Defense Digest, Vol. 29, No. 3, September 2023

On the Pulse…Defense Verdicts and Successful Litigation Results*

September 1, 2023

CASUALTY DEPARTMENT

Andrew Campbell (Philadelphia, PA) obtained a dismissal by summary judgment in a transportation matter in which he represented a major transportation company. The plaintiff, a tractor-trailer operator, was injured in a single-vehicle accident on the approach to a construction zone during a heavy rainstorm. The plaintiff lost control of the vehicle, which rolled off of the roadway into a ravine, resulting in catastrophic injuries. The plaintiff alleged our client was negligent in failing to provide adequate lighting at the approach to the construction zone and permitting a dangerous, defective condition on the road surface. He brought negligence claims against our client and multiple contractors. The basis of Andrew’s defense was that the plaintiff failed to prove any defect or hazard that would constitute an exception to sovereign immunity.

Evan Saltzman (Philadelphia, PA) won an arbitration in a motor vehicle accident case. The accident between our client and the co-defendant occurred at an intersection in Philadelphia. As the plaintiff was a passenger in our client’s car, there was no liability argument pertaining to the plaintiff. Both our client and the co-defendant claimed they had a green light and that the other party had a red light when they entered the intersection. The plaintiff claimed to have suffered injuries to her right knee and lower back. Evan was able to convince the arbitration panel that the plaintiff had no claim against our client and that the co-defendant was fully and solely liable for the accident. The co-defendant was found 100% liable for the accident.

Jack Delany and Kristen Worley (Philadelphia, PA) strategically defended and obtained dismissal of a Laidlow claim asserted by the plaintiff who was acting within the course and scope of his employment with the defendant when he sustained a significant workplace injury. In a 37-page written opinion granting the defendant’s motion for summary judgment and addressing several other applications, the court ruled the plaintiff failed to establish that his employer committed an intentional and malicious act sufficient to circumvent the workers’ compensation exclusivity provision. In reaching this conclusion, the court applied the Millison “conduct” and “context” prongs, reasoning that the absence of prior accidents or evidence suggesting the plaintiff’s employer intentionally disabled a safety device, the lack of pre-incident OSHA violations or post-accident efforts by the employer to deceive OSHA, and the undeniable determination that the plaintiff’s incident was “part and parcel” of industrial life, all warranted the entry of summary judgment in favor of the defendant employer and the dismissal of the plaintiff’s claim.

Julian Love and Peter Read (both in New York, NY) achieved summary judgment in a commercial contract matter where the plaintiff alleged that the defendant willfully failed and refused to act per their contractual agreement. The defendant/third-party plaintiff then alleged that our insured was liable to them for contribution and common law indemnification, along with repackaged contribution claims that were asserted as negligence and breach of contract claims. Upon our motion for summary judgment, the court ruled in our favor, upholding our arguments that common law indemnity and contribution were unavailable to the defendant/third-party plaintiff as they were being sued solely for economic losses arising out of their own breach of contract.

Michele Frisbie (King of Prussia, PA) obtained a dismissal of a claim for corporate veil piercing and under the enterprise theory of liability. In this wrongful death dram shop cause of action, the plaintiff included a count seeking to pierce the corporate veil and pursue the principals of the liquor licensee under an enterprise theory of liability. Michele argued that there was no cause of action for corporate veil piercing or under an enterprise theory. Rather, these theories are used to recover if, and only if, the entity is not able to satisfy any judgment against it. The court dismissed the count.

Kimberly Berman (Fort Lauderdale, FL), Joanne Nachio (Fort Lauderdale, FL) and Amanda Podlucky (Orlando, FL) successfully obtained a per curiam affirmance by the Sixth District Court of Appeal of a motion for summary judgment entered in favor of a property rental manager. In granting summary judgment, the trial court found that the rental manager, who did not own the premises, did not owe the plaintiff a non-delegable duty and had no duty to maintain the exterior of the premises pursuant to the owner agreement with the homeowner. The trial court also found that the guest failed to establish any genuine issue as to any material fact regarding an insufficiency or issue with the operation of the lighting of the porch on the property which would give rise to a breach of any possible duty. The court also provisionally granted the rental manager attorney’s fees upon the determination of the trial court at the conclusion of the case, pursuant to a proposal for settlement.

Ray Freudiger (Cincinnati, OH) won summary judgment on behalf of retail store in a slip and fall case filed in Hamilton County, Ohio. The plaintiff alleged serious injuries as a result of slipping and falling on a spill of oil substance in the parking lot, right outside the front entrance doors. The plaintiff argued that she was pushing a shopping cart and alleged that pushing a shopping cart creates an attendant circumstance that blocked her vision. Ray successfully argued that the act of pushing a cart does not qualify as an attendant circumstance, as the customer has the ability to see the parking lot ahead of a grocery cart and pushing a cart was a situation the plaintiff regularly encountered. Further, the oil spill was wide in nature and darker in color than the asphalt. It was observable had the plaintiff looked and, therefore, qualified as an open and obvious condition.

Kevin Hexstall (Philadelphia, PA) and Jessica Wachstein (Mount Laurel, NJ) obtained a defense verdict in a 10-day jury trial on behalf of a national home improvement company and garden center where the plaintiff’s demand was $1.7 million. The plaintiff, a 79-year-old female, was using a rollator (walker) to assist her walking when she fell at a garden center. She claimed that the front wheel of her rollator struck and got caught on the raised baseplate bolts of a column, causing her to fall. The plaintiff fractured her hip, was taken out on a stretcher, and required surgery for a fractured femur. The defense established via an in-store surveillance video, forensic engineering expert, and cross-examination that it was very unlikely that the plaintiff’s rollator ever came into contact with the baseplate. Furthermore, even if the plaintiff did contact the baseplate, it was due to her being inattentive and not as a result of any alleged negligence by the garden center. The plaintiff’s demand was $1.7 million. The jury returned a defense verdict after 35 minutes of deliberation.

Michael Logue (Philadelphia, PA) was successful in an arbitration that involved a plaintiff who drove over an open trench on a city street. The plaintiff claimed a low back injury that left him disabled as a result. We established at arbitration that the plaintiff: (a) could not prove when the trench was dug; (b) who dug the trench; (c) and for how long the trench had been uncovered (plaintiff testified that a month earlier it had been covered by a steel plate). Based on these facts, the arbitrators found for all of the defendants and against the plaintiff. Of note, the plaintiff had filed the lawsuit as a major jury action, but Michael filed a motion to remand to arbitration based upon the plaintiff’s decades of low back complaints. This motion was granted on the grounds that the value of the claim was less than the $50,000 major jury threshold.

