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

June 1, 2018

Defense Digest, Vol. 24, No. 2, June 2018

Casualty Department

Following oral argument heard en banc, the Delaware Supreme Court issued an opinion upholding the application of the Continuing Storm Doctrine, resulting in the affirmation of the lower court’s decision to grant summary judgment to our client. ​Jessica Tyler (Wilmington, DE) served as primary defense counsel on this matter, and Sarah Cole (Wilmington, DE) delivered the oral argument in front of the Delaware Supreme Court.

Christopher Reeser and Brittany Bakshi (Harrisburg, PA) received a defense verdict in a binding arbitration of a motor vehicle claim in Clinton County, Pennsylvania. ​The plaintiff pulled out of a parking lot onto a two-lane roadway in front of our client, who undisputedly had the right-of-way. The plaintiff claimed that she had observed a number of vehicles pass by her, traveling in both directions, before she pulled out onto the roadway. She claimed that she did not see our client because he was driving without his headlights on or because he was traveling at a high rate of speed. The plaintiff sustained a fractured pelvis and eventually required a sacroiliac joint fusion. The recoverable special damages exceeded our client’s low policy limits. Plaintiff’s counsel agreed to binding arbitration with an agreement that any of the plaintiff’s verdict would result in a payment of the policy limits. At arbitration, the plaintiff admitted that she was speculating that our client did not have his headlights on and that she never saw the front of our client’s vehicle after the accident. She also conceded that she never saw our client’s vehicle moving, so she could not testify to his speed. Our client had taken a picture of the front of his vehicle after the accident, and one headlight was operational. We were able to establish that the non-operational headlight was damaged as a result of the accident. The arbitrator found in favor of our client.

Jack McGrath and Mike Connolly (Scranton, PA) obtained summary judgment in the U.S. District Court for the Middle District of Pennsylvania. The plaintiff, an employee of a recently renovated resort, was struck in the head when a solid wooden panel fell, causing serious injuries. The plaintiff alleged improper design, manufacture, and installation of the panel against a number of the defendant contractors and subcontractors. It was unclear which defendant actually installed the panel. However, there was testimony that the panel had fallen down after the renovations were completed and that the resort’s maintenance employees had possibly re-installed the panel before it fell the second time, when it struck the plaintiff. There was no evidence of record that our client had any role in the design of the panel. The judge granted summary judgment as to our client.

Carol Vanderwoude (Philadelphia, PA) argued successfully for our client in a case involving a probation officer who fell and badly injured himself during a blizzard. The demand was in excess of $4 million. The decision reaffirms the “Hills and Ridges Doctrine,” and the court reiterated our argument that, in essence, our client had no duty to remove snow and ice while it was still snowing. However, the court went further, holding that no landowner has a duty to “pre-treat” their premises, and there is no duty to salt or place sand on parking lots during a storm or IMMEDIATELY thereafter. It also reaffirmed that oral contracts for snow and ice removal are valid.

Tony Michetti (Doylestown, PA) obtained a defense verdict in Bucks County. The plaintiff claimed that she was suddenly attacked by the defendant’s Old English Bulldog. The plaintiff maintained that the defendant failed to have adequate control over his dog and violated Pennsylvania’s Dog Leash law. Through the testimony of the defendant and an independent witness, the defense established that the plaintiff provoked the attack.

Tony Michetti (Doylestown, PA) obtained a defense verdict in Bucks County. ​The defendant was walking her dog, “Bella,” a Labrador Retriever, along with her five-year-old cousin. The defendant entrusted the leash to her cousin, who promptly lost his grip on the leash, allowing Bella to escape. Bella ran in the direction of the plaintiff and his Shih Tzu, with the defendant in pursuit. The plaintiff claimed that Bella jumped on his chest, knocking him to the ground and causing compression fractures in his lumbar spine. The injuries were confirmed by the defense IME. The defendant, on the other hand, claimed that she was able to regain control of Bella before any contact with the plaintiff. The defendant testified that the plaintiff lost his balance and fell after becoming entangled in his own dog’s leash. The defense argued that the plaintiff’s injuries were the result of his failure to maintain control over his own dog, not because of negligence on the part of the defendant. The jury accepted the defendant’s version of the event and found in her favor.

