On the Pulse…Important and Interesting Litigation Achievements…We Are Proud of Our Attorneys for Their Recent Victories*

Defense Digest, Vol. 24, No. 1, March 2018

Casualty Department

Harold Moroknek and Charles Gura (Westchester, NY) obtained a defense verdict in a jury trial on behalf of a school bus transportation provider in a motor vehicle/wrongful death case. ​The plaintiff was operating her car in inclement weather when she lost control, crossed over the double yellow line, and hit an oncoming school bus, causing significant damage and immediate death to the plaintiff. The plaintiff’s estate claimed the defendant school bus driver should have seen the vehicle coming. The plaintiff’s accident reconstructionist attempted to establish a clear sight distance and loss of control of the plaintiff’s vehicle 225 feet from the point of contact, which would have, in their opinion, given the bus driver ample time to perceive and react. Prior to trial, the plaintiffs made a $985,000 demand for settlement. A $5,000 offer in response was made. After a two and one-half-week trial, the jury issued a complete defense verdict.

On the behalf of our client, an apartment complex owner, Michael Archibald (Tampa, FL) obtained summary judgment. The plaintiff, an invitee, sued our client, claiming its cement stairwell was defective. The plaintiff alleged that, due to the defective stairwell, she tripped and fell down an entire flight of cement steps, incurring serious injuries that required surgery. Michael’s motion for summary judgment attacked the lack of evidence presented by the plaintiff. Michael focused on the plaintiff’s deposition testimony and our client’s immediate inspection of the stairwell. The judge agreed that the plaintiff failed to present any evidence to show that the fall was the result of our client’s negligence, and he granted our motion for summary judgment.

Michael Humphries (Jacksonville, FL) obtained summary judgment in favor of our client, an apartment complex owner. The plaintiff, a tenant of the apartment complex, brought suit after suffering burns due to an allegedly defective thermostat that caught fire. According to the plaintiff, the apartment complex failed to warn of a dangerous condition and failed to maintain the premises in a reasonably safe condition. Michael focused on the plaintiff’s deposition testimony and lack of record evidence to support these allegations. The court agreed, finding that the undisputed material facts did not establish any negligent conduct by the apartment complex owner.

In a slip and fall matter, Andy Wargo and Jillian Dinehart (Cleveland, OH) obtained summary judgment in favor of our client, a commercial maintenance company for a shopping mall. After slipping and falling in the mall, the plaintiff alleged that the contracting company providing janitorial services was at fault. We successfully argued that the plaintiff was not a third-party beneficiary to the maintenance contract and that our client had no knowledge of a slipping hazard at the time the plaintiff fell.

In representing the developer of a condominium complex, Dean Aronin (New York, NY) obtained summary judgment in New York State Supreme Court, Rockland County. After tripping and falling on a sidewalk in the complex, the plaintiff brought a premises liability claim against the developer, the condominium and the town. Dean established that the developer did not own, occupy or have a special use of the premises on the date of incident. Therefore, the court dismissed the claims against the developer. The court also found that the plaintiff and the co-defendants failed to raise triable issues of fact as to the creation of the condition.

Amanda Podlucky (Orlando, FL) obtained summary judgment in favor of her clients, a resort hotel owner and operator, in the Circuit Court for Brevard County, Florida, in a case arising from a trip and fall incident at a hotel. Amanda represented both the property owner and hotel operator of a beachfront resort where the plaintiff and her husband stayed. They were upgraded to an oceanfront suite, which had a sliding glass door leading to a patio. The plaintiff alleged that she opened the sliding glass door all the way and that, while attempting to take a picture with her cell phone, she tripped and fell on the “raised metal threshold,” which she alleged was both improperly placed and was dangerously high. The plaintiff fell outside of the room, landing on the concrete patio, and sustained a complex fracture of her ankle that required immediate ORIF. A motion for summary judgment was filed on the grounds that neither the hotel owner nor the hotel operator owed a duty to warn as the condition was not a concealed danger but, rather, was open and obvious. The court agreed that there was no breach of either duty because the plaintiff knew of the condition, but failed to avoid it, and that it was her negligence that caused the fall. Interestingly, the courthouse fire alarms went off just as the hearing began, forcing the judge to move the hearing outside in order to continue without delay. Amanda argued the motion in the parking lot of the courthouse, where the hearing was held from the back of the judge’s car.

