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

June 1, 2019

Defense Digest, Vol. 25, No. 2, June 2019

Casualty Department

In a case where the plaintiff claimed she sustained serious injuries due to a rear-end motor vehicle accident, Leo A. Bohanski (Scranton, PA) obtained a defense verdict in a jury trial. The plaintiff’s first year of treatment involved prescription medications from her primary care physician and chiropractic treatment, totaling 33 sessions. As her treatment was weaning down, she was involved in a second, more serious motor vehicle accident that resulted in increased treatment. The plaintiff’s physiatrist opined that the ongoing cervical and lumbar pain was attributable to the first accident and the second accident was a minor exacerbation of her prior condition. Her expert boarded $60,800 in future medical expenses. The jury determined the plaintiff did not sustain a serious impairment of a body function and awarded $0.00 for future medical expenses.

Martin Sitler and Corey Portnoy (Jacksonville, FL) obtained summary judgment in Clay County, Florida in a pedestrian accident. ​The plaintiff was walking along the shoulder of a rural road when he was struck by a pick-up truck driven by our client. The plaintiff suffered severe injuries, including a significant traumatic brain injury. Pre-suit, he engaged counsel. Our client’s insurer tendered the bodily injury policy limits available, and the plaintiff signed and executed a release agreement. He then endorsed a settlement draft, which was deposited into his attorney’s trust account, but he did not receive a distribution from that attorney. Thereafter, he retained new counsel and filed suit alleging over $1 million in damages. On behalf of our client, we moved for summary judgment, asserting the defense of accord and satisfaction. The plaintiff argued he was not competent to sign the release agreement. After several evidentiary hearings, the court granted our motion, finding that the plaintiff was competent to enter into the release agreement and that judgment in favor of the defendant was warranted under the theory of accord and satisfaction.

Before the Delaware County Court of Common Pleas, Edward Tuite and Lisa Goldman (King of Prussia, PA) obtained summary judgment in a motor vehicle matter. ​The plaintiff was a driver involved in a motor vehicle loss that he alleged was caused by a phantom vehicle, potentially invoking the benefit of his uninsured motorist coverage. The injuries were so severe the plaintiff was in a coma for a week. Due to his injuries and coma, the plaintiff had no memory of the incident, including information to substantiate the phantom vehicle. In our motion for summary judgment, we argued there was no other evidence or witness to corroborate the alleged phantom vehicle actually existed, including no notation on the police report about another vehicle. The plaintiff’s own physicians told the plaintiff that, because of his head injuries, he is unlikely to ever remember anything about the incident. As of the filing date of our summary judgment motion, two years had passed with no further recollections by the plaintiff. Additionally, we argued that the plaintiff failed to report the phantom vehicle to the insurer within 30 days of the date of loss, per the Motor Vehicle Financial Responsibility Law, which precluded the insurance company from timely investigating the alleged phantom vehicle. The first notice to the carrier of the phantom vehicle was when the complaint was filed, which was over one year after the accident. The court found favorably for our client, the insurer.

After a three-day jury trial before the Montgomery County Court of Common Pleas, Laurianne Falcone (Philadelphia, PA) obtained a defense verdict. ​The 81-year-old plaintiff, who was staying at her daughter’s home, alleged she slipped and fell on water in the basement of the rental property and injured her hip. The property was owned by our clients. The plaintiff’s daughter and son-in-law claimed they repeatedly complained to our clients of leaks from the ceiling in the basement, without response. They were in the midst of eviction proceedings with our clients for failure to pay rent for several months when the fall occurred. Our clients denied any knowledge of leaking water from the basement ceiling alleged by the tenants, though they did admit that they were aware of leaks in other areas which they attempted to fix. The jury returned a finding of no negligence. There was a nuisance value settlement offer made prior to trial, which was rejected.

