Defense Digest, Vol. 31, No. 1, March 2025

On the Pulse…Defense Verdicts and Successful Litigation Results*

March 1, 2025

HEALTH CARE DEPARTMENT

Ryan Gannon and Maura Brady (both of Roseland, NJ) received a unanimous defense verdict for their client in a high-exposure birth injury case. The plaintiff, the mother, alleged the obstetrician defendant was negligent in failing to identify her baby as large for gestational age in the prenatal period, in failing to proceed with a cesarean section during the labor, and in negligently performing a forceps delivery. The plaintiff alleged, as a result of her injuries from the delivery, she suffered pelvic organ prolapse, incontinence, and ongoing pain and suffering. The plaintiff underwent two subsequent gynecologic surgeries and alleged, as result of her ongoing pain, she would never be able to return to work for the remainder of her life. Through the testimony of our client and experts, we were able to establish the care provided by the obstetrician was within accepted standards of care and the decision to proceed with the delivery as performed was the safest option for the mother and baby. The jury returned a unanimous verdict in favor of our client.

Leslie Jenny (Cleveland, OH) and Missy Minehan (Harrisburg, PA) obtained a medical malpractice defense verdict on behalf of a skilled nursing facility in the Cuyahoga County Common Pleas Court in Cleveland, Ohio. The children of an 82-year-old skilled nursing resident brought a lawsuit after their mother developed shingles and associated meningitis and passed away. They claimed the facility had inadequate infection control and failed to identify signs/symptoms of developing changes in their mother’s condition. Leslie and Missy proved the facility offered the appropriate vaccinations that were required by the state of Ohio and that the standard of care did not require the facility offer or administer the Shingrix vaccine to its residents. They also proved the facility properly monitored the resident’s signs and symptoms; that she did not exhibit any classic signs or symptoms of shingles at the facility; and that the facility timely sent her to the ER for evaluation when her condition changed. In closing arguments after a five-day trial, the plaintiffs asked the jury for $3 million. The jury deliberated for 75 minutes and returned with a defense verdict.

Donna Modestine and Kevin Majernik (both of King of Prussia, PA) received a defense verdict for an emergency room physician in a medical malpractice case after a six-day trial. The plaintiffs alleged the physician failed to diagnose and treat a transient ischemic attack in the emergency department and that this failure caused the plaintiff’s ischemic stroke 48 hours later. The plaintiff at the time was 44 years old. Following an hour and a half of deliberations, the jury found the emergency room physician did not violate the standard of care.

Gary Samms (Philadelphia, PA & King of Prussia, PA) received a defense verdict on behalf of an anesthesiologist after a six-day trial in Philadelphia. The plaintiffs had contended the anesthesiologist failed to deal with internal bleeding and blood pressure issues and failed to communicate with the surgeon during a Cesarean section and in the Post Anesthesia Care Unit, leading to the plaintiff almost bleeding out and causing the loss of her uterus during an emergency hysterectomy. The matter involved seriously conflicting experts and was a well-tried case by all parties. Fortunately, the jury was receptive to the defense arguments that, in fact, the doctor not only complied with the standard of care but exceeded it. Instrumental in the victory were shareholder Raymond Petruccelli (King of Prussia, PA) and paralegal Nancy Farnen (Philadelphia, PA).

Nicole Tanana (Scranton, PA) secured a voluntary dismissal of a client in a catastrophic medical malpractice case in Philadelphia County based on her preliminary objections as to the failure to serve the complaint in a timely manner. Rather than have the court grant her preliminary objections on lack of good faith effort to serve original process, plaintiff’s counsel chose to voluntarily dismiss the case. Nicole’s client was the last defendant served in a case that was active in Philadelphia for over a year.

Suzanne Utke (Philadelphia, PA) won a very hard-fought motion for summary judgment based on the plaintiff’s failure to prosecute in a matter that is now 10 years old. Suzanne won oral argument to dismiss the suit, based on the plaintiff’s failure to prosecute his case, by proving both actual prejudice to the client, a psychologist, and an inexcusable seven-year delay in any activity by the plaintiff. This medical malpractice claim was brought in Cumberland County, Pennsylvania, and was related to a psychological evaluation conducted of the plaintiff’s three children, whom he physically and psychologically abused for years.

Missy Minehan (Harrisburg, PA) won preliminary objections, in the nature of a demurrer, to the plaintiff’s claims based upon improper venue in a nursing home case that was filed in Philadelphia County. Missy represented the skilled nursing facility, the nursing home administrator, direct and indirect members/owners of the nursing home, and the registered home office. Although the nursing home is located in Lancaster County, the plaintiff filed the lawsuit against individual defendants (including the administrator and members/owners) in Philadelphia County under the “new” venue rule. The plaintiff-based venue upon the fact that the administrator worked for a third-party nursing home that operates in Philadelphia (true) and upon his allegation that several of the other individual defendants have an “office or a usual place of business” in Philadelphia (not true). The judge of the Court of Common Pleas of Philadelphia County sustained the demurrer as to the claims against the individual defendants, sustained the preliminary objection based upon improper venue, ordered the plaintiff to take action to have the case transferred to Lancaster County within ten days of the court’s order, and ordered the plaintiff to pay the costs of the transfer. The court deferred its ruling on the balance of the defendants’ preliminary objections to the Lancaster County Court and denied the plaintiff’s motion for reconsideration.