Daniel Levin and Daniel McDermott (New York, NY) successfully obtained a decision from the New York Appellate Division, First Department that affirmed the grant of summary judgment in favor of our clients, the City of New York and the New York City Economic Development Corporation. ​A marine construction worker (dock builder) sustained serious injuries to his cervical spine as a result of being handed down heavy buckets of epoxy from a fellow worker on a barge hundreds of times over a period of several weeks. The plaintiff would receive the epoxy-filled bucket from above, walk along a floating platform on the river and pour the epoxy into a pile that had been driven into the sea bed. The worker filed a complaint alleging violations of the New York Labor Law. The City was the owner of the pier and the New York City Economic Development Corporation was the project manager. After discovery closed, we moved for summary judgment, seeking a dismissal of the case against our clients. The lower court granted our motion. The worker appealed, and the Appellate Court affirmed the decision below.

in a product liability matter pending in Forest County, Pennsylvania, Joseph Lesinski and Lauren Purcell (Pittsburgh, PA) obtained summary judgment on behalf of a wellhead manufacturer. The plaintiff, a drill operator, alleged a wellhead was defectively designed, causing oil and gas to escape during operation, which lead to a fire at the well site. The plaintiff asserted economic losses in excess of $1.4 million. Joe and Lauren successfully argued the plaintiff failed to elicit sufficient expert opinion to support the defect claim and also spoliated evidence in discarding the subject wellhead.

Timothy McMahon and Andrew Rhoads (Harrisburg, PA) obtained summary judgment in the U.S. District Court for the Middle District of Pennsylvania in favor of Amazon. After being blinded in one eye by a defective product purchased through the Amazon Marketplace but manufactured, sold and shipped by a non-party vendor, the plaintiff sued Amazon on multiple theories, including strict liability. The court held that Amazon is not strictly or otherwise liable for making its electronic platform available to sellers and is not itself a seller under Pennsylvania product liability principles.

Health Care Department

Chanel Mosley (Orlando, FL) obtained dismissal with prejudice on behalf of a home health company and its nurse in a medical malpractice lawsuit. The plaintiff alleged negligent nursing care, fraud, and tortious interference with a contractual relationship between the patient and her private health insurer. Chanel sought dismissal of the complaint on the basis that the causes of action arose out of medical care and treatment provided by the home health nurse and, therefore, were subject to the mandatory pre-suit screening requirements under the Florida statutes and that the two-year statute of limitations had since expired. The plaintiff denied he was bringing a claim for medical malpractice. Therefore, he disputed that he was required to comply with the pre-suit screening requirements before filing the complaint. The court agreed with Chanel’s position. Because the plaintiff failed to comply with the pre-suit screening requirements prior to filing the lawsuit and failed to do so within the statute of limitations period, the court dismissed the case with prejudice.

Dean Aronin (New York, NY) obtained summary judgment in New York State Supreme Court, New York County. ​Dean represented a fourth-year resident doctor. The plaintiff’s suit involved a medical malpractice claim alleging that the medical providers failed to diagnose, treat, care or monitor. Dean filed the motion for summary judgment prior to the resident doctor’s deposition. The court dismissed the claims against the resident doctor, ruling that the resident doctor was not responsible for diagnoses, treatment, care or monitoring of the plaintiff.