Jim Connors (Westchester, NY) and Richard Imbrogno (New York, NY) attained a summary dismissal of an action in the U.S. District Court for the District of Connecticut. ​In a somewhat strategic gamble (but with the client’s full understanding and consent), a motion was filed seeking a dismissal of the matter for failure to commence within the Connecticut statute of limitations period. The filing of the motion, however, required our waiving any objection to venue. The matter arose out of an incident which occurred in New York State, which has a three-year statute of limitations. The defensive strategy was to waive venue objections and argue that the statute of limitations under Connecticut law was a procedural issue and that, therefore, the law of the forum state, Connecticut (utilizing a two-year statute of limitations in such cases), applies. The federal judge agreed with our position and refused to grant a late request by counsel for the plaintiff seeking a change of venue to New York State.

Keith Heinold, Shane Haselbarth and Michael Salvati (Philadelphia, PA) had a case dismissed for lack of personal jurisdiction over a national corporation. ​The plaintiff suffered traumatic injury when the steering column of his tractor trailer became unyoked, rendering it uncontrollable and causing it to crash. The manufacturer is a Delaware LLC headquartered in North Carolina, but it manufactured the truck at its plant in Virginia. The plaintiff, a Pennsylvania citizen, crashed while driving it in Texas. Suit was filed in Philadelphia, as the LLC’s sole corporate parent is a Pennsylvania corporation. Based upon that, the plaintiff argued the LLC should be deemed a citizen of Pennsylvania. The trial court sustained our preliminary objections due to lack of jurisdiction. Shane briefed and argued the appeal the plaintiff filed with the Superior Court, which affirmed on the basis that, despite its Pennsylvania parent, the LLC itself is not “at home” in Pennsylvania because it was formed and headquartered elsewhere. Therefore, there is no general personal jurisdiction over it.

Tony Michetti (Doylestown, PA) obtained a defense verdict in Bucks County on behalf of a local restaurant. The plaintiff and her husband were patrons at the restuarant. As they were being led to their table by the hostess, the wife plaintiff slipped and fell on the hardwood floor in the dining room. The hardwood floor had recently been refinished. According to the plaintiffs, the restaurant’s manager told them that the floor had not been refinished properly and allegedly stated, “We are having mega problems.” The manager admitted that the floor had been recently refinished but denied making the admission that there had been any problems with the floor. No testing or expert testimony was submitted by the plaintiffs. The case was a test of credibility between the plaintiffs and the restaurant’s manager.

Frank Baker and Wendy O’Connor (Allentown, PA) obtained summary judgment in a case in which the plaintiff sought to recover for injuries allegedly suffered when she slipped on black ice in a grocery store parking lot. ​The plaintiff was driving to her daughter’s college and had stopped to pick up flowers at the grocery store. She admitted at deposition that the weather was fine when she left her home approximately one and a half hours prior to the incident, but that it had begun to rain and sleet while she was driving, and was still raining and sleeting when she stopped, parked and got out of her car. We argued that, because the incident occurred during general slippery conditions then prevailing in the community and there was no evidence of “hills and ridges,” there was no duty on the part of the defendant to address the alleged patch of black ice on which the plaintiff allegedly fell. The court agreed, finding that no hills and ridges were present at the time of the fall and that there was no evidence that the icy patch on which the plaintiff fell was attributable to anything other than natural conditions. Thus, the court recognized that the law permits a business owner a reasonable opportunity to address slippery conditions.

Allison Goldis (Philadelphia) received a defense verdict in a jury trial in federal court in Philadelphia. The plaintiff was making a UIM claim, contending that she had sustained major, permanent, disabling injuries to her neck and shoulders as the result of a motor vehicle accident. The defense was that she was limited tort and had not proven a serious injury. After a three-day trial, the jury entered a unanimous verdict, finding that there was no serious, permanent injury. Allison was assisted in the presentation of the case by paralegal, Jennifer Bickel.