Kevin McGoldrick (Mount Laurel, NJ) obtained a summary judgement on behalf of our client in a trip and fall matter. The plaintiff tripped and fell on a raised sidewalk in front of the defendant’s private residence. The plaintiff suffered significant injuries, including a displaced fracture of the shoulder and humeral head fracture, requiring a complete shoulder reverse arthroplasty. The plaintiff’s demand was $750,000. The defendants asserted that it is undisputed they did NOT perform any work, maintenance, or construction to the sidewalk prior to the plaintiff’s alleged fall in May 2020, thereby, creating or exacerbating a condition on the sidewalk which would have contributed to or caused the plaintiff’s fall. The general rule is that a residential property owner owes no duty to keep a sidewalk abutting his property in repair. While the court has created an exception to the rule of non-liability in the case of an abutting commercial property owner, it has consistently declined to extend that liability rule to abutting residential and nonprofit owners. Additionally, New Jersey Courts have recognized that residential homeowners can safely rely on the fact that they will not be liable unless they create or exacerbate a dangerous sidewalk condition. The judge found that there were no genuine issues of material fact to support a theory of liability on behalf of the defendants and granted our motion for summary judgement.

Thomas Wagner, Melanie Foreman, and Bernadette Tankle (all in Philadelphia, PA) successfully won summary judgment in an alleged sex abuse case pending in the Eastern District of Pennsylvania. The plaintiff, a minor, alleged he was abused by an unidentified assailant while at a summer camp in 2002. In granting the motion and dismissing the lawsuit, the judge himself noted that it is rare for the court to enter summary judgment in cases of this nature. Working with a record that Tom and his whole team developed, Melanie was the principal author of the motion.

William Estes (Jacksonville, FL) obtained a dismissal of a high-value subrogation claim related to a fire loss. The claim arose from a warehouse fire allegedly related to the storage of golf carts and electric scooters. The claim was brought by the property owner’s carrier against our client, the tenant. Will was able to first get relief from a default judgment against the client. He then filed, argued and won a motion to dismiss based on the client’s status as a co-insured under the lease and the policy.

Laurianne Falcone and Taniesha Salmons (Philadelphia, PA) received a defense verdict in the Philadelphia Court of Common Pleas. The plaintiff alleged that she tripped and fell on a defect on our client’s stairs outside of a row home property. The plaintiff had gone to the property with our client, the administrator of the estate of one of the women’s friends, who had died the day before. The two women went to the property with another friend to obtain funeral clothes for the decedent. The decedent’s family members were upset that our client was named administrator of the estate and that they were left out of the will. Some of the family members had been squatting in the home while the decedent was in the hospital. Our client called a locksmith, who was present to change the locks, because someone had broken into the home. The plaintiff called the police for an escort to accompany them inside of the home since they didn’t know if anyone was inside. While waiting for the police, the women thought they heard a gunshot and took off running down the steps. The plaintiff fell and sustained a tibial plateau fracture and a meniscal tear. She had surgery and permanent hardware inserted in her leg. She was unable to return to her job as a respiratory therapist for seven months and had almost $58,000 in past medical bills and lost wages on the board. There was a chunk of the stairs missing, but neither the plaintiff nor the witnesses could say definitively what caused her fall. The jury found negligence but no causation after less than an hour of deliberations.

Wendy R.S. O’Connor (King of Prussia, PA) obtained summary judgment in a premises liability case where the plaintiff claimed her mobility scooter was caused to tip over after encountering a pothole in a city street. Our client, a construction company that had installed an ADA-accessible ramp on the adjoining sidewalk, was sued, along with the municipality and adjacent landowner. The plaintiff alleged as to our client that the installation of the ADA ramp somehow caused the pothole to form. During discovery, it was conclusively established that repair and maintenance of city streets was reserved to the municipality and that our client’s work was strictly confined to the neighboring sidewalk. In seeking summary judgment, we argued—and the court agreed—that the evidence of record, including the plaintiff’s engineering expert’s report, was insufficient to show that any act or omission on the part of our client caused or contributed to the formation of the pothole.

Barbara Davis (Mount Laurel, NJ) obtained a defense verdict at trial on a premises liability case where a social guest fell down stairs at the defendants’ home. The plaintiff was a guest at a small barbecue at the defendants’ home. The plaintiff had never been at the home before and alleged she was not familiar with its layout. After consuming alcohol that she had brought to the barbecue, the plaintiff become intoxicated and got sick. After getting sick, she was placed on the living room sofa to sleep for the night. A friend offered to sleep in a bean bag chair next to the sofa in case the plaintiff needed anything. After the plaintiff fell asleep, the defendants went upstairs to sleep. The defendants were later woken up by the friend to advise that the plaintiff has fallen down the basement stairs and was injured. The plaintiff alleged the homeowners were negligent in not giving the plaintiff a tour of the home, not pointing out that the only bathroom for the home was upstairs, allowing the plaintiff to become intoxicated, and failing to warn of the door leading to the basement steps. The defendants denied they were negligent as they had made sure the plaintiff was safe on the sofa and had a friend sleep right next to her, should she needed anything. The defendants argued that the plaintiff was the cause of her own accident and had voluntarily consumed the alcohol she had brought to their home. A jury determined unanimously that the defendants were not negligent.

HEALTH CARE DEPARTMENT

Melissa Dziak and Robert Aldrich (Scranton, PA) obtained complete dismissal of all medical malpractice claims against a hospitalist physician where the plaintiff’s demand was $23.9 million. This case involved claims against various defendants for allegedly failing to timely diagnose and treat a stroke in a 53-year-old plaintiff. Specifically, the plaintiff presented to the hospital’s Emergency Department with a new onset of neurological deficits, but there was no suspicion of a stroke at that time. The patient was admitted for observation due to EKG changes and hypertension, at which time he developed stroke symptoms. After subsequent consultations and diagnostic imaging, the plaintiff was diagnosed with a stroke.

