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On the Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories

December 1, 2009

John Hare (Philadelphia, PA) succeeded in having the Pennsylvania Supreme Court take the unusual step of granting reargument of its own decision. The Court had previously overruled well-settled Pennsylvania law holding that a nurse is not permitted to provide evidence of medical causation in a lawsuit. In granting John's Application for Reargument, the Court agreed to determine whether the plaintiff had waived her request to overrule prior law and to determine the effect on Pennsylvania public policy of allowing nurses to establish medical causation in lawsuits. Freed v. Geisinger Med. Ctr. et al., 2009 Pa.LEXIS 1761 (Pa. August 21, 2009), granting reconsideration of Freed v. Geisinger Med. Ctr. et al., 971 A.2d 1202 (Pa. 2009).

John Hare (Philadelphia, PA) succeeded in having the Pennsylvania Superior Court quash the plaintiff's appeal from an order granting summary judgment in favor of John's client. The Superior Court ruled that the removal of the case to federal court by the co-defendants after the grant of summary judgment to John's client deprived all state courts of jurisdiction and converted the state court's grant of summary judgment into a ruling of the federal court itself that could be reviewed after removal only by the federal court. Kurns v. Airco Welders Supply, 1746 EDA 2008 (Pa. Super., September 15, 2009).

Audrey Copeland (King of Prussia, PA) successfully obtained an affirmance of the Workers' Compensation Appeal Board's order affirming the dismissal of a Claim Petition where the claimant failed to prove that a work-related event caused his disability. The Commonwealth Court reasoned that the claimant was challenging the Workers' Compensation Judge's credibility determinations only and that such findings were conclusive and could not be disturbed on appeal. Wible v. W.C.A.B. (W.W. Williams),No. 798 C.D. 2009 (Pa. Cmwlth., September 16, 2009).

Kim Boyer-Cohen (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA), who wrote the Brief of the appellant and argued the appeal, respectively, convinced the Superior Court to reverse the decision of the trial court and to order that judgment be entered in favor of our client. The plaintiff filed suit against our client after her decedent was killed in a motor vehicle accident and the parties agreed to binding arbitration. After the arbitrator found the plaintiff to be 60 percent negligent and our client to be 40 percent negligent, the plaintiff argued that the parties had agreed to principles of "comparative fault," which did not include a bar on recovery if the plaintiff was more than 50 percent negligent. The trial court agreed and entered judgment against our client. On appeal, the Superior Court found that principles of "comparative fault" and "comparative negligence" were one and the same and held that because the plaintiff was found to be more than 50 percent negligent, she was barred from any recovery.

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

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