On the Pulse…Defense Verdicts and Successful Litigation Results*
CASUALTY DEPARTMENT
Benjamin Goshko and Seth Schwartz (both of Philadelphia, PA) were successful in having two consolidated cases transferred from Philadelphia County to Cumberland County. The cases concerned two alleged falls by construction workers at a construction site in Mechanicsburg, Cumberland County. Our clients are located in Lancaster County. The only codefendant is located in Philadelphia County. We filed preliminary objections as to venue, arguing that the codefendant Contractors was a “phantom” defendant, likely the plaintiffs’ statutorily immune employer, and that the plaintiffs had vexatiously named the codefendant merely to obtain venue in Philadelphia County. The plaintiffs opposed our preliminary objections, arguing they had taken a default judgment against the codefendant so it could not avail itself of any immunity. The court was convinced by our arguments. This ruling cuts against the current trend giving broad deference to plaintiffs on venue issues.
Matthew Gray (Melville, NY) successfully defended and secured dismissal of a New York no-fault arbitration matter. The applicant, a major medical provider, filed an arbitration matter in the total amount of $95,172.11, claiming our client owed it for the claimant’s unpaid medical bills following a major motor vehicle accident. The claimant had been involved in the motor vehicle accident and sought payment for medical treatment for a series of treatments rendered post-accident. Counsel for the medical provider argued that the medical billing was never properly or timely denied, and, therefore, contended that payment of the claims was overdue. However, Matthew successfully argued at the arbitration hearing that the applicant’s client failed to submit the medical billing in the requisite statutory timeframe. After arguments were heard, the arbitrator ruled in our client’s favor, thereby dismissing the matter based on the applicant’s total failure to timely and properly submit the requisite medical billing, saving our client on the entire demand amount, plus any potential incurred interest, costs, and attorney’s fees.
Frank Madia and D. Terrance Hill (both of Orlando, FL) obtained a summary judgment on behalf of a large national retailer in a case in which the plaintiff slipped and fell on the premises. An employee had clocked out and was in the process of gathering his personal belongings from the front-end counter when he allegedly created a dangerous condition by dropping his “personal jug” of iced tea on the floor. Represented by Morgan & Morgan, the plaintiff was seeking damages for alleged injuries to her back, neck, and left knee. She had a significant, pre-existing component for all of her injuries and underwent left knee arthroscopic surgery to repair a torn meniscus along with a steroid injection. We argued that the retailer was not vicariously liable for the acts of the employee, who was “off the clock” at the time he dropped his “personal jug” of iced tea on the floor. The court held that “off duty employment” is a question of law since there was no genuine dispute of material fact as to whether the employee was “acting within the scope of his employment” at the time the alleged dangerous condition was created. A trial was set for April 2024, and the plaintiff’s last demand was $650,000 before summary judgment was granted.
Fabrice Michel (New York, NY) obtained summary judgment in favor of his client in a third-party action involving a 2017 fire that began in our client’s restaurant and spread to an adjacent bakery, causing significant property damage. Through a subrogation action, our client settled with the bakery’s carrier in 2019. In exchange, the bakery’s carrier agreed to indemnify our client “against any and all future claims brought by the bakery for uninsured losses.” Following settlement, the bakery brought suit against our client’s landlord for uninsured losses. The landlord then filed a third-party action against our client and the bakery’s carrier. We filed for summary judgment against the bakery’s carrier seeking defense and indemnification pursuant to the 2019 settlement agreement. The bakery’s carrier opposed our motion, arguing the settlement agreement’s indemnity provision only applied to claims made by the bakery against our client and since our client’s landlord—and not the bakery—brought the direct action against our client, we were not entitled to indemnification or defense. The court was convinced by our arguments and held that the bakery’s carrier’s interpretation of the “Indemnity” provision as limiting the breadth of its obligations to indemnify was unpersuasive and uncompelling.
Christopher Power (Melville, NY) obtained a directed verdict from a Suffolk County judge on a slip and fall case against a restaurant located within a Saks Fifth Avenue store. It was raining on the date of the accident. The plaintiff alleged that she opened the door to the restaurant, took four steps inside, and slipped and fell on water that she claimed workers brought in from outside. The plaintiff had a laminectomy as a result of her fall. After the plaintiff’s deposition, Saks Fifth Avenue discovered a surveillance film showing the plaintiff taking one step into the restaurant and slipping and falling. The film was shown to the jury. At the close of the plaintiff’s case, Chris moved for a directed verdict, arguing the plaintiff failed to establish actual or constructive notice. The plaintiff testified at trial that she did not notice any water on the floor when she entered the restaurant. She could not testify that she knew workers brought the water into the restaurant. Chris further argued there was no constructive notice since the plaintiff could not testify if there was even, in fact, a wet area on the floor or how long it had been there. The judge granted Chris’s motion, dismissed the case and dismissed the jury.