By the time our hospitalist physician-client became involved in the plaintiff’s care, the patient had already undergone a brain CTA, the results of which were pending. Once our client was advised of the CTA results, she promptly consulted interventional radiology and neurosurgery and timely transferred the patient to a higher level of care. The specific claims against the defendant were that she delayed the patient’s treatment and failed to act timely. The plaintiff also alleged that the defendant was vicariously liable for and responsible for supervising the treatment provided by a nurse practitioner who treated the plaintiff earlier, during the hospital admission, because the hospitalist physician co-signed the nurse practitioner’s notes.

We moved for summary judgment on behalf of the defendant, arguing that the plaintiff could not establish a prima facie case against the defendant. The record evidence showed that the defendant treated the plaintiff promptly and within the standard of care. As for the vicarious liability claims for co-signing the nurse practitioner’s note, we highlighted the fact that our client was not on shift at the time that the nurse practitioner saw the patient and, therefore, could not be considered to be supervising the nurse practitioner. Additionally, the fact that the defendant signed the nurse practitioner’s note after the patient was transferred from the hospital does not impute vicarious liability upon her nor does it create a supervisory role.

The court ultimately agreed with our arguments and dismissed the hospitalist physician outright. The damages and potential exposure in this case were significant, and the plaintiff’s settlement demand at the time of dismissal was $23.9 million.

Suzanne Utke (Philadelphia, PA) received a defense verdict in a binding arbitration where she represented a doctor and her practice group in the Montgomery County Court of Common Pleas. This was a wrongful death/survival action alleging malpractice against the primary care physician (PCP) and her practice, as well as numerous other physicians and two hospitals. The plaintiffs’ decedent was a 42-year-old female with chronic respiratory problems including asthma, sinusitis, hypertension, morbid obesity, diabetes, and other issues. The doctor was the plaintiff’s long-standing PCP and saw the plaintiff three days prior to her emergent admission to the Emergency Department where she was diagnosed with a pulmonary embolism (PE). When the plaintiff was seen by the doctor, she showed no signs of leg swelling, which would be consistent with deep vein thrombosis (DVT). While in the hospital, the plaintiff suffered a massive event which left her pulseless. She was coded without success. The PCP and her practice group were sued for allegations of failure to diagnose a DVT and/or evolving PE. Suzanne negotiated a transfer from the civil trial attachment in January to binding arbitration. After a two-day arbitration, we received a defense verdict. The plaintiff’s demand immediately preceding the trial attachment was $4 million, which included a $1.3 million future wage loss. No offer was ever extended.

Suzanne Utke, Stephanie Oppenheim, and Susan Brown (all in Philadelphia, PA) have had a string of successes in various courts. In Camden County New Jersey, just prior to mandatory mediation, they prevailed in an alleged sexual assault case involving a research facility. They represented the therapist who allegedly assaulted the plaintiff. Their motion to strike the plaintiff’s complaint for failure to make discovery was granted, and they prevailed against the motion for reconsideration. The matter was dismissed with prejudice.

In a matter venued in Allegheny County Pennsylvania, Suzanne, Stephanie, and Susan defended a psychiatrist in a wrongful death case involving the suicide of her patient. They won their motion for default judgment, which will not be appealed.

Finally, in Northampton County Pennsylvania, they defended a psychologist and his practice group in a very contested medical malpractice action related to an intensive program in couples therapy. Their preliminary objections were granted, striking most of the complaint, the motion to strike the plaintiff’s certificate of merit was granted, and the motion for default judgment was then granted, with prejudice.

Adam Fulginiti (Philadelphia, PA) successfully defended a long-term care facility in a nursing home malpractice matter involving claims of vicarious and corporate liability. After leveraging the case into binding arbitration, Adam obtained a complete defense verdict of “no negligence” on behalf of the facility and its corporate affiliates.

Stephen Purcell (Philadelphia, PA) received an order granting preliminary objections with respect to an arbitration agreement in Philadelphia County. In a nursing home/medical malpractice case with multiple sets of defendants, we filed preliminary objections on behalf of our nursing home insured seeking to enforce the signed arbitration agreement. The court granted 60 days to conduct arbitration-related discovery and to file supplemental briefs. After the parties filed supplemental briefs, the court sustained our preliminary objections and submitted the claims against our clients to binding arbitration.

PROFESSIONAL LIABILITY DEPARTMENT

Alesia Sulock (Philadelphia, PA) successfully defended a third party-complaint against her broker client for alleged malpractice in connection with representing a seller of a business. In this business dispute, the buyer of the company sued the seller for fraudulent misrepresentations and related claims. In turn, the seller sued his broker, alleging that the broker failed to adequately protect the seller in connection with the sale. On preliminary objections, the Bucks County Court of Common Pleas agreed with Alesia that the seller had not stated a claim against the broker and dismissed all claims with prejudice.

Alesia also successfully defended a client against unfair trade practices and related claims. Following a mortgage foreclosure and a sheriff’s sale, a former property owner sued numerous entities involved in the maintenance, preservation, and clean-up of the property. After winning a motion to dismiss federal claims in the U.S. District Court for the Eastern District of Pennsylvania, we sought dismissal of the remaining state law claims in the Philadelphia Court of Common Pleas. The court agreed that the plaintiff had not stated a valid claim against our company client, sustained the preliminary objections, and dismissed all claims with prejudice.

Josh Byrne (Philadelphia, PA) achieved dismissal of a number of disciplinary complaints:

Our client was the victim of a sophisticated scam which caused the client to send IOLTA funds belonging to another client out of the country.
Achieved dismissal of a 99-paragraph complaint that alleged lack of communications with clients over the course of a 12-year-long underlying matter. The response to the disciplinary complaint was over 100 single-spaced pages setting forth the details of the underlying matter and included more than 150 exhibits.
Dismissal of a complaint for his client in a matter involving allegations of failures to communicate with clients and prosecute a case over a six-year period. The letter requesting information from the Office of Disciplinary Counsel was 99 paragraphs long, the response took 106 single-spaced pages with 176 exhibits.
Achieved an informal admonition, the lowest form of discipline which is non-public, for his client in a matter that involved alleged failures to appropriately represent clients and timely file appeals in six different criminal matters.

