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

September 1, 2019

Defense Digest, Vol. 25, No. 3, September 2019

Casualty Department

Matthew Gray (Melville, NY) successfully argued and obtained a full dismissal in an arbitration matter filed against our client, an insurance company. ​A surgical center in New Jersey filed an arbitration matter in the amount of $217,370.39.15, claiming our client owed it for the claimant’s unpaid medical bills stemming from 2017 motor vehicle accident. The surgical center’s position was that the entire amount was owed as it was not properly paid upon the initial submission of the billing to our client. However, after arguments were presented at the arbitration hearing, our client’s policy of insurance was found to be completely and properly exhausted. Therefore, the arbitrator found in full favor of our insurance company client and denied the applicant’s entire $217,370.39.15 claim.

Christopher Santoro, Kevin Hexstall, Shane Haselbarth, Patrick Furlong and Shannon Daniels (Philadelphia, PA) obtained a voluntary dismissal in a product liability matter. ​The estate of the plaintiff, a career welder, contended he developed and died of mesothelioma as a result of working with welding rods manufactured by our clients, the only product manufacturers identified by the plaintiff’s co-workers. The other defendants in the case were the plaintiff’s employers and the premises defendants. Prior to jury selection, the plaintiff settled with two of the remaining defendants, and the case proceeded to jury selection with our clients and one of the plaintiff’s employers. At the conclusion of day one of jury selection, the plaintiff settled with the remaining defendant. The plaintiff then voluntarily dismissed our clients.

Michael Archibald and Mariela Tassone (Tampa, FL) secured dismissal on behalf of a landowner in a negligence case. The plaintiff, an employee of a construction company, lost an arm when he was electrocuted on our client’s property while pressure washing the exterior of the building. Our motion for summary judgment was based on Florida case law relating to the independent contractor/landowner relationship. After receiving the motion, the plaintiff agreed with the motion and dismissed the matter, with prejudice, against our client.

Steven Christman and Keith Andresen (New York, NY) successfully defended a negligent security case. ​In this action venued in Supreme Court, Bronx County, the plaintiff alleged he was assaulted by six unidentified individuals in the courtyard of our client’s housing complex. The plaintiff alleged our client failed to provide adequate security at the premises. Early investigation determined that the plaintiff was actually involved in a fist fight with one of these individuals near the entrance of the premises, and an accident report memorialized same. After pressuring plaintiff’s counsel with this piece of evidence, plaintiff’s counsel withdrew, and we moved to dismiss the action due to lack of discovery, which was granted by the court.

Scott Ginsberg (New York, NY) secured the dismissal of a New York no-fault/personal injury protection (PIP) lost wages suit that carried a potential judgment of more than $1.37 million. The suit commenced in 2014, and over several years, the plaintiff was not cooperative in providing us with requested information. In order to determine the existence of the plaintiff’s disability (or lack thereof), a trial would have been required. However, our expert witness, the IME doctor, had retired and was not going to testify. Nevertheless, based on the history of the case and Scott’s interaction with plaintiff’s counsel, it was anticipated that the plaintiff was not going to be in a position to proceed with the trial. As such, in 2018, Scott served a 90-day notice on the plaintiff, advising that we would move for dismissal if he did not take action or file a notice of trial within 90 days. Plaintiff’s counsel filed an order to show cause, seeking to withdraw as counsel, which confirmed our belief that they were not prepared to proceed with the case. At the hearing on the order to show case, Scott argued that the plaintiff’s unreasonable delay in prosecuting the action should result in dismissal. Judge Rolf Thorsen at Rockland County Supreme Court recognized that there had been no activity in the case for years, but was apprehensive about dismissing the case on the spot. He scheduled an additional hearing and required the plaintiff and new counsel, if retained, to appear to discuss the case’s status and activity. When they did not appear, Scott successfully moved for dismissal.

