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

December 4, 2017

CASUALTY DEPARTMENT

Samuel Higginbottom (Tampa, FL) obtained an entry of final summary judgment on behalf of our client, a managing entity for state- and federally-funded mental health services for the indigent population of the Tampa Bay region. The plaintiff alleged gross negligence by our client for failing to ensure proper safeguards were in place to prevent sexual misconduct at a third-party mental health facility eligible to receive state funding. The alleged sexual misconduct occurred while the plaintiff was receiving court-mandated in-patient mental health care at the facility. After an analysis of the complaint and applicable Florida statutes, Sam moved for summary judgment as to whether our client owed the plaintiff a legal duty. Although initially expressing doubt regarding Sam’s position, after considering his legal arguments, the judge entered final summary judgment in our client’s favor.

Timothy McMahon (Harrisburg, PA) obtained a defense verdict in a jury trial in a premises liability case in Dauphin County. ​The plaintiff had alleged that our clients’ use of a fog machine on Halloween outside their home obscured the plaintiff’s vision, causing him to fall and seriously injure his knee.

Michele Frisbie (Doylestown, PA) obtained a defense verdict at a binding arbitration hearing in Bucks County, Pennsylvania. ​The plaintiff, a passenger in his brother’s vehicle, claimed he was injured when the defendant crossed over a double yellow line, passing traffic, in order to get to a left turning lane. The defendant struck the plaintiff’s vehicle as it was turning left out of a parking lot. The arbitrators determined that the defendant never crossed the double yellow line and that the plaintiff’s brother failed to yield the right of way when exiting the parking lot.

In a Bucks County jury trial, Tony Michetti (Doylestown, PA) obtained a defense verdict. ​The plaintiff and the defendant, both seniors at a high school, were participating in the annual “Blue-Grey” spirit event in the school gym. This event pits students against each other in a number of activities, including a traditional rope tug-of-war, an obstacle course, a dance competition, and a tire tug-of-war. The plaintiff was a baseball player, and the defendant was an offensive lineman and captain of the football team. As luck would have it, these two athletes were called to compete against each other in the tire tug-of-war. An ordinary car tire is placed on the floor on the center line of the basketball court. The competing players line up at the opposite end lines. On the signal, they run to center court, grab the tire, and the tugging, pulling and twisting commences. The object is to either rip the tire out of your opponent’s hands or drag him (or her) and the tire back to your end line. The plaintiff claims that as he and the defendant approached the tire, running at full speed, the defendant left his feet and “torpedoed” head first into the plaintiff with the specific purpose of preventing the plaintiff from grabbing the tire. Unfortunately, the plaintiff suffered a fractured wrist and subluxated tendon that required surgery. The defense argued it was expected that competitors would run as fast as possible toward the tire and that they would have to lower their heads, shoulders and torso in order to pick up the tire. The entire competition, including the subject incident, was video recorded by the school. Both sides used the video evidence to argue that it supported their position. After a brief deliberation, the jury concluded that the plaintiff assumed the risk and returned a verdict in favor of the defendant.

HEALTH CARE DEPARTMENT

Following a five-day trial, Bradley Goewert and Lori Wolhar (Wilmington, DE) obtained a defense verdict in a medical negligence suit. ​The 54-year-old patient died three days after gallbladder surgery while still hospitalized. The plaintiffs alleged that post-operative bleeding, which required re-operation, rather than the transfusions and fluids she received, caused the decedent’s death. The defense disputed the doctor’s alleged negligence and causation, asserting the physician treated this patient appropriately and that the patient died because of previously undiagnosed Coronary Artery Disease, discovered during autopsy, rather than post-operative bleeding. The jury returned a verdict in favor of the physician on the standard of care.

David Krolikowski and John Rafferty (King of Prussia, PA) obtained a unanimous defense verdict in a medical malpractice/wrongful death case. The plaintiff had major abdominal surgery, and for several weeks afterwards, home health nurses were seeing him. Over the weekend before his death, the decedent complained of increased shortness of breath. The nurse on duty did a pulse ox saturation and noticed it drop from 99% down to 90% upon walking. Later that night, the plaintiff died from a massive pulmonary embolism. This case was complicated by the fact that the treating physician attacked the care provided by the nurses. The case was transferred to us from another law firm after they could not obtain expert support and reported that this was a “must settle case.” After taking over, we obtained four experts within a three-week deadline. The plaintiff’s counsel retained co-counsel experienced in deep vein thrombosis (DVT) and pulmonary embolism (PE) litigation. An offer of judgment was filed for $1 million. During the trial, our defense focused upon the absence of clear signs and symptoms exhibited by the decedent of either a DVT or PE. After a three-week trial, we obtained a unanimous defense verdict for all defendants.