Health Care Department

Frederic Roller, Michelle Moses and Mary Kate McGrath (Philadelphia, PA) obtained a defense verdict in Philadelphia County on behalf of a supervising emergency department physician. The case involved an alleged delay in diagnosing a leg infection that progressed to necrotizing fasciitis, resulting in an above-knee amputation. The underlying source of the infection was a pelvic mesh that had been used years before in a bladder sling procedure. Well before trial, the plaintiff settled with the mesh manufacturer, and at trial we were precluded by the judge from presenting evidence of the manufacturer’s culpability. The plaintiff had been seen by a physician’s assistant for complaints of upper thigh and groin pain and was diagnosed with a muscle strain. Our ER physician client reviewed the chart and saw no evidence of infection or other issues. Therefore, the physician did not have the plaintiff return to the hospital. Five days after discharge, she presented to another hospital with mental status changes and advanced necrotizing fasciitis, necessitating the amputation. Many issues were raised, which the plaintiff alleged were evidence that our client should have called her back to the hospital. Fortunately, after two-and-one-half weeks of trial, the jury saw otherwise and returned a defense verdict after deliberating for six hours. The plaintiff’s settlement demand had been $20 million.

Daniel Sherry and Dave Krolikowski (King of Prussia, PA) obtained a defense verdict in a six-day jury trial conducted in Montgomery County. ​Dan and Dave represented a hospital in a claim that its Electronic Medical Record system was deficient in allowing a medication to be taken off a patient’s current list of medications, which allegedly resulted in the patient having a brain hemorrhage and dying a year later. After two hours, the jury returned with a verdict that the hospital was not negligent.

Matthew Keris, Robert Aldrich and Maura Wormuth (Scranton, PA) received a defense verdict in a nursing negligence claim in Monroe County, Pennsylvania. ​The plaintiff was alleged to have suffered a fall in a hospital bathroom three days post-operatively that reinjured his surgically repaired knees. The nurses denied the patient fell to the ground. They testified, consistent with their charting, that the patient lost his balance in the bathroom and sat on a commode. There was a significant economic damage claim because the plaintiff was a young restaurant owner who suffered two distinct orthopedic injuries that required multiple surgeries and additional future care. The jury returned a defense verdict 50 minutes after deliberations began, finding that the nurses were not negligent.

Tonya Lindsey (New York, NY) obtained a defense verdict in a two-week medical malpractice trial in Bronx County. The plaintiff suffered a perforated uterus following an ambulatory IUD removal surgery that was performed by our client OB-GYN. The following day, the plaintiff was readmitted with worsening symptoms and underwent surgery to repair the perforation. The plaintiff alleged that our client was negligent in failing to timely and properly manage the uterine perforation and that the delayed treatment resulted in the plaintiff requiring two open surgeries and ultimately a hysterectomy. Plaintiff’s counsel had asked the jury to award $4.4 million.

Professional Liability Department

Jack Slimm, Jeremy Zacharias and Dante Rohr (Mt. Laurel, NJ) obtained an order dismissing a Fair Debt Collection Practices Act claim that was filed against our client, a company that handles debt collections for banks and financial institutions. ​The plaintiffs argued that our client violated 15 U.S.C. §1692(e) when it sent a collection letter informing him that, if he paid the balance owed, the account would be brought up to date and collection activities would stop. However, the letter then stated that the bank could continue to add interest and fees as provided in the loan agreement. The plaintiff argued that the collection letter was confusing since it first stated the account would be satisfied if the debtor paid the balance due but then stated that the plaintiff could owe more due to interest and fees. Therefore, the plaintiff claimed that the letter was deceptive because he would not know one way or the other if his account was settled. Our motion to dismiss argued that the least sophisticated debtor standard was satisfied in this case by our client because it provided fair notice of the debt owed.

David Bear (Orlando, FL) successfully represented an employer against a former employee’s reemployment claim. ​The former employee of a local generator servicing company filed a reemployment claim in which she made three allegations against our client, that: (1) she was fired; (2) her working hours materially changed such that she was constructively discharged; and (3) her boss created an intolerable working environment that would have caused any reasonable person to leave. Both sides presented testimony from multiple witnesses. There were allegations that our client belittled his employees with insults and profanity and that he sexually harassed his employees. All three of the claimant’s arguments were rejected, and it was determined that she voluntarily left her employment. As a result, she was not entitled to reemployment benefits.

