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

Casualty Department

Tony Michetti (Doylestown, PA) obtained a defense verdict in a Bucks County case on behalf of a driver despite his conviction for driving at the time under the influence of alcohol and drugs. The accident occurred at an intersection controlled by a flashing traffic light. The defendant was travelling in the direction of the yellow flashing light. The plaintiff testified that he stopped at the painted stop block for the red flashing light. The plaintiff looked both ways and, believing that all was clear, proceeded into the intersection. The plaintiff saw the defendant coming from his left at a high rate of speed, only an instant before the accident. The defense argued that the plaintiff’s position at the painted stop block did not allow for adequate sight lines and that under Section 3323(b) of the Motor Vehicle Code, he was obligated to move forward to a point where he had a clear view of approaching traffic.

Leo Bohanski (Scranton, PA) obtained a defense verdict in a serious impairment of body function case in a two-day jury trial in the Court of Common Pleas of Luzerne County. ​The case involved an intersection motor vehicle accident, where the plaintiff had the right-of-way through the intersection, and the defendant had a stop sign. In addition to finding the plaintiff 45% liable for speeding, the jury determined that the plaintiff did not sustain a serious impairment of a body function over his claimed neck and back injuries to recover non-economic damages. The plaintiff’s medical expert projected $153,000 in future medical treatment. The jury awarded $15,000 for future medical treatment for the admitted causally-related injuries per the live testimony of the defense orthopedic surgeon expert.

Douglas Kent (King of Prussia, PA) obtained the dismissal of a wrongful death suit, with injuries to other passengers, against a major furniture retailer. ​The suit arose out of an automobile accident involving transportation of alleged employees from a construction site. The driver was driving under the influence of marijuana and driving a car with numerous defects. We were able to prove that the driver and passengers were not employees or otherwise involved in any work for the retailer, who was building out its new space. The retailer had not paid for or otherwise taken responsibility for the transportation of any of the temporary daily workers to the construction project.

Alexander Kim (New York, NY) successfully argued and won summary judgement on behalf of his client. ​The plaintiff brought a claim against the City of New York and our client for injuries sustained due to a slip and fall during a rainstorm on the front premises owned by our client. The premises was leased to the City of New York to be operated as a New York City police precinct. The motion for summary judgment argued that our client, as an out-of-possession landlord, was only liable for injuries sustained due to a structural defect and that there was nothing in the record to support the existence of such a defect. The plaintiff and the City of New York opposed our motion, arguing the steps were worn out and that there was an issue of fact as to whether handrails should have been installed. Following oral argument, the plaintiff’s claims and the cross claims were dismissed in their entirety against our client.

Patricia McDonagh and Brian Byrne (Roseland, NJ) won summary judgment for a company contracted by a property owner to perform maintenance and service of automatic doors at its property because the plaintiff proffered no expert. ​The plaintiff claimed injury to her shoulder when automatic doors at the subject property suddenly and unexpectedly closed on her. She brought a claim for negligence against the company hired to perform routine maintenance on the doors twice a year. She did not have a liability expert and relied on the doctrine of res ipsa loquitor to establish her claim of negligence. Patricia and Brian argued that the plaintiff could not meet the second prong of the res ipsa doctrine—requiring that the defendant be in exclusive control of the instrumentality at issue—becauase their client had last serviced the automatic doors three months before the plaintiff’s incident, at which time the doors were found to be in proper working order. The court agreed that this three-month period was too attenuated for a finding that our client was in exclusive control of the automatic doors and dismissed the plaintiff’s negligence claim, with prejudice.

