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

September 4, 2018

Defense Digest, Vol. 24, No. 3, September 2018

Casualty Department

Jason Banonis (Allentown, PA) obtained summary judgment in favor of a defendant homeowner in the Court of Common Pleas of Lehigh County, Pennsylvania. The plaintiff alleged catastrophic personal injuries from a head-on collision between two motor vehicles on a public roadway. He claimed, in part, that vegetation on a property caused the co-defendant to leave her lane of travel. On the eve of trial, the court entered an order determining that no genuine issue of material fact existed. The court found that the plaintiff had no idea, other than pure speculation, of: (1) any duty owed to the plaintiff; (2) any breach of duty causing or contributing to any alleged dangerous condition; (3) actual or constructive notice of any condition that caused the alleged accident; and/or (4) any act or omission of the defendant that was the proximate cause of the alleged damages.

After a jury trial in the Luzerne County Court of Common Pleas, Leo Bohanski (Scranton, PA) obtained a defense verdict. ​The case involved a rear-end motor vehicle accident in which the plaintiff claimed he sustained a serious injury. The plaintiff underwent several years of treatment with a physiatrist, pain management specialists, physical therapists and a chiropractor. The jury found that the plaintiff did not sustain a serious impairment of a body function and awarded only $5,000 for past and future medical expenses for the injuries conceded by the defense medical expert—a cervical and lumbar strain. The plaintiff’s medical expert had boarded $203,000 for past and future medical treatment.

Carolyn Bogart and Brielle Kovalchek (Mt. Laurel, NJ) obtained summary judgment in Passaic County Superior Court of New Jersey on behalf of a non-profit shelter for battered women. The plaintiff, who was staying at the shelter at the time of her alleged incident, accused the shelter of negligence with regard to removing snow and ice from their parking lot. The plaintiff attempted to argue she was not a “beneficiary” of the shelter but, rather, was a volunteer. As such, she was not required to help but chose to work at the shelter in exchange for room and board. We successfully argued the defendant was a qualified non-profit organization and the plaintiff was clearly benefiting from the non-profit at the time of her incident. Therefore, the plaintiff’s claims were barred under the New Jersey Charitable Immunity doctrine.

In a personal injury case, Adam Calvert (New York, NY) obtained summary judgment on behalf of a building owner. ​The plaintiffs, employees of a tenant in the insured’s building, claimed they were injured when glass doors near their elevators suddenly shattered. Adam was able to obtain summary judgment for the building owner by arguing that it was an out-of-possession owner without a duty to maintain the glass doors.

Matthew Noble (Philadelphia, PA) obtained a defense verdict after a three-day trial in Philadelphia County in favor of a large car dealership. ​On July 5, 2016, the plaintiffs purchased a used 2011 Chevrolet Cruze from the defendant. The plaintiffs claimed their vehicle was purchased with the undisclosed fact that it had been involved in a flood. They asserted claims under the Unfair Trade Practices and Consumer Protection Law that the vehicle’s prior history was not identified and the vehicle was sold having mud, rust and dirt all over the car. The defense proved through witness and expert testimony that the plaintiffs drove the vehicle through high water and mud after purchase, causing the own vehicle’s damage.

In a premises liability case in the Court of Common Pleas of Cumberland County, Pennsylvania, Christopher Reeser (Harrisburg, PA) obtained a defense verdict on behalf of our client, a supermarket. The plaintiff claimed she was injured when her hand was trapped in a deli case door that was closed on her by an inattentive employee of the deli department. She claimed that in an attempt to free her hand from the deli case, she suffered an injury to her shoulder and her neck. MRI scans after the incident did show degenerative disc disease in her neck, as well as multiple herniated discs. Her treating orthopedic surgeon attributed the injuries to the incident in question and recommended a cervical fusion. Through investigation, we learned that the plaintiff had filed a lawsuit in New York as a result of a fall in 2007. Travelers Insurance’s house counsel in New York who defended the 2007 case was nice enough to provide us with the transcript of the plaintiff’s deposition from the prior lawsuit, which was cross examination gold at trial. Under Christopher’s cross examination, the plaintiff had to acknowledge that her treating physician in New York had recommended the same procedures that had been recommended after this incident. The jury did find the employee who closed the deli case door on the plaintiff’s hand to be negligent. The jury also found that the plaintiff was negligent in sticking her hand in the area of an open deli case and the plaintiff’s negligence outweighed the defendant’s negligence, barring her recovery.