Ray Freudiger and David Oberly (Cincinnati, OH) obtained summary judgment on behalf of an insurance agency and insurance agent in a fraud action. ​Venued in Cincinnati, the case involved a dispute over the agent’s alleged failure to procure insurance coverage for a residence that sustained extensive, uncovered fire damage. Ray and David’s insurance agent client assisted two homeowners in procuring insurance coverage for their residential property with the Ohio Fair Plan Underwriting Association, an entity created by the Ohio legislature to provide insurance for property that is not insurable in the normal insurance market. After completing an inspection of the property, Ohio Fair Plan issued a notice that the carrier was cancelling the homeowners’ insurance contract. Ohio Fair Plan also issued a refund check to the homeowners. Sometime thereafter, a fire occurred at the homeowners’ residence. It was later conclusively determined that the homeowners did not have coverage with Ohio Fair Plan for the loss as a result of the cancellation of the contract. The homeowners alleged that they never received the cancellation notice or the refund check from Ohio Fair Plan or their insurance agent. The homeowners filed suit against the insurance agent and his agency, alleging claims of fraudulent misrepresentation and fraudulent concealment as a result of the homeowners’ purported failure to receive the notice or check prior to the time of the fire, which the homeowners alleged would have enabled them to procure alternative coverage. Ray and David moved for summary judgment, arguing that the fraudulent misrepresentation claim lacked merit because the insurance agent never misrepresented any fact relating to the homeowners’ insurance coverage and never concealed any material fact from the homeowners. The court agreed with Ray and David, finding that the homeowners were unable as a matter of law to satisfy all of the essential elements of their misrepresentation and concealment claims, thus entitling Ray and David’s client to summary judgment.

Brooks Foland, Allison Krupp and Christopher Woodward (Harrisburg, PA) secured summary judgment in federal court in a breach of contract/bad faith case against a large insurer. ​This case arose from a motor vehicle accident involving the plaintiff that occurred in 2015. The plaintiff was a passenger in a motor vehicle that was being operated by his co-worker. The vehicle was rear-ended by the alleged tortfeasor. The plaintiff was in the course and scope of his employment for the City of Philadelphia when the accident occurred. After settling with the alleged tortfeasor, the plaintiff sought underinsured motorist (UIM) benefits under an auto policy that had been issued by our client to the plaintiff’s mother. Our client denied the claim for UIM benefits on the basis that the regular use exclusion applied. The plaintiff subsequently sued for breach of contract and bad faith. The District Court agreed that the regular use exclusion applied, granted our client’s motion for summary judgment and dismissed the complaint.

Michael Packer (Fort Lauderdale, FL) and David Bear (Orlando, FL) obtained declaratory judgment that there was no coverage or duty to defend in a wrongful death suit. A small grocery store purposefully allowed its insurance policy to expire. When contacted by its agent, the store’s owner told the agent that he didn’t have the money to renew the policy. Fifteen days later, an employee of the store discharged a gun, which killed a patron. The store owner was notified by his employee of the shooting and rushed to his agent that day to obtain a new $1M liability policy. The owner did not tell the agent about the shooting and had the policy post-dated to midnight. As a result, the known shooting occurred within the listed policy period. Endurance was not notified of the loss until five months later, when it received a letter from the deceased’s estate’s attorney regarding a pending wrongful death suit. After Endurance was notified of the loss, an investigation revealed that the date of the policy inception was the same as the date of loss, that the time of day when the policy was bound was after the shooting, and that the insured knew about the loss before obtaining the policy. With that knowledge, we filed a complaint for declaratory judgment in the federal district court seeking the court to issue a declaration that the policy was void as to this loss, there was no coverage for the loss, and there was no duty to defend the grocery store in the ongoing wrongful death suit. The court granted our motion.

Jack Slimm (Mt. Laurel, NJ) obtained a dismissal in the U.S. District Court for the District of New Jersey in an extremely complex multi-party legal malpractice action. The action arose out of two estate litigations filed in state court in which Jack’s client was the attorney for the decedent and the temporary administrator. The plaintiff, the nephew of the decedent, filed a breach of fiduciary duty claim against our client in the U.S. District Court. The probate cases went against the nephew. The accountings were all approved over the nephew’s exceptions, in which he did allege that our client breached a fiduciary duty in several instances in handling the Estate Administration in failing to preserve documents, failing to locate the Will, selling assets in contravention of his fiduciary role, failing to investigate property in the Bahamas, failing to preserve assets, and obtaining orders from the probate judges through fraud and deception. In a 40-page opinion, the District Court granted Jack’s motion to dismiss all claims for breach of fiduciary duty against our client.