Alex Yoder (Harrisburg, PA) obtained summary judgment for a large private equity fund management company. The plaintiff sought damages related to an alleged slip and fall in the basement of his apartment building. The plaintiff initiated the lawsuit via a writ of summons, naming the equity fund and the equity fund d/b/a the name of the plaintiff’s apartment complex as the only defendants. In the new matter to the plaintiff’s complaint, which was filed more than 90 days after the statute of limitations had expired, we raised the fact that the property fund manager was not the owner of the property and had no right to control the property and, therefore, owed no duty to the plaintiff. The plaintiff’s lease identified the owner of the property multiple times, and a limited court-ordered deposition of the plaintiff revealed that he did not consult his lease prior to filing the lawsuit. The plaintiff attempted to amend the caption pursuant to the notice provisions of Pa.R.C.P. 1033. However, the court ultimately denied his request for leave to amend the caption and granted our subsequent motion for summary judgment.

Armand Della Porta (Wilmington, DE) was successful in defending a liability case in Prince George’s County, Maryland. The plaintiff claimed that our client’s employee offered him a ride to the parking lot in our client’s golf cart, and that the employee tried to drive the cart down the sidewalk between two fences lining each side of the sidewalk. The plaintiff claimed that the cart became stuck between the fences, which pulled his leg out of the cart and caused it to become caught between two of the fence posts. The plaintiff alleged that he suffered a torn meniscus in his left knee that required surgery. Our employee claimed that he did not drive down the sidewalk. Rather, he stopped at the beginning of the sidewalk. Before he could stop, the plaintiff stuck his leg out of the cart and it hit the fence. In addition to our liability defense, we produced past medical records of the plaintiff which showed that he had pre-existing problems with his left knee. It was a binding arbitration where the arbitrator rendered a defense verdict.

Michael Kelly (Melville, NY) obtained summary judgment in a complex New York Labor Law case. The court dismissed all claims against our client, the construction manager on the site of a library being built. ​The plaintiff, a painter, fell when the ladder upon which she was working allegedly twisted. The insured argued it was not a “contractor” under the Labor Law and its contract specifically stated it was not responsible for the method and means of work performed by prime contractors. The plaintiff countered that our client was, in fact, a general contractor, notwithstanding nomenclature in the contract, since it coordinated scheduling of contractor work, conducted safety meetings and erected safety signs. The court ruled that those activities were not sufficient to establish that our client was a general contractor and dismissed all claims and cross claims against it.

Walter Klekotka and Andrew Vallejo (Mount Laurel, NJ) obtained summary judgment for their client, a commercial tenant, in a premises liability case. The plaintiff brought suit against the City of Newark, the commercial landlord and our client. The plaintiff alleged that the parties failed to maintain a condition of the sidewalk that caused a trip and fall. We moved for summary judgment for contractual indemnification, arguing that the co-defendant (the commercial landlord) was obligated under the language of the lease to indemnify our client for the landlord’s own negligence. At oral arguments, we were able to establish that the language of the lease was clear and it was undisputed that our client had no duty to the plaintiff. Furthermore, we were able to argue that the motion was not premature, as the co-defendant’s opposition conceded that, based on the language of the lease, we had no duty. The judge agreed with our arguments. The court granted our motion for summary judgment and required the landlord to indemnify our client.

Douglas Kent, Jack Tucci and Audrey Copeland (King of Prussia, PA) were successful in obtaining summary judgment in favor of a national fast food franchise in an alleged sidewalk trip and fall. ​Roots from a tree had lifted the sidewalk in front of the restaurant. The tree had been planted as part of a municipal “green” program. The plaintiff attempted to rely upon a res ipsa argument. No appeal was filed.

John Heilman (Tampa, FL) obtained a dismissal, with prejudice, and release in exchange for zero payment from our client two weeks before trial. ​This was a premises case where our client was a national campground company. A camper’s dog had bitten off most of one of the plaintiff’s earlobes and caused facial scarring with mouth lacerations.