Frank Baker (Allentown, PA) and Thomas Specht (Scranton, PA) obtained summary judgment in favor of our clients in a case involving an alleged “attack” by our clients’ dog. ​As the plaintiff walked past our clients’ property on a public sidewalk, their dog ran out to the edge of the sidewalk barking loudly. The plaintiff became “startled” and stepped back, falling into the street and sustaining a serious injury that required surgery. Upon review of the summary judgment motion, the court found no evidence that the dog was a “dangerous dog” or that the dog had ever left the confines of the insureds’ property. Interestingly, the court ruled that the dog’s barking and charging the sidewalk did not represent a breach of duty by the homeowners to the public on the sidewalk under the applicable statutory and case law.

In a case where the plaintiff had made an $8.75 million settlement demand, Jonathon Cross, Benjamin Levine and Eric Weiss (Philadelphia, PA) were successful on a motion for summary judgment, dismissing all claims against their client. ​The plaintiffs, a mother and minor child, were at a gas station in Philadelphia when a vehicle inadvertently struck a fuel dispenser, knocking it over, and causing a fire and explosion. The claims and cross-claims asserted against our client alleged it should have installed or advised the gas station owners to install a valve that would have prevented the fuel leakage that exacerbated the fire. We filed a summary judgment motion arguing the claims and cross-claims asserted against our client went beyond the scope of the environmental compliance services it was hired to perform such that our client had no duty to either install or advise of installing different valves. The court granted our motion dismissing all claims and cross-claims against our client.

Jason Sandler (New York, NY) obtained summary judgment, dismissing the claims of two separate plaintiffs who alleged negligent security against our client, a private security company. ​The case involved a shooting at a nightclub where one of the plaintiff’s sustained gunshot wounds and the other alleged serious injuries as a result of being trampled in the aftermath of the shooting. The court accepted our argument that our client’s duty of care as an independent contractor did not extend to third parties, such as the plaintiffs, because the security company did not launch the instrument of harm and did not completely displace the club owners’ responsibility for safety at the premises.

 

Health Care Department

Michael Kelly (Long Island, NY) obtained summary judgment in New York State Supreme Court, Kings County in a medical malpractice action against a plastic surgeon. The plaintiff claimed she developed a hernia secondary to an abdominoplasty. ​By way of an expert affidavit, we were able to demonstrate that: the plastic surgeon’s surgical technique was proper; there was a proper informed consent; and the hernia was due to her post-abdominoplasty activities of daily living and her four prior C-sections, rather than any act or omission of our client.

Kevin Ryan and Michael Kelly (Long Island, NY) obtained an order from the Appellate Division, First Department affirming a lower court’s denial of a plaintiff’s motion to amend his pleadings. ​The case involved claims of injury arising out of the plaintiff’s employment in the client’s medical school’s microbiology laboratory. After many years of litigation, the Workers’ Compensation Board held that the plaintiff was an employee, which was affirmed by the Appellate Division, Third Department. After the Court of Appeals refused to hear the appeal of this decision, we moved for summary judgment, arguing the case was barred by workers’ compensation law. The plaintiff cross-moved to amend his complaint to include additional claims alleging violation of New York’s “Whistleblower” and anti-discrimination laws. The lower court granted summary judgment, dismissing the negligence claims as barred by the workers’ compensation law, and denied the motion to amend. The Appellate Division affirmed the denial, effectively ending a case that began in 2003.

In a mixed medical malpractice/product liability case in New York State Supreme Court, Kings County, Charles Gura (Westchester, NY) and Michael Kelly (Long Island, NY) obtained summary judgment in favor of a thoracic surgeon. ​The claims involved an experimental weight loss device that was inserted and removed by the co-defendants. The device had perforated the plaintiff’s esophagus, and our client was called in to repair it. Our motion for summary judgment was granted on the grounds that the plaintiff could not establish any deviations from accepted standards of care or that our client’s treatment was a proximate cause of any claimed injury.