CASUALTY DEPARTMENT

Christopher Power (Melville, NY) obtained a defense verdict for a tow truck company in an “open and obvious” case in Nassau County, New York. The tow truck company was called to the plaintiff’s workplace to tow a broken-down minibus for scrapping. Our client attached a tow rope to the bus and began operating the winch but was asked to stop so the mirrors could be removed. The plaintiff removed the passenger-side mirror and, instead of walking around the bus, walked between the tow truck and the bus, tripping over the tow rope and breaking his hip. Chris prepared a motion for a directed verdict based on precedent from a previous Nassau County case involving a plaintiff who tripped over a tow rope, where the judge ruled the condition was open and obvious, with no duty to warn. However, the trial judge in this case denied the motion. Chris then requested a curative charge instructing the jury that the defendant had no duty to warn of an open and obvious condition, citing language from the prior summary judgment decision. While the trial judge declined to charge the jury, she permitted Chris to make the argument himself during summation, to which plaintiff’s counsel did not object. During summation, Chris argued the condition was open and obvious and there was no duty to warn, and he asked the jury to dismiss the case. The jury deliberated for just 15 minutes before returning a verdict for the defendant.

Evan Saltzman (Philadelphia, PA) received a defense verdict in a hotly contested, slip and fall case where the plaintiff admitted on cross to lying under oath. The plaintiff’s demand was $800,000 before being remanded to arbitration.

Melanie Foreman, Thomas Wagner, and Thomas Nardi (all of Philadelphia, PA) successfully defended a transportation authority in a wrongful death and survival case in the Philadelphia County Court of Common Pleas. The case involved the death of a pedestrian who was struck by a transportation authority bus. The plaintiff, the decedent’s father, disputed the city medical examiner’s suicide ruling. The defense presented a forensic psychiatrist’s testimony confirming the decedent’s high suicide risk. Although our client was found 40% negligent, the decedent’s 60% negligence barred recovery of damages. The claim was further limited by statutory caps applicable to Commonwealth entities.

Jack Delany and Andrew Ciganek (both of Philadelphia, PA) successfully secured summary judgment in a product liability case involving an “exploding” wine bottle. The plaintiff alleged injuries from a broken bottle containing blueberry fruit wine. Our client was the distributor of the bottle and was brought in the case as a third-party defendant. The plaintiff testified that on Thanksgiving Day, she attempted to open the bottle with the handle of a wooden spoon when the bottle unexpectedly and suddenly exploded in her hands. In her product liability claim, the plaintiff asserted defects with the design of the bottle—the use of unusually thin glass prone to breakage. The plaintiff additionally argued the wine bottle had no warnings instructing her to only use a corkscrew opener. As the plaintiff did not produce any liability expert reports, we were able to argue that expert testimony was necessary for the plaintiff to prove her case, as the subject matter was one involving special skills and training not common to the ordinary layperson.

Raychel Garcia and Matthew Wykes (both of Orlando, FL) won a premises liability case involving allegations of negligent sidewalk design. The plaintiff, a quadriplegic who has been in a wheelchair since 1984, entered our client’s convenience store using the designated wheelchair ramp without issue. However, upon leaving the store, he inexplicably failed to use the same ramp and, instead, attempted to go directly over the curb, resulting in a fall and a fractured leg. During his deposition, conducted by Matt, the plaintiff: admitted he successfully navigated the wheelchair ramp upon entering the store; acknowledged seeing and knowing the ramp was there but did not use it upon exiting; confirmed there were no defects in the sidewalk or curb; admitted that raised sidewalks in front of stores are common, particularly at gas stations; and conceded that nothing obstructed his view of the curb or ramp. At the hearing, Raychel argued our motion, effectively countering the plaintiff’s last-minute attempt to introduce new testimony: claiming he was discouraged from using the sidewalk due to merchandise being present—an assertion he never made during his deposition—and that the store should have used a color to distinguish the curb from the parking lot. The judge requested competing orders and ultimately agreed with our application of the law, granting our motion.

Matthew Noble (Philadelphia, PA) successfully defended our client, a car manufacturer, in a contract dispute in Bucks County, Pennsylvania. In 2021, amid the COVID-19 pandemic, the plaintiff purchased a new vehicle for $37,000. Seven months later, the car was involved in a crash caused by the plaintiff’s daughter. Repairs for collision damage, which were not covered under the vehicle’s express written warranty, were delayed due to global supply chain disruptions caused by the pandemic. Despite our client’s efforts to locate, obtain, and expedite delivery of repair parts to the collision repair shop, it took seven months to fully complete the repairs. The plaintiff alleged the manufacturer violated the implied warranty of merchantability under the Magnuson-Moss Warranty Act and breached the Pennsylvania Unfair Trade Practices and Consumer Protection Law, citing the repair delays as the basis for the claims. Ultimately, the court returned a defense verdict, rejecting the plaintiff’s claims.