Josh Byrne (Philadelphia, PA) successfully represented his clients in legal malpractice actions:

Was part of a multi-state team of lawyers who participated in a three-day bench trial in Arapahoe County, Colorado, and successfully argued that an underlying client had the capacity to execute a retention agreement with a forum selection clause requiring any legal malpractice action be brought in Pennsylvania. The legal malpractice claims alleged millions of dollars in damages and involved representation of a billionaire oil investor who had been involved in a multi-year battle with his family over control of his businesses. Enforcement of the forum-selection clause effectively bars the legal malpractice claims due to the operation of the statute of limitations.
The Superior Court affirmed an order of the trial court sustaining preliminary objections handled by Josh, who successfully argued that the wrongful use of civil proceedings claim (Dragonetti), which arose out of an underlying wrongful use of civil proceedings claim, was barred as a matter of law by the applicable statute of limitations.
The court sustained preliminary objections on the basis that the plaintiff’s breach of contract claim was barred by the gist of the action doctrine and the statute of limitations had expired on any potential negligence claim.
Represented a prominent Philadelphia criminal defense firm in a legal malpractice action where preliminary objections were sustained and a legal malpractice complaint dismissed with prejudice in Lehigh County.

Walter Kawalec (Mount Laurel, NJ), Leonard Leicht (Roseland, NJ), and Michelle Michael (Mount Laurel, NJ) obtain a published New Jersey Appellate Division decision affirming that the perception of having COVID-19 does not constitute a perceived disability under the New Jersey Law Against Discrimination (NJLAD). This employment discrimination claim involved a matter of first impression in New Jersey and established that COVID-19 infection, without more, does not constitute a disability under the NJLAD. A former employee filed suit, asserting perceived disability discrimination under the NJLAD. The plaintiff alleged he was wrongfully terminated based upon his employer’s perception that he had COVID-19. We filed a motion to dismiss in lieu of an answer, asserting the complaint did not set forth a cause of action as COVID-19 is not a recognized disability under the NJLAD. The court granted our motion and agreed that COVID-19 is not a disability under the NJLAD and, therefore, could not be the predicate for a perceived discrimination case. The Appellate Division affirmed this decision, finding the plaintiff’s COVID-19-perceived disability claim failed to plead a viable cause of action under the LAD.

Brooks Foland and Christopher Woodward (Harrisburg, PA) secured dismissal of a claim for uninsured motorist benefits where the plaintiff/insured failed to notify the police of the alleged hit-and-run accident. At her deposition, the plaintiff/insured confirmed that at no point did she ever notify the police nor did anyone notify the police on her behalf. The court agreed that the auto insurance policy and the Motor Vehicle Financial Responsibility Law both require notification to the police of hit-and-run accidents as a condition precedent to coverage for UM claims, and since plaintiff/insured admitted she did not notify the police, she was not entitled to UM coverage. The court also expressly held that the insurer is not required to prove prejudice as a result of the insured’s failure to notify the police in order for the coverage to be precluded.

Scott Eberle (Pittsburgh, PA) recently won summary judgment on behalf of a law firm in an alleged fraud case filed in the U.S. District Court for the Western District of Pennsylvania. The case arose out the firm’s representation of a party to the sale of an oil and gas lease. The court ruled that the plaintiff’s action was time-barred by the applicable statute of limitations based up the plaintiff’s principal’s deposition testimony regarding the plaintiff’s knowledge of the alleged harm. The court applied the “sham affidavit” doctrine to disregard the plaintiff’s subsequent contradictory affidavits.

Michele Frisbie (King of Prussia, PA) obtained a transfer and dismissal with prejudice on a motion to dismiss in a legal malpractice action. Michele argued that the plaintiff’s claim that the negligence of her daughter’s court-appointed guardian ad litem led to the award of custody of the child to the father following a dependency hearing. The custody award, the plaintiff alleged, put her at a disadvantage in the divorce and damaged her and the child. First, Michele successfully argued for the transfer of the matter from the county of the mother’s residence to the county of the dependency hearing. She then successfully argued that the plaintiff had no right to bring a cause of action for herself or the child.

Aaron Moore (Philadelphia, PA and Wilmington, DE) and Alesia Sulock (Philadelphia, PA) obtained a defense jury verdict in Philadelphia on a legal malpractice claim. The plaintiffs had hired our attorney client to represent them in a property damage case against contractors and an insurance company after, as they claimed, the roof of their property was left open and water damage was sustained. The plaintiffs argued that their attorney failed to faithfully represent them and caused them to lose their claims against the contractors. After a week-long trial, we successfully proved that our attorney client did not cause the plaintiffs to lose the underlying claims, and we obtained a unanimous defense verdict in favor of the attorney defendant and his law firm.

A unanimous jury found in favor of Aaron and Alesia and their clients, a lawyer and his law firm, in a legal malpractice case arising from underlying property damage litigation. The plaintiffs claimed that their lawyer caused their claims—approximately $1 million in property damage—against an insurance company and three contractors to be dismissed by failing to retain an expert witness on the issue of causation. The plaintiffs rejected a $350,000 settlement offer after the jury was empaneled. After a two-week trial, the jury found for the defendants, concluding the plaintiffs could not demonstrate that they would have prevailed in the underlying lawsuits.

Aaron was also successful when a unanimous jury found in favor of his clients, a lawyer and his law firm, in a legal malpractice case arising out of the lawyer’s drafting of a post-nuptial agreement. The post-nuptial agreement was invalidated by a family court judge, causing the husband to lose approximately $1.2 million as part of a subsequent property separation agreement. The jury considered testimony from the plaintiff’s ex-wife, which reflected that she had signed the agreement under duress, and concluded the plaintiff could not demonstrate that the post-nuptial agreement was invalidated as a result of anything the lawyer did.

Ray Freudiger (Cincinnati, OH) and Audrey Copeland (King of Prussia, PA) won summary judgment in favor of a local government in a suit filed in Federal District Court, Southern District of Ohio by an outdoor advertising company. The plaintiff had obtained permits to replace existing billboards. The permits were revoked after it erected two 14’ by 48’ digital variable message commercial billboards that changed messages every eight seconds. The village’s code distinguishes between “on-premises signs” (content related to the sign location’s premises) and “off-premises signs” (directing attention elsewhere). “Outdoor advertising signs” and “advertising signs” are defined as off-premises signs. Stricter limitations are applied to off-premises signs, including prohibition of “variable messaging.” Directional or traffic control signs posted by a public authority, real estate signs, and public service signs are excepted from the restriction.

The plaintiff alleged that the sign restrictions violated its First and Fourteenth Amendment rights. While the parties’ cross-motions for summary judgment were pending, the U.S. Supreme Court decided City of Austin, Texas v. Reagan Nat’l Advert. of Austin, LLC, 142 S.Ct. 1464 (2022) where it declined to strike down a billboard ordinance regulating the location of digitized billboards based upon whether they were “on-premises” or “off-premises” as violative of the First Amendment, and found that the ordinance was not content-based, warranting only intermediate scrutiny.