Ray Freudiger (Cincinnati, OH) won summary judgment for their client in the Ohio Court of Common Pleas in a case where the plaintiff claimed he slipped and fell on oil in a parking lot. We represented a large, national retail chain in this case filed in Hamilton County, Ohio. The plaintiff contended he slipped and fell on oil that was dripping from our client’s truck. However, at deposition, he conceded he could not tell where the oil was coming from. He also conceded he could clearly see the oil on the ground where he slipped. We contended this evidence demonstrated that the hazard at issue was open and obvious and that the plaintiff had failed to show that our client created, or had any notice of, the hazard. After briefing and oral argument, the judge agreed with these arguments and entered summary judgment in our client’s favor.

David Wolf and Michael Salvati (Philadelphia, PA) obtained a voluntary dismissal of a national charity organization in a Philadelphia action based upon lack of personal jurisdiction. ​The plaintiff alleged that the charity’s national and local entities were responsible for the sexual abuse of an autistic teenager by another teenager in one of the organization’s local centers. We argued that the national corporation, based in Alexandria, Virginia, did not create or enforce child protection policies at the local level; therefore, there was an insufficient nexus for personal jurisdiction in Philadelphia County. Following submission of affidavits and the deposition of an officer of the corporation, the plaintiff’s attorney agreed to dismiss the national corporation, with prejudice.

Health Care Department

Walter Kawalec (Mount Laurel, NJ) and Julia Klubenspies (Roseland, NJ) were successful in the New Jersey Appellate Division, which affirmed, in a published decision, the dismissal of the plaintiff’s complaint for lack of personal jurisdiction. ​In this medical malpractice action, the defendant, a New York doctor with no connection to New Jersey, was sued in New Jersey by a former patient who was a New Jersey resident. The court first found that the defendant did not waive consideration of the issue by waiting until after a dispute concerning the sufficiency of the affidavit of merit was resolved. The court then found that the evidence presented by the plaintiff was simply insufficient to establish either general or specific jurisdiction. The fact that the doctor had no connection to New Jersey and that the treatment occurred in New York were key to the decision, as the advertising activity by the New York hospital where the doctor is on staff, which the plaintiff relied upon, was insufficient to establish jurisdiction over the physician, especially as those activities had nothing to do with the plaintiff’s decision to treat with the defendant.

Chandler Hosmer (King of Prussia, PA) obtained a defense verdict in a medical malpractice case with an $18 million demand. ​The plaintiff claimed that a doctor’s alleged failure to administer a certain medication prior to her daughter’s delivery caused the infant to develop cerebral palsy.

David Krolikowski (King of Prussia, PA) obtained a defense verdict in a wrongful death claim in Northampton, Massachusetts. ​This case involved an OB/GYN who allegedly was negligent in his use of a medical device to extract a fibroid uterus. The device spread cancer throughout the peritoneum, which then metastasized throughout the body for a long, drawn-out demise. With a demand close to $20 million, David was brought into the case to evaluate whether any defense was possible. The matter went to trial and lasted several weeks. After 40 minutes of deliberation, the jury returned a defense verdict.

Kimberly Berman (Fort Lauderdale, FL) on appeal, and Brad Blystone (Orlando, FL) in the trial court, prevailed on an appeal to the Fifth District Court of Appeal in a medical malpractice action filed against a hospital and three of its trauma/critical care physicians. ​It was alleged that the patient was overmedicated with narcotics during her 64-day hospital stay, resulting in acute respiratory failure and other complications, which caused her death. The plaintiff’s sole expert on liability and causation was a retired internal medicine physician. On the eve of trial, the trial court granted summary judgment in favor of the defendants, finding the plaintiff’s expert lacked the requisite qualifications under Florida law to render opinions against the hospital and its three specialist physicians. The Fifth District affirmed the final judgment without an opinion and granted the defendants’ motion for appellate attorney’s fees.