Ralph Bocchino and Evan Saltzman (both of Philadelphia, PA) successfully argued their motion for summary judgment on a major jury case where we represented a tenant shop owner. The plaintiff opposed our motion, alleging, inter alia, serious injuries to a shoulder and surgery. There were many moving pieces in this case, including indemnity issues, an alleged triple net lease and joinder after the statute of limitations. The plaintiff tripped and fell on a sidewalk that was under repair outside the store our client leased. Our client was joined by the original defendant, the landlord. We argued the plaintiff had no direct cause of action against us as we were joined after the statute of limitations; there was no evidence of record of our involvement as the plaintiff did not visit our store; we were not responsible for the sidewalk repair; and the original defendant landlord was responsible for the sidewalk in question as the lease was ambiguous as to who was responsible for external repairs.

Sean Govlick and Christopher Block (both of Roseland, NJ) achieved summary judgment for their client, a commercial plumber, in the Cape May County Superior Court. The plaintiff alleged that water leakage in the parking garage of a Cape May County beach resort hotel resulted from the defendant’s defective plumbing work. Specifically, the plaintiff argued that improper connections between the plumber’s pipes and the drainage system caused the leaks. The defense motion for summary judgment demonstrated that the defendant’s scope of work was limited to garage plumbing, which was performed according to specifications and unrelated to the waterproofing membrane or drainage system design flaws identified as the cause of the leaks. The court granted summary judgment, holding the defendant owed no duty to the plaintiff beyond the limited scope of their work, and dismissed all claims. After the plaintiff’s expert was deposed, he admitted he had no objective evidence or industry-standard methodology to support his conclusions. The court denied the plaintiff’s motion for reconsideration, finding their expert’s testimony to be speculative and unsupported, and noting that no new evidence or overlooked facts warranted altering the decision.

Christopher Power (Melville, NY) successfully obtained a motion for summary judgment dismissing his client from a negligence case. Chris represented a car service which was acting as a rental agent for Avis Rent-A-Car. Chris’s client had repeatedly rented vehicles to the defendant/third-party defendant (renter) in the case. At the time of each rental, the renter would produce a valid driver’s license that was run through a system to confirm its validity. Several days after renting a vehicle to the renter, the renter was involved in a high-speed chase with the Nassau County Police Department. While being pursued through the Village of Westbury by the police, the renter t-boned the plaintiff’s vehicle at an intersection. The plaintiff underwent three surgical procedures involving bleeds to her liver and one procedure to her lung, as well as sustaining a traumatic brain injury, collapsed lung and fractured ribs. After the completion of depositions, Chris moved for summary judgment to dismiss his client from the litigation, arguing his client was not the owner of the vehicle, nor was there any proof submitted that there was anything mechanically wrong with the vehicle rented to the third-party defendant. He further argued the plaintiffs failed to prove his client’s actions in renting the vehicle could be deemed, as a matter of law, to be the proximate cause of the plaintiff’s injuries.

Jack Yau (New York, NY) successfully defended an appeal of the trial court’s grant of summary judgment to the defendants in a motor vehicle accident case. The evidence indicated that, at the time of the accident, the plaintiff’s vehicle had stopped while partially merged from a service road onto the main traffic lane when it was struck by our clients’ truck, which was driving on the main lane, on the driver’s side of his (plaintiff’s) car. On appeal, the plaintiff argued our clients were a proximate cause of the accident. The Appellate Division, First Department rejected the plaintiff’s arguments and unanimously affirmed the trial court’s ruling. The First Department held the plaintiff’s contention, that he was stopped for 5 to 15 seconds before impact, does not change the fact that the defendant driver, who had the right-of-way, was entitled to assume the plaintiff would obey traffic laws and not merge until it was safe to do so. The First Department affirmed that a driver with the right-of-way who only has seconds to react to a failure to yield is not comparatively at fault for an accident.

Michele Frisbie (King of Prussia, PA) won an arbitration in a premises liability case where the plaintiff claimed she slipped and fell on a container of clear hand sanitizer spilled on the floor of the baking goods aisle of a grocery store. The plaintiff acknowledged she was not looking where she was going. There was no evidence of how the substance got on the floor, how long it had been there, or that the store was aware of it.

PROFESSIONAL LIABILITY DEPARTMENT

John Gonzales, Connor Warner and paralegal Dawn Duffin (all of Philadelphia, PA) obtained summary judgment on behalf of several narcotics police officers in a Section 1983 malicious prosecution and fabrication of evidence lawsuit. The U.S. District Court for the Eastern District of Pennsylvania dismissed the case, with prejudice, finding the record was barren of any evidence fabricated by any of the defendant officers that was ever used in or influenced any criminal proceeding against the plaintiff, the officers possessed probable cause to charge the plaintiff, and the plaintiff tendered no evidence of an underlying constitutional violation.

Ian Glick (Melville, NY) successfully obtained a permanent stay of arbitration for uninsured motorist benefits in Kings County Supreme Court. In doing so, the court found that our petition made the requisite prima facie showing that our client was entitled to a permanent stay of arbitration. The court agreed with Ian’s arguments that our client had properly disclaimed coverage because there was no evidence of contact between the respondent’s vehicle and the alleged uninsured’s vehicle, as required for uninsured motorist coverage under the policy, and that the respondent failed to cooperate in our client’s investigation of his claim. In opposition, the respondent did not dispute there was no contact between the vehicles or that he failed to cooperate in the investigation of his claim. Instead, he argued his notice of intention to make a claim triggered the 20-day statutory period to seek a stay of arbitration and that our petition was not filed within 20 days of the respondent’s service of this notice. The court rejected the respondent’s arguments and agreed with Ian’s arguments that the respondent’s notice failed to contain the required statutory language necessary to trigger the 20-day period and that, instead, the respondent’s demand for arbitration triggered the 20-day statutory period and the petition was timely made within 20 days of the respondent’s service of his demand.