The Ohio district court adopted the magistrate judge’s post-Austin report and recommendation and granted the village’s motion for summary judgment. The court found the village’s code to be content neutral and subject to intermediate scrutiny review, and noted that exemptions for government speech can be created without inviting strict scrutiny. The court observed that Austin confirmed that regulations targeting off-premises commercial speech are subject to intermediate scrutiny review and that the village’s code passed scrutiny as it was narrowly tailored to achieve the village’s substantial interests in traffic safety and esthetics.

Ray Freudiger (Cincinnati, OH) won a dismissal of a charge filed with the Ohio Civil Rights Commission (OCRC) on behalf of a national retailer against allegations of discrimination on the basis of disability. The charging party was a customer of the store who was told that she could not pay for delivery items using her Electronic Benefit Transfer (EBT) card. The OCRC investigator agreed with Ray that there is no law requiring retail establishments to accept payment with an EBT card. Further, the retail store used a third-party vendor for the service, so it did not have the authority to decide the acceptable methods of payment.

Mark Kozlowski (Scranton, PA) obtained dismissal of a civil rights action brought by a real estate developer against a municipality. The plaintiff brought a federal civil rights action against a borough and its council alleging that the borough changed its zoning plan and denied a land use application as retaliation for the plaintiff’s selling a large tract of property to an electricity generation plant. The developer sought damages in excess of $3 million. The court granted the defense motion to dismiss, finding that the plaintiff had failed to plead viable claims under the First, Fifth and Fourteenth Amendments.

Christopher Conrad (Harrisburg, PA) successfully defended a local school district and its board members in a lawsuit filed in Pennsylvania Commonwealth Court. The petitioner is a resident of the school district and a former school board member. At its December 2021 reorganization meeting, the school board voted to appoint a new school district solicitor. The petitioner attempted to make public comment and object to the school board’s appointment of the solicitor, but he was not permitted to do so. The petitioner contended the school district and its board members violated the Sunshine Act and his right to free speech under the Pennsylvania Constitution by not allowing him to offer public comment at the meeting. The petitioner filed in Commonwealth Court, seeking to invoke the court’s original jurisdiction, and he sought a writ of mandamus as well as declaratory and injunctive relief. Chris filed preliminary objections in response to the petition on various grounds. The Commonwealth Court agreed with our primary argument that it lacked original jurisdiction over the petitioner’s claims because the school district (and, by extension, its board members) is a local agency and not an agency of the Commonwealth, and that the court could not assert ancillary jurisdiction because there were no other viable claims within the court’s exclusive original jurisdiction. Also, although the court recognized that the petitioner could have challenged the school board’s actions by filing a complaint under the Sunshine Act in the Court of Common Pleas, he failed to do so within 30 days of the December 2021 meeting. Thus, his claims by statute were untimely, and the court concluded that the transfer of his suit to Common Pleas Court would be futile. The Commonwealth Court, therefore, dismissed the lawsuit with prejudice.

Jeremy Zacharias (Mount Laurel, NJ) obtained summary judgment in a four-year-old federal copyright matter against his client, a national publication for elementary school principals. In this case, the plaintiff alleged that her copyrighted work was improperly published on the publication’s website since the author, the principal of the school she worked for, plagiarized her work. However, Jeremy was able to establish, in discovery, that the plaintiff collaborated with the author about this article in 2011, which meant her 2019 lawsuit was time barred. The district judge agreed with Jeremy’s arguments regarding the expiration of three-year statute of limitations and the standard applicable to copyright infringement cases. The plaintiff’s demand was substantial based on royalties received for the article as well as lost profit damages. The court did not agree with the plaintiff’s arguments regarding her damages claims and summarily dismissed this matter.

Jack Slimm (Mount Laurel, NJ) obtained an order on a motion to dismiss for failure to state a claim, dismissing a complex legal malpractice action arising out of an underlying ongoing probate action in the Superior Court, Chancery Division Camden County. Jack’s client is a well-known probate expert who represented the co-executor in contentious probate litigation over several properties and funds which the co-executor plaintiff claimed he did not receive as a result of the conduct of Jack’s client. The court rejected the claim and granted the motion to dismiss with prejudice.

Jack and Jeremy obtained an order on the eve of trial in a complex, multimillion-dollar legal malpractice action arising out of a serious multiparty medical malpractice action which was handled by our clients. Our clients are an extremely well-respected plaintiff’s medical malpractice firm in Philadelphia. The court entered an order on our motion striking the plaintiff’s expert’s report and opinions as net. The court also entered an order precluding the plaintiff’s expert from testifying at trial in the legal malpractice action in this case.

Carol VanderWoude (Philadelphia, PA) and Patrick Carey (Erie, PA) obtained a reversal in the Third Circuit Court of Appeals of a district court’s denial, in part, of a motion for summary judgment on qualified immunity grounds. In a unanimous precedential opinion, the Third Circuit agreed with Carol and Patrick that a Johnsonburg, Pennsylvania, police officer’s attempted arrest of the plaintiff did not constitute an unlawful seizure under the Fourth Amendment. The neighboring police department had secured a search warrant to obtain a DNA sample from the plaintiff, who was a suspect in a recent burglary. The neighboring police instructed our client’s police officers to hold the suspect if they encountered him and to call them. Patrick’s client, who knew the plaintiff and was familiar with his past criminal history and drug problems, mistakenly believed that the neighboring police had issued an arrest warrant for the plaintiff. At around midnight, the officer was sitting in his police vehicle when he spotted the plaintiff walking down the street. The plaintiff walked up the the officer, and they had a friendly conversation. However, when the officer advised the plaintiff that he needed to be taken into custody, the plaintiff fled. The officer pursued, and a fight ensued. The district court inexplicably held that the officer’s initial attempt to detain the plaintiff, at the time the officer encountered him walking down the street, was an unlawful seizure—either a Terry stop or an arrest. The Third Circuit reversed, reasoning that, although the officer intended to arrest the plaintiff, no seizure occurred because the plaintiff never submitted to the officer’s assertion of authority.

