Defense Digest, Vol. 25, No. 4, December 2019

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

Casualty Department

Wendy O’Connor (Allentown, PA) obtained summary judgment on behalf of a boxing gym. ​The plaintiff, a seasoned boxing coach, claimed to have been injured when he fell out of a boxing ring during a sparring match at the defendant’s gym. The plaintiff asserted that while standing on the apron with his back to the ring, he was struck by one of the fighters and propelled out and onto the floor. He alleged the defendant was negligent because the boxing ring was “too high” and the flooring surface “too hard.” In granting the defendant’s motion for summary judgment, the court found first that the defendant owed no duty to the plaintiff because Pennsylvania law imposes no duty on sports facilities to protect spectators from risks that are common, frequent and expected, and that the circumstances surrounding the incident eliminated any duty on the part of the defendant. The court next held that the plaintiff had adduced no evidence to show that the defendant’s gym deviated in some relevant respect from established custom—that is, there was no evidence to support the plaintiff’s contentions that the boxing ring was too high or that the lack of padding on the surrounding floor was a deviation from an established custom. In fact, the evidence established that the boxing ring complied with national boxing regulations. Accordingly, summary judgment was granted, and the plaintiff did not appeal the decision.

In a labor law case venued in Supreme Court, Bronx County, Richard Imbrogno and Mark Wellman (New York, NY) obtained summary judgment on behalf of a plumbing subcontractor. ​The plaintiff alleged he sustained serious neck and back injuries as a result of falling pipes. The plaintiff had been hired by a subcontractor who was replacing a boiler at a large residential building located in Manhattan. The plaintiff alleged violations of Labor Law Sections 200, 240 and 241(6) against the building owner, management company and various subcontractors at the site. The plaintiff claimed he sustained cervical and lumbar injuries, resulting in a cervical fusion and lumbar discectomy, and a fracture of the thoracic spine. As a result of the accident, the plaintiff claimed he could not return to work. The settlement demand made before the motions were filed was in excess of $10 million. The court granted our summary judgment motion in its entirely and dismissed all claims against our client on the basis that our client had absolutely no involvement with the accident, having only performed work on the upper floors of the building. The court also granted the cross motions by the other defendants, resulting in a complete dismissal of all claims against all defendants.

Janice Merrill (Orlando, FL) obtained a directed verdict at trial in an action to hold a child welfare agency vicariously liable for an alleged assault and battery by an employee who was terminated for forging the victim’s signature. ​We represented the company that provides child welfare services in Florida. The case manager assigned to the case was supposed to visit the child at his residence monthly and perform a home study for the non-custodial parent who was seeking reunification. He did not do so and forged the grandparents’ signatures on the documents. After the court entered an order allowing the mother unsupervised weekend visitation with the child, the case manager went to the grandmother’s house to inform her of the order and that the mother would be picking up the child. The case manager claimed he never saw the grandmother because she would not open the door. The grandmother—who was the plaintiff—claimed he raised his fist in a threatening manner and hit her in the forehead. She came to our client after the incident and complained of many things, but assault and battery was not one of them. During the investigation, it was revealed that the case manager had not made the home visits and did not perform the home study. He was terminated and later criminally charged with multiple counts of forgery and making false statements to the court. He fled to Georgia, was eventually extradited, later pleaded guilty and was sentenced to jail. The plaintiff/grandmother sued our client for negligent hiring, negligent supervision, negligent infliction of emotional distress, and assault and battery. We obtained summary judgment on all causes of action, and the order was affirmed on appeal, except the assault and battery charge, which went to trial.

Dean Aronin (New York, NY) obtained summary judgment in New York Supreme Court, Kings County. ​The plaintiff brought a claim against a funeral home for failing to deliver cremated remains. The funeral home had used the wrong zip code on the package. The plaintiff’s son signed the funeral home’s release from liability. Our motion for summary judgment argued that the plaintiff’s cause of action was barred due to the release and because the plaintiff failed to demonstrate that the wrong zip code was a proximate cause. The plaintiff opposed the motion, arguing against the applicability of the waiver of liability and asserting that there was an issue of fact as to whether the act of misaddressing the package was a proximate cause. The court upheld the applicability of the waiver of liability and concluded that the plaintiff failed to raise an issue of fact as to proximate cause. The action was dismissed in its entirety.