Lynne Nahmani and Monica Fillmore (Mount Laurel, NJ) obtained summary judgment for a licensed clinical social worker in a negligence, defamation, fraud and intentional infliction of emotional distress case. ​The plaintiff (the father, a police officer and president of a local school board) brought these claims after the social worker informed the Family Court of the children’s allegations of physical and emotional abuse by the plaintiff, which were revealed to her during the minor children’s therapy sessions. The court granted summary judgment. The court found that the social worker’s correspondence with the Family Court was immune from liability pursuant to the litigation privilege, irrespective of the fact that the court had not specifically sought her opinions and that she did not testify in the Family Court litigation. New Jersey recognizes immunity for all statements made in the course of litigation, regardless of their form, intent or truthfulness. The court also concluded that the plaintiff’s claims for negligence and defamation were partially barred by the statute of limitations.

At arbitration, Stephen Ryan, Carolyn DiGiovanni and Melissa Wilson (King of Prussia, PA) obtained a defense verdict on behalf of a family practice physician. The case involved the alleged failure to investigate unexplained weight loss in a diabetic man, who turned out to have pancreatic cancer with liver metastasis. The plaintiff claimed that an earlier diagnosis would have permitted earlier chemotherapy, which would have increased his lifespan by at least the 45 days needed for his widow’s survivor pension benefit to fully vest, a $125,000 difference. The defense contended that the initial weight loss was intentional, in an attempt to control blood sugar, following which the weight stabilized for several months and then dropped dramatically, prompting a workup. It was disputed whether the weight recorded at one visit was 158 or 178. If the former, the doctor delayed; if the latter, he did not. At an internal roundtable, the consensus was that the number was clearly 158, but a handwriting expert suggested it was a hastily written 178. Melissa Wilson prepared a compelling Prezi presentation, which was used for the opening and direct exam.

PROFESSIONAL LIABILITY DEPARTMENT

After seven years of litigation, Jonathan Kanov (Fort Lauderdale, FL) obtained a dismissal with prejudice in favor of our client, a prominent cardiologist, in a negligence and fraud case involving the operation of a Ponzi scheme. ​The 16 plaintiffs brought suit in 2010 against our client and 14 other defendants with respect to investments in shares of a company called Vision Broadcast Network (VBN), which was supposedly a start-up television network and production company focused on developing, managing, and operating internally owned and operated LPTV stations. The plaintiffs collectively invested and lost approximately $2.67 million in what was a $6 million Ponzi scheme because VBN did not own television stations or licenses as had been represented in the written offering materials. The former CEO of VBN and his top accomplice were convicted of wire fraud and sentenced to lengthy federal prison terms. The two used investor funds for their own personal expenses. Many of the defendants, like our client, were medical professionals who served on the board of directors and/or provided content for medical programming called “Ask the Specialist.” The plaintiffs raised claims for violations of state securities laws, negligence, fraud and civil RICO against all of the defendants. With a two-week trial looming, summary judgment motions about to be filed and the threat of our client obtaining a significant attorney’s fee award based on previously rejected proposals for settlement, the plaintiffs begrudgingly agreed to voluntarily dismiss our client, with prejudice. They received no settlement monies, and each side paid their own fees and costs. The litigation continues against the other defendants.

Jeannie Hanrahan and Devon Woolard (Fort Lauderdale, FL) obtained summary judgment in favor of the defendant, a large property owners association located in Fort Myers, Florida. ​The lawsuit was filed against the POA by three of the condominium associations that represent the 220 condominium-unit owner members of the POA. The plaintiffs sought declaratory and injunctive relief against the POA. They were attempting to invalidate a 1988 amendment to the POA’s Articles of Incorporation that enabled it to charge more in annual assessments to its condominiums/homeowners over the course of 29 years than what the plaintiffs believed were/are permissible. The suit also sought reimbursement of 29 years of overpaid assessments. Prior to the 1988 amendment, the POA was limited to charging only surface water management-related expenses through its annual assessment. In 1988, the developer of the POA executed an amendment that eliminated any restriction on the POA’s ability to assess its members. The plaintiffs sought to directly and then indirectly invalidate the 1988 amendment as being improperly executed by the developer. Following the close of discovery, both sides moved for summary judgment. The defendant argued that the claims raised by the plaintiffs were barred by Florida’s five-year statute of limitation, which prevented them from challenging any amendments to the POA’s governing documents. The court agreed with the defendant on both points. This was a substantial victory for the POA in that, not only did it keep the money it collected for the past 29 years, but it could continue to do so unless the POA were to amend its governing documents.

Christopher Boyle (King of Prussia, PA) obtained dismissal of a police department and six of its officers in the U.S. District Court for the Eastern District of Pennsylvania. ​The plaintiff was engaged in a drug transaction on the street when uniformed officers, who were watching from a block away, approached him. When the plaintiff jumped into his car and sped away through residential streets in the middle of the day, the officers wisely abandoned the pursuit. Instead, they obtained an arrest warrant for the plaintiff. After his acquittal, the plaintiff brought a malicious prosecution claim against the officers. Finding that the officers did the right thing in ending the pursuit and instead seeking a warrant, Judge Stengel also held that the officers were entitled to qualified immunity, as it was the District Attorney’s Office, not the Police Department, which pursued criminal charges against the plaintiff.