Bradley Blystone and Andrea Diederich (Orlando, FL) obtained a Fifth District Court of Appeals order affirming dismissal, with prejudice, of a medical malpractice action against an orthopaedic surgeon and his group. ​In the underlying action, the plaintiff alleged the defendants, her orthopaedic surgeon and his group, negligently fractured her right lower femur while performing hip replacement surgery. Prior to filing her medical negligence complaint, the plaintiff submitted pre-suit affidavits from an emergency room physician, a radiologist and a nurse, all averring that her orthopaedic surgeon’s actions negligently caused the fracture of her femur. Following a hearing on the defendants’ motion to dismiss, the trial court dismissed the action, with prejudice, and entered final judgment in favor of the defendants. Brad and Andrea were engaged to handle the appeal. On appeal, the Fifth DCA addressed whether, under Florida’s Medical Malpractice Act, a pre-suit affidavit submitted by a plaintiff from a health care provider who does not specialize in the same field as the defendant meets the statutory pre-suit investigatory requirements for filing a medical negligence suit. The Fifth DCA held that it does not and affirmed the final judgment in favor of the defendants.

Matthew Keris (Scranton, PA) received a defense verdict in a wrongful death and survival medical malpractice arbitration involving a single mother in her twenties who died from toxic shock syndrome. ​The plaintiff was admitted to a hospital facility with a provisional diagnosis of anaphylaxis, secondary to a medication allergy. She deteriorated under the supervision of a nurse practitioner while on a telemetry unit and was eventually transferred to the intensive care unit. The plaintiff succumbed to her condition several days later.

Joseph L. Hoynoski, III (King of Prussia, PA) obtained a defense verdict in an arbitration in a Montgomery County medical malpractice case. ​The plaintiff complained of a shoulder injury after a hysterectomy performed by an OB\GYN at our client hospital. The plaintiff claimed a surgical tool malfunction that occurred during the surgery was caused by the surgeon’s negligence, which prolonged the surgery and caused the plaintiff to slide during the procedure into an awkward position. The co-defendant anesthesiologist recognized the slide and did not reposition the plaintiff as her body was still supported. The plaintiff claimed the anesthesiologist should have repositioned her. According to the plaintiff, she suffered a torn rotator cuff and needed surgery. The evidence showed that, in addition to the surgical tool malfunction, the surgery was actually prolonged because of the plaintiff’s size and abnormal anatomy. The evidence also showed the plaintiff had pre-existing shoulder symptoms, which were aggravated during the procedure. She completely healed with physical therapy. The plaintiff then injured her shoulder during a bowling party, which tore her labrum, requiring surgery. The arbitrator issued an opinion finding for all of the defendants, noting that the injuries the plaintiff suffered after the hysterectomy surgery were a natural consequence of the surgery, not due to any negligence, as the procedure, while protracted, was not prolonged due to negligence. The bowling injury was not associated.

Anthony Williott and Missy Minehan (Harrisburg, PA) obtained judgment of non pros in favor of the defendant, a long-term care provider in Allegheny County, based upon the plaintiff’s failure to meaningfully prosecute the action since 2014. ​Although the conduct described in the complaint occurred between September of 2010 and January of 2011, the plaintiff took no substantive steps on the docket to move this case forward after July of 2014. The plaintiff also failed to affirmatively move this case forward in discovery in any meaningful way beyond responding to the defendant’s efforts to obtain the plaintiff’s medical records, answering the defendant’s written discovery, and producing the plaintiff for a discovery deposition. The plaintiff did not serve the defendant with any written discovery, subpoena any former health care providers, request dates to take the discovery depositions of any current employees, or produce any expert reports. This lengthy period of inactivity and failure to fully and timely respond to the defendant’s discovery efforts caused actual prejudice to the defendant because: (1) of the inevitably fading memories of any and all pertinent fact witnesses; (2) by the time the plaintiff finally returned the signed authorization, the third-party hospital had disposed of the retained wound VAC sponge that was surgically removed and that was the subject of the plaintiff’s professional liability complaint; and (3) the defendant was sold to a different owner, so it no longer had access to or control over witnesses and records.