Jacqueline Canter (Philadelphia, PA) obtained summary judgment on behalf of a national chain store in Philadelphia County in a case in which the plaintiff had alleged he was short-changed and helped himself to a $10 bill from the register drawer. ​The cashier called the police and reported the theft. The plaintiff was incarcerated for over four months because he could not make bail. The plaintiff alleged the cashier relayed false information to the police about the denomination of the bill he tendered during the underlying transaction. After nearly five months, the court dismissed all charges against the plaintiff. The plaintiff alleged the conduct of the cashier constituted defamation, false arrest, false imprisonment and malicious prosecution. The plaintiff’s demand had been $750,000.

In a significant dog mauling case, Tony Michetti and Colin Drummond (Doylestown, PA) successfully defended the landlord defendant. ​The plaintiff was fortunate to have survived the attack and suffered severe, permanent physical and emotional trauma. The parties stipulated to damages of $1.75 million and submitted the case to binding arbitration on liability only. The case rested entirely on the credibility of the landlord, who claimed he had no knowledge that the tenant had a dog on the property. The law requires that the landlord know that the dog is present on the leased property and have actual knowledge of the dog’s dangerous propensities. There was a lot of evidence that the dog had exhibited very aggressive behavior to anyone it came into contact with prior to the event. The plaintiff argued that the landlord had to know of the presence of the dog and its dangerous propensities given the number of times that the landlord had visited the property. The arbitrator found in favor of the plaintiff and against the tenant only.

Jennifer Roberts (Melville, NY) obtained summary judgment in a snow removal case where we represented a snow removal contractor. The plaintiff claimed she slipped and fell on ice and residual snow while walking to her place of employment. Our client’s contract with the premises owner was oral. The court granted summary judgment for our client after proving that they were not activated to perform snow removal duties on the date of the incident. In fact, our client’s work was directed and overseen by the property owner. The court found that our client’s work at the premises did not displace the duty of the owner to keep the property in good condition.

Patricia McDonough and Sara Mazzola (Roseland, NJ) were successful on a motion for summary judgment, barring the application of the mode of operations, in a slip and fall case. The facts indicated that a sandwich from a fast-food sandwich shop within the premises was dropped on the floor by an unidentified customer before the plaintiff fell. The court ruled that the mode of operations did not apply because the aisle where the sandwich was dropped, which contained greeting cards and the like, did not create an extension of the cafeteria within the retailer’s premises. Further, the court ruled there was no nexus to any self-serve component of the restaurant’s business to the area in the retailer’s store proper where the accident occurred.

Steven Christman and Keith Andresen (New York, NY) obtained dismissal of a case in which the plaintiff tripped and fell on the sidewalk abutting our clients’ property, sustaining a left knee tear and significant hand lacerations. ​The defect in the sidewalk was caused by a city-owned tree that our clients later admittedly repaired. We moved to dismiss on the basis that our clients were exempt from the Administrative Code Section 7-210 because the subject property was an owner-occupied single-family home. Furthermore, we were able to prove prior to our clients’ depositions that they did not derive a special use from the subject area and they did not maintain nor repair the sidewalk at any time prior to the incident. The court granted our motion and dismissed all direct claims and cross-claims asserted by the co-defendant.

Michael Archibald (Tampa, FL) received an order granting his client’s motion for summary judgment in a slip and fall case. ​The motion focused on the plaintiff’s failure to establish that the employees of our client—a national retailer—had actual or constructive knowledge of the alleged spill, pursuant to the requirements set forth in Florida Statute 768.0755. That statute requires the plaintiff to establish that the defendant knew or should have known of the existence of the alleged hazardous condition prior to the plaintiff’s fall.

Alicia Smith (Roseland, NJ) and Lisa Goldman (King of Prussia, PA) obtained a unanimous defense verdict in Bucks County. ​The plaintiff claimed liability for a malunion following an elbow fracture from a slip and fall on ice outside a lounge. The plaintiff presented evidence through a life care planner, liability expert and orthopedic surgeon. Over repeated objections and without notice, the judge instructed the jury with model rule 13.110 as to violation of government standards. Included within the instruction were the adopted general property management ordinances that the plaintiff’s expert testified applied, and the more specific snow and ice ordinance was left out. The judge sent that instruction back to the jury along with the negligence standard, with his own underlined words for emphasis. After deliberating for 90 minutes, the jury came back with a question as to whether that instruction meant the judge said they had to find negligence. Once the judge clarified his instruction, the jury was back very quickly with their decision in favor of the defendant.

Adam Calvert (New York, NY) won summary judgment for his client, a casino, where the plaintiff claimed that she slipped and fell on a piece of plastic in the bathroom. Through the testimony of the bathroom attendant, Adam was able to show when the bathroom was last inspected and that the casino did not have actual or constructive notice of the piece of plastic.