HEALTH CARE DEPARTMENT
David Tomeo, Victoria Pepe and paralegal Karen Kankula (all of Roseland, NJ) obtained a dismissal in the Superior Court of New Jersey on personal jurisdiction grounds. This was a multi-count complaint brought by a New Jersey-based medical laboratory against our client, an Arizona company which provides both medical services and health insurance to Arizona residents. The plaintiff argued that our client was amenable to suit in this state, asserting that our client had business interactions with the laboratory in New Jersey. In opposition, we were able to establish that, not only was such an assertion untrue, but also that any claims sent by the plaintiff to our client for testing services would have been processed in Arizona and that our client did not have any contacts—much less the constitutionally mandated minimum contacts—necessary for personal jurisdiction in New Jersey. In addition, finding that the plaintiff did not conduct any due diligence before filing suit and did not make any attempt to take jurisdictional discovery while the motion was pending, the court dismissed the action with prejudice in New Jersey, despite the plaintiff’s argument that a dismissal without prejudice was appropriate, thus leaving to the courts of Arizona whether such a dismissal has preclusive effect in any suit brought there under these facts.
PROFESSIONAL LIABILITY DEPARTMENT
David Blake (Mount Laurel, NJ) obtained a hard fought defense verdict in a contentious fire loss case involving a total fire loss at a duplex owned by a single mother. The investigation revealed that the named insured did not reside in the home and, instead, rented the two units. Her story about residency shifted, to the point where she was being untruthful. The claim denial included application misrepresentations and issues related to the fact that the insured property did not meet the definition of a “residence premises,” as the evidence supported she did not reside there. Ultimately, the court decided that the property did meet the “residence premises” definition. David was left to try the case based on material misrepresentations and tasked with convincing the New Jersey jury that a single mother, who paid her premium and suffered an accidental total fire loss, should be precluded from recovery because of misrepresentations relative to residency (which she continued to deny throughout trial). The jury disregarded the sympathetic plaintiff, believed the insured lied during the investigation and applied New Jersey insurance law on material misrepresentations as instructed by the court. The plaintiff had turned down $150K prior to trial.
John Gonzales (Philadelphia, PA), Ashley Toth (Mount Laurel, NJ) and paralegal Dawn Duffin (Philadelphia, PA) received a defense verdict in a Title VII/Section 1983 sexual harassment case against a municipality that was heard in the U.S. District Court for the Eastern District of Pennsylvania. The plaintiff alleged that she was subjected to a hostile work environment by a City official, and that the City failed to take appropriate remedial measures. The jury concluded that plaintiff failed to prove that she was sexually harassed after deliberating for just over an hour.
Allison Krupp (Harrisburg, PA) received a jury verdict in a breach of contract/statutory bad faith action that arose under a legal malpractice policy issued to a law firm by our insurance company client. The plaintiffs settled a malpractice claim set forth against them without our client’s knowledge or consent. The insurance company then denied coverage for that claim, and the plaintiffs filed suit. Because the case included a bad faith claim, if the plaintiffs prevailed on both counts, the damages could have been seven figures or more. We took the case to trial before Judge Patrick in Philadelphia County. The jury returned a verdict on the breach of contract claim, finding that the plaintiffs failed to establish their damages by a preponderance of the evidence. The judge then dismissed the statutory bad faith claim. It is unclear at this point whether the plaintiffs will appeal. This was the first case this client has taken to trial as a defendant in its decades-long history.