Lee Durivage and Dana Gittleman (Philadelphia, PA) obtained a defense verdict in a Fourth Amendment civil rights trial in the Eastern District of Pennsylvania. The plaintiff alleged that a public agency violated his Fourth Amendment rights by searching and seizing his personal property after his vehicle was impounded. The defense witnesses each testified that the vehicle was never searched by the public agency and that the public agency does not have a policy or custom of searching vehicles once they are impounded, which was an essential element of the plaintiff’s constitutional violation claim. After less than 15 minutes of deliberation, the jury unanimously found that the plaintiff failed to demonstrate that the public agency violated his constitutional rights, granting judgment in favor of the public agency defendant.

Rachel Insalaco (Scranton, PA) obtained dismissal of all claims via preliminary objections in a case against a local borough. The case arose from various property disputes between the plaintiff and his neighbors. The complaint was filed by a pro se plaintiff, which generally alleged that the Borough of Susquehanna had not adequately responded to his complaints regarding trespasses on his property by his neighbors, an alleged assault by his neighbor, and zoning violations by his neighbors. Rachel filed preliminary objections based on insufficient specificity and failure to state a claim, as the complaint did not assert any enumerated causes of action, nor did the damages it requested reflect actual damages suffered by the plaintiff. Further, Rachel argued that granting the plaintiff leave to amend the complaint to identify specific grounds would be fruitless, as any potential claim the plaintiff had against the Borough would be barred by the Political Subdivision Tort Claims Act. The court agreed, sustained our preliminary objections for insufficient pleading, and directed the case closed.

Andrew Campbell (Philadelphia, PA) had a successful outcome in a construction defect subrogation case with a $1.3 million demand. Andrew represented the general contractor and its carrier against a sub-subcontractor who improperly sealed roof openings they made, causing extensive water damage to 12 floors of the building. The subcontractor hotly contested liability on the theory that our client chose and approved the use of sealing foam for this application, and on a separate theory that the contract language itself was deficient. Andrew filed a motion for summary judgment on contractual indemnity, arguing that the GC’s possible culpability was of no relevance since the contract language met the standard set forth in Pennsylvania’s Perry-Ruzzi rule and the subcontractor was liable to indemnify even for the GC’s causal negligence. The court agreed that the contract language met the standard and entered judgement against the subcontractor for indemnity. This is an important ruling since these indemnity issues arise in virtually every construction case, whether defect or bodily injury, and oftentimes subcontractors and their carriers will not pick up the claim, even when it is clear that they should.

Brigid Alford and Christopher Woodward (Harrisburg, PA) obtained dismissal of a bad faith claim in a case filed in the Eastern District of Pennsylvania. This breach of contract/UIM case included a statutory insurance bad faith claim. Brigid and Chris successfully had the bad faith dismissed, arguing that the plaintiffs failed to state a cause of action upon which relief can be granted since they did not set forth facts sufficient to support their conclusory bad faith allegations.

Brigid Alford (Harrisburg, PA) and Christin Kochel (King of Prussia, PA) were successful in presenting a motion to dismiss in a case filed in the Eastern District of Pennsylvania. The plaintiff claimed she was struck by another driver while lawfully stopped for traffic and alleged multiple severe and permanent injuries. Following the accident, the plaintiff submitted a UIM claim and lawsuit against her insurer, asserting: Count I - violation of Pennsylvania's Unfair Insurance Practices Act (UIPA); Count II - statutory bad faith; Count III - breach of contract/breach of fiduciary duty; Count IV - UIM claim; and Count V - violations of the Unfair Trade Practices and Consumer Protection Law (UTPCPL).

After Brigid and Christin removed the case to the Eastern District Court of Pennsylvania, they filed a motion to dismiss on behalf of the insurer. They sought to dismiss Counts I, II, and V of the complaint with prejudice, to dismiss any reference to breach of fiduciary duty in the complaint with prejudice, and to dismiss the plaintiff's demand for attorney's fees in Counts III and IV with prejudice.

The court agreed with the majority of Brigid and Christin’s motion. The court dismissed Count I (violation of Pennsylvania’s UIPA) and Count V (violations of the UTPCPL) in their entirety with prejudice. The court found that there were no allegations to support Count II (statutory bad faith) but gave the plaintiff an opportunity to amend her complaint to support the allegations. The court also dismissed any reference to breach of fiduciary duty with prejudice and dismissed the demand for attorney's fees in Counts III and IV with prejudice.

Brigid Alford and Allison Krupp (both in Harrisburg, PA) successfully opposed a motion for appellate certification of an interlocutory appeal in which the plaintiff was seeking allowance to appeal the court’s order denying his request for leave to file a second amended complaint in order to add averments of bad faith conduct during the course of the underlying litigation. The statute of limitations had already passed when the plaintiff filed suit, and the court previously agreed with defense that further amendment of the complaint would be futile.

WORKERS’ COMPENSATION DEPARTMENT

Tony Natale (Philadelphia, PA) successfully defended a claim petition on behalf of a Chester County vision center. The claimant alleged horrific injuries to her head, neck, low back and lower extremities secondary to a motor vehicle accident while on her lunch hour. The resultant medical and indemnity exposure was astronomical. The claimant claimed to have left the employer’s premises to buy lunch at a local fast food restaurant. She led the court to believe that she was injured while returning to the employer’s premises after exiting from the restaurant drive-through window. On cross-examination, the claimant was forced to admit that, after leaving the fast food restaurant, she actually travelled in the opposite direction of the employer’s office, stopped at a local gas station, and ran errands. Tony successfully argued that, despite the seriousness of the injuries sustained in the accident, the claimant was not in the course and scope of employment at the time of injury. The claim petition was dismissed in its entirety.

Tony also successfully defended a Lebanon, Pennsylvania-based pharmaceutical manufacturer in the litigation of a claim petition. The claimant alleged an injury in the form of a fractured and crushed femur as a result of a fall off the roof of the manufacturing plant. Tony was able to convince the court that the claimant was not in the course and scope of employment at the time of the fall. Despite the claimant’s allegation that he was on the roof of the facility in the middle of the night to perform work duties, the court accepted rebuttal testimony and forensic evidence from the scene of the fall which proved that the claimant was taking a clandestine, unauthorized smoke break on the roof of the facility and, therefore, not furthering the interests of the employer. The claimant also tested hot for marijuana after the fall and was ultimately discharged for cause. No benefits of any kind were awarded.

Tony successfully prosecuted a review petition on behalf of a 125-year-old manufacturer of power and grounding connectors and accessories, which challenged by way of causation a major surgery the claimant underwent after a work injury. The claimant injured her upper extremity at work. Many months later, she had a major surgery and alleged it was related to the injury. Tony convinced the court that the surgery was due to a genetic condition present prior to the work injury and that the condition was not aggravated by the work injury. All medical bills and disability related to the surgery were dismissed.