 

Health Care Department

Dean Aronin (New York, NY) obtained a dismissal in the U.S. District Court for the Eastern District of New York. ​A legal representative and health care proxy of the plaintiff-decedent brought an action against our client, an orthopedic doctor, seeking damages for negligent infliction of emotional distress and allegedly violating Jonathan’s Law. That law established procedures for the notification of parents/guardians of incidents affecting the health and well-being of children and certain others. The complaint sought $25 million in compensatory and punitive damages. The court granted Dean’s motion to dismiss for failure to state a claim as there was no authorized private cause of action for a violation of Jonathan’s Law. In addition, the court also granted Dean’s motion as the plaintiff was not within the zone of danger at the time of the alleged injury to the family member.

Victoria Scanlon (Scranton, PA) obtained a no negligence defense award in a significant podiatric malpractice arbitration. ​The plaintiff, who is in his early 30s, alleged that the defendant failed to diagnose and treat a foot infection. As a result of the delay in treatment, he developed permanent chronic pain syndrome in his foot and leg, complex regional pain syndrome and foot drop. The plaintiff alleged that due to his injuries, he was permanently disabled and not able to work. He accused the defendant of fraudulently creating or re-writing his office notes to cover up malpractice. The defendant argued that his initial diagnosis of gout was reasonable, and that his subsequent treatment recommendations were reasonable under the circumstances. The defendant argued that the plaintiff sought out favorable providers for purposes of litigation, that his foot drop was related to a back condition, and that there was no reason the plaintiff could not work and earn as much or more than he had earned prior to his foot infection.

 

Professional Liability Department

Patricia Monahan (Pittsburgh, PA) obtained summary judgment for a school district and gym teacher. This federal lawsuit was filed by a student who was hit in the eye by a felt hockey puck during gym class and sustained permanent damage to his vision. ​The student claimed violation of his substantive due process rights. Danielle Vugrinovich (Pittsburgh, PA) assisted with the brief.

Kimberly Berman (Fort Lauderdale, FL) prevailed in an appeal to the circuit court of a summary judgment entered for a homeowners’ association over a fence dispute. ​The homeowners claimed the association’s response violated the mediation statutes. They then filed suit against the association for declaratory and injunctive relief, breach of contract and negligence. The association moved to dismiss and for summary judgment because no fence or other improvement was approved by the association board. The circuit court, sitting in its appellate capacity, affirmed the final judgment in favor of the association and awarded the association its appellate attorney’s fees and costs.

Sunny Sparano, Daniel Algieri (Roseland, NJ) and Ian Antonoff (New York, NY) obtained summary judgment in a multi-party construction defect action, and the decision was then affirmed by the Superior Court of New Jersey, Appellate Division. Sunny successfully argued both the summary judgment motion and the appeal; Daniel assisted in preparation of the brief presented to the motion court; and Ian assisted in preparation of the brief presented to the Appellate Division. The plaintiff, a condominium association, filed suit against the sponsor of a newly constructed mixed-use residential and commercial building in Hoboken, New Jersey. The plaintiff also sued the property management company, the general contractor and various subcontractors involved in the construction. A temporary certificate of occupancy was issued on March 26, 2004, and the plaintiff did not commence litigation until June 3, 2014—more than ten years after substantial completion. Therefore, the claims were barred by the ten-year statute of repose. The former property manager for the building and the sponsor entity had common ownership. The plaintiff argued the sponsor maintained control of the property by virtue of its continued involvement through the property management entity, and that the statute of repose did not apply to a party in actual possession and control of the property at the time that the defective and unsafe condition caused the injury or damage at issue. The Appellate Division held that the plain language of the statute of repose precludes any “action, whether in contract, in tort, or otherwise, to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property, [and] any action for contribution or indemnity for damages sustained on account of such injury . . . more than [ten] years after the performance or furnishing of such services and construction.” The court found that the claims were also barred by the six-year statute of limitations as the plaintiff alleged that the first repairs at the building were undertaken in 2004, and the complaint was not filed until 2014.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) were successful in two matters before the District Ethics Committee in New Jersey. ​The first matter involved a medical malpractice defense attorney who, while cross-examining the plaintiff’s expert orthopedic oncologist, asked whether the expert’s theory of the plaintiff’s injuries was peer-reviewed by the Board of Internal Medicine. The doctor filed an ethics grievance against the attorney, alleging that the attorney threatened his medical license for his medical opinion in this case. The District IV Ethics Committee, through its investigator, did a comprehensive review of this matter and found that there was no reasonable prospect of establishing a violation of the Rules of Professional Conduct by clear and convincing evidence under RPC 3.2 or RPC 3.4. The investigator held that the attorney was doing his level best as an advocate and was not engaged in a course of harassment or intimidation of the doctor.

