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

December 1, 2009

Casualty

Samuel Casolari (Akron, OH) obtained summary judgment by Judge John Andrew West in favor of the Fun Factory on claims by the plaintiff that while skating off the rink he slipped and fell on a loose piece of carpet and sustained a right fibular fracture. We argued that the Fun Factory was not responsible for the plaintiff's injuries due to the fact that the plaintiff failed to identify where he fell, that the condition was trivial, and that the Fun Factory was in full compliance with Ohio's roller skating liability statutes. At the early stages of the case, we successfully fought back an attempt by the plaintiff for a default judgment.

Thomas Bracaglia, Joanna Buchanico and James Gicking (Philadelphia) obtained a defense verdict on behalf of a major sporting venue after a five-day trial before Judge Younge in Philadelphia. The plaintiff was severely injured after leaving an event at the venue when struck on a public road by a drunk driver who was also leaving the event. The venue permitted patrons to bring and consume their own alcohol at the event. The driver consumed alcohol that he brought to the event, and his BAC was .23% at the time of the accident. The plaintiff claimed the venue was in control of the road where the accident occurred because it was within the traffic control plan for the event and that the venue was liable under a theory of concerted tortious action under Section 876 of the Restatement (Second) of Torts for allowing the driver to become intoxicated. The jury returned the defense verdict after one and one-half hours.

Bradley Remick and James Bosakowski, with the assistance of Kaitlin DeCrescio, Courtney Schulnick and Alex Norman (Philadelphia, PA), won a bifurcated trial in a complex construction case. The plaintiffs sued our client, a large real estate developer, after a fire destroyed their home. We joined all of the subcontractors who built the home. Through extensive discovery, we identified several smoking guns which showed that the subcontractors were at fault. At trial, supporting testimony was gleaned through cross examination to corroborate the smoking gun documents. We were found not liable during the first portion of the trial. During the second portion, the subcontractors were ordered to indemnify our client including litigation costs in excess of $135,000.

Diane Magram and Mari Grimes (Cherry Hill, NJ) received a defense verdict in a matter which was tried in Atlantic City, New Jersey. The plaintiff alleged cervical and lumbar herniations as a result of a motor vehicle accident. The defense filed two in limine motions. The first motion was to preclude the plaintiff from introducing evidence that was produced just 13 days prior to trial. The documents were MRI reports from 1997 and an operative report from 1998. The plaintiff intended to present them in support of his position that he did not sustain a permanent injury in a prior motor vehicle accident. The documents were produced after the defense doctors' videos were completed, but before the plaintiff's expert video was completed. The second in limine motion was to bar the plaintiff from seeking an adverse inference charge based upon the defense decision to use only the orthopedic expert videotaped de bene esse deposition. The judge ruled that the defense was not obligated to use both videotaped witnesses, and the inference was not permitted. The jury deliberated in under an hour and found that the plaintiff did not sustain permanent injury as a result of the subject accident.

Health Care

Michelle Wilson (Bethlehem, PA) obtained a defense award in favor of her physician-client in a recent arbitration. The plaintiff had alleged that the physician (an internist practicing alternative medicine) had failed to appropriately treat her pneumonia, leading to lung damage, chronic fatigue, and an exacerbation of post-traumatic stress disorder. We defended the case relying upon the plaintiff's refusal to take antibiotics or to appropriately follow-up, along with her various pre-existing conditions. The arbitration panel entered an award in the physician's favor, and the plaintiff chose not to appeal.

Professional Liability

Steven Polansky and Michael Gorokhovich (Cherry Hill, NJ) successfully obtained summary judgment on behalf of their insurance company client in federal court in a case involving the definition of "covered auto." It was alleged that the party seeking coverage was operating a vehicle which fell within the definition of "non-owned auto" or "hired auto" under the insurance policy issued by our client. We successfully argued that the court should reject the evidence relied upon by the party seeking coverage as inadmissible hearsay.

Teresa Sirianni (Pittsburgh, PA), with assistance from summer associate Michaelene Weimer, obtained a defense verdict at a trial held in the District Court for the Western District of Pennsylvania in Johnstown. The plaintiff sued his municipal employer and its former city manager individually, alleging they terminated his employment in violation of the Family and Medical Leave Act. Our clients alleged they terminated the plaintiff's employment because of his violations of various employment policies and because of a pattern of Thursday and Friday absences. The plaintiff claimed that his health problems led to his repeated absences and that his claimed health problems constituted a serious health condition that would have qualified his various and repeated absences for leave pursuant to the Family and Medical Leave Act. After a five-day trial, the jury returned a verdict in favor of our clients, the municipal employer and its former city manager, finding that the plaintiff established a serious health condition as to only one date of absence but failed to provide notice to his employer of his need for FMLA leave to treat his alleged serious medical condition on that date.

Timothy McMahon (Harrisburg, PA) and James Gicking (Philadelphia, PA) prevailed in a Section 1983 action against a law firm in connection with the dismissal of a state court medical malpractice and wrongful death suit. The federal action alleged conspiracies among a number of parties in obtaining dismissal of the action in the Court of Common Pleas of Dauphin County and further conspiracies involving the Pennsylvania Superior Court in affirming that judgment. The district court dismissed the plaintiff's complaint against the defendants based on the Rooker-Feldman Doctrine, and the Third Circuit affirmed in the appeal handled by Jim Gicking.

Edwin Schwartz (Harrisburg, PA) obtained a defense verdict in a legal malpractice case in Cumberland County, Pennsylvania. Three days before his marriage, the plaintiff had retained our client to draft a pre-nuptial agreement. The agreement was drafted by our client immediately and was e-mailed to the plaintiff for his review, as well as review by the wife-to-be. The plaintiff did not present the agreement to his wife-to-be until the night before the wedding and informed her that an appointment at the attorney's office to sign the agreement had already been scheduled for the next day (the wedding day). Ultimately, the parties separated, and the wife challenged the agreement, which was eventually invalidated by the court. The plaintiff then filed suit against our client claiming that his negligence in drafting the agreement resulted in the agreement being invalidated. After a bench trial on the plaintiff's claims of malpractice and breach of contact against our client, the court issued its findings of fact and conclusions of law, determining that our client neither deviated from the applicable standard of care nor did he breach any contract with the plaintiff, and it further determined that the plaintiff's own actions lead to the agreement being invalidated.

Denis Dice (Philadelphia, PA) won a bench trial in the Philadelphia Court of Common Pleas, Commerce Division. Our client is a leading commercial real estate broker in Philadelphia who sued its law firm client for non-payment of its fee related to a lease restructure. The law firm then counterclaimed against our client alleging damages of $5 million arising out of theories of breach of fiduciary duty, professional negligence, and breach of contract. We defended the counterclaim portion of the litigation and established to the court that the plaintiff's claims were meritless after a multi-week trial. The court rejected the plaintiff's counterclaim and granted our client's claim for fees owed.

Workers' Compensation

Gregory Bartley (Roseland, NJ) received a favorable decision in a workers' compensation case in which the petitioner alleged that she either developed or had exacerbated her underlying bipolar disorder as a result of being treated unfairly by her supervisor. The demand to settle amounted to over $250,000. Following a full trial, the judge ruled that the petitioner not only failed to satisfy the burden of proof as outlined in Goyden v. State Judiciary (the controlling case for workers' compensation cases in New Jersey involving allegations of psychiatric disability), but also there was no showing that the supervisor acted in any manner inconsistent with the supervisor's authority. The judge in her decision cited to Greg's cross examination of both the petitioner and the petitioner's medical expert in reaching her decision.

Defense Digest, Vol. 15, No. 4, December 2009

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