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

Casualty

Michael Speer (Roseland, NJ) obtained a jury verdict in favor of our insurance company client in which it was found that their insured had provided post-loss material misrepresentations which were false and constituted violations of the New Jersey Insurance Fraud Prevention Act. As a result of this verdict, our client will avoid paying approximately $65,000 in medical benefits to several medical providers, and the insured will owe our client all attorneys fees and investigative fees which were expended. The case involved the failure to disclose a household member with a DWI conviction on an application for insurance as well as post-loss misrepresentations regarding the use of the insured vehicles as well as the fact of the DWI conviction.

Diane Magram (Cherry Hill, NJ) obtained a defense verdict in a jury trial before the Honorable Robert G. Millenky in the Superior Court of New Jersey, Camden County. The matter arose out of an automobile accident in which the defendant stipulated liability. At issue was whether the plaintiff sustained permanent injury as a result of the accident. The plaintiff was claiming low back injury, including an L3-4 bulge and an L5-S1 radiculopathy. The jury deliberated for a little over an hour before deciding in favor of the defendant.

Diane Magram and Mari Grimes (Cherry Hill, NJ) obtained a defense verdict in a three-day trial in Cumberland County, New Jersey, before the Honorable Martin A. Herman. The plaintiff was a passenger in the defendant's vehicle. The defendant rear ended the vehicle in front of him, causing the airbags to deploy in the defendant's vehicle. The plaintiff alleged that as a result of the airbag deployment, he sustained burns to his face and neck, right shoulder tendonitis and bursitis, and low back strain and sprain. The plaintiff brought in an orthopedic expert and a general practice expert to testify as to the permanency of the plaintiff's injuries. Diane argued that the plaintiff did not pierce the tort threshold because his injuries were not permanent. The jurors deliberated for less than an hour and unanimously voted that the plaintiff did not sustain a permanent injury as a result of the accident.

Alicia Schweyer (Scranton, PA) obtained a Summary Judgment in favor of the defendant in Berks County. The plaintiff was a subrogee seeking reimbursement of property damages paid for a vehicle prior loss. The court found that there was no evidence or material facts to support the plaintiff's assertion that the fire was due to a defective condition or the faulty repair of a defect. The plaintiffs discontinued the case rather than appeal.

David Wolf (Philadelphia, PA) won a lengthy jury trial in the Philadelphia Court of Common Pleas before Judge Carrafiello. The plaintiff, a 76-year-old woman, was attacked by a pit bull, owned by the clients' daughter and family, who jumped over a fence onto the plaintiff's adjacent property. The dog owners, who were uninsured, lived in a house owned by the insured clients. The jury, after six hours of deliberation, found in favor of our clients (the homeowners) but against the dog owners (uninsureds).

Laurianne Falcone (Philadelphia, PA) obtained a defense verdict at a high/low arbitration before Judge Gafni in a trip and fall case. The plaintiff was a 94-year-old woman who tripped and fell over a half-inch differential between two sidewalk panels while exiting her bank. She fractured her hip and also underwent a knee replacement. Laurianne argued that the alleged defect was "de minimis," and Judge Gafni found in our favor.

Christopher Reeser (Harrisburg, PA) obtained a defense verdict in a product liability case in Franklin County. The case was brought in the name of homeowners on behalf of their insurance carrier. The plaintiffs' claim was that an aquarium light fixture placed over a salt water aquarium caught fire and caused over $200,000 of damage to a home. In defense of the claim, we presented evidence that the product was used in violation of the warnings printed on the product, which stated that the product should be used for fresh water only. Complicating matters was the fact that the box that the product was sold in contained a sticker which stated "fresh and salt water." We argued that the sticker on the box pertained to the light bulb and not the fixture itself. Fortunately, the homeowners denied ever seeing the box prior to the fire. The jury did find that there was a defect in the product because there was a feasible design that was not implemented in the light fixture. However, the jury found that the defect was not the cause of the fire. Instead, the jury found that the cause of the fire was the use of the product contrary to the warnings contained on the product. The jury was out five hours and twice came back reporting that they were deadlocked before finally returning its verdict.

Health Care

Daniel Sherry (King of Prussia, PA) obtained a defense verdict in a case in the Chester County Court of Common Pleas where he represented an emergency medicine physician and a hospital. A 23-year-old male presented to the hospital with complaints suggestive of hypothermia and drug ingestion. The plaintiff was worked up and ultimately diagnosed with a pulmonary embolus and died in the hospital. The case was defended on both standard of care and causation. The jury returned a verdict in favor of the physician and the hospital.

Daniel Sherry (King of Prussia, PA) obtained a defense verdict in a case in the Philadelphia Court of Common Pleas. Dan represented an ophthalmologist (retinal surgeon) who performed surgery on the plaintiff for the removal of a foreign body from his eye. The plaintiff went on to develop an infection and ultimately has lost complete sight in his one eye. The case was defended on both standard of care and causation. The jury deliberated 14 hours over three days and ultimately rendered a unanimous verdict in favor of the doctor.