The estate of a deceased individual brought suit alleging violations of Pennsylvania’s Dram Shop Act. Justin Schiff (Philadelphia, PA) obtained summary judgment in favor of our client in the face of significant opposition to our motion, both in written filings and at oral argument. ​ It was alleged the decedent was served alcohol while visibly intoxicated at multiple establishments, allegedly resulting in a car accident that caused the death of the individual. Our client was joined in the action by one of the defendants. It was claimed the deceased was served alcohol at our client’s establishment while visibly intoxicated. Following several depositions, we filed a motion for summary judgment in which we contended the parties had failed to produce evidence demonstrating the deceased was served alcohol while visibly intoxicated at our client’s establishment. We also highlighted deposition testimony elicited by Justin demonstrating that the joining defendant did not have sufficient evidence to support their position. Following oral argument, our motion for summary judgment was granted and all claims against our client were dismissed, with prejudice.

Brittany Bakshi (Harrisburg, PA) obtained summary judgment on behalf a supermarket in a slip and fall case filed in Lancaster County, Pennsylvania. After speaking with a market employee at the customer service desk, the plaintiff walked past a checkout register and slipped and fell on a clear liquid. The plaintiff admitted she did not see the liquid prior to falling 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. Brittany filed a motion for summary judgment, arguing that the plaintiff could not demonstrate that the market 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 market. Following oral argument, the court granted the motion and dismissed the plaintiff’s complaint with prejudice.

Samuel Casolari (Cincinnati, OH) obtained summary judgment in favor of our client, an international retailer, in the Common Pleas Court of Butler County, Ohio. ​The plaintiff slipped and fell on water while going from one cash line to another and injured her left hand. In ruling in favor of our client, the court noted the water was open and obvious, was not spilled on the floor by our client’s employees, and our client did not have either actual or constructive notice of the water.

Colin O’Brien (Philadelphia, PA) obtained a defense verdict at his first arbitration. ​Colin represented a store and the store owner. The customers were not pleased with a partial refund, and a melee ensued. The plaintiffs filed a complaint for assault and battery and for a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. After a 7.5 hour arbitration in Philadelphia, Colin and his clients were awarded a defense verdict. Lastly, as Colin was finishing his closing arguments, the plaintiff was rushed out of the Courtroom after threatening to kill the defendant/store owner.

 

Health Care Department

Donna Modestine (King of Prussia, PA) obtained a defense verdict after a trial in Bucks County in which she represented a family physician. ​The case involved the death of a 22-year-old man who died from a colloid cyst in his brain. The plaintiff alleged the physician should have ordered neuroimaging and should have performed a neurological examination when he saw the patient in the office four days before his death. At the time of the office visit, the patient had allegedly been suffering from headaches for three weeks.

Victoria Scanlon, Robert Aldrich and Maura Wormuth (Scranton, PA) obtained a defense verdict on behalf the defendant midwife in an alleged failure to properly manage and care for a patient’s labor and delivery, resulting in catastrophic injury to her child. ​Counsel for the minor-plaintiff argued the pregnancy and labor were high risk and, therefore, it was below the standard of care to use intermittent auscultation (IA) during the second stage of labor. The plaintiff argued the fetus suffered a catastrophic brain injury during the second stage of labor, resulting in cerebral palsy and daily intractable seizures. The child is six years of age, wheelchair bound, and unable to speak or feed himself. He will require lifetime supervision and care. The defense argued the patient’s pregnancy remained low risk. Therefore, IA was within the standard of care, a sentinel event did not occur during the second stage of labor, and the child’s brain injury occurred in the days leading up to the hospital admission for labor. Also sued were two labor nurses, and the hospital was in for vicarious liability only.

