PA) successfully defended a Philadelphia-based university in the litigation of a claim petition where the claimant alleged that, during the course and scope of her employment with the university, she fell as she was walking across a street. She alleged injuries to her neck and shoulder; however, she was able to return to work at her pre-injury duties. Several weeks later, the claimant was taking the company elevator when she alleged the elevator suddenly dropped several floors. She was not jostled in the elevator nor did she strike any part of her body against the elevator walls. Nonetheless, she alleged injuries in the form of a lumbar disc herniation and an aggravation of the previous injuries she sustained when she fell in the street. The claimant presented medical evidence that both incidents caused disc herniations in the neck and back, along with a shoulder tear that would require surgery. Tony presented medical evidence supportive of a minor strain of the neck and hip as the only nature of injury arising out of the slip and fall. In asserting absolutely no injury in the elevator incident, Tony presented evidence from the employer confirming that the claimant’s date of alleged disability from her work injuries coincided with the date she was discharged for cause for various work rule violations. The judge found that the only injuries sustained in the case were minor strains to the neck and hip, and the claimant was pronounced fully recovered from those strains.

Tony Natale (Philadelphia, PA) successfully defended a Philadelphia-based university in an action by a local medical provider for submissions of compound cream medication. The provider submitted the medication to the carrier via three medical specialists from the same medical group. The first doctor submitted an expensive bill for the compound cream to the carrier for payment. A second doctor from the same office submitted another expensive bill for the same compound cream, allegedly based on an exam that took place on the same day as the first doctor’s exam. Then a physician’s assistant submitted an expensive bill for the same compound medication, allegedly arising out of an exam she had with the claimant on the same day as the first two doctors. The carrier refused payment of the bills and filed a Utilization Review Request against all three providers. The UR requests came back in the carrier’s favor, and the provider’s attorney filed a review petition to challenge the UR determinations. Tony defended the review by establishing that the provider illegally billed the carrier for exams that allegedly took place on the same day, resulting in the same medication being prescribed and submitted for payment three separate times by three separate practitioners. The judge found the medical provider not to be credible and upheld the UR determination in its entirety.

Michele Punturi (Philadelphia, PA) successfully defended a contracting and demolition company in Montgomery County, Pennsylvania. ​The claimant alleged repetitive trauma due to his job duties, resulting in an aggravation of his degenerative back and leg conditions that required surgery and bone grafting. He described his job duties as: eight to ten hours a day, five days a week; involving bending, lifting and carrying blocks, bags of concrete and mortar; shoveling; operating equipment including jumping jacks and jack hammers; with lifting between 90 to 100 lbs. The claimant acknowledged treating for his back and leg symptoms prior to the work injury and that he last treated for back issues six months prior to beginning his work with the employer. He testified that his pain significantly increased after working with the employer. The claimant’s medical expert opined that the claimant’s physical labor and work activities resulted in progression of his degenerative condition, that surgery was reasonable and necessary, and that he was completely disabled indefinitely. On cross-examination, however, the claimant’s medical expert admitted that he had not reviewed the claimant’s medical records dating back multiple years, nor had he compared old records and post records in rendering any opinions. Michele presented two fact witnesses who confirmed that the claimant failed to report any work injury, that his work activities caused pain, or that the scheduled surgery he reported was in relation to his job. The Workers’ Compensation Judge concluded that, based upon the testimony of the fact witnesses and defense medical expert, who reviewed all pre- and post-medical records, the claimant failed to meet his burden of proof.

Ashley Talley (Philadelphia, PA) was successful in substantially limiting the treatment costs by way of a Utilization Review Determination and, subsequently, in litigation. The claimant suffered significant work injuries to the left elbow, lumbar spine, cervical spine and left shoulder on February 16, 2016. As a result, the carrier was on the risk for considerable treatment, including chiropractic modalities, which, in total, comprised a significant portion of the money being paid on the claim each year. Ashley was successful in limiting that treatment by way of a favorable Utilization Review Determination, which was then challenged by the claimant in litigation. However, the judge found that the treatment was not reasonable or necessary, nor could it be justified. The petition was denied, and the Utilization Review Determination was upheld in its entirety.

 

Defense Digest, Vol. 25, No. 1, March 2019. 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. © 2019 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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