 

Professional Liability Department

​Lightning struck a second time for Teresa Ficken Sachs (Philadelphia, PA) who presented oral argument again before the Supreme Court of the United States in a case involving a dispute over a local cemetery ordinance that the landowner considers an unconstitutional taking of her property. Inherent to the matter is a 1985 Supreme Court precedent that controls where many property rights battles are litigated. Representing the township, Terry argued that eliminating the precedent would trigger federal jurisdiction over local land-use regulations across the country. The case was argued once in October of 2018, with an eight-justice bench, but the Court requested additional briefing and listed the case for plenary reargument.

Peter S. Read (New York, NY) obtained dismissal of the plaintiff’s complaint and all cross claims against our client, a commercial plumbing contractor, on a motion for summary judgment in a construction defect case. ​The case involved claims by a homeowners association for property damage and replacement costs, allegedly in excess of $6 million, as a result of construction defects in the design and installation of plumbing, water collection, drainage, grading, and other water runoff and drainage systems. In addition to our client, the named defendants were the project architects, the general contractor, various plumbing, electric, concrete and grading trades, and the water and electric utilities, all of whom asserted cross claims. We were granted summary judgment on the grounds that the plaintiff’s breach of contract claim failed due to lack of privity and proof that the plaintiff was not a third-party beneficiary of our subcontract. All claims and cross claims for negligent installation/breach of warranty were dismissed upon proof that our client’s work was performed in accord with project specifications and the applicable building code, and that none of its work contributed to any drainage issues or resulting property damage.

On the eve of trial, Jack Slimm and Jeremy Zacharias (Mt. Laurel, NJ) obtained summary judgment, dismissing a complex legal malpractice case in which damages were sought in connection with an underlying land transaction. ​This case included allegations that the attorney/client had multiple conflicts. The plaintiffs’ claim for damages included an allegation of $8 million in lost profits due to our client advising the plaintiffs to sell out of this business deal early, while another client of the attorney made $40 million in this deal! Jack and Jeremy were successful in obtaining dismissal by demonstrating that the plaintiffs’ experts could not prove their lost profit claim due to a New Jersey’s New Business Rule and due to the fact that they could not prove any out-of-pocket damages in this case.

Aaron Moore and Alesia Sulock (Philadelphia, PA) obtained summary judgment in a legal malpractice action in the Philadelphia Court of Common Pleas. The plaintiff, a police officer, was arrested after failing to appear in court following a hit-and-run car accident involving his motor vehicle. After proving that he was not the driver of the vehicle, the charges were dismissed. The plaintiff then sought damages from the township, police department and individual police officers for alleged violations of his civil rights. Our client, an attorney, represented the plaintiff in responding to summary judgment and appealing the dismissal of his civil rights claims. Ultimately, the dismissal of the plaintiff’s claims was affirmed. The plaintiff sued the attorney involved for alleged malpractice. We successfully argued on summary judgment that the plaintiff’s claims were time-barred and failed as a matter of law because the plaintiff could not have prevailed in the underlying litigation. In fact, the plaintiff brought similar civil rights claims in three separate lawsuits, all of which failed. The court agreed, dismissing the legal malpractice claims as time-barred and further stating that, even if they were not barred by the statute of limitations, the plaintiff’s claims failed as a matter of law because he could not demonstrate that he would have prevailed but for something the attorney did or failed to do.

Mark J. Kozlowski (Scranton, PA) obtained summary judgment in favor of a town and several of its police officers in an excessive force and malicious prosecution case in the U.S. District Court for the Middle District of Pennsylvania. The night before his daughter’s graduation, the plaintiff got into a fist fight with a bar owner. The owner suffered significant injuries, and the plaintiff fled the scene. He was spotted a short time later by one of the defendant officers, pursued and arrested. The plaintiff was charged with disorderly conduct, harassment, simple assault and aggravated assault. Following the criminal trial, the plaintiff was found not guilty. He then sued our clients—the town and several officers—for excessive force and malicious prosecution. The plaintiff’s wife also sued, alleging loss of consortium and emotional distress. The wife’s claims were dismissed via a motion to dismiss. Following the close of discovery, motions for summary judgment were filed on behalf of our clients. The court granted our motions, finding the existence of probable cause as a defense to claims for malicious prosecution and wrongful arrest. The court also found that the arresting officer acted reasonably during the pursuit and detention of the plaintiff.