In a federal civil rights action venued in the U.S. District Court for the Southern District of Ohio, Ray Freudiger and David Oberly (Cincinnati, OH) obtained summary judgment on behalf of one of the nation’s largest grocery chains in a case that received considerable media attention. ​An individual walked hurriedly into a grocery store in a suspicious manner while openly carrying a firearm on his hip. At the time, our client maintained an unwritten policy of allowing customers to openly carry firearms in its stores. Immediately after entering the store, he was approached by the grocer’s security guard, an independent contractor, who instructed the man to return his gun to his vehicle to avoid causing a panic or he would not be allowed to shop inside the store. After becoming confrontational, the man was asked to leave the premises. The man completely disregarded the command and walked hurriedly into the store. He was arrested for criminal trespassing as a result of his continued failure to leave the grocer’s property after being instructed to do so. The plaintiff filed suit against the grocery store, two of the grocer’s employees, the security guard, the security guard’s employer, the arresting police officers and the City of Cincinnati. He asserted claims under § 1983, § 1985(3) and § 1986 civil conspiracy, as well as claims for false arrest, false imprisonment and malicious prosecution. His claims were premised principally on the contention that the defendants lacked probable cause to arrest the plaintiff for criminal trespass. Ray and David moved for summary judgment, arguing that the grocer and its employees were entitled to judgment as a matter of law because: (1) there was no “conduct under color of state law” by the grocer or its employees; and (2) there was probable cause to arrest the plaintiff as a result of his failure to vacate the premises after his privilege to remain on the property had been revoked. Following oral argument, the district court judge ruled in favor of the grocer and its employees, granting summary judgment. The court noted that, despite our client’s open carry policy, the plaintiff did not have an unfettered right to remain in the store while carrying his firearm.

WORKERS’ COMPENSATION DEPARTMENT

In a Federal Black Lung claim that had been pending since 2003, Judd Woytek (Allentown, PA) obtained a favorable decision and order denying benefits. ​This matter was most recently before an Administrative Law Judge, on a remand from the Benefits Review Board, on the sole issue of whether the miner’s medical expert’s testimony was sufficient to establish that the miner was suffering from coal workers’ pneumoconiosis. Judd persuasively argued to the judge that the claimant’s medical expert failed to offer a well-reasoned or well-documented opinion that the miner had developed coal workers’ pneumoconiosis as the result of his 37 years of working in the coal mines. The judge denied the claim for benefits, which could have potentially been retroactive.

Michele Punturi (Philadelphia, PA) successfully prosecuted a termination petition and defeated a penalty petition on behalf of a township. ​The claimant injured his lower back in 2003. He claimed that injury, which at the time was accepted as a soft tissue injury and sprain/strain, was the cause of his current back problems. A prior termination petition had been filed and denied in 2012 based upon a later review of medical records and an updated IME. With the second termination petition, Michele was able to establish through the credible testimony of a board certified orthopedic surgeon that the claimant’s current back condition was in no way causally related to the previous work injury and that the plaintiff was fully recovered from that injury. Michele also defeated a penalty petition related to the case. She established that an additional provider, who rendered the treatment being denied, had a diagnosis beyond lumbosacral sprain/strain. When he determined his bills were not going to be paid, he then added the lumbosacral sprain/strain to the diagnosis. It was shown that the claimant failed to meet his burden of proof because he did not submit the appropriate documentation to establish a penalty. Additionally, it was noted the claimant fully recovered several months prior to the medical treatment at issue.

Nearly 12 years after the claimant’s injury, Andrea Rock (Philadelphia, PA) successfully prosecuted a modification/suspension petition on behalf of a large financial institution. ​The claimant sustained injuries to her left shoulder and cervical spine in October of 2005. Since that time, she had two cervical spine surgeries and two shoulder surgeries. Andrea was able to establish that the claimant was able to return to work in a sedentary-duty capacity, working from home in a telemarketing position, thus modifying her total disability benefits to partial disability. The Workers’ Compensation Judge was particularly persuaded by the factual testimony demonstrating that the actual job duties were no more than what she had to do in her normal activities of daily living.

Kacey Wiedt (Harrisburg, PA) successfully prosecuted a termination petition and defeated reinstatement and review petitions on behalf of a school district. ​The claimant tripped on a hockey stick left by a student in the classroom, resulting in a trapezius muscle strain. The claimant alleged she injured her low back due to physical therapy for treatment of her work injury. This, in turn, resulted in a disc herniation that required surgery. Kacey established that the claimant had fully recovered from the trapezius muscle strain and that her disc herniation and surgery were not related to the original injury. The Workers’ Compensation Judge found that the claimant did not suffer a low back injury because of any activity with physical therapy, that she was suffering from multi-level degenerative disc disease, and that she did not suffer any sort of herniation or tear during physical therapy.

*Prior Results Do Not Guarantee A Similar Outcome

 

Defense Digest, Vol. 23, No. 4, December 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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