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

March 1, 2010

Casualty

Thomas Brophy (Philadelphia, PA) obtained a defense verdict in a case in which he represented a national entertainment corporation. The plaintiff was a seven-year-old girl who had sustained a two-inch facial laceration with scarring revised by plastic surgery that resulted in a residual scar. The plaintiffs alleged that a particular water attraction at a children's theme park was defectively designed and maintained and inadequately supervised. The jury deliberated approximately one hour before returning with a unanimous defense verdict.

Mari Grimes (Cherry Hill, NJ) obtained a defense verdict in a five-day auto negligence trial in Camden County, New Jersey, before the Honorable Michele M. Fox. The plaintiff was a passenger in the defendant's vehicle when it was involved in a collision with the co-defendant's vehicle. The plaintiff alleged permanent injuries as a result of the accident, including a herniated disc at C6-7, radiculopathy and carpal tunnel syndrome. In addition to testimony from all parties, the plaintiff presented two eyewitnesses and an orthopedic expert, and the defense jointly presented an orthopedic expert. Mari argued and the jury found that the co-defendant was solely responsible for the accident and that the plaintiff failed to overcome the tort threshold.

Alicia Schweyer (Scranton, PA) successfully defended our client's insured at trial. The jury came back in 20 minutes with a verdict of zero damages. Liability for the motor vehicle accident had been admitted. The plaintiff had some complaints and treatment the day following the accident, but six months later, an MRI and an EMG resulted in normal findings. The plaintiff, through the use of medical experts (a physiatrist and a neurosurgeon), attempted to dispute that the findings were normal and attempted to show that an abnormal MRI and abnormal EMG three years later were the result of latent defects from the accident that did not show by the time of the first images and tests. The case was defended by dispute of the medical evidence through testimony of an orthopedic surgeon and by dispute of the plaintiff's credibility.

Paul Laughlin and Mark Royster (Bethlehem, PA) obtained a defense jury verdict in favor of a concrete company in a Monroe County breach of contract action alleging that a foundation in a home failed to meet specifications, resulting in essentially a total loss of the home and contents during a flood.

Jason Banonis (Bethlehem, PA) obtained a dismissal of a tree service via summary judgment in the Monroe County Court of Common Pleas. The plaintiffs alleged damages resulting from five maple trees being cut down on their neighboring lot. The plaintiffs failed to identify the tree service as a defendant until more than one year after the expiration of the statute of limitations. The plaintiffs also failed to identify any evidence implicating liability or the correct measure of damages (i.e. the decline in value of the land, not the cost to replace the trees and restore the property to its original condition).

Employment Law

Sharon O'Donnell and Sunshine Miller (Harrisburg, PA) obtained summary judgment in the U.S. District Court for the Middle District of Pennsylvania in connection with an employee's claims of racial harassment and discrimination against our client, his employer. Despite finding that the plaintiff had established a prima facie case of a hostile work environment due to a joke containing a racial epithet sent to him via text message by a supervisor and other racially offensive comments made by supervisors and coworkers, the court held that the employer had conducted an appropriate internal investigation into the employee's complaints and had taken steps reasonably calculated to remedy the harassment. In so holding, the court also denied the plaintiff's request for leave to amend the Complaint to include an additional claim of retaliation due to the prejudice that would result to the employer, as well as the fact that the claim for retaliation was known prior to the filing of the Complaint and the employee had been represented by counsel throughout the course of litigation.

Health Care

Eric Grogan (Roseland, NJ) obtained a defense verdict in a medical malpractice case in Essex County, New Jersey. After lacerating his index finger at work at a grocery store, the plaintiff presented to the Emergency Room, where he was treated by our client, the ER physician. Treatment included the provision of antibiotics and the bandaging of the finger. That night, the plaintiff had complaints of severe pain. Two days later the bandage was removed by a plastic surgeon, who stated that the bandage appeared tight. The next day the plaintiff returned to the plastic surgeon with a swollen, blistered and ischemic finger, which necessitated fasciotomy surgery with permanent impairment of the finger. The plaintiff alleged that the injury was caused by a too-tight bandage. The defense position was that the bandage was appropriately applied and the injury was the sequella of the initial laceration. After one-and-one-half weeks of trial, the jury returned with its defense verdict.