Donald Carmelite and Brian Murren (Harrisburg, PA) successfully argued a series of preliminary objections resulting in the dismissal of the plaintiff’s lawsuit, with prejudice. Following the termination of his employment with a Pennsylvania county, the plaintiff filed a lawsuit, raising a claim pursuant to the Pennsylvania Whistleblower Act and a claim for wrongful termination. Don and Brian successfully argued that the wrongful termination claim was barred under the Pennsylvania Political Subdivision Tort Claims Act. Concerning the whistleblower claim, it was demonstrated to the court on the face of the pleadings that the plaintiff lacked a temporal proximity between the county’s alleged wrongdoing and the plaintiff’s “good faith” report as defined within the Act. The court agreed and found that the amended complaint failed to set forth a cause of action under the Whistleblower Act, dismissing the lawsuit, with prejudice. Don and Brian also succeeded on a summary judgment motion in a slip and fall lawsuit filed against a Pennsylvania county. Don secured an admission from the plaintiff during her deposition that she failed to pay attention to where she was walking at the time of the fall and, as a result of her inattention, failed to see a patch of ice allegedly on the county’s property. Based upon this, the court granted summary judgment in favor of the county.

Scott G. Dunlop and Danielle M. Vugrinovich (Pittsburgh, PA) obtained summary judgment in favor of a borough, its police chief, a detective, a lieutenant and a school resource officer in a civil rights lawsuit. ​The plaintiff, a local high school teacher, alleged that no probable cause existed to charge him with witness intimidation, arising from an alleged incident involving a female student who was a victim of institutional sexual assault by another teacher. In its opinion granting summary judgment, the court determined that the Affidavit of Probable Cause, which was the basis for charges against the plaintiff, was supported by the evidence at the time the affidavit was prepared. The court also held that, because no violation of Section 1983 existed, all claims against the individuals and the municipality must be dismissed. Finally, the court ruled that the individual defendants enjoyed qualified immunity because no constitutional violation existed.

Scott G. Dunlop and Allison Genard (Pittsburgh, PA) obtained summary judgment in a civil rights case involving local police officers. ​The plaintiff originally filed a civil rights action under Section 1983 for search and seizure, false imprisonment, excessive force and Monell liability. The plaintiff complained that when the police officers escorted his estranged wife into their house to retrieve her belongings, his rights were violated when the officers did not stop the entry and then interjected when the plaintiff and his wife became engaged in a physical altercation. Following the filing of a second amended complaint, we filed a motion to dismiss all counts. Following oral argument, the court permitted the filing of a motion for summary judgment. We argued that, not only did the plaintiff fail to allege sufficient facts, but the documentary evidence supported judgment in favor of the defendants. The court agreed and entered summary judgment on all counts, holding that the defendants were entitled to qualified immunity.

Christopher Boyle (King of Prussia, PA) obtained summary judgment on behalf of our clients, four township police officers, accused of excessive force. ​An 87-year-old woman called 911 when she saw the plaintiff, whom she did not know, sitting in his car in her driveway. The four officers arrived to investigate the clearly intoxicated man, who refused to cooperate by providing his name. During the course of his arrest, he bit one of the officers and resisted arrest, leading to his conviction on several counts, including possession of methamphetamine found in his pocket. The court agreed that the plaintiff’s claims of being hit in the head with four police flashlights, although he received only a small cut that did not require stitches, was not a plausible tale, especially absent any expert report establishing causation. The court granted our clients’ qualified immunity.