Dante Rohr (Orlando, FL) obtained summary judgment in favor of our client on the plaintiff’s general contractor’s contractual indemnity and defense claims. The general contractor claimed it was owed a defense and indemnity under its subcontract with our client. In a prior proceeding, the court entered judgment in favor of the owner against the general contractor for breach of contract and breach of warranty but rejected the owner’s claims of negligence and violation of the Florida Building Code. The court agreed with our arguments that the general contractor was estopped from bringing its contractual defense and indemnity claims against the subcontractor because there was a prior judicial determination that neither the general contractor nor our client was negligent, and the general contractor’s liability was based on its breach of contract and warranties. The court further agreed that the general contractor could not show that the subcontractor was negligent, a condition triggering the indemnity obligation, where it had taken the position that there was no negligence in the construction and it did not present any affirmative evidence to support a claim of negligence on the part of the subcontractor.

Matthew Flanagan (Melville, NY/New York, NY) and Jack Yau (New York, NY) secured a dismissal of Judiciary Law § 487 claims against an insurance defense firm and its attorneys. The plaintiffs sued our clients—a partner and associate at a well-known insurance defense firm—alleging violations of Judiciary Law § 487(1), which provides that an attorney who engages in “deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . is guilty of a misdemeanor and may be liable to the injured party for treble damages in a civil action.” The plaintiffs alleged the defendants engaged in deceit in asserting false positions on behalf of their clients in the underlying action and in falsely representing to the court that the plaintiffs had not opposed a motion to dismiss, even though they had. We argued that mere advocacy does not give rise to a cause of action under Judiciary Law § 487 and, even if a misstatement had been made to the court regarding whether the plaintiffs had opposed a motion, there was no indication it was intentional or that it caused the plaintiffs any damages. The court agreed and granted the pre-answer motion to dismiss.

Aaron Moore and Claire McCudden (both of Wilmington, DE) obtained a summary judgment dismissal on behalf of their client, a law firm, that was sued by its former clients for legal malpractice. The plaintiffs, seven affiliated companies and their owners in the business of developing property, had been sued by their bank for defaulting on multiple lines of credit. The bank filed several lawsuits against the property developers, claiming approximately $7 million in damages, plus attorneys’ fees, which were recoverable pursuant to the terms of the promissory notes. The property developers retained our client to defend the lawsuits, arguing the amounts claimed to be owed to the bank were significantly overstated. Our client vigorously defended the bank’s underlying lawsuits. Ultimately, the property developers settled the bank’s lawsuits for the entire amount owed, plus interest, and the bank’s legal fees. The developers argued that its attorneys should have advised them to settle the bank’s claims after the lawsuits were commenced and that, had they done so, they would not have had to pay the bank’s legal fees ($825,000), our client’s legal fees ($485,000), expert witness fees ($335,000), or the additional interest on the loan. The property developers also claimed that not settling with the bank earlier caused them lost business opportunities valued at nearly $1 million. The plaintiffs’ legal malpractice claims were dismissed because their expert witness, a Maryland attorney with no business litigation experience, was not qualified to serve as an expert and because their damages claims were speculative.

After four hearings, John Slimm (Mount Laurel, NJ) obtained dismissal of a complex legal malpractice action arising out of litigation in the U.S. District Court over the failed purchase of a car dealership in New Jersey. The plaintiff’s claims against our client, a well-known transactional lawyer with one of the largest firms in the United States, involved hundreds of thousands of dollars in fees and losses related to the investment in the dealership. Following the hearings, and a re-hearing, Jack obtained the dismissal because the plaintiff’s expert failed to tie in the damages to the alleged deviations in connection with the handling of the underlying transaction. Following the hearings, the court rejected the expert’s opinion on damages and then granted our application for a dismissal of the entire case.

Jillian Dinehart (Cleveland, OH) successfully defended an appeal of a trial court decision dismissing a defamation claim against a suburban mayor. The plaintiff, a former police officer, brought actions against a former city mayor and related defendants, asserting defamation, false light, and related claims. The plaintiff alleged that statements made during a press conference disparaged him and violated a non-disparagement clause in his separation agreement. The court ruled the defamation and false light claims were correctly barred by the one-year statute of limitations under R.C. 2305.11(A) where the saving statute, R.C. 2305.19(A), permitted refiling in federal court, but did not toll limitations for subsequent state filings after the federal court dismissal. The appellate court also found the former mayor’s statements, regarding police leaders who allegedly retaliated against her, were deemed truthful and, thus, not defamatory or disparaging. Additionally, the court found these statements did not violate the separation agreement’s non-disparagement clause because they reflected factual conclusions of an internal investigation.

