On the Pulse… Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories*

Oral arguments presented before the Pennsylvania Supreme Court by John J. Hare (Philadelphia, PA), shareholder and chair of Marshall Dennehey’s Appellate Advocacy and Post-Trial Practice Group, have led to a unanimous decision by the Court to reinstate a long-standing statutory employer defense for general contractors and others who are sued in tort for injuries to subcontractors’ employees. Representing Worthington in Patton v. Worthington Associates, John successfully argued that the statutory employer issue is a matter of law and not one to be decided by a jury. The Court’s decision is significant because it negates a large verdict and reverses two lower court decisions that had essentially nullified Pennsylvania’s long-standing statutory employer doctrine, which creates an employment relationship between a contractor and the employees of subcontractors, such that the employees are entitled to workers’ compensation benefits from the contractor but, in exchange, the contractor receives the same workers’ compensation immunity from tort liability that an actual employer receives. The doctrine operates primarily to immunize contractors on construction projects from tort lawsuits by the injured employees of subcontractors. The Supreme Court’s decision ensures that protection remains in place.

Kimberly Boyer-Cohen (Philadelphia, PA) and John Hare (Philadelphia, PA) succeeded in having the Pennsylvania Superior Court dismiss a highly-publicized death case filed in Philadelphia County based upon the doctrine of forum non conveniens under Pennsylvania’s long-arm statute, 42 Pa.C.S. § 5322(e). Jones v. Morey’s Pier Inc., No. 2990 EDA 2012 (Pa. Super., Mar. 10, 2014).

Carol Vanderwoude (Philadelphia, PA) and John Hare (Philadelphia, PA) succeeded in having the Pennsylvania Superior Court order the transfer of 18 mass tort cases out of Philadelphia to a more appropriate venue based on the doctrine of forum non conveniens. Stettler v. Allied Signal et al., 795 EDA 2012 (Pa. Super., Jan. 21, 2014).

Audrey Copeland (King of Prussia, PA) and Christopher Boyle (King of Prussia, PA) successfully obtained and defended summary judgment in the Third Circuit in an FMLA case against a local police department. The plaintiff, a dispatcher, sued her former employer and former supervisors, alleging violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and raised claims for interference, retaliation and constructive discharge in connection with her purported exercise of her FMLA rights in December of 2010 and May of 2011. The District Court rejected the interference claim based on the plaintiff’s leave of absence to recover from a car accident, which was not protected FMLA leave, as the plaintiff was advised that she had exhausted her FMLA leave prior to the accident and that her leave was covered under the short-term disability policy. The court rejected the plaintiff’s interference claim that she was not reinstated to the same or an equivalent position following her maternity leave as: she never actually worked the initially assigned permanent overnight shifts, she successfully had that shift changed; no case law suggested an FMLA interference claim can be premised on the employer’s intent to reinstate to a different position; she was only entitled to return to a “rotating shift,” not the morning shift schedule provided to temporarily accommodate her gestational diabetes; and, merely she argued that her failure to be reinstated was less desirable, rather than “not equivalent.” The District Court also rejected the plaintiff’s retaliation claim based on a purported “demotion” to a less desirable schedule upon her return from maternity leave in April 2011 because she was not entitled to the special morning schedule. The District Court noted the plaintiff’s “flagrant mischaracterization of the record,” while the Third Circuit found her arguments “meritless.” Karaffa v. Township of Montgomery, 2014 U.S. App. LEXIS 5130 (3d Cir. Mar. 9, 2014).

Audrey Copeland and John Riddell (King of Prussia, PA) succeeded in reversing the trial court’s grant of a new trial in a rear-end auto accident case in which the defendant admitted liability and the jury returned a defense verdict of no causation. The defendant’s expert rejected the plaintiff’s expert’s diagnosis and opined that the plaintiff was not suffering from any accident-related injury at the time of his examination. When asked if it was “possible” that the plaintiff could have suffered an injury, the defense expert acknowledged that it was “reasonable to consider” that the plaintiff suffered a neck strain, but that there was no objective evidence of such a strain. The trial court initially overruled the plaintiff’s objection to the verdict interrogatory on factual cause, but later granted a new trial, concluding that it had erred in not instructing the jury that it must award some type of recovery based upon an alleged conceded injury. The Superior Court reversed, holding that the defendant’s expert did not concede an injury and had not adopted the emergency room record, which noted a contusion, bruising and a cervical sprain as his opinion. The court explained that where expert rebuttal testimony is examined to determine a conceded injury, “the expert medical opinion standard, requiring expert testimony delivered to a medical certainty applies.” Absent expert testimony conceding an injury that is sufficiently certain, the assessment of the jury prevails, and the defense expert’s testimony had failed to meet the requisite certainty to establish a concession of injury. Lloyd v. Bell, 956 EDA 2013 (Pa. Super. Feb. 11, 2014).

*Prior Results Do Not Guarantee A Similar Outcome

Defense Digest, Vol. 20, No. 2, June 2014

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. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.