Samuel Cohen (Philadelphia, PA) obtained a defense award on behalf of his broker-dealer client following a three-day FINRA arbitration. ​The claimants alleged their investment portfolio was improperly over concentrated in speculative energy and precious metals investments and that the portfolio allocation was unsuitable for their moderate risk tolerance. The claimants sought damages of approximately $365,000 in purported losses in the energy and precious metals investments. In the award denying the claimants’ claims in their entirety, the arbitrators ordered the claimants to pay over $3,000 in forum fees.

 

Workers’ Compensation Department

Tony Natale (Philadelphia, PA) defended the Corporation of Roman Catholic Clergymen in an appeal arising out of the claimant’s allegations that she should receive workers’ compensation benefits for the time out of work she was using to undertake treatment for a work-related injury. The Workers’ Compensation Appeal Board upheld the original decision of the workers’ compensation judge on the issue and dismissed the claimant’s appeal on the basis that medical treatment must be undertaken outside of work hours, if available.

Tony Natale (Philadelphia, PA) successfully defended a law firm in litigation surrounding an alleged work injury with resultant post-concussion syndrome. ​The claimant tripped and fell at work, alleging that he struck his head during the fall. He donned sunglasses at the hearing and depositions, claiming his injury led to photophobia and post-concussion syndrome. During discovery, it was determined that the claimant had suffered and treated for headache symptoms and memory loss prior to the alleged work injury. Surveillance revealed that the claimant did not use sunglasses when carrying out everyday activities. The claimant’s medical expert admitted on cross-examination that he was unaware of the claimant’s pre-existing medical condition and was not aware of the surveillance evidence when arriving at his opinions and conclusions. The workers’ compensation judge found the claimant and the medical expert not to be credible, leading to the successful defense of the claim.

Tony Natale (Philadelphia, PA) additionally prosecuted a termination petition and defended against a review petition to add injuries for a mushroom distribution corporation. The claimant originally sustained an injury to his lower back while lifting mushroom cases. Ultimately, the claimant was relegated to working a light-duty job for four hours per day due to the injury. The work restrictions were in part based on an Functional Capacity Evaluation (FCE) the claimant undertook at the advice of his treating physician. The employer secured an independent medical examination from a nationally renowned orthopedic surgeon. The claimant’s credibility was shrouded in doubt based on this exam. The employer filed a termination petition, alleging full recovery from the work injury. The claimant responded by filing a review petition to add additional injuries to his work-related condition, including an S-I joint dysfunction. The parties proceeded to litigation. During cross examination of the claimant’s medical expert, Tony secured various admissions, including the fact that the expert did not review the claimant’s testimony and that he relied on an FCE, which described the claimant as magnifying his symptoms. The claimant’s expert also admitted that he felt the claimant was 49 percent not credible—a fact the workers’ compensation judge found extremely important. The termination petition was granted, finding the claimant fully recovered, and the review petition was dismissed.

Michele R. Punturi (Philadelphia, PA) successfully defended a worldwide youth adult development organization in litigation surrounding a fall at work. The claimant allegedly fell when he walked into an object that he claimed included a metal connector, striking his head and resulting in his glasses falling off his head and temporary total disability. The claimant was diagnosed with orthopedic, neurologic and neuro-ophthalmologic injuries, including but not limited to the neck, eyes, skull contusion, concussion and post-concussive syndrome. The employer captured the incident on video. Due to the questionable mechanism of injury, Michele convinced the workers’ compensation judge to travel to the employer’s location to view the actual video of the incident and observe the surroundings where the claimant continued to work out in the gym. The parties submitted multiple expert opinions on the nature of the claimant’s condition and disability status. The employer presented multiple fact witnesses, corroborating the video and lack of disability. The judge found only a head contusion, full recovery and no disability based upon the video of the incident and the fact witness for the employer. The judge further found no liability for the claimant’s extensive litigation costs.

 

*Prior Results Do Not Gaurantee A Similar Outcome

Defense Digest, Vol. 25, No. 2, June 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

 

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