David Krolikowski (King of Prussia, PA) obtained a defense verdict in a medical malpractice claim in Luzerne County, Pennsylvania after a two-day arbitration. ​This case involved a radiologist who missed a herniation of the stomach through the diaphragm. The plaintiff alleged that the herniation cut off the blood supply to the stomach so that it strangled and eventually died. A month before trial, the case was transferred to David, who negotiated a two-day arbitration where a strategic decision was made to admit negligence and only argue causation. Significant concessions were obtained from the plaintiff’s radiology expert on cross-examination. The defense then put on an alternative theory of the case, which the plaintiff was unable to rebut on their cross. The arbitrator returned a no causation verdict.

David Krolikowski and John Rafferty (King of Prussia, PA) obtained a defense verdict in a wrongful death claim after a two-week trail in Delaware County, Pennsylvania. ​This case involved a 60-year-old stroke patient who was admitted to the hospital. On the morning of New Year’s day, the patient had several episodes of new onset vomiting. The nurse only text-paged the doctor. The doctor never responded and saw the patient later in the early afternoon. The patient rapidly deteriorated. The death certificate noted aspiration as a cause of death. The case started the day after the three-year anniversary of the decedent’s death against both the physician and the nurse. After an hour and fifteen minutes’ deliberation, the jury returned a defense verdict.

Victoria Scanlon (Scranton, PA) obtained a defense arbitration award in a podiatric surgical malpractice case in Luzerne County, Pennsylvania. ​The plaintiff, who was 55 years of age, underwent tarsal tunnel surgery. She developed post-operative complications, including infection, and required two additional surgeries. The plaintiff gained over 100 pounds after the podiatric surgeries and underwent gastric bypass surgery. She alleged it was required as the result of being sedentary from the podiatric surgeries and complications. The plaintiff has significant lower extremity surgical scarring, chronic pain and a gait abnormality. She was never able to return to work. She alleged that the defendant intentionally kept fraudulent, incomplete and untimely electronic medical records. The defense argued that the podiatric surgeries were indicated and performed within the standard of care, and that the plaintiff developed post-operative complications resulting in the need for additional surgeries due to her own noncompliance—prematurely and repeatedly walking on her surgical foot and getting her surgical dressings wet.

Robert Aldrich and Matthew Keris (Scranton, PA) were successful in obtaining the dismissal of the plaintiff’s corporate negligence claims against an adult inpatient drug rehabilitation center. The plaintiff filed a complaint under wrongful death and survival acts, alleging that the decedent died of unspecified cardiac dysrhythmia while she was a voluntary inpatient resident at the facility. The complaint included claims of negligence/vicarious liability and corporate negligence. We filed preliminary objections seeking to dismiss the corporate negligence claim against the facility. We argued that the plaintiff’s cause of action for corporate negligence against it must be dismissed with prejudice because the doctrine of corporate negligence, as a matter of law, does not extend to drug and alcohol treatment facilities but, instead, applies only to hospitals, HMOs, nursing homes and professional medical corporations. In response, the plaintiff argued that the preliminary objections should be overruled because she alleged in the complaint that the defendant owed the same duties to the decedent that are owed to patients by hospitals, as set forth in Thompson v. Nason, the seminal corporate negligence case. The court ultimately rejected the plaintiff’s arguments, sustained our preliminary objections and dismissed the plaintiff’s corporate negligence claim against the defendant, with prejudice.

Chanel Mosley (Orlando, FL) obtained an appellate decision affirming the dismissal, with prejudice, of a wrongful death lawsuit filed against a long-term acute care hospital. ​The claim alleged the hospital improperly transferred the patient to another hospital without an adequate handoff and appropriate mediations, resulting in the death of the patient shortly after arrival at the receiving hospital. The plaintiff sought damages for medical negligence and intentional infliction of emotional distress. The Fifth District Court of Appeal affirmed the dismissal, with prejudice, on the basis that the plaintiff failed to comply with the mandatory pre-suit screening procedures required by statute and failed to assert an actionable claim for an intentional tort against the hospital.