Edwin Schwartz and Nicole Ehrhart (Harrisburg, PA) secured summary judgment as well as Rule 11 sanctions in federal court for a prominent law firm. ​This case arose out of a claim by a former district superintendent against a school district, a school board, local law enforcement and our client, special counsel to the school district. The plaintiff raised a host of claims, most of which were resolved via successful motions to dismiss. However, a claim for malicious prosecution remained. We argued that the plaintiff, despite being afforded every opportunity to do so, failed to maintain the elements necessary to establish a claim. The court agreed and found that the plaintiff failed to provide any actual evidence suggesting that our client was part of a conspiracy, had provided false information for the purpose of initiating a criminal proceeding, or had any contact at all with the District Attorney’s Office in order to request or persuade them to authorize charges. We also filed a Rule 11 motion on behalf of our client. The court granted our motion, awarding reasonable attorneys’ fees and costs dating back to October 2015 (the first amended complaint in this matter). According to the court, the plaintiff pressed forward with litigation that she knew to be baseless from the beginning. As such, the court determined that her allegations were frivolous and could not be substantiated, and yet she persisted with litigation that had not only occupied years of the court’s time, but required our client to incur fees to defend against this action.

Jennie Philip and James Cole (Philadelphia, PA) obtained summary judgment in the U.S. District Court, Eastern District of Pennsylvania where the court found in favor of our insurance carrier client on a breach of contract and statutory bad faith claim filed by its insured. ​The plaintiff returned from vacation to find that his basement oil tank leaked, causing extensive damage to his home and the soil below the foundation. The plaintiff sued the carrier for improperly denying the claim based on the pollutant exclusion. The plaintiff took the position that the denial was improper and in bad faith based upon federal precedent that home heating oil is not a pollutant. These prior decisions changed the way some carriers applied the pollutant exclusion in home heating oil cases in Pennsylvania. We were able to distinguish those cases based on a factual record that established the contamination was not “home heating oil” but its component parts, benzene, toluene etc., which caused the damage. We successfully convinced the court that the “Product at Issue” test, as set forth by the Pennsylvania Supreme Court, should control and that the federal cases holding otherwise for heating oil were inconsistent with the Pennsylvania Supreme Court test.

Samuel Casolari and David Oberly (Cincinnati, OH) obtained judgment in favor of our client on the plaintiff’s constitutional claims for cruel and unusual punishment and other constitutional claims in the provision for food services and commissary activities. ​The plaintiff claimed that the commissary prices were excessive and constituted price gouging. The court held that pricing of commissary items in this case did not constitute a constitutional deprivation. The plaintiff claimed that he did not receive the daily caloric intake required of inmates, yet he noted as a matter of law that there was no pattern of objective indifference to establish a constitutional deprivation. Finally, the plaintiff claimed that his dietary needs failed to satisfy his religious needs. Again, the court found neither an objective nor subjective basis to impose a constitutional violation. The Summit County Court of Common Pleas dismissed all claims with prejudice, holding there were no constitutional violations and there was no other wrongful conduct on the part of our client.

Jim Connors (Westchester, NY) and David Lane (New York, NY) obtained summary judgment on behalf of an international clothing retailer in the U.S. District Court for the Northern District of New York. ​The plaintiff brought claims against the store, the local police department and multiple police officers. He alleged the defendants subjected him to illegal detention, excessive force, racial discrimination, and assault and battery, in violation of the Fourth and Fourteenth Amendments and New York state law, after the defendants suspected that he used a manipulated payment card in an attempt to make a purchase at our client’s clothing store. After the police questioned the plaintiff for hours at the police station, they found no evidence to press charges for payment card fraud, and they released him. In the plaintiff’s civil rights action, the court dismissed all federal claims against our retailer client with prejudice, finding that the retailer did not act under color of state law and that the record was devoid of evidence that our client intentionally discriminated against the plaintiff on the basis of race.