Tony successfully represented a township in the litigation of the claimant’s reinstatement and review petitions and the employer’s termination petition. The claimant sustained serious traumatic injuries during the course and scope of his employment when the vehicle he was operating was targeted for collision by a mentally disturbed individual trying to commit suicide. The claim was accepted as compensable. After several years, the claimant was able to return to work full duty. About nine years later, the claimant alleged his right to reinstatement to total disability and payment of medical bills, which were not submitted to the carrier but paid in part by a personal health carrier. The claimant was also pursuing Heart & Lung benefits, and the township’s bargaining agreement allowed the H&L claim to be governed by the ruling in the workers’ compensation claim. Thus, both workers’ compensation benefits and H&L benefits were technically at issue in this litigation. Both sides submitted expert evidence on the issues of full recovery and recurrence of disability. Factual evidence was submitted on the payment of medical bills. The court found in the favor of the employer on all issues—the claimant’s right to benefits were terminated, as the claimant was found to be fully recovered, and the claimant’s allegations of reinstatement and payment of medical bills were summarily dismissed.

Tony successfully prosecuted a termination petition on behalf of a Berks County mushroom distributor. The claimant had sustained a knee injury working as a dumper for the employer. His job duties required him to fill a basket with mushrooms, pivot or side step, and dump the basket into a slicer machine. During his course and scope of employment, it was judicially determined that he sustained injuries in the form of meniscal tears of the knee and the rather vague “injury” of patellar subluxation. Tony required the claimant to attend an independent medical examination with a nationally renowned knee surgeon in the Philadelphia area. Based on the exam, a termination petition was instituted. During the litigation, the parties presented competing medical experts. On cross examination of the claimant’s medical expert, Tony forced him to admit that the meniscal tears had fully recovered. As for the subluxation, Tony exposed the fact that the expert did not diagnose such a condition in the medical treatment notes but, instead, referred to a “chondromalacia” condition that was NOT judicially part of the work injury. The claimant’s medical expert went as far as indicating on cross examination that the claimant remained totally disabled from his pre-injury job, even though Tony forced him to admit that he had no idea what the pre-injury job was. In the end, the court found the claimant fully recovered from the injuries and granted the termination of benefits.

Michael Sebastian (Scranton, PA) successfully defended a claim petition that alleged a specific loss of the right eye from being hit in the eye with the top of a box. The Workers’ Compensation Judge rejected the claimant’s expert’s testimony that the macular scar, which is in the back of the eye, was caused by the work injury. She believed our expert, who opined there was insufficient force from the top of the box to cause the injury to the back of the eye. Our expert testified that the claimant’s loss of vision was unrelated to the work event because the claimant did not have any visible damage to the front of the eye at the time of the accident and that there are dystrophies that can cause macular degeneration in one eye. The judge denied and dismissed the claim petition.

John Swartz (Harrisburg, PA) was able to have a claim and penalty petitions denied and dismissed in their entirety, and no litigation costs were awarded. The claimant had filed a claim petition seeking indemnity benefits for a low-back injury allegedly occurring on April 26, 2022. John presented two medical experts and testimony from the employer. John also presented evidence of failed drug tests of the claimant and criminal conviction records. The judge accepted our evidence and concluded the claimant did not suffer a disabling work injury.

John also had a claim petition seeking benefits denied and dismissed as the claim petition was filed well after the 120-day notice period. The claimant was injured on December 1, 2021, described as a right hand, right arm, shoulder, upper extremity, and rib injury. The claimant underwent two surgeries. The first occurred in December 2021 as an emergency surgery. Then he had a thoracic outlet surgery performed in February 2023. The case was bifurcated on whether the claimant provided notice within 120 days of the injury as required by § 311 of the Act. The claimant testified on several occasions on this issue. John presented testimony from the employer’s witnesses that the claimant never reported a work injury. The claimant admitted he knew the condition was work-related in December 2021. First notice of the injury was when the claim petition was filed in September 2022, well after the 120-day period. The judge accepted the testimony of the employer’s witnesses on the issue of notice. The claim petition was denied and dismissed.

In a final matter, John was successful in defending the claimant’s appeal to the Appeal Board regarding alleged non-payment of medications related to the claimant’s work injury in the amount of $21,319.08. The claimant sought a 50% penalty as well for non-payment of these medications. The Workers’ Compensation Judge denied and dismissed the claimant’s penalty petition. The Appeal Board affirmed the Workers’ Compensation Judge’s decision below, which was based on the argument that the medical expenses were not specifically related to the accepted injury, which was a L4-5 disc herniation. Stenosis or aggravation of the claimant’s lumbar spine degenerative disc disease was never accepted as part of this work injury. Therefore, these medications were appropriately denied in their entirety.

Kristopher Starr (Wilmington, DE) successfully defended a petition for cervical spine surgery and indemnity benefits. The claimant was in his mid-70s and had years of degenerative cervical spine issues and a compensable shoulder injury. His petition for additional compensation was denied as was the cervical spine surgery. Our termination petition was granted because the claimant was determined to be medically employable. The claimant’s temporary total disability was terminated as of the date of the Board’s decision. Kris presented a Labor Market Survey as to the issue of earning capacity, which was accepted. Partial disability was denied. As to the weight of evidence, our defense medical expert’s examination was credited as was Kris’s cross-examination of the claimant and his spine surgeon.

Kristopher also successfully defended a motion to compel payment of disability benefits. Claimant’s counsel filed the motion very late after the Board’s decision denying surgery and ongoing benefits. The motion was argued before the Board, and Kris argued it be denied on the basis of failure to properly move for re-argument or appeal within the statutory time periods. The Board agreed with Kris and denied the motion.