 

Professional Liability Department

In a complex construction defect matter, Justin Schiff (Philadelphia, PA) filed a motion for partial discontinuance that was granted, resulting in the dismissal of all claims against our client. The plaintiff, a homeowners’ association, filed suit against a number of defendants alleging significant defects and deficiencies in construction performed at a residential community. The defendants joined a number of additional defendant subcontractors, including our client, in the litigation. In his motion for partial discontinuance, Justin contended the pleadings did not make any specific allegations of wrongdoing by our client, and the evidence and expert reports likewise did not include any allegation that our client’s work was defective. The court granted Justin’s motion and dismissed all claims against our client.

David Shannon and Kyle Heisner (Philadelphia, PA) obtained a defense verdict in the Philadelphia Court of Common Pleas in a case involving damage to a neighboring property during the course of construction of a multi-unit, townhouse development. We represented the subcontractor who was in the process of excavating the adjacent property for underpinning. Between the time the excavation was completed and the delivery of concrete for underpinning the next day, the property subsided and was eventually demolished because of extensive cracking and concerns regarding its structural stability. The plaintiff argued that our client was negligent for: (1) not having an engineer present as required under Philadelphia’s special inspections program; (2) not pouring concrete on the same day excavation took place; and (3) not properly following the engineer’s plans. The plaintiff was precluded from arguing the first two theories due to favorable rulings on motions in limine. At trial, the plaintiff was unable to establish a deviation from the engineer’s plans, resulting in a defense verdict. No appeal was taken.

Brooks Foland (Harrisburg, PA), Vlada Tasich (Philadelphia, PA) and Allison Krupp (Harrisburg, PA) obtained summary judgment for a large insurer in a putative class action lawsuit in the Eastern District of Pennsylvania. ​This case dealt with a letter the insurance carrier would send to its insureds following a motor vehicle accident in which it would advise its insureds that they would have a rental vehicle for five days. The named plaintiffs argued the letter misrepresented the policy language. They sued for breach of contract, bad faith, declaratory judgment and equitable relief. Per the insurer’s request, the court agreed to stay class action discovery so the insurer could file a dispositive motion as to the named plaintiffs, which, if granted, would dispose of the entire putative class action case. In our motion for summary judgment, we argued that the named plaintiffs could not meet their individual burdens of proof since it was undisputed they had had a rental vehicle for 23 days and had returned the rental the same day they picked up their newly purchased vehicle. The court agreed and granted the insurer’s motion for summary judgment in its entirety and dismissed the action. The court reasoned, in part, that the named plaintiffs’ alleged damages were speculative and issuance of the rental letter did not constitute a breach of the policy since the plaintiffs could not show they were not afforded benefits to which they were entitled.

A Magistrate Judge in the U.S. District Court for the Southern District of Ohio granted the motion for judgment on the pleadings filed by Samuel Casolari (Cincinnati, OH) on behalf of our client. The motion was filed in response to a correctional inmate’s claims of cruel and unusual punishment. The judge found that the alleged ingestion of rat legs and glass was too few in number, in time, and with too little injury to constitute an objectively serious deprivation of edible and sanitary food. Further, the court found there was no evidence of deliberate indifference on the part of our client in its operations. Thus, the court found no constitutional deprivation or cruel and unusual punishment.

Christian Marquis (Pittsburgh, PA) obtained summary judgment on behalf of a large municipality. ​The plaintiffs asserted that the wife-plaintiff fell on ice, fracturing her ankle, while she was walking on a driveway claimed to be a public street owned by the municipality. The plaintiffs were tenants in a duplex owned by the co-defendant landlord. The driveway, which was alleged to be a public street, served the duplex that was leased in part by the plaintiffs and another duplex next door. The driveway traveled between two public streets owned by the municipality. On summary judgment, it was argued that the location of the fall was not sited on a public street of the municipality, despite the fact that the fall’s location was within the right-of-way originally accepted by the municipality for purposes of a public street. However, the municipality had never opened up that area of the right-of-way for use as a public street. Therefore, it was argued the location of the fall occurred on a private easement or driveway serves the duplexes. The court accepted the argument that the municipality did not own or maintain a public street at the spot of the fall. The court also accepted the argument that, regardless of ownership, the municipality did not have a duty to remove snow and ice from streets resulting from natural accumulations.