Timothy Hartigan (King of Prussia, PA) successfully tried a premises liability action to a defense verdict in favor of the defendant, a resident’s association, in Chester County Court of Common Pleas, and Audrey Copeland (King of Prussia, PA) successfully defended against the plaintiff’s appeal. ​The plaintiff, a community resident—formerly married to a unit owner but not an owner herself—claimed that she tripped and fell on a tree branch on common area steps at night because of a burned out PECO-owned lamp. She also claimed the Association failed to ensure the light was fixed. The jury unanimously found in favor of the Association. The plaintiff had asked for either invitee status or a hybrid charge on duty, but the court agreed with our defense that she was able to use the common areas by permission, not by invitation, making her a licensee only. This resulted in the duty owed being only to make the property as safe as it appeared. The defense also presented multiple instances of notice to PECO of the burned-out light, and the plaintiff conceded the defense contention that it could not change the bulb itself because PECO owned the lamp. The plaintiff also conceded that she had been aware of the light being out for some time. The plaintiff appealed the verdict, which Audrey Copeland defended. The Superior Court affirmed the judgment on the jury verdict, finding that the trial court did not err by charging the jury that the plaintiff was entitled only to the care due to a licensee on the property, and not an invitee.

Christopher Reeser and Brittany Bakshi (Harrisburg, PA) obtained summary judgment on behalf of their client, a shopping mall, in a slip and fall case filed in Lancaster County, Pennsylvania. The plaintiff was a patron of the mall and was shopping with her children on the date of the accident. On her way to a restroom, she slipped and fell on a liquid substance located on the floor. The plaintiff admitted that she did not see the liquid prior to her fall and did not have any evidence as to how the liquid came to be on the floor, or how long it was present on the floor. Chris and Brittany filed a motion for summary judgment, arguing the plaintiff could not demonstrate that the mall had actual notice of the existence of the liquid on the floor, or that it existed for a sufficient period of time to impart constructive notice on the mall. Following oral argument, the court granted our motion and dismissed the plaintiff’s complaint, with prejudice.

Keith Andresen and Steven Christman (New York, NY) obtained summary judgment in New York County in a case where the plaintiff, a construction laborer, was struck by a rolling dumpster and sustained severe crush injuries to his left foot and leg. The plaintiff, the dumpster company and the subcontractors alleged that our client, as the general contractor at the site, was responsible for overall site safety. After obtaining billing and work records for the project, we confirmed that our client did not have any involvement in the project. Thereafter, we moved for summary judgment. After oral argument, the court granted our motion in its entirety and dismissed the case and all cross-claims.

Courtney Schulnick (Philadelphia, PA) had a successful result in an arbitration hearing where she defended a national clothing chain in an alleged slip and fall incident. The plaintiff claimed that due to the defendant’s negligence, she slipped and fell on a wet substance that existed inside the store, resulting in bodily injuries. Courtney argued that the plaintiff failed to prove the prima facie elements needed to establish a negligence claim. The panel found that the plaintiff could not show that our client had either actual or constructive notice of the allegedly dangerous condition and found in our favor.

 

Health Care Department

Tony Michetti (Doylestown PA) and Joseph Hoynoski (King of Prussia, PA) successfully defended a medical malpractice case in which the parties agreed to submit the case to binding arbitration. The case involved a through-and-through laceration of the bladder, which was inadvertently caused during cesarean section delivery of the plaintiff’s twins. The procedure was performed by the attending surgeon and our client, a first-year resident. It was the resident who actually made the incision that resulted in injury. The arbitrator found in favor of the resident on the basis that the attending surgeon admitted she placed the Balfour blade over the bladder and thought she had retracted the bladder out of the surgical field at the time of the incision. The attending surgeon testified that the resident made the incision precisely where she would have made it. There were a number of factors that likely caused anatomic distortion, making it difficult to discern the bladder, including the fact that the twins were at 36 weeks gestation, advanced labor, and this was the plaintiff’s second cesarean section. Despite these complications, and that injury to the bladder is a known risk factor, the arbitrator found in favor of the plaintiff and against the attending surgeon only. The damage to the bladder seemed to be a significant influence in the arbitrator’s decision. The plaintiff claimed that as a result of the injury to her bladder she suffers chronic urinary tract infections and other permanent urinary symptoms.

Victoria Scanlon (Scranton, PA) received a defense verdict in a podiatric surgical malpractice arbitration. ​The plaintiff alleged that the defendant podiatrist negligently performed foot surgery, causing her foot deformities to worsen and resulting in shooting pain in her big toe, pain under her second and third toes, and imbalance. Her husband claimed loss of spousal consortium. Vicky successfully argued that the surgery was performed reasonably and within the standard of care, and that the plaintiff developed known and accepted risks and complications of the surgery.