Professional Liability

Edwin Schwartz and Lauren Burnette (Harrisburg, PA) and Chuck Craven (Philadelphia, PA) obtained summary judgment in favor of our client, an attorney. On the date of their wedding, the plaintiff and her former husband executed three separate documents which were each styled as pre-nuptial agreements, although they were not captioned as such. The documents contained vague language regarding expiration dates of the agreements and the mutual options to renegotiate the terms of the agreements. After twelve years of marriage, the parties began divorce proceedings, and the plaintiff hired our client to challenge the validity of the pre-nuptial agreements, seeking her share of the husband's $50 million net worth. Despite the unusual circumstances regarding the execution of the documents and the somewhat vague language, the trial court determined that when the documents were viewed collectively, they constituted a valid and enforceable pre-nuptial agreement. The plaintiff then sued our client alleging malpractice in the failed challenge to the pre-nuptial agreement and asserted multiple errors in the admission of testimony and exhibits and strategies of our client. The plaintiff asserted a damage model of $10 - $13 million against our client. We were able to obtain summary judgment by successfully arguing to the trial court that the plaintiff's expert's opinions were based upon nothing more than speculation and conjecture as to why the trial court ruled the documents to be a valid pre-nuptial agreement and that, absent something more, the plaintiff could not establish a prima facie case of professional negligence. The trial court's grant of summary judgment was affirmed by the Pennsylvania Superior Court.

John Gonzales (King of Prussia, PA) obtained a defense verdict in the U.S. District Court for the Eastern District of Pennsylvania in a case representing three police officers. The plaintiff alleged that the officers entered the wrong apartment on Christmas Eve without a warrant in response to a 911 call, frightening his two-year-old daughter and twelve-year-old son. The plaintiff also alleged the officers used excessive force, which resulted in the plaintiff suffering a torn rotator cuff. The jury held that the officers did not violate the plaintiff's Fourth Amendment Rights.

Art Wheeler and Jack Slimm (Cherry Hill, NJ) obtained summary judgment for a property manager in connection with the expansion project at the Adventure Aquarium. Our client, the plaintiff's employer, was joined to this matter by a management company, who had a direct contract with the owner, on the theory that our client should provide contractual defense and indemnification. Summary judgment was granted because the third-party plaintiff could not produce a written agreement in which our client expressly agreed to indemnify the third-party plaintiff for its own negligence. This is specifically required by New Jersey case law, including Ramos v. Browning Ferris Inds., 103 NJ 177 (1986) and Azurak v. Corporate Property Investors, 347 N.J. Super 516 (App. Div. 2002).

Jack Slimm (Cherry Hill, NJ) obtained a dismissal of a legal malpractice action arising out of an attorney's filing of a Chapter 13 bankruptcy. The plaintiff alleged that the attorney failed to advise the clients of various avenues available to them. The plaintiffs alleged that the attorney failed to dismiss the Chapter 13 and re-file with an updated list of creditors. The plaintiffs were unable to prove that there were other avenues of relief available to them, and their expert was unable to opine that the Bankruptcy Court would have accepted an amended or new plan of reorganization. The bankruptcy matter was converted to a Chapter 7 without objection by the attorney, and the plaintiffs were unable to demonstrate that, even if the attorney had opposed the application to convert, the matter would not have been converted to a Chapter 7. Accordingly, opposing the application to convert would have been futile.

Lawrence Berg and JoAnn Veltrup Diaz (Cherry Hill, NJ) obtained dismissal of a Verified Petition brought by five condominium unit owners against a condominium association seeking to compel pre-suit disclosure of an extensive and onerous volume of records based on possible allegations of misappropriation and mishandling of funds. Following extensive briefing and oral argument, the Superior Court in Atlantic City adopted our arguments and found the information sought by the Verified Petition was not appropriate and not the type intended for disclosure by the enactment of the New Jersey Condominium Act, N.J.S.A. 46:8B-1 et seq., or the New Jersey Non-Profit Corporation Act; N.J.S.A. 15A:4-5, et seq.

Workers' Compensation

John Swartz (Harrisburg, PA) successfully had the claimant's Claim Petition for physical and psychological injuries, resulting from a tractor trailer accident, dismissed on the basis of the claimant's failure to meet the Extraterritorial Jurisdiction requirements of the Pennsylvania Workers' Compensation Act. Several of the employer's witnesses were called to testify from Wisconsin in opposition to the claimant's claim and testimony. The claimant is a Pennsylvania resident. In addition, as a result of John's motion to bifurcate the case on the jurisdiction issue, the insurance carrier saved substantial expert fees by not having to obtain independent medical examinations from a physician and psychiatrist to defend the case.

Defense Digest, Vol. 15, No. 3, September 2009

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