Paul Laughlin (Bethlehem, PA) secured a defense verdict in a Lehigh County jury trial on behalf of two neurosurgeons, a neurologist, and a hospital in a medical malpractice case involving the death of a 22-year-old man from an undiagnosed ruptured cerebral aneurysm.

Chandler Hosmer (King of Prussia, PA) received a defense verdict in Philadelphia Court of Common Pleas on behalf of a hospital and a health system on October 16, 2009. The plaintiff filed a medical malpractice claim arguing that the hospital negligently delivered fluids and soda to a post-gastric bypass patient and told her that she could drink it. The plaintiff claimed that the patient was not coherent following surgery, drank the excess fluids and soda, and consequently developed complications. The plaintiff further claimed that the hospital destroyed records that could have helped prove the plaintiff's case. The decedent died nine days after surgery at the age of 53. On behalf of his clients, Mr. Hosmer argued that the decedent had received extensive literature and education before and after surgery regarding her post-surgery diet; that she was coherent following surgery; that there was no evidence soda was delivered to the decedent by the hospital staff; and that even if soda was delivered and consumed, it did not cause her post-surgical complications.

Professional Liability

Christopher Santoro, John Hare and Carol Vanderwoude (Philadelphia, PA) obtained consecutive defense verdicts in two jury trials in Philadelphia in defending the Welding Rod Defense Group. The first case was tried before Judge Eugene Maier and involved a 63-year-old mechanic who contended that he developed lung cancer and died as a result of working with welding rods which contained asbestos. The defense contended that the lung cancer was caused by the decedent's long history of smoking, including continuing to smoke after he was diagnosed with the lung cancer. The case was tried reverse bifurcated, and after 40 minutes the jury returned a verdict for the defense after the first phase of the case. The second case, tried before Judge George Overton, involved a 71-year-old gentleman who worked as a plumber and auto mechanic and who did welding several hours a week over a 25-year period. He contended that he developed mesothelioma and died as result of his work with welding rods containing asbestos. Again, the case was tried reverse bifurcated, and the defense did not dispute that the mesothelioma was caused by asbestos in the first phase of the case. The jury returned a damage verdict of $365,000. In the liability phase of the trial, the welding rod defendants were the only defendants that chose to defend their product and contended that welding rods do not release asbestos fibers that are respirable and the mesothelioma was caused by extensive exposure to asbestos insulation products and not welding rods. Both phases of the case took two weeks to try. At the conclusion of the second phase of the case, the jury returned a defense verdict after deliberating just 30 minutes.

Steven Polansky and Michael Gorokhovich (Cherry Hill, NJ) successfully obtained a reversal of a trial court decision declaring that the claimant was entitled to $1 million in coverage under a policy of insurance. The insurance policy contained a step-down provision, reducing the coverage available from $1 million to $15,000. The plaintiff argued that the Scutari Gill Amendment enacted by the New Jersey Legislature was entitled to retroactive effect, thereby precluding enforcement of the step-down provision. The appellate court disagreed, concluding that the step-down provision could not be given retroactive effect.

Alan Johnson and Scott Dunlop (Pittsburgh, PA) obtained a Fed. R. Civ. P. 12(b)(6) dismissal of a case involving the application of Kelo v. City of New London, 545 U.S. 469 (2005). Scott and Alan represented a nonprofit economic development corporation, its president, and its executive director who had been involved in events leading up to an eminent domain proceeding against two sets of residential homeowners. The purpose of the condemnation was to make way for an industrial park. The court ordered the case to ADR proceedings on three separate occasions, during the last of which the plaintiffs repeatedly turned down very substantial settlement offers. Since the United States District Court ordered the many sets of defendants to file motions jointly, Alan prepared a joint Rule 12(b)(6) motion and associated briefs on behalf of all defendants. The court authored a 52-page opinion in support of its order dismissing all federal constitutional claims with prejudice and declining supplemental jurisdiction over the state claims.

Christian Marquis (Pittsburgh, PA) obtained a defense verdict on behalf of the Borough of Kittanning in Armstrong County. The plaintiff alleged that she sustained a broken heel when she fell as a result of stepping off of a curb and into a pothole within a Borough street. The jury returned a unanimous verdict finding that the Borough was not negligent.