Professional Liability Department

Keith Hansbrough and David Oberly (Cincinnati, OH) successfully defended against an EEOC charge of discrimination brought against a nursing home client, resulting in a finding of no probable cause in favor of the employer. ​The plaintiff alleged racial discrimination, hostile work environment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964. The plaintiff, a Caucasian, was hired in August 2015 by our client, a company that provided residential services to individuals with disabilities. In April of 2016, the plaintiff complained to her supervisor about alleged improper treatment by several other co-workers who had made Facebook posts calling her a “white snake,” “redneck,” and “hillbilly.” The complaints were investigated by the employer, and all three employees responsible for the remarks were disciplined. In October 2016, the plaintiff was involved in an incident pertaining to verbal and physical abuse of a disabled resident, resulting in her termination. The plaintiff subsequently filed a complaint with the EEOC, alleging she was discriminated against on the basis of her race and terminated in retaliation for voicing her complaints regarding the mistreatment. Keith and David successfully defended the charge of discrimination, resulting in a finding of No Probable Cause in favor of the employer. In doing so, the EEOC found that the employer did not engage in any unlawful discrimination; the company disciplined those workers who were responsible for making the racial remarks towards the plaintiff. In addition, the EEOC found the plaintiff was terminated as a result of her verbal and physical abuse of a resident, which constituted a legitimate, non-discriminatory reason for the adverse employment action.

In a breach of contract and bad faith action in the Lackawanna County Court of Common Pleas, Patrick Boland and Mark Kozlowski (Scranton, PA) obtained a dismissal of their client, an insurance agent. Following a motor vehicle accident, the plaintiff brought this action against our client. Included in her complaint, in addition to counts for negligence and negligent entrustment, were claims of breach of contract and bad faith. Curiously, the plaintiff also sought damages against the insurance agent for negligence and negligent entrustment, even though there were no allegations to support such damages. Our motion for judgment on the pleadings sought dismissal of all claims against our client. The court granted our motion, finding that the first two claims (negligence and negligent entrustment) were inapplicable. The court also found that there can be no breach of contract between the plaintiff and the insurance agent. Finally, the court ruled that Pennsylvania law does not permit a bad faith claim against an insurance agent.

James McGovern and Danielle Vugrinovich (Pittsburgh, PA) obtained summary judgment in Allegheny County, Pennsylvania on behalf of a life insurance agent in a fraud and negligence action. Our client was alleged to have forged certain policy documents in an effort to “churn” the existing policies the plaintiffs possessed into additional policies rather than increase the amount of coverage of the original policies. The plaintiffs failed to establish any evidence whatsoever that any of the signatures were forged. Additionally, despite having knowledge of all of the issues that served as the basis for their complaint, the plaintiffs waited over three years before filing suit. The focus of our motion was the applicability of the “discovery rule,” which barred all of the plaintiffs’ claims.

After a six-day bench trial in the Philadelphia Court of Common Pleas, Brooks Foland (Harrisburg, PA), Bill Conkin and Katie Mooney (Philadelphia, PA) obtained a defense verdict. The plaintiff claimed that our insurance carrier client acted in bad faith in the handling of his underinsured motorist claim that arose from a 2009 motor vehicle accident. The plaintiff alleged that our client presented low-ball settlement offers over an 18-month period and disregarded medical evidence establishing that his injury was causally related to the accident. The plaintiff also claimed that our client attempted to conceal an unfavorable IME report. Ultimately, our client did offer the UIM policy limits after it was satisfied that the plaintiff’s UIM claims justified that amount. However, the plaintiff’s attorneys continued with their claims of bad faith. Witnesses for the defense included the front line adjuster, her supervisor, the home office claims examiner and two local defense attorneys who defended our client in the underlying UIM suit before it settled. The plaintiff’s demand remained at $1.3 million throughout the trial. No offers were made. Judge Colins issued a 23-page opinion finding that the plaintiff failed to establish bad faith by clear and convincing evidence under the bad faith standard recently adopted by the Pennsylvania Supreme Court in Rancosky v. Washington National Insurance.

Thomas Specht (Scranton, PA), Patricia Monahan and Danielle Vugrinovich (Pittsburgh, PA) obtained the Third Circuit’s affirmance of summary judgment in favor of our insurance company client in an insurance bad faith and breach of contract case. ​The lawsuit arose out of the insured’s claim for “vandalism,” which was made approximately one year after he learned that his tenant was making significant renovations to the leased property in violation of the lease. The insured did not make the vandalism claim until the tenant stopped paying the insured’s mortgage and the insured was served with a foreclosure notice. The U.S. District Court for the Western District of Pennsylvania held that the loss was not “sudden and accidental” and, therefore, the claim did not fall under the policy’s coverage grant. The bad faith claim was dismissed because there was no coverage. The Third Circuit affirmed the District Court’s finding that the claim was not “sudden” or “accidental” because: (1) damage that is ongoing, such as the demolition of the property over the time span of a month, even when not authorized by the owner, cannot be considered abrupt; and (2) the appellant admitted that he authorized the tenant to continue working on the property. The dismissal of the bad faith claim was affirmed as well.