Christopher Reeser and Coryn Hubbert (Harrisburg, PA) obtained summary judgment and dismissal of nine claims brought by an individual employer against two former employees and their new place of employment. The plaintiff, who owned an insurance business and a tax preparation business, alleged claims of breach of contract, breach of the duty of loyalty, tortious interference, violations of the Pennsylvania Uniform Trade Secrets Act, and other related claims against two former employees, one at-will and one independent contractor, and their new employer. The plaintiff was imprisoned for violations of insurance fraud and barred from continued participation in the business of insurance. While imprisoned, one defendant, an at-will insurance underwriter employee, sent a letter to the business’s customers informing them that the plaintiff was no longer legally allowed to participate in the business of insurance. The plaintiff also alleged that the other individual defendant, a tax preparer and independent contractor, misappropriated trade secret information by taking a customer list with him to his new employer. Chris and Coryn argued on a summary judgment motion that the plaintiff lacked a trade secret interest over the customer list because the list was not a product of any special work on the part of the plaintiff’s company, nor was it confidential. Chris and Coryn further argued that the plaintiff’s remaining claims must be dismissed because the statements made in the insurance employee’s letter were truthful—the plaintiff was no longer legally allowed to participate in the business of insurance—and the plaintiff, as an individual, lacked standing to bring a direct claim against the defendants on behalf of his business. The trial judge agreed and dismissed all of the plaintiff’s claims against the three defendants, with prejudice, noting that the plaintiff’s claims against all three defendants were meritless.
Ashley Toth and Michelle Michael (both of Mount Laurel, NJ) successfully defended a New Jersey state university in an employment discrimination case, obtaining a “no cause” verdict in a jury trial in Atlantic County, New Jersey. The plaintiff alleged she was terminated from her position as director of the university’s performing arts center due to her age, gender, and/or in retaliation for reporting internal complaints of age/gender discrimination. She sought back pay, front pay, emotional distress, attorney fees, punitive damages, and costs. We argued that the plaintiff was not terminated for discriminatory/retaliatory reasons but, instead, was terminated as a result of mandatory COVID-19 closures necessitated by Executive Orders. Ultimately, the jury returned a verdict of “no cause” in favor of the university on all counts.
John Mueller (Mount Laurel, NJ) successfully obtained a partial motion to dismiss, resulting in the dismissal of the plaintiff’s New Jersey Wage Payment Law (WPL) and promissory estoppel claims. This case was heard in the Superior Court of New Jersey, Essex County. John represented an IT consulting firm that was sued by a former consultant for $800,000 in unpaid revenue from our client’s business development program that was conveyed in a pre-employment offer letter. John successfully argued that payments under the business development plan were not “wages” under the WPL and that the promissory estoppel claim failed in light of a written agreement. The dismissal of the WPL claim (with prejudice) was especially critical since it was also directed at the individual defendant CEO and contained provisions for treble damages and attorney’s fees.
Jack Slimm and Arthur Wheeler (both of Mount Laurel, NJ) successfully defended an appeal in a complex series of legal malpractice actions arising out of an $11 million investment in an illegal venture in Brazil. The Appellate Division affirmed the trial court’s order and opinion, which found that the plaintiff’s economic loss expert had offered a net opinion in connection with what plaintiff would have earned from the illegal venture in Brazil. We established the plaintiff’s knowledge of that illegality, which had been demonstrated in the previous legal malpractice action. Accordingly, the plaintiff’s expert report was barred in the first legal malpractice action, the doctrine of collateral estoppel applied, and the Appellate Division affirmed the trial court’s order, which barred the expert report in the second legal malpractice action. In addition, the Appellate Division agreed with our argument that the claims, in any event, were barred under the Doctrine of Invited Error because the plaintiff’s fraud claims were based on the illegality of business operations in Brazil. The court found that profits derived from the illegal venture are worthless and cannot form the basis for a claim.
Jillian Dinehart (Cleveland, OH) won summary judgment in favor of her client, a former suburban mayor, after seven years of protracted litigation. The plaintiffs, a former police chief and lieutenant, sued the mayor, the City and the acting police chief for defamation following a press conference regarding possible criminal activity by the former police chief and lieutenant for alleged improprieties in their criminal investigation against the mayor. As background, in 2016, Jillian’s client was arrested for domestic violence, but the criminal case was ultimately dismissed for lack of evidence and sealed. In 2017, after the police chief and lieutenant left their positions, the City found documents regarding the sealed charges against the mayor in their offices. This spurred an internal investigation into the police investigation into the mayor. The internal investigation found that there were significant deficiencies in the criminal investigation and that the former police chief and lieutenant likely obstructed justice as a result of these deficiencies. The outside prosecutor found that, although there was probable cause for an arrest, there likely was not enough evidence for a conviction. Because of the ongoing mayoral campaign at that time, the criminal charges and internal investigation were the subject of several public records requests. On the eve of releasing those public records, the City gave a press conference announcing that the former police chief’s and lieutenant’s investigation into Jillian’s client was improper and possibly criminal. After the press conference, the police chief and lieutenant sued the mayor, the acting police chief, and the City for defamation and related claims. The court dismissed the action at summary judgment on both procedural grounds and on the merits, finding that none of the comments made in the press conference were false or disparaging.