 

Professional Liability Department

Jillian Dinehart (Cleveland, OH) won summary judgment on behalf of a local municipality in an employment matter. ​ After the municipality learned that several police cadets had been cheating in order to complete academy requirements, they were not allowed to take the state licensing exam. The cadets were referred for disciplinary charges and then terminated. The cadets alleged due process violations for allegedly holding sham post-disciplinary hearings, pre-determining termination and not allowing them access to the evidence against them. Select plaintiffs also alleged racial discrimination. The plaintiffs’ entire suit was dismissed on summary judgment when the Northern District of Ohio found that they had not completed their probationary period and, thus, did not have a property interest in their employment with the municipality. The court further found that the municipality’s decision to terminate them for failure to take the state test was a reasonable decision and did not violate their substantive due process rights. Finally, the plaintiffs were unable to present any evidence to support a racial discrimination claim.

Jeremy Zacharias (Mt. Laurel, NJ) successfully argued a motion to dismiss in the Superior Court of New Jersey, Law Division, Middlesex County. ​This case was filed against a medical data management vendor that worked with Columbia University in New York. The plaintiff allegedly went to a women’s clinic affiliated with Columbia University for a medical exam. After the plaintiff completed a HIPAA authorization, the medical data company sent medical records to the fax number provided by the plaintiff, which turned out to be her employer in Brooklyn, New York. Jeremy’s motion to dismiss was based upon lack of personal jurisdiction. He argued that the plaintiff’s medical appointment was in New York City, the data management company is incorporated in Missouri, and the plaintiff’s employer is located in New York. Therefore, New Jersey courts did not have personal, specific, or general jurisdiction over this case.

Kyle Heisner (Philadelphia, PA) obtained summary judgment on behalf of a real estate agent and brokerage in a case claiming personal injuries as a result of alleged building code violations. ​The plaintiff was a tenant in a residential property owned by the co-defendant and managed by the real estate agent and brokerage. The plaintiff’s theory was initially premised upon an allegation that there was a defective indentation in the landing of the stairs, which caused the minor plaintiff to fall and fracture her leg, requiring surgery and hardware. After the plaintiff’s expert was unable to find such a defect, her theory of liability was supplemented to allege that the stairs were not compliant with applicable building codes. After the plaintiff would not reduce her $250,000 demand, summary judgment was filed, asserting the defendants were not placed on notice of a defective condition, there was no evidence that a defective condition actually existed, and the building codes—which did not exist until the 1970s—did not apply to stairs built in the 1930s. As a result, the court granted summary judgment in favor of all defendants.

Howard Mankoff (Roseland, NJ) obtained a defense verdict in a legal malpractice case that was affirmed on appeal. The firm’s client, an attorney, represented a plaintiff in a civil rights case against a New Jersey municipality. The underlying facts were complex, involving fraud claims against the municipality and claims based on contract, inverse condemnation, civil rights and negligence. In the legal malpractice case, the jury found deviation but no proximate cause. In the legal malpractice case, the plaintiff sought recovery of the legal fees and punitive damages to which he claimed he was entitled in the underlying case, plus prevailing party counsel fees, which can be recovered in a legal malpractice case in New Jersey. Walter Kawalec (Mt. Laurel, NJ) successfully handled the appeal, which involved all of the issues from the underlying case and the malpractice trial.

James McGovern (Pittsburgh, PA) was successful in having a land surveyor dismissed on preliminary objections on the grounds of lack of privity with the plaintiff. ​The litigation involved a property line dispute between two neighbors. The neighbor who retained our client to conduct a survey relied upon that survey and proceeded to tear out a portion of his neighbor’s property to expand his own driveway. The survey miscalculated the boundary line by 12 inches. The neighbor whose property was infringed upon sued the other neighbor and the surveyor. The basis for the preliminary objections was that there was no contractual privity between the adversely affected neighbor and the surveyor. Rather than attempt to amend the complaint to assert a Bilt-Rite negligent misrepresentation claim against the surveyor, the plaintiff voluntarily discontinued the action against the surveyor. The neighbor that retained the surveyor failed to attempt to keep the surveyor in the case.