Joseph Santarone (Philadelphia, PA) obtained a defense verdict in the U.S. District Court, Eastern District of Pennsylvania after a five-day jury trial. ​The case involved claims of excessive force, false arrest and malicious prosecution. This case involved the arrest of woman in Bucks County who had called the police to assist her intoxicated mother, who was involved in a dispute with the mother’s boyfriend/fiancé. The defendants had made an early Rule 68 Offer of Judgment because of concerns with the case. Joe had both an orthopedic surgeon, who testied by video to challenge the claim of a knee injury, and a psychiatrist, who came in live to counter the plaintiff’s expert psychologist’s claim of PTSD.

Workers’ Compensation Department

Ashley Talley (Philadelphia, PA) obtained a defense verdict on a claim and review petition while successfully prosecuting termination and suspension petitions on behalf of a regional non-profit organization. ​The claimant was involved in two separate work-related motor vehicle accidents while working for the employer. The first accident resulted in left shoulder injuries, and possibly a labral tear (although not accepted by the carrier), while the second accident generated a claim for sprains/strains of the left shoulder, left wrist and thoracic spine. A claim petition was filed for wage loss benefits and the inclusion of additional injuries in the nature of cervical segmental dysfunction, cervical radiculopathy, thoracic segmental dysfunction, and an aggravation of a pre-existing labral tear in the left shoulder. Ashley was successful in defending against these injuries, with the exception of a cervical sprain/strain, by attacking the qualifications of the claimant’s medical expert and demonstrating that her opinion was based upon equivocal, subjective evidence. This involved highly complex medical questions and required testimony from a board certified occupational expert and a board certified orthopedic surgeon to rebut the allegations of the claimant’s expert. Ultimately, the Workers’ Compensation Judge accepted Ashley’s argument, finding the medical evidence supported a complete recovery from the work injury along with an unreasonable refusal of a pre-injury job offer. A suspension and termination of benefits was awarded on these bases, while the claimant’s claim and review petitions, although granted in part, had no practical impact on future liability.

John Swartz (Harrisburg, PA) was successful in defending against a claim petition that alleged herniated discs in the low back and neck for an injury initially accepted by a Medical-Only Notice of Compensation Payable for low back sprain/strain. ​The Workers’’ Compensation Judge denied the claim petition on the basis that the testimony from the employer showed the claimant was appropriately discharged for cause when he failed to comply with company policy on calling off of work for the injury. In addition, the judge found the testimony of the defendant’s medical expert more credible and persuasive than the claimant’s medical expert. The judge also found that the claimant did not incur any herniated discs from the work injury and was fully recovered from the work injury. No indemnity benefits or ongoing medical benefits were payable to the claimant under the judge’s decision, nor was claimant’s counsel entitled to reimbursement of over $4,000 in litigation costs.

Judd Woytek (Allentown, PA) was successful in defending a fatal claim petition filed by the widow of a coal miner who had been awarded benefits for totally disabling coal workers’ pneumoconiosis in 1984. ​Despite the fact the miner had been collecting temporary total disability benefits from 1984 until the time of his death in 2016, Judd was able to present credible and persuasive medical evidence to the Workers’ Compensation Judge that coal workers’ pneumoconiosis was not a substantial contributing factor to the miner’s death. The fatal claim petition was denied.

Judd Woytek (Allentown, PA) received a favorable decision in a case where the claimant filed a review petition seeking to expand the description of injury to include herniated cervical discs, along with cervical radiculopathy and cervicalgia. ​The Workers’ Compensation Judge denied and dismissed the claimant’s petition, finding that the cervical spine problems were not work related based upon the expert medical testimony that Judd presented. The claimant also filed a petition to reinstate compensation benefits, but the judge found that the claimant failed to provide any evidence to support a reinstatement of benefits to either total or partial disability at any point in time. Finally, the judge found that the claimant had fully recovered from almost all of the accepted work injuries (bilateral wrist sprain/strain, bilateral carpal tunnel syndrome and left cubital tunnel syndrome), with the exception of right lateral epicondylitis. Overall, Judd obtained a very favorable decision for our client that limited the injuries and significantly reduced future exposure.