Professional Liability Department

William Waldron and Michael Fogler (Roseland, NJ) obtained a dismissal, with prejudice, of the plaintiffs’ complaint in a construction design defect case. The case involved the plaintiffs’ failure to certify whether the design deficiency matter in controversy was the subject of any other action pending in any court, pursuant to Rule 45-1(b)(2). In January 2018, a complaint was filed against our client, alleging deviation from a professional civil engineer’s standard of care in relation to the plaintiffs’ construction project. Pursuant to Rule 45-1(b)(2), the plaintiffs certified that the matter in controversy was not the subject of a pending action, no other action was contemplated, and no other party should be joined. In July 2018, the plaintiffs filed a separate complaint in a different venue against the general contractor of the construction project, alleging negligence. Again, they similarly certified that the matter in controversy was not the subject of any pending action, no other action was contemplated and no party should be joined. In February 2019, our client settled with the plaintiffs. At no time did the plaintiffs amend their certification or otherwise disclose the existence of the second action. Subsequently, the general contractor attempted to join our client in the second matter. We filed a motion to dismiss in lieu of filing an answer to dismiss the entire action, including all claims, third party claims and counterclaims. The court granted this, holding that the entire controversy doctrine required it to do so, as the plaintiffs’ non-disclosure was inexcusable and forced our client to re-litigate a case that it had already resolved. The court denied the plaintiffs’ motion for reconsideration as they failed to demonstrate how the court’s reasoning was incorrect or contrary to competent evidence.

Brigid Alford (Harrisburg, PA) and Eileen Bradley (Philadelphia, PA) recently prevailed in a UIM/bad faith/UTPCPL case. ​A Philadelphia County jury returned a defense verdict on the UIM claim, causing the plaintiff to withdraw her bad faith and UTPCPL claims, in a case where she had alleged permanent injury and facial scarring as a result of a pedestrian/motor vehicle accident. The jury found the plaintiff 20% comparatively negligent, awarded her zero damages for emotional distress and scarring/disfigurement, $10,000 for pain and suffering, and $5,000 for loss of life’s pleasures. The $15,000 total was well under the applicable bodily injury limits/credit of $100,000—leading to the entry of the defense verdict. Then, facing a defense motion for directed verdict on the bad faith/UTPCPL claim, the plaintiff withdrew her remaining extra-contractual claims.

David Fagnilli and Nate Woodward (Cleveland, OH) obtained a ruling granting summary judgment in favor of an insurance broker and two Lloyds syndicates in a case pending in the United States District Court for the Northern District of Ohio. ​The case involved a claim arising from a fall from a tree stand at a hunting camp. The plaintiff suffered spinal fractures when he fell out of the tree stand. He obtained judgment against the owner of the hunting outfitter business and then sought to recover under two policies of insurance issued to the business and a hunting club operated by the same individual. There was a stipulated judgment of $2 million, and a supplemental complaint was brought where the only issue was coverage under two $1 million policies. Accepting our arguments, the district court granted summary judgment in favor of all defendants on the grounds that the broker had no obligations under the policies and that the policies were not written to insure commercial hunting activities or the premises where the accident occurred.

Nicole Ehrhart (Harrisburg, PA) successfully argued and won a motion for summary judgment in the U.S. District Court for the Eastern District of Pennsylvania on behalf of our insurance company client. ​We filed a declaratory judgment action in which we asserted coverage was not triggered since the allegations against our insured did not amount to an “occurrence” to trigger coverage under the applicable commercial general liability policy. We argued that the allegations amounted to “faulty workmanship,” and the court agreed. The court found that our client did not have a duty to defend and/or indemnify.

Michael Detweiler (King of Prussia, PA) and Anne Marshall (Philadelphia, PA) obtained an award in favor of the defendants in a Montgomery County arbitration hearing involving a highly contentious construction case. The plaintiff, a prominent local attorney, alleged that our clients, the target defendants, had installed a defective septic tank system as part of the $700