Christopher Conrad and Lara Bream (Harrisburg, PA) prevailed on a motion for summary judgment in the Middle District of Pennsylvania on behalf of a local school district. The plaintiff, a former teacher, asserted claims of age discrimination and retaliation under the Age Discrimination in Employment Act. It was argued in our motion that the plaintiff failed to establish a prima facie age discrimination claim or retaliation claim because she could not establish that she suffered from an adverse employment action. The court agreed and determined that the plaintiff’s transfer to a new grade level, placement on an improvement plan, and voluntary resignation did not constitute adverse employment actions in order to establish her claims. Consequently, the court granted the school district’s motion and dismissed all claims.

Christopher Reeser and Brittany Bakshi (Harrisburg, PA) obtained the dismissal of their client, a school district, in a trip and fall case filed in Dauphin County, Pennsylvania. The plaintiff, a student at a local charter school, was playing on the school’s playground when he fell into an unfilled hole created by the removal of playground equipment. The plaintiff filed suit against a number of entities, including our client as the district ratified the charter for the school. Chris and Brittany filed preliminary objections contending that tort claims can only be brought against the charter school itself based upon the statutory law outlined in 24 P.S. § 17-1727-A. The preliminary objections were sustained, and the court dismissed our client, with prejudice.

Michael Detweiler and Anne Marshall (King of Prussia, PA) prevailed on a motion to dismiss on behalf our client, a real estate agency. The plaintiff filed counts of fraud, deceit, misrepresentation, conspiracy, conversion, invasion of privacy-false light, breach of contract, and promissory estoppel as to our client regarding an allegedly fraudulent transfer of a private residence by the seller of the property, the co-defendant. Preliminary objections were filed on behalf of our client, arguing that the plaintiff’s claims lacked sufficient specificity and that the plaintiff failed to state a claim upon which relief may be granted. The court agreed and dismissed all claims against our client.

Christopher Conrad and Lara Bream (Harrisburg, PA) prevailed on a motion to dismiss on behalf of a school district superintendent in the Middle District of Pennsylvania. The plaintiff, an elementary teacher within the district, was disciplined following an investigation by the district into allegations that the plaintiff struck a student. The plaintiff raised claims against the superintendent for intentional infliction of emotional distress, loss of consortium, and violation of procedural due process. The court agreed with the defendant’s argument that, as a superintendent, he was afforded high public official immunity and, therefore, dismissed the intentional infliction of emotional distress claim. The court also dismissed the loss of consortium claim as it was a derivative claim of the intentional infliction of emotional distress claim. Further, the court held that the plaintiff was not deprived of her procedural due process rights, as she was given the opportunity through the teacher’s union to arbitrate a grievance over her suspension. Consequently, the court dismissed the plaintiff’s complaint, with prejudice.

Howard Mankoff (Roseland, NJ) obtained summary judgment in a school bullying case. ​The plaintiff was a high school junior who alleged he was physically abused by a special education teacher. He sued the teacher, the school district and several administrators, alleging violation of the New Jersey Law Against Discrimination, the Americans with Disabilities Act, the New Jersey Civil Rights Act and the New Jersey Anti-Bullying Statute. After a long period of discovery and many depositions, the court granted our summary judgment motion.

 

Workers’ Compensation Department

Michele Punturi (Philadelphia, PA) successfully defended a worldwide youth adult development organization in litigation surrounding a fall at work. ​The claimant allegedly fell after walking into an object that he claimed included a metal connector that struck his head, causing his glasses to fall off. He claimed temporary total disability. He was diagnosed with orthopedic, neurologic and neuro-ophthalmologic injuries, including injuries to the neck, eyes, skull contusion, concussion and post-concussion syndrome. The employer captured the incident on video. Due to the questionable mechanism of injury, Michele convinced the workers’ compensation judge to travel to the employer’s location to view the actual video of the incident. The employer presented multiple fact witnesses who corroborated the video and lack of disability. Based upon the video and the credible testimony of the fact witnesses, the judge found only a head contusion and no disability, and no liability for the claimant’s extensive litigation costs.

Kacey Wiedt (Harrisburg, PA) obtained a favorable decision on a claim petition on behalf of a transportation company. ​The claimant alleged that he developed Legionella’s disease while in the course of his employment and had been hospitalized in a coma. Kacey was able to obtain a dismissal of the claimant’s claim petition for failure to prove any causal connection between the claimant’s disease and his employment.

*Prior Results Do Not Guarantee A Similar Outcome

 

 

Defense Digest, Vol. 25, No. 3, September 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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