Carolyn Bogart and Amy Fox (both of Mount Laurel, NJ) successfully argued and secured summary judgment in favor of a masonic organization, where third-party claims for indemnity and common law contribution were dismissed. At issue was a third-party complaint over an alleged trip and fall due to a structural condition with a rented property. The masonic organization rented the property for a single use event in support of the organization. The plaintiff claimed to be a guest and initiated suit against the commercial property owner, the third-party plaintiff. In support of the third-party complaint, a rental agreement was produced, which was not for the alleged date of loss. The third-party plaintiff argued the rental agreement disclaimed liability on the part of the property owner and turned the property over to the renter’s charge; therefore, the renter was required to inspect the property and warn its guests of dangerous conditions. The court granted summary judgment for the following reasons. First, the rental agreement could not support contractual indemnity because it was not an Azurak compliant as there was no explicit language requiring indemnity. Azurak v. Corporate Property Investors, 175 N.J. 110, 112 (2003). Second, the masonic organization’s duty as a short-term lessee did not require inspection prior to the event, nor was there sufficient factual evidence to overcome the masonic organization’s charitable immunity.

Christopher Woodward (Harrisburg, PA) secured summary judgment on behalf of a client in Philadelphia Court of Common Pleas with regard to a UIM coverage issue. The UIM claimant was the resident and a relative of the named insured and was operating an unlisted vehicle (owned by her) at the time of the accident. The court agreed with Chris that there was no UIM coverage for the accident by operation of the household vehicle exclusion, which was valid under the facts of this claim.

Jacob Schultz and Josh J.T. Byrne (both of Philadelphia, PA) obtained dismissal of an entire action against an attorney. The plaintiff’s complaint alleged dissatisfaction with our client’s underlying representation. Preliminary objections were filed, arguing the plaintiff did not allege that our client’s conduct fell below the applicable standard of care, did not assert what the outcome of the underlying matter was, and had not filed a certificate of merit. Our preliminary objections were sustained, and the plaintiff’s complaint was dismissed in its entirety. The plaintiff did not timely file an amended complaint, although he was granted leave to do so. After the plaintiff did not respond to a notice of intent to enter judgment of non-pros, we filed a praecipe to enter judgment of non-pros, which the court granted.

Jacob Schultz and Josh J.T. Byrne also obtained dismissal of an entire action against an attorney and his law firm where the plaintiff alleged he suffered mentally because he was forced to work while on his vacation to respond to a certification for a discovery motion our client had purportedly improperly filed. We filed preliminary objections, arguing the plaintiff had not identified any cause of action and, moreover, the allegations solely arose from conduct which occurred in connection with our clients’ representation of the plaintiff such that dismissal was warranted under the doctrine of judicial privilege. We further argued the matter should be dismissed under the doctrine of collateral estoppel because the plaintiff had brought a motion for sanctions in the underlying matter which was denied, and the discovery motion upon which plaintiff based his complaint was granted. The court agreed with our preliminary objections and dismissed the complaint with prejudice.

John Gonzales, Joshua Brownlie, Connor Warner, and paralegal Dawn Duffin (all of Philadelphia, PA) obtained summary judgment in a Section 1983 substantive due process claim involving a police officer. The officer had taken a photo of the plaintiff’s son after he attempted suicide by jumping off a bridge, and the photo was later circulated on social media. The plaintiff alleged that circulation of the photo violated her substantive due process privacy rights, and she also asserted a claim for intentional infliction of emotional distress. One week before trial began, the U.S. District Court for the Eastern District of Pennsylvania held, although the plaintiff possessed a viable privacy right, that right was not clearly established at the time of the incident; therefore, the court granted qualified immunity to the officer. Additionally, the court held the plaintiff failed to present competent expert opinion evidence establishing her emotional distress and, therefore, dismissed the state tort claim for intentional infliction of emotional distress.

WORKERS’ COMPENSATION DEPARTMENT

Linda Wagner Farrell (Jacksonville, FL) successfully contested a claimant’s request for authorization for a van equipped with a wheelchair lift, arguing its medical necessity following a severe work-related injury. Testimony revealed the claimant's significant mobility challenges were due to a work-related traumatic brain injury and spastic hemiplegia. However, the employer/carrier contested the request, asserting it was neither reasonable nor medically necessary based on the authorized treating physician's assessment. Ultimately, the judge of compensation claims found the claimant did not meet the burden of proof to establish the necessity of the van, siding with the employer/carrier's argument, and denied the authorization request along with the claims for attorney's fees and costs.

Anna Jaoudi (King of Prussia, PA) successfully settled a Medicare compliance matter. Our workers’ compensation insurance carrier client received a conditional payment demand from the Center for Medicare and Medicaid Services (CMS) and the Commercial Repayment Center (CRD). This demand sought reimbursement for over 90 Medicare payments, which Anna negotiated as unrelated, resulting in a complete resolution of the lien with no balance outstanding.