Michele Punturi (Philadelphia, PA) successfully defended a national car company in a case that encompassed defending a termination petition, the claimant’s petition for review of the utilization review determination, the claimant’s petition to review compensation benefit off-set, and a petition for penalties. The case involved a 2013 injury involving a low back sprain/strain and an aggravation of degenerative disc disease with radiculopathy and facet arthropathy. The defense expert, a board certified orthopedic surgeon, reviewed all of the claimant’s pre- and post-injury medical records and diagnostic study films. The claimant admitted that he had increases of pain with activities not associated with work (long drives out of state, shoveling snow, housework), which he had failed to report to the IME physician or his own treating doctor. The Workers’ Compensation Judge ordered the termination of all of the claimant’s benefits. The judge also dismissed the claimant’s petition to review the URO, finding the treating physician’s treatment to no longer be reasonable and necessary. Finally, the claimant’s penalty petition was dismissed.

Ross Carrozza (Scranton, PA) successfully prosecuted a petition for termination and a utilization review petition. ​The employer’s medical expert pointed out that the claimant had no objective signs of any abnormalities that would be related to the 2009 work-related injury and that she did, however, have a Tarlov cyst in her spine near her nerve roots, which could be causing her subjective complaints. Ross forced the claimant’s expert to admit that the claimant had the cyst in her spine. The Workers’ Compensation Judge found that the claimant’s doctor’s treatment was unreasonable and unnecessary based on the Utilization Review Petition that Ross filed. The judge further found the testimony of the employer’s medical expert more credible than that of the claimant’s expert, and he did not find the claimant’s testimony credible as to her ongoing complaints.

Tony Natale (Philadelphia, PA) successfully defended a Berks County mushroom processing plant in the litigation of a claim petition. ​The claimant alleged disabling bi-lateral carpal tunnel syndrome as a result of light-duty work he was performing with the company. The carpal tunnel injury claim was the culmination of many claims filed by this claimant over the course of five years. Tony was able to demonstrate that the claimant’s testimony as to the cause of the injury differed substantially from the history he provided to various treating experts. As a result, a motion to dismiss the claim was made based on the legal defenses of res judicata and violation of statutory notice and statute of limitations. The Workers’ Compensation Judge accepted Tony’s legal arguments and ruled in favor of the employer, dismissing the claim petition.

Tony Natale (Philadelphia, PA) successfully defended an Eastern Regional can corporation in the litigation of a brain injury case. ​The claimant was struck in the lower extremities by a form of sheet metal which caused him to become unconscious. Nearly three years later, the claimant filed a petition, alleging he sustained a brain injury with post concussion syndrome and cervical disc herniations as a result of the incident. Tony presented fact witness testimony from witnesses at the scene of the accident which directly contradicted the claimant’s version of the facts. Moreover, Tony demonstrated the weaknesses in the claimant’s medical expert’s opinions on cross examination as to causation. The Workers’ Compensation Judge found the claimant did not sustain a brain injury, post concussion syndrome or cervical disc herniations related to employment.

Tony Natale (Philadelphia, PA) also successfully prosecuted a termination petition on behalf of a Philadelphia-based university. ​The claimant, after allegedly discussing with a co-worker the fact that she may be looking for a “pay out” to supplement her retirement, sustained an unusual slip and fall at work, injuring her shoulders. The claimant alleged injuries in the form of aggravation of longstanding degeneration in both shoulders, resulting in rotator cuff tears. The employer accepted the fact that, at most, a strain injury occurred. The employer’s medical expert opined that the claimant sustained strain injuries only and that much of the anomalies in the claimant’s shoulders were pre-existing, non-work-related arthritic changes. On cross-examination of the claimant’s expert, Tony established that the claimant had treated eight days prior to the slip and fall for bi-lateral shoulder arthritic disease and was contemplating surgery. The Workers’ Compensation Judge agreed that the claimant’s injuries took the form of “strains” only and that the claimant had fully recovered from those injuries, consistent with the employer’s medical expert’s opinions, thereby eliminating all benefits due and owing as of the date of the employer’s medical evaluation.

 

*Prior Results Do Not Guarantee a Similar Outcome

 

 

 

Defense Digest, Vol. 24, No. 2, June 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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