Michael Decandio (Jacksonville, FL) obtained dismissal of a wrongful death action filed against an engineering firm performing construction engineering inspections on an Interstate roadway project for the Florida Department of Transportation. Citing Florida statutory law regarding immunity of State agencies and agency law as applied to the engineering firm, the defense argued that the client was entitled to complete immunity and that suit against the Department of Transportation was the sole remedy afforded claimant. In a second claim by the decedent's personal representative on the same project, a dismissal was obtained after summary judgment was filed asserting that the second insured, an engineering firm that prepared the Technical Special Provisions for the project, was not legally or factually liable for the injury and death of the decedent.

Aaron Moore (Philadelphia, PA) was successful in a case where the plaintiffs, dissatisfied home buyers, sued the seller, their realtor, their lender, and the property appraiser, seeking in excess of $200,000 in damages. The plaintiffs alleged that our client, the appraiser, conspired with the co-defendants to appraise the property at a value greater than the property was actually worth. The plaintiffs eventually settled the case for $10,000 with no contribution from the appraiser. Nonetheless, the plaintiffs ended their suit in its entirety.

Terry Lefco and Aaron Moore (Philadelphia, PA) obtained a defense verdict on all claims after a 36-day, non-jury trial on legal malpractice claims in federal court. The most serious claims were for aiding and abetting the client's breach of fiduciary duty owed to his minority shareholders. The court found that the client did indeed breach such duties but misled the lawyers who could rely on his factual statements and who were unable independently to verify the facts because the plaintiffs had concealed the key documents.

Terry Lefco and Aaron Moore (Philadelphia, PA) obtained summary judgment in a legal malpractice matter. The plaintiff alleged that our client, the plaintiff's workers' compensation attorney, failed to timely file his compensation claim, which resulted in the dismissal of that claim. Ironically, the plaintiff failed to file his legal malpractice claim in a timely manner; thus, it was barred pursuant to the applicable statutes of limitation.

Jack Slimm (Cherry Hill, NJ) obtained a dismissal of a legal malpractice action which was filed against an attorney for an estate. In the probate action, the recalcitrant beneficiaries argued that the attorney did not move quickly to file the tax returns, which resulted in tax liabilities in the hundreds of thousands of dollars. While it was true that the returns were not timely filed, Jack was able to demonstrate that the attorney was not responsible for the late filing. Rather, the Executrix simply was not responding to the attorney's requests in connection with the preparation and filing of the returns. Next, Jack also successfully argued that the attorney owed no duty to the beneficiaries and that they were not in a position to bring the action. Therefore, their complaint against the attorney did not state a claim. The case will now proceed against the Executrix, now represented by separate counsel.

Gerry Kowalski and Kimberly Wong (Philadelphia, PA) obtained a FINRA arbitration award in favor of our client, a broker-dealer, in the amount of $1.17 million. Our client sought to enforce the terms of a Promissory Note and Loan Agreement with a former affiliate. The funds were lent to the affiliate by the broker-dealer to allow the affiliate to satisfy a disgorgement order issued by the Securities and Exchange Commission. The affiliate maintained that his decision to transfer his affiliation to another broker-dealer was not an event of default under the terms of the Loan Agreement, and he asked the arbitration panel to allow him to continue to make periodic payments on the Loan. The affiliate also maintained that the signature appearing on the Promissory Note was a forgery. A three-member, all-industry FINRA arbitration panel held that the respondent was in default on the Agreement and ordered that he pay the outstanding principal balance on the loan within 30 days.

William Waldron (Roseland, NJ) obtained a summary judgment on behalf of our client, a safety consultant for a water treatment plant. Will successfully argued that his client's only obligation was to make recommendations to the water commission/property owner and it was the responsibility of the commission to act on those recommendations. The facts of the case involve a murder mystery. The plaintiff's decedent, who had been responsible for monitoring water quality at the plant, was found dead in an underground water tank, the victim of an apparent strangulation. The estate filed a wrongful death suit seeking $15 million in damages, alleging the plant had insufficient safety procedures and had violated industry standards.

Defense Digest, Vol. 16, No. 1, March 2010

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