Jack and Jeremy also successfully defended an estates and trusts attorney before the District Ethics Committee who was facing allegations under numerous Rules of Professional Conduct, including: RPC 1.1(a) for gross negligence; RPC 1.2(c) for limiting the scope of his client’s representation without providing informed consent; RPC 1.4(c) for his alleged failure to explain the matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation; RPC 1.7(a)(1) for an alleged conflict of interest without providing informed consent confirmed in writing; RPC 5.3(a) for his alleged failure to supervise a non-lawyer outside of his firm; RPC 5.4(a) for his alleged fee sharing with a non-lawyer; RPC 5.4(c) for his alleged direction of a non-lawyer to perform attorney functions; RPC 8.1(a) for his alleged knowingly false statement of material fact to the Office of Attorney Ethics; and RPC 8.4(c) for his alleged fraud, deceit, and dishonesty before the Office of Attorney Ethics. After a three-day trial before the District Ethics Committee, the Ethics Panel found that the Office of Attorney Ethics failed to prove the RPC violations by the clear and convincing evidence standard and dismissed the matter in its entirety.

Nicole Ehrhart and Lara Bream (Harrisburg, PA) successfully prevailed in defending a large water supplier in a land use appeal to the Court of Common Pleas of Schuylkill County. ​Multiple disgruntled landowners sought to overturn a zoning hearing board’s decision to grant a use variance for a water company. The landowners, who collectively believed they would be directly affected by the grant of the variance, appealed the decision, which permitted the water company to withdraw, on average, 200,000 gallons of water per day from its well and well station to supply residential water to the community. The court agreed with the water company’s arguments that the zoning hearing board properly granted the requested use variance.

Jack Slimm, Art Wheeler and Jeremy Zacharias (Mount Laurel, NJ) obtained a dismissal of a legal malpractice action arising from a Law Against Discrimination and Conscientious Employment Practices Act action against a municipality and its school board. In this complex multi-party action, our client, an expert in school law, was retained by the school district to handle a hearing against the plaintiff, a teacher and coach. The plaintiff alleged a conspiracy among the lawyers and the school board to oust the plaintiff. There were also allegations of malicious prosecution and malicious abuse of process against the town and its attorneys. The court granted our motion and dismissed based on the litigation privilege.

Adam Herman (Orlando, FL) obtained a dismissal, with prejudice, of his attorney clients in a quasi-legal malpractice case asserting violation of the FDCPA and FCCPA, as well as malicious prosecution and intentional infliction of emotional distress. ​The plaintiff alleged his ex-wife’s attorneys violated the FDCPA and FCCPA by attempting to collect tutoring charges incurred on behalf of the couple’s son pursuant to a marital settlement agreement. The District Court for the Middle District of Florida held that the collection of tutoring fees in an underlying state family court matter does not constitute a “transaction” under the FDCPA. It also found that the District Court held the alleged actions of the attorneys in filing suit could not form the basis of an intentional infliction of emotional distress claim because the suit was barred by Florida’s litigation privilege.

Mark Kozlowski (Scranton, PA) obtained summary judgment in Carbon County on a Pennsylvania Sunshine Act claim on behalf of a school district. The plaintiff, a suspended high school principal, claimed that the Pennsylvania Sunshine Act had been violated when the doors to the administration building had been locked at the start of the first day of her termination hearing. The court considered the issues of whether a plaintiff is denied a right under the Pennsylvania School Code when access to the hearing room by the public is barred, and whether a public hearing qualifies as “official action” within the meaning of the Sunshine Act. The court found that the public hearing required by the school code is not concurrently a “meeting” within the meaning of the Sunshine Act and subject to its provisions. Accordingly, the court granted summary judgment in favor of the school district.

 

Workers’ Compensation Department

Judd Woytek (Allentown, PA) was successful in defending a claim for Federal Black Lung benefits filed by a coal miner. The claimant established that he had worked in the coal mining industry and was exposed to coal dust for a period over 17 years. ​Medical evidence also established that the miner did indeed have coal workers’ pneumoconiosis (Black Lung). However, the judge found that the miner was not totally disabled due to his pneumoconiosis. Therefore, he was not entitled to benefits, and the claim was denied. In another Federal Black Lung benefits claim, Judd put on testimony to prove—through pulmonary function testing, arterial blood gas testing and medical opinion evidence—that a coal miner who had begun work in the coal mines at the age of 12 did not suffer from a totally disabling respiratory impairment that precluded him from engaging in his usual coal mine employment.