Matthew Rice (Westchester, NY) obtained a defense verdict in New York County with respect to the client’s Labor Law liability. ​The matter involved a declaratory judgment action between two insurance carriers following their contributions totaling nearly $2 million toward the settlement of a Labor Law case. Matthew represented the underlying plaintiff’s employer in the case. After the parties’ summary judgment motions were denied, Judge Barry Ostrager of New York Supreme Court, New York County, held a bench trial on the sole issues of “claim handling” by one of the insurance carriers and our client’s alleged liability under the Labor Law. Factually, it was a difficult task to prove that the insured was not at least partly liable under the Labor Law. Nonetheless, the court found there could be no valid claims as against our client.

In a 12-day jury trial in a civil rights matter in the U.S. District Court for the Western District of Pennsylvania, Joseph Santarone (Philadelphia, PA), Paul Krepps, Estelle McGrath, April Cressler and Allison Genard (Pittsburgh, PA) obtained a defense verdict. ​The plaintiff brought claims of excessive force against one of two police officers and claims of assault and battery against the other officer. The incident in question occurred during a traffic stop. The plaintiff bore a strong resemblance to, and shared the last name of, a known gang member who had outstanding warrants for weapons offenses. During the traffic stop, one of the defendants observed an unnatural bulge in the plaintiff’s pants pocket. The officers ordered the plaintiff to exit the vehicle in order to pat him down for their own safety and to resolve the identity issue. The plaintiff refused to exit the vehicle. When the officer on the passenger side of the vehicle saw the plaintiff’s right hand moving toward the bulge, which he feared could be a gun, the officer entered the vehicle. The plaintiff shifted the car into gear, fled the scene and tried to push the officer out of the vehicle as he sped away. The officer drew his service weapon and shot the plaintiff, who was struck by several rounds. The plaintiff was rendered a paraplegic. In addition to the testimony of the parties, the jury heard from 15 fact witnesses and nine expert witnesses. After deliberating for nearly four days, the jury returned a verdict in favor of the defense with regard to the assault and battery claims, but they were hung on the Fifth Amendment claim.

Donald Carmelite (Harrisburg, PA), John Gonzales and Kim Boyer-Cohen (Philadelphia, PA) obtained dismissal of a civil rights claim filed against a county and a children and youth caseworker. The plaintiffs sued the county, a children and youth caseworker, and a hospital for violating their parental rights by removing the minor plaintiff from their legal and physical custody. The minor plaintiff was born unresponsive and was resuscitated by hospital personnel. The parents refused to provide basic information about prenatal care and would not authorize potential lifesaving vaccinations and treatment. The parents also wanted to sign the baby out of the hospital the same day. The hospital contacted the children and youth caseworker to help facilitate a resolution between the parents and hospital. The parents refused to cooperate. Due to the emergent need to provide potentially lifesaving treatment, the caseworker recommended that local police (not the court because it was closed on that Sunday night) take custody of the minor plaintiff. The parents asserted that an emergent need for treatment did not exist and that the caseworker should have waited until Monday to seek court approval. The District Court held, and the Third Circuit affirmed, that no constitutional violation occurred.

Based upon application of the Pennsylvania Political Subdivision Tort Claims Act, William McPartland and Mark Kozlowski (Scranton, PA) obtained dismissal of a local planning commission, which was sued for allegedly taking too long to approve a zoning permit for the establishment of a restaurant. The plaintiffs filed a single-count complaint, seeking damages for willful and intentional conduct on the part of the commission. Following the close of the pleadings, a motion for judgment on the pleadings was filed. Lackawanna County Judge Terrence Nealon granted the motion, finding the commission was entitled to judgment as a matter of law because the plaintiffs only asserted intentional conduct, not negligence. Under the plain language of the PSTCA, the commission is immune from tort liability for the intentional conduct of its employees. Alternatively, even if a negligence claim was pleaded, which it was not, failure to approve a zoning permit does not fall under one of the seven enumerated exceptions to governmental immunity.