Trish Monahan and Grant Hackley (Pittsburgh, PA) obtained summary judgment in the U.S. District Court for the Western District of Pennsylvania on behalf of a borough, its police chief and its mayor, who were accused of discriminating against a female-owned towing company. The plaintiff claimed the defendants purposely discriminated against it when they refused to add the female-owned company to a towing rotation list and, instead, chose another local company that happened to be male-owned. The court disagreed and found no discrimination. The court also rejected the plaintiff’s equal protection “class of one” theory because the defendants had discretion in choosing which towing company to call.

Sharon O’Donnell (Harrisburg, PA) and Tom Specht (Scranton, PA) secured an “eve-of-trial” summary judgment on a Pennsylvania Human Relations Act claim in the Lehigh County Court of Common Pleas. The claim was brought by a county contract paralegal who claimed disability discrimination.

Joseph Santarone (Philadelphia, PA) obtained a defense verdict after a seven-day trial in U.S. District Court for the Eastern District of Pennsylvania. ​We represented a school district on a Title IX claim brought by the parents of two second grade girls who allegedly were improperly touched by their teacher. The teacher, a defendant also, had spent time in prison after taking a nolo contendere plea in state court. There were separate plaintiffs’ attorneys and an attorney who was privately paid for the teacher’s defense, since there was no coverage. Prior to trial, a very significant offer was made to settle the case on behalf of the school district and our former principal only. That offer was rejected. After five hours of deliberations, the jury found in favor of the school district and the principal and against the teacher, awarding $100,000 for each of the students. That verdict is not collectable since the former teacher has few if any assets.

 

Workers’ Compensation Department

Gregory Bartley (Roseland, NJ) successfully defended a national home improvement store in the litigation of a claim petition. The petitioner alleged that, as a result of his employment at the retailer, he developed back problems and was in need of medical treatment. Greg was able to call into question the petitioner’s credibility, as well as that of the petitioner’s expert doctor. The Judge of Compensation found that the petitioner did not sustain his burden of proof. Therefore, both the motion for medical and temporary benefits and the claim petition were dismissed, with prejudice.

Ross Carrozza (Scranton, PA) obtained a favorable Federal Black Lung decision. ​The claimant, a miner with more than 23 years of coal mine employment, had two expert opinions placed into evidence, while the defense also placed two expert opinions into evidence. The judge determined that one of Ross’s defense experts provided the most credible opinion evidence-of-record based on his thorough review of tests and records and the thorough history and examination he conducted. The claimant’s medical expert witnesses were not found to be the most credible due to the flawed histories they secured concerning the claimant’s past smoking history and last coal mine employment duties, which Ross pointed out during his cross-examination. As a result, Ross was able to secure a favorable decision denying the Federal Black Lung benefits in this matter.

Tony Natale (Philadelphia, PA) successfully defended a national can corporation in the litigation of a claim petition in which the claimant testified that, while lifting a very heavy piece of machinery at work, he sustained two lumbar spine disc herniations. Medical evidence was presented showing that the disc herniations were present 10 years before the work injury. Surveillance of the claimant was also proffered, which demonstrated his activity level to be far greater than his stated restrictions. Moreover, the office notes of the claimant’s medical expert failed to establish the requisite disability opinions required by the law. The Workers’ Compensation Judge found that, at most, the claimant sustained a strain, which had fully recovered. The allegations of ongoing disability and disc herniations were dismissed summarily.