Ashley Eldridge (Philadelphia, PA) secured a defense verdict on appeal of a decision that assessed liability against another insurance carrier. ​Claim petitions were filed against an uninsured employer (whom our client briefly insured but was no longer on the risk at the time of injury), the Uninsured Employers Guaranty Fund, our client and a separate insurance carrier. Litigation presented complex legal issues, although ultimately, the claimant was able to prove an entitlement to workers’ compensation benefits. The primary issue was identifying the liable defendant. Ashley was successful in proving that it was not our client. The liable carrier appealed, seeking to impute liability onto the uninsured employer, our client and the Uninsured Employers Guaranty Fund. However, the Appeal Board was not persuaded and upheld the determination against the liable employer.

Michele Punturi (Philadelphia, PA) successfully defended an international car manufacturer in a case involving nine fee reviews filed by the claimant’s chiropractor, who was billing separately for procedures performed on the same day as the office visit under code 992130-25. The hearing officer issued a decision that the employer and its TPA were liable for payment of all office visits billed under the code, plus statutory interest. The employer and its TPA filed an appeal, and the Pennsylvania Commonwealth Court remanded the case to determine what constitutes “a significant and separately identifiable service performed in addition to another procedure, pursuant to 34 Pa. Code Section 127.105e.” The court determined that a treatment performed on the same date does not constitute “a significant and separately identifiable service” for which a chiropractor may be paid. The workers’ compensation judge found that the defense met its burden of proving that it properly denied payment for the office visits billed by the provider under code 99213-25. Therefore, Supersedeas Fund reimbursement will enable the defendant/employer to secure monies back that were paid during the pendency of the litigation.

Ida Fuda (Roseland, NJ) successfully defeated a petitioner’s claim for permanent and total disability at trial. ​The petitioner was seeking permanent and total disability, including lifetime medical and indemnity benefits with a potential value of approximately $600,000. As part of his written opinion, the workers’ compensation judge indicated that he placed considerable weight upon the petitioner’s social media postings, which were procured through Ida’s efforts and successfully entered into evidence over petitioner’s counsel’s objections. At the conclusion of trial, the judge held that the petitioner’s allegations of permanent and total disability were without merit.

Tony Natale (Philadelphia, PA) successfully defended a Pennsylvania- and New Jersey-based employment agency in the litigation of a claim petition on the bifurcated issue of jurisdiction. Tony convinced the workers’ compensation judge that a claimant injured while loading materials on a barge in the Delaware River lacked jurisdiction under the Pennsylvania Workers’ Compensation Act and was relegated to the Longshore Act. The employer had coverage and indemnity through a borrowing employers Longshore policy, and thus, our client was able to escape all liability even in the Longshore action.

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition on behalf of a Philadelphia-based software and systems integrator management company. The claimant struck his head while using a company bathroom in the dark and alleged post-concussion syndrome. The preponderance of the medical evidence, coupled with surveillance evidence, showed that the claimant’s injury did not rise to the degree of post-concussion syndrome. The claimant was found to have made a full and complete recovery from his head trauma. It was also discovered during a routine SIU investigation that the claimant published a fictional novel during the time period when he was alleging the work-related concussion prevented him from activities of daily living.

Tony Natale (Philadelphia, PA) successfully argued before the Pennsylvania Worker’s Compensation Appeal Board that a lumbar strain injury sustained while the claimant was working was rightfully deemed fully recovered by the workers’ compensation judge and that the claimant’s allegations of bias by the judge did not warrant remand or reversal of the full recovery conclusion. The claimant sustained a strain injury to his back while lifting paint cans for the employer. The claimant previously had been treating for disc herniations and degenerative findings throughout his spine unrelated to the work injury. After the injury, the claimant argued that all of the pre-existing spinal problems were aggravated by the lifting incident and the employer should have accepted more than just a strain injury. Tony was able to highlight the claimant’s treating doctor’s file notes, that the claimant’s original diagnoses were “unchanged” after the work injury. The judge found that only a strain had occurred, which had fully recovered. Through two appeals, the claimant argued that the record established new annular tears related to the work incident. The Appeal Board held that the annular tears were properly found by the workers’ compensation judge to be unrelated to the work injury. The claimant then argued the judge was biased. That argument was quashed by the Board.

*Prior Results Do Not Guarantee A Similar Outcome

 

Defense Digest, Vol. 25, No. 4, December 2019 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. © 2019 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.