Christopher Conrad and Lara Dellegrotti (Harrisburg, PA) prevailed on summary judgment on behalf of an intermediate unit in a federal civil rights action. ​The plaintiff claimed she was sexually abused by her former music teacher, an employee of the plaintiff’s school district. During 9th grade, the plaintiff was placed in an emotional support classroom, which was operated by the intermediate unit but located in the school district’s high school building. The plaintiff made a disclosure to her emotional support teacher (also an intermediate unit employee) of abuse by the music teacher. The emotional support teacher shared the report with her immediate supervisor. The supervisor, in turn, reported the alleged abuse to the school district superintendent and children and youth services. In granting our motion, the court agreed that the intermediate unit acted affirmatively to protect the plaintiff and did not engage in any conduct that put the plaintiff at greater risk of harm. In addition, the court dismissed the plaintiff’s Title IX claim, concluding no “appropriate person” at the intermediate unit maintained supervisory authority over the music teacher because he was not an intermediate unit employee.

After a four-day jury trial in Schuylkill County, Pennsylvania, Samuel Cohen and Jeffrey Chomko (Philadelphia, PA) obtained a defense verdict in a case where they represented a registered investment advisor and a securities broker dealer who were sued by their former client for investment losses. The plaintiff was a paraplegic whose wealth was obtained through a jury verdict and settlements related to his injuries. Sam and Jeff defended the case on the basis that the registered investment advisor met the standard of care and did not breach any duties to the plaintiff and on the basis that the plaintiff was net profitable in his investments with our clients. The plaintiff sought to “cherry pick” losing investments from an overall profitable portfolio. Special thanks to Kimberly Boyer Cohen (Philadelphia, PA) for several victories in critical pre-trial motions, as well as the motion for non-suit brief that led to the dismissal of the plaintiff’s claims for fraud, punitive damages and violations of the Unfair Trade Practices Act and Consumer Protection Law.

Workers’ Compensation Department

In a matter with potential for long-term indemnity exposure, John Zeigler (Harrisburg, PA) obtained a termination of benefits in a case where the claimant was treated excessively with opioid medications for both lower back and knee injuries. ​John presented credible testimony from an independent orthopedic medical expert that the claimant’s lower back and right knee injuries, which had been previously judicially determined to be aggravations of pre-existing degenerative conditions, were no longer supported by objective evidence. Rather, the court concluded that the claimant had fully recovered from any such aggravations as of the date of the IME. The Workers’ Compensation Judge rejected the opinions of the claimant’s treating pain management physician that the claimant had permanent restrictions as a result of the work injury. John successfully argued that it was unreasonable to force continuing responsibility upon the carrier for long-term opioid use when the evidence supported the fact that the claimant had utilized opioid medications even prior to the work injury for pre-existing bilateral knee problems. In addition, objective evidence did not support any continuing work-injury-related aggravation.

Ashley Talley (Philadelphia, PA) successfully defended a penalty petition that sought to assign liability for medical treatment that was allegedly work-related. ​The claimant was injured while working for a large university. The wage loss portion was previously settled by way of agreement, although the insurance carrier remained on the risk for work-related medical expenses. In subsequent litigation, the employer/carrier was successful in limiting the injury to RSD/CRPS, while proving that a variety of other injuries to the lumbar spine, cervical spine and miscellaneous conditions were unrelated. The claimant attempted to impose liability on the carrier for medical costs preceding the decision. The penalty petition was denied in full.

John Swartz (Harrisburg, PA) was successful in defending a claim petition alleging herniated discs in the low back and neck for an injury that was initially accepted by a Medical-Only Notice of Compensation Payable for low back sprain/strain. ​The Workers’ Compensation Judge denied the claim petition on the basis that the employer’s testimony showed the claimant was appropriately discharged for cause when he failed to comply with company policy on calling out of work for the work injury. In addition, the judge found the testimony of the defendant’s medical expert more credible and persuasive than that of the claimant’s medical expert. The judge found that the claimant did not incur any herniated discs from the work injury and that he was fully recovered from the work injury. No indemnity benefits or ongoing medical benefits were payable to the claimant under the judge’s decision, nor was claimant’s counsel allowed reimbursement for over $4,000 in litigation costs.