Tony Natale (Philadelphia, PA) successfully defended a Philadelphia-based university in the litigation of a remanded claim petition. ​The claimant worked for the university in various capacities and allegedly sustained an injury in the form of a strain to his spine due to lifting paint cans. The claimant had a long history of prior non-work-related lumbar spine anomalies. Tony established upon cross examination of the claimant’s medical expert that, despite the work injury, records of treatment did not show any increased diagnoses over and above the pre-existing lumbar problems. This contradicted the expert’s testimony as to the nature of injury arising out of the work injury. The Workers’ Compensation Judge found the injury limited to a strain only, which had fully recovered. The claimant appealed the matter, and the Workers’ Compensation Appeal Board found the judge’s decision lacked a clear reasoning for concluding that the claimant’s lumbar spine anomalies—including disc herniations and annular tears—were not work related. The matter was remanded to the judge for further findings on this issue. The judge held oral argument concentrating on the lumbar spine MRI findings. She then issued an updated decision, finding the preponderance of the medical expert records revealed that all abnormalities in the claimant’s spine as seen on pre- and post-injury MRIs were pre-existing conditions and not work related. The full recovery was upheld.

Tony Natale (Philadelphia, PA) also defended a New England-based research and management firm in the litigation of a penalty petition that involved issues of quasi-first impression in the Commonwealth of Pennsylvania. ​The case arose in the form of a penalty petition filed by the aggrieved medical provider who alleged a large sum of medical billings remained unpaid after the underlying litigation of a serious and permanent workers’ compensation injury had been settled 12 years earlier. The judge held oral argument on the issues of constitutionality, laches and legal standing regarding the petition. The parties formulated an evidentiary record and prepared briefs on the issues involved. The judge ruled that laches applies to a Pennsylvania workers’ compensation claim and the inactivity of the aggrieved provider for 12 years after the settlement of the case prevented a finding of a reasonable cause of action for alleged non-payment of medical bills.

Tony Natale (Philadelphia, PA) successfully defended a mushroom farm in Berks County, Pennsylvania on a claim petition in which it was alleged that disc herniations in the claimant’s lumbar spine resulted in permanent incapacity. ​The preponderance of the evidence revealed the claimant had originally alleged a leg injury, as opposed to a low back injury, and worked for five full months after the alleged injury without a problem. Moreover, the claimant’s expert was unfamiliar with the claimant’s job duties, knew nothing of his post-injury activities at work or otherwise, and offered no basis for his causation opinions. When the claimant was made the subject of cross examination, the Workers’ Compensation Judge noted that he misrepresented his condition and the facts of the alleged injury to the employer’s expert, his own expert, and the panel doctor. The judge rejected the claimant’s and his expert’s testimony as not credible and dismissed the claim petition in its entirety.

Tony Natale (Philadelphia, PA) successfully defended a can supply corporation headquartered in Blandon, Pennsylvania. ​The company manufactures, supplies, and distributes cans for food and sundry items throughout the United States. A truck driver, employed with the company for over 30 years and on the brink of retirement, filed a claim petition in which he alleged a disabling work-related injury in the form of disc herniations in the lumbar spine. The claimant alleged that 30 years of loading, unloading, and driving an 18-wheel truck while in the course of his employment with the company caused his injuries. According to the claimant, he was unaware of his work injury until a physician informed him of the same immediately before he had decided to retire. He noted that his pain complaints emanated from his calf area and, therefore, he did not know he had a back injury. On cross-examination of the claimant’s medical expert, it was established that the claimant’s pain complaints were registered in his lumbar spine, not his calves. Further, the employer’s expert testified the pain in the claimant’s back was due to long-standing degenerative changes, which were unaffected by the claimant’s work duties, and pre- and post-injury MRIs proved this beyond contention. The Workers’ Compensation Judge dismissed the claim petition, finding the claimant not credible and further finding the employer’s medical expert’s opinions to be beyond reproach.