WORKERS’ COMPENSATION DEPARTMENT
Benjamin Durstein (Wilmington, DE) was successful before the Delaware Supreme Court in a workers’ compensation case where the court affirmed the decisions of the Industrial Accident Board (IAB) and the Superior Court. The court held that the employer correctly paid for ketamine infusion treatment in accordance with the Delaware Fee Schedule. As Ben argued, it was the claimant’s burden—not the IAB’s or the employer’s—to present evidence regarding the adequacy of the billing codes utilized. The court directed the claimant to the Workers’ Compensation Oversight Panel as the correct forum to address whether the Fee Schedule amount payable for treatment constitutes reasonable compensation.
Tony Natale (King of Prussia, PA) successfully prosecuted a termination petition on behalf of an international trucking company. The claimant suffered an underlying head injury with post-concussion syndrome after having an epileptic seizure while driving a company vehicle. Having been diagnosed with epilepsy after the accident, the claimant could never again possess a CDL license. He therefore doubled down on the theory that he was totally disabled due to his work-related head injury. After having the claimant examined by a neurologist, it was determined that he had fully recovered from the head injury. The claimant stood firm to the contrary and presented competing neurological testimony. When Tony cross-examined the claimant, two sets of “treating doctors” were established. First, the claimant identified his “legal doctors” and then his “primary care” specialists. When the claimant was forced by motion to the court to produce his primary care specialists’ records, it was demonstrated that they contradicted the claimant’s “legal doctor’s” opinions. The court then issued a determination terminating the claimant’s right to all ongoing benefits.
Michele Punturi (Philadelphia, PA) successfully prosecuted a termination petition for a delivery truck service company that involved a low back injury. Michele’s evidence consisted of the cross-examination of the claimant and the testimony of a Board Certified orthopedic surgeon, who obtained an extensive history from the claimant, reviewed medical records/diagnostic study films, including an MRI of the lumbar spine, and completed a comprehensive physical examination. The defense expert opined the MRI failed to reveal any acute or post traumatic findings, that the claimant only sustained soft tissue lumbar sprain/contusion, and that no objective findings had been revealed during examination. The judge found the defense expert opinions were well supported and terminated all liability.
Rachel Ramsay-Lowe (Roseland, NJ) filed a successful motion to dismiss for lack of jurisdiction in New Jersey for a medical provider application. Rachel established that the medical provider was paid in accordance with the New York Fee Schedule, and she provided a court order from the New York workers’ compensation board indicating that the bill must be paid in accordance with the New York Medical Fee schedule. Rachel argued that the court must honor the order from another state based on the full faith and credit clause since the order does not conflict with New Jersey workers’ compensation law and the matter was already decided by another jurisdiction.
Michael Sebastian (Scranton, PA) successfully defended against a claimant’s petition alleging a low back injury. The MRI was normal, but the claimant had a positive EMG for radiculopathy. The claimant’s expert testified that the injury consisted of low back pain with left leg radiculopathy, most likely at L4-5 and possible at L5-S1. During cross examination, this expert agreed that the claimant recovered from the lumbar strain. The defense expert initially issued a report finding that, based upon the EMG, the claimant sustained a lumbar strain with radiculopathy even though the MRI was normal. Michael had Dr. Noble, who is board certified in EMG studies, review the EMG report. He opined that one cannot diagnosis radiculopathy based upon the non-specific findings in the EMG and the findings support four levels of radiculopathy, which was impossible. Dr. Noble also disagreed with the claimant’s expert that the claimant suffered a traction injury. Based upon Dr. Noble’s report, our expert changed his opinion, now indicating that the claimant only sustained a lumbar strain and had fully recovered from the work injury. The workers’ compensation judge found our expert credible, he awarded the claimant some indemnity benefits based upon his expert testimony and terminated the claimant’s benefits, finding that the claimant only sustained a lumbar strain and had fully recovered.
*Results do not guarantee a similar result.
Defense Digest, Vol. 30, No. 2, June 2024, 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. © 2024 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.