In a case involving seven employers and insurance carriers, Ashley Talley (Philadelphia, PA) obtained a defense verdict on a claim petition and joinder petition. ​The claimant, a union painter with over 27 years of industry experience, worked on various bridges in the tristate area. He was under contract with our client, a large painting company, before leaving employment in 2013. A claim petition was filed approximately three years later, alleging that in the course of his one-year employment with our client he sustained a disabling occupational disease in the form of silicosis, calcific mediastinal adenopathy, chronic granulomatous disease, and chronic interstitial lung disease as a result of the exposure to and inhalation of sand blasting materials. Joinder petitions were filed against the claimant’s prior employers, who all denied liability for the claim. Ashley was successful in arguing that the claim petition was barred by the statute of limitations by presenting medical evidence and factual evidence demonstrating that the claimant knew of a potential work-related condition but failed to file his claim within the three-year statute of limitations. The claim petition was denied and dismissed.

Judd Woytek (Allentown, PA) was successful in defending claim and penalty petitions on behalf of our client. ​The claimant alleged a lower back injury and had MRI findings consistent with disc bulges or protrusions. Judd argued that the claim should be denied because the claimant failed to report the injury on the day it happened, was terminated from his employment for cause several days later, and failed to seek medical treatment for the alleged injury for almost three months, when he was referred to a doctor by his attorneys. The Workers’ Compensation Judge agreed with Judd’s arguments and found the claimant’s testimony to be replete with inconsistencies and not credible. The judge also discredited the claimant’s medical expert based, in part, upon the fact that his diagnosis of an aggravation of pre-existing lumbar degenerative disc disease never once appeared in his medical records. The claim and penalty petitions were denied and dismissed.

Tony Natale (Philadelphia, PA) successfully defended a local university in a hostile jurisdiction on a course and scope of employment defense. ​The claimant was a very credible employee who was seriously injured on a horseback riding excursion while attending a Continuing Medical Education seminar. Although attendance at the seminar was part of the claimant’s job, the case evidence focused on whether the horseback riding extracted the claimant from the course and scope of employment. Tony presented fact witnesses from the university who testified that activities undertaken by the claimant outside of the scheduled CME classes (despite fostering camaraderie among the participants) were not within the claimant’s course and scope of employment. The Workers’ Compensation Judge accepted Tony’s arguments, and the claim petition was denied and dismissed.

Tony Natale (Philadelphia, PA) successfully defended a nationally renowned manufacturer of furniture covers, home décor and mattress pads in the litigation of a review petition to add a cervical disc herniation and surgery to the nature of injury accepted in the case. The litigation had wide ramifications since the same claimant attempted to reinstate workers’ compensation benefits based on an accepted shoulder/arm injury a year earlier and failed. As a result, the claimant travelled to Florida and underwent cervical disc surgery, claiming it was part of the same work-related injury. Tony proffered medical evidence to support the fact that the surgery and disc herniation were not caused by the work injury and that the medical bills and disability associated with the surgery were likewise not work-related.

Finally, in a case that applied a new principle of first impression in the Commonwealth of Pennsylvania, Tony Natale (Philadelphia, PA) successfully defended a national underwater construction company. The claimant, employed as an underwater diver, was injured in the Commonwealth but had no other jurisdictional nexus to Pennsylvania. He was hurt in a motor vehicle accident on his way to a dive site. Evidence was presented to show that, although the claimant was classified as a travelling employee, he was expected to be on the job site for several weeks and, therefore, was commuting to and from the job site while stationed at a company-sponsored hotel. The claimant sustained serious injuries from the motor vehicle accident. He alleged he was in the course and scope of employment while commuting from his hotel to the dive site, entitling him to full workers’ compensation medical and indemnity benefits. Tony successfully argued that the claimant was not in the course and scope of employment at the time of injury. The claim petition was denied and dismissed.

*Prior Results Do Not Guarantee a Similar Outcome

_{Defense Digest, Vol. 24, No. 1, March 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}