Michael Duffy (King of Prussia, PA) successfully defended against two review petitions in a case in which our client had accepted the claim as a right shoulder injury. As the claimant was lowering a trailer to a hitch, the trailer fell a few inches, causing the hand crank to spin and jerk the claimant’s shoulder. The claimant filed a review petition seeking to expand the description of injury to include orthopedic injuries (described as a cervical herniation at C6-7, a protrusion at T2-3, and multilevel disc bulges between C2-C6, cervical radiculopathy, lumbar strain/sprain, right frozen shoulder, right brachial plexopathy) and psychiatric injuries (described as somatic symptom disorder with predominant pain and adjustment disorder with mixed anxiety and depression). The claimant’s second review petition sought to increase his average weekly wage to include an expectant rate based on his communications with his dispatcher about potentially working more hours in the future. Mike argued the claimant did not seek treatment for the additional injuries until months after the work injury. The claimant had prior work injuries that were not disclosed to the providers. The claimant’s diagnostic studies were degenerative and not acute. With regard to the psychiatric injuries, Mike argued the claimant’s expert did not have a full understanding of the claimant’s past and did not discuss his prior substance abuse issues, familial/marital issues, or how he had dealt with prior workers’ compensation injuries. Furthermore, through cross examination, the claimant conceded he did not really understand what psychiatric treatment he was receiving. The workers’ compensation judge found the employer’s orthopedic and psychiatric experts more credible and persuasive than the claimant’s; therefore, the judge did not expand the injury to include the cervical, lumbar, and psychiatric diagnoses. She further did not find right brachial plexopathy or right frozen shoulder. Additionally, the judge found there was no evidence to support a higher average weekly wage and compensation rate as the claimant’s wages reflected what he actually earned.

In a workers’ compensation case of first impression in Pennsylvania, Anthony Natale (King of Prussia, PA) successfully defended a Berks County mushroom canning facility from a claim petition alleging repetitive trauma injuries to the upper extremities. The claimant worked as a machine operator and alleged that over time his duties caused nerve injuries to both upper extremities. Tony presented medical expert testimony supporting the existence of these nerve damage conditions in the upper extremities but challenging causation. In a modified Frye challenge to the claimant’s medical expert opinions, Tony argued through expert testimony that the state of science and medicine overwhelmingly supports the fact that “repetitive trauma” is not a substantial contributing factor to the development of carpal tunnel and cubital tunnel syndromes. While the court allowed the claimant to present expert testimony to the contrary, it ultimately found Tony’s expert testimony opinions to outweigh the claimant’s expert testimony. The court concluded for the first time in Pennsylvania that carpal tunnel syndrome and cubital tunnel syndrome is not borne out through alleged repetitive trauma. This was a complete defense verdict.

Anthony also:

successfully prosecuted a mixed-issue termination petition on behalf of a Pennsylvania land and watershed conservation company. The claimant was a Medicare beneficiary who sustained various traumatic injuries, including a knee tear, as a result of being struck and dragged by a golf cart. The carrier accepted the traumatic injuries at issue. The claimant argued he also sustained an aggravation of pre-existing degenerative osteoarthritis as part of his defense to the termination petition. This became a crucial issue in the case as the carrier did not accept the osteoarthritic condition and Medicare had been paying the medical expenses for that condition. A conditional lien from the Center for Medicare and Medicaid Services would be the result of an unsuccessful termination petition. After extensive medical evidence was presented, the court ruled in favor of a full recovery and found no work-related osteoarthritis. This was a complete defense verdict.
successfully defended a Massachusetts-based insurance company in a bitter dispute with the federal government regarding a Medicare conditional lien request. The insurance carrier’s satellite office is based out of New Jersey, and the underlying claim involved an injury sustained in a motor vehicle accident with payments being made to the claimant under a New Jersey PIP policy. The carrier exhausted the PIP policy following the injury. Medicare also paid significant medical bills for the claimant and demanded through the Center for Medicare and Medicaid Services (CMS) that the carrier reimburse all payments made as a conditional lien request. CMS, through their many contractors, threatened legal action with double damages if the lien was not satisfied. The carrier appealed the lien request through two levels of CMS contactors with no success. Tony formulated a third-level appeal to an administrative law judge, arguing that CMS’s request for additional liens violated state PIP policy law and the carrier’s constitutional rights. Evidence presented showed the PIP policy had been exhausted and, thus, the carrier reverted back to a secondary payer, forcing Medicare/CMS as the primary payer under federal law. The court agreed and a full defense verdict was issued.
successfully had a penalty petition, filed against a local university, dismissed on all counts. The claimant sustained an injury to his low back which was accepted as compensable. The claimant returned to work at a modified job, and his benefits were made the subject of a notice of suspension. The claimant worked for several months and never challenged the suspension notice. Thereafter, the claimant left work when his attorney referred him to a new treating doctor. The carrier made some changes to claim data within the WCAIS system (correcting the claimant’s address). As a result of a glitch in the WCAIS system, a new Notice of Compensation Payable was issued based on this data change. The claimant filed a penalty petition, arguing his benefits must be reinstated based on the issuance of the new Bureau document. Tony presented evidence by way of factual testimony and documentary evidence to demonstrate the fallibility of the WCAIS system and exposed the illogical argument made by the claimant’s attorney to the contrary. The court dismissed the penalty in its entirety.
successfully defended a large fashion distribution center in the litigation of a claim petition. After the claimant filed a work injury claim against the fashion center, the matter was assigned to a workers’ compensation judge. The employer/carrier failed to file a timely answer, relegating all “well pleaded facts” as an admission against interest. As it turned out, the named employer did not have an employer/employee relationship with the claimant, but the late answer acted as an admission of such a relationship based on the pleadings within the claim. Tony was then referred the case to try to mitigate exposure in light of this negative turn of events. Based purely on Tony’s oral argument detailing the constitutionally offensive result that would be achieved by the archaic interpretation of the case law surrounding late answers, the court dismissed the claim petition in its entirety.
successfully prosecuted a termination petition on behalf of a Pennsylvania cabinetry company. The matter originally began as a settlement of a prior 2009 work injury claim. At the settlement hearing, the claimant chose to forego the settlement after learning through Tony’s cross examination of the potential Medicare issues involved in the claim. The employer/insurer moved forward with a new independent medical exam with a renowned orthopedic surgeon. A termination petition was filed alleging full and complete recovery from the work-related injury, and the court adopted the medical opinions as fact. As a result, all benefits were terminated.
successfully defended an appeal challenging a full recovery termination award issued by the underlying court, as well as a dismissal of a penalty request/review challenging the nature of the adjudicated injury. The claimant alleged on appeal that the underlying decision of the court was predicated upon “hired-gun” experts and the court should have “nullified” this evidence. Interestingly, as pointed out in the litigation, the claimant was the only party that relied on a “treating expert,” who was hired by the claimant’s attorney to become the “treating physician” in the case. The Appeal Board systematically rejected the claimant’s “appeal to hypocrisy,” and the underlying court decision was affirmed in its entirety.
successfully defended a Pennsylvania medical equipment manufacturing company in the litigation of claim and penalty petitions. The claim petition involved an alleged shoulder injury, with a judgment on the pleadings motion due to a late answer. Aside from the pleadings, the court allowed the parties to submit additional fact witness and medical evidence. Tony forced the claimant to admit on cross examination that he left work due to reasons other than the alleged shoulder injury. Tony also forced the claimant’s medical expert to admit the claimant was actively treating for a pre-existing shoulder condition that he withheld from the court and the defense expert. The court found the claimant and his expert not to be credible, and denied and dismissed all petitions in their entirety, resulting in a complete defense verdict.
successfully defended a Pennsylvania medical equipment manufacturing company in the litigation of a claim petition alleging an ankle and Achilles tendon injury. The claimant alleged, while “stepping backwards” at his work station, he felt immediate pain. He claimed an Achilles tendon rupture and ankle sprain with resultant surgery. Tony cross examined the claimant’s medical expert and established this expert did not treat the claimant for his ankle or Achilles tendon, was unaware the claimant had a prior ankle fracture with surgery, and admitted the current surgery and disability were the result of a degenerative condition arising out of the prior, unrelated ankle fracture. The court dismissed the claim petition in favor of a full defense verdict.
successfully defended a county police department in the litigation of a claim petition. The claimant, a police officer, attended an out-of-state extended-stay educational conference. One evening after the conference activities ended, the claimant attended a “booze cruise” where she was imbibing with conference attendees. She continued to socialize and party back at the hotel. Later that night, she entered her hotel suite (which was shared with another female officer), shining her flashlight in order to change clothes. While changing, her roommate became perturbed over the ruckus. An argument between the two officers ignited and soon turned into full-fledged fisticuffs. The pugilists both were injured in the brawl. The claimant filed a claim petition, alleging physical injuries, post-concussive syndrome, mental injuries, and total disability. The parties presented factual and medical witnesses. Tony cross examined the claimant and developed an evidence record that supported she was not in the course and scope of employment at the time of injury. Tony presented medical witnesses to support that the claimant did not suffer from post-concussive syndrome or any disabling physical or mental injuries. The court found the claimant was not in the course and scope of employment, and the claim was barred by the personal animus defense. This resulted in a full defense verdict.
successfully defended a zinc-powered energy storage company in claim petition litigation. The claimant alleged a low-back injury with radiculopathy as a result of pushing a cart at work. The carrier accepted a strain injury with limited disability, leading to the claimant filing a claim petition for ongoing disability and medical benefits for an aggravation of a disc herniation. Tony presented a board-certified orthopedic surgeon with a significant surgical practice who offered opinions that, at most, a strain injury occurred which had fully recovered. The court accepted the carrier’s expert witness, limited the work injury to a strain and found the claimant fully recovered. No additional medical or disability benefits were payable, resulting in a complete defense verdict on the issues.
successfully defended a Philadelphia-based metal shop in the litigation of a contentious fee review dispute involving platelet-rich plasma (PRP) injection therapy. The claimant sustained a shoulder injury as a result of work duties. The workers’ compensation claim was ultimately settled. After settlement, a provider came out of the woodwork alleging that substantial medical bills related to the injury (generated prior to the date of settlement) were not paid. The bills first alluded to neck treatment, as opposed to shoulder treatment. The carrier produced evidence that any bills for a shoulder injury were already paid. The case continued on the issue of additional bills, which appeared to be neck-related, not shoulder-related. After many hearings, Tony successfully had the provider’s application for fee review dismissed for failure to prosecute and/or produce evidence that could be used to support an award.
successfully prosecuted a termination petition on behalf of a national cross-merchandising impulse product company. The claimant sustained an injury while using a company vehicle. The employer ultimately accepted contusion and strain injuries to various body parts, including the claimant’s knee. The claimant was a Medicare beneficiary and a Veterans Administration beneficiary. During the post-injury treatment process, the claimant underwent total knee replacement surgery. The bills were paid by the VA (which has similar rights to Medicare in assessing conditional liens). Tony filed a termination petition, alleging all work-related injuries had recovered and the total knee replacement surgery was not work-related. The crux of the medical presentation was predicated upon two years of VA Hospital records documenting the claimant’s need for (and the scheduling of) total knee replacement surgery before the date of the work injury. The court granted the employer’s termination petition and found the claimant submitted no evidence that would allow the court to expand the nature of injury to include the total knee replacement surgery costs. This was a full defense verdict on the full recovery issue.