In another case, Kristopher defended a claimant’s petition for compensation which alleged injury to the entire left upper extremity (hand, wrist, elbow and shoulder) and neck from a work accident. The claimant asserted this injury resulted in carpal tunnel to the left wrist, cubital tunnel to the left elbow, internal derangement/injury to the left shoulder and a neck/cervical spine traction/pull injury. The claimant presented two Philadelphia-area orthopedic surgeons/specialists—a shoulder specialist and a hand specialist. On behalf of the employer, we presented an orthopedic surgeon. Key to this determination was evidence presented by Kris that the claimant started with complaints and treatment to the bilateral upper extremities for nerve injury well prior to his employment with our client and the alleged work accident. The claimant had undergone a carpal tunnel release prior to his employment with the employer. Also, Kris’s cross-examination of the claimant’s shoulder expert limited his testimony to the left shoulder and produced the doctor’s admission that he was not qualified to address the left wrist, elbow or neck. The employer’s expert medical witness opined that the bilateral upper extremity nerve symptoms likely represented a neck nerve problem that pre-existed the work injury and caused a “double crush syndrome” emanating from the neck. The Board found the employer’s medical expert to be persuasive and credited the testimony of this witness, as well as Kris’s presentation of evidence demonstrating that many of the symptoms pre-existed the alleged work accident. Further, the Board found that the cross-examination of the claimants shoulder specialist effectively limited any evidence to the left shoulder only, which the Board did not find persuasive. The claimant’s petition was denied in all respects.

Judd Woytek (King of Prussia, PA) successfully defended a claim petition, in part. The judge granted the claimant’s claim petition, finding that she suffered a work-related injury on January 7, 2022, in the nature of a contusion to the right wrist and right elbow. However, he indicated specifically that the July 8, 2022, surgery performed on the claimant’s right elbow was not related to the work injury. He found the claimant to be disabled due to the work injury between February 11, 2022, and July 20, 2022, and to be fully and completely recovered from her work-related injury as of July 20, 2022, and terminated benefits as of that date. In reaching his decision, the judge credited the opinions of our medical expert, Dr. Talsania, over the opinions of the claimant’s medical expert, Dr. Bontempo. The judge also found the claimant’s testimony to only be credible in part. He noted that the claimant’s initial complaints were about breathing issues and that she did not advise her employer of the different injuries that she allegedly sustained. The judge also credited the employer’s witness testimony that we presented, specifically finding credible the testimony that the claimant joked about the incident and did not appear to be injured. The testimony of the employer’s witness was accepted as credible by the judge. With regard to the medical experts, the judge noted that Dr. Talsania credibly explained how the mechanism of injury alleged by the claimant would be physically impossible to cause lateral epicondylitis. The judge credited the opinions of Dr. Talsania that the force needed to cause a traumatic lateral epicondylitis would need to be so significant that the claimant would have sustained severe bruising, swelling and immediate pain. None of that occurred in this case. He also noted that the claimant’s medical records are inconsistent with the mechanism of injury as the claimant described it. He noted that the claimant’s medical expert, Dr. Bontempo, had an incomplete knowledge of the claimant’s history and mechanism of injury, and that the doctor failed to explain the mechanics of how the claimant’s fall would have caused a traumatic injury to the lateral epicondyle.

Judd also successfully defended a claim petition where the claimant alleged severe neurologic injuries from a slip-and-fall on ice. The claimant alleged issues with his speech, vision, and balance. His treating physician diagnosed a concussion with post-concussion syndrome and cervicalgia resulting in gait, visual, and speech dysfunction, headaches, nausea, vomiting, dizziness, sensitivity to light, and sound, and difficulty walking. The judge limited the injury to a scalp contusion and traumatic Bell’s Palsy, awarded less than 11 weeks of benefits, and terminated benefits as of our IME.

Gregory Bartley (Roseland, NJ) successfully defended one of the firm’s largest insurance carrier clients in a case involving a company that failed to pay the insurance premium on their workers’ compensation policy. We entered our appearance in the case for the carrier only, which had notified the insured company that the premium had not been received and that the carrier was taking the necessary steps to cancel the policy. The carrier complied with the rules for policy cancellation pursuant to the New Jersey Department of Labor. The underlying case involved a worker who was injured while working on the day after the policy was cancelled. The company electronically paid the premium on the day after the worker’s injury. The day following receipt of the policy premium, the carrier issued a new policy covering the company. Thereafter, when given notice of the claim, the carrier denied the claim based upon the policy’s cancellation. The petitioner filed a claim petition, alleging that the failure to pay the premium should not deny him coverage as the payment of the premium and subsequent issuance of the new policy amounted to a mere lapse in coverage, and that acceptance by the carrier of the premium should result in the coverage being reinstated as of the date of cancellation, not the date of the new policy. After numerous hearings over more than two years and two judges, who had indicated support for the petitioner, we argued the case with all parties present. The court agreed that our client’s cancellation was legally effective and, therefore, entered an order of dismissal as to the carrier.

Benjamin Durstein (Wilmington, DE) was successful in having the Delaware Superior Court affirm the Industrial Accident Board’s decision that the employer correctly paid for ketamine infusion treatments. The Board had found that these treatments were properly paid pursuant to the Delaware Workers’ Compensation Fee Schedule. The court rejected the claimant’s argument that Section 2322(b) of the Workers’ Compensation Act required a higher payment for the “reasonable cost” of the treatment.

Adam Huber (Mount Laurel, NJ) successfully obtained orders for dismissal with prejudice on two Medical Provider Applications. Two separate New Jersey medical providers alleged they were entitled to additional money for medical treatment provided in New Jersey to a New Jersey resident. Each provider claimed that, because the injured worker who received the treatment was a current resident of New Jersey and treatment was rendered in New Jersey, there was sufficient contact for the court to exercise jurisdiction for a Medical Provider Application and bills should be paid at a usual and customary rate, as opposed to New York’s fee schedule. The worker’s compensation claim that resulted in the Medical Provider Applications was a New York claim, with no New Jersey contacts for the parties at the time of the injury. The injured worker only later moved to New Jersey and received medical treatment with New Jersey providers, who were then paid per the New York fee schedule. The providers’ billed amounts were $221,591.55, $6,157.50, and $6.157.50 for three dates of service. The employer made payments in the amount of $55,488, $1,401.83, and $740.42, respectively, per the New York fee schedule. Adam successfully argued to the court that, because it would not have been able to exercise jurisdiction over the underlying worker’s compensation claim, it would not be able to exercise jurisdiction over the two resulting Medical Provider Applications. Therefore, the providers could not seek additional money in New Jersey based on its usual and customary standard, as opposed to New York’s fee schedule. This saved the employer up to $176,276.30 in potential medical payments. Both Medical Provider Applications were dismissed with prejudice.

*Results do not guarantee a similar result.

_{Defense Digest}_{, Vol. 29, No. 3, September 2023, is prepared by Marshall Dennehey 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. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}