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition on behalf of a transportation authority centered in southeastern Pennsylvania. ​The claimant, a bus driver, was adjudicated to have sustained serious injuries in the form of cervical disc herniations and upper extremity carpal tunnel syndrome by virtue of the employer not filing a timely answer to the claimant’s petition. Tony instituted a termination petition in which he alleged the claimant had fully recovered from the adjudicated work injuries. On cross-examination of the claimant’s medical expert, it was revealed the claimant’s former treating physician could no longer document any symptoms related to the injuries. It was then established that the claimant switched physicians. The preponderance of the evidence showed no objective ongoing findings to support the alleged ongoing disability. The termination petition was granted in its entirety.

Tony Natale (Philadelphia, PA) defended reinstatement and penalty petitions the claimant filed alleging she was unlawfully prevented from treating for her work-related injury during work hours. The claimant sought partial disability benefits for time missed from work to attend physical therapy sessions. On cross-examination, Tony was able to establish that the claimant did not research physical therapy providers in the area who could accommodate her work hours. The claimant alleged she did not have access to the Internet, access to a phone, or access to the business yellow pages and, thus, was limited to seeking PT therapy during work hours at a physical therapy office near her home. Tony introduced evidence demonstrating a myriad of PT offices in the geographical community near the claimant’s work and home that could accommodate her work hours. The Workers’ Compensation Judge dismissed the reinstatement and penalty requests.

Tony Natale (Philadelphia, PA) successfully defended a clinical research laboratory against a claim petition in which the claimant alleged permanent upper extremity and neck injuries due to sitting and typing at work. ​Tony presented two nationally recognized orthopedic surgeons who cast doubt upon the claimant’s allegations of a work injury based on the clinical findings, the short duration of the claimant’s employment, and the nature of the claimant’s job duties. The Workers’ Compensation Judge ruled the claimant was not credible as to his testimony surrounding a work injury. The judge further found all defense medical experts to be more credible than the claimant’s expert. The claim petition was denied and dismissed.

Michele Punturi (Philadelphia, PA) successfully defended a nationally-known car company in the litigation of claim and termination petitions. ​While working for the employer as an inventory clerk and while operating a vehicle collecting parts, the claimant was involved in an accident resulting in soft tissue injuries to the lumbar spine and chest. The claimant treated with the company physician and was released to return to work. Work was available, but the claimant failed to continue working. He then treated with a panel physician, who released him to return to work and who expanded the diagnosis to the neck and left shoulder. The claimant’s attorney referred him to yet another doctor, who expanded the diagnosis further with respect to the teeth, neck, shoulder, lumbar spine and head. Michele established, through dental records, that the claimant had significant pre-existing dental issues and that the ER records contemporaneous to the accident failed to support any injuries to the mouth, teeth, neck, shoulder or head. The records also established the claimant had a long-standing history of non-work-related lumbar complaints, which he failed to reveal during the litigation. The Workers’ Compensation Judge found the claimant fully recovered from the work-related injury of a soft tissue and chest contusion based upon the IME. He further concluded the claimant failed to meet his burden of establishing any injuries beyond those injuries and/or that he was entitled to any disability benefits, other than for a few weeks, based upon the competent medical and factual evidence presented by the employer.

Michele Punturi (Philadelphia, PA) also successfully prosecuted a Supersedeas Fund reimbursement recovery action with legal and factual issues of first impression, resulting in a $1 million recovery on behalf of a nationally recognized insurance carrier.

Ashley Talley (Philadelphia, PA) successfully defended a claim petition filed against an insurance carrier that was one of three named defendants in a workers’ compensation proceeding. ​The claimant filed claim petitions against two transportation companies, one of which was briefly insured by our client. In a case that presented complex legal issues, the claimant attempted to prove that our client was liable for the work injury. Ashley was successful in arguing that our client was not on the risk at the time of injury and, secondarily, that another transportation company was the claimant’s legal employer. The Workers’ Compensation Judge ultimately assessed liability against the other transportation company, completely absolving our client of any responsibility for the work injury.

*Prior Results Do Not Guarantee a Similar Outcome

 

 

Defense Digest, Vol. 24, No. 3, September 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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