Rachel Ramsay-Lowe (Roseland, NJ) successfully completed a trial in New York on the issue of whether the claimant had a cognitive disorder and whether the carrier should authorize medical treatment for a spinal cord stimulator. After taking testimony of both our doctors, the courts agreed with Rachel’s argument that the claimant’s doctor’s report lacked objective medical findings to reach the diagnosis of cognitive disorder, and dismissed this from the overall claim. The claimant also requested a hearing to address the insurance carrier’s denial of a spinal cord stimulator. Rachel made the argument that the claimant’s injuries are merely a strain/strain of the lumbar spine and that he failed to meet the medical treatment guidelines, which require the claimant to receive a psych evaluation to determine if they are a good candidate for the stimulator. In addition, Rachel successfully argued the treatment currently rendered does not show either a failed back surgery or a special circumstance where a stimulator should be granted. The court agreed with Rachel’s arguments and found the carrier does not have to provide a spinal court stimulator.

Andrea Rock (Philadelphia, PA) received a favorable decision where the workers’ compensation judge terminated the claimant’s wage loss and medical benefits based on the opinion of an independent medical examiner. The employer had accepted that the claimant sustained a contusion to multiple body parts in the course of her employment when she slipped and fell. The carrier began paying her wage loss and medical benefits. On November 3, 2023, the employer filed a termination petition, alleging she was fully recovered as of April 26, 2023. Subsequently, the claimant filed a petition to review to amend her work injury to include cervical radiculopathy, requiring surgical intervention, as well as disfigurement. After reviewing deposition testimony from the claimant, her treating physician and the independent medical evaluator, the judge granted the termination petition and denied the review petition. The judge was specifically persuaded that the claimant did not sustain a cervical spine injury; thus, the surgery was not related as her complaints to her neck did not begin until nearly a week after the original fall. Thus, the claimant’s medical and indemnity benefits were terminated and the review petition was dismissed in its entirety.

Robert Schenk (Philadelphia, PA) was successful in having a claim petition denied where the workers’ compensation judge rejected the claimant’s testimony as not credible. In doing so, the judge pointed out the claimant did not report a work-related injury until after she had been advised that light-duty work was only available for employees injured on the job. Surveillance video from the employer’s yard showed the claimant returning to the yard on the date of injury with no apparent injury. The claimant’s testimony about prior injuries was also in conflict with contemporaneous hospital records submitted into evidence. Those medical records showed the claimant had prior low back problems, with no new trauma being reported to the emergency room on the alleged date of injury. The claimant’s testimony was also inconsistent with the history she gave to her own medical expert and the employer’s medical expert. Once the claimant’s testimony was rejected, there was no basis for an award of benefits.

Michael Sebastian (Scranton, PA) received a decision denying a claim petition that alleged the claimant suffered a work-related cervical injury on June 29, 2023. The claimant testified that he felt a snap but did not feel the pain right away and continued to work until July 17, 2023. He then went to the emergency room and subsequently had surgery on July 20, 2023. During cross-examination, the claimant agreed he only suffered a cervical injury, not a low back injury. He further noted he had a prior low back injury on October 19, 2022, for which he filled out an accident report and was sent to a doctor and received treatment. However, the claimant first reported the June 29, 2023, injury on September 1, 2023, and at that time could not recall a specific event that occurred on June 29, 2023. However, he did confirm he heard a snap in his back when the injury did occur. The claimant also agreed he worked full duty, without reporting the incident, until July 17, 2023. Dr. Martinez, the claimant’s expert, testified the claimant was a partial quadriplegic in the upper and lower extremities. Dr. Henderson, our expert, found no evidence of a work-related injury on June 29, 2023, and that the claimant’s symptoms are consistent with cervical stenosis with myelopathy, which is a degenerative condition. The workers’ compensation judge found the claimant not credible to the extent he testified he suffered a work-related injury on June 29, 2023, or any disability related to it. He noted his demeanor during the hearing was not credible and his testimony was called into question based upon the employer’s policy that you must immediately report injuries, as he had in the past. The judge also noted that subsequent treatment notes indicate the injury or condition pre-dated the June 29, 2023, work injury date. The judge accepted the testimony of Dr. Henderson over Dr. Martinez, and where Dr. Martinez’s testimony conflicted, it was specifically rejected.

Kacey Wiedt (Harrisburg, PA) secured a decision denying the claimant’s claim and penalty petitions. The claimant, a mechanic, alleged he sustained a right ankle fracture, right ankle abscess, and avulsion fracture of the lateral talus as a result of falling off the back of a pickup truck while removing a truck-cap at work. The claimant asserted he was on the clock and on the employer’s premises when the fall occurred and that he was assisting his employer’s friend in removing his truck-cap from his pickup truck. Through employer witness testimony, Kacey was able to show the claimant was not in the course and scope of employment when he injured his ankle. Kacey proved the claimant assisted the individual with removal of the truck-cap for a purely personal reason and not at the direction of his employer. Kacey also showed that the injury occurred shortly after the claimant’s work shift ended and he had clocked out for the day.

*Results do not guarantee a similar result.

_{Defense Digest}_{, Vol. 31, No. 1, March 2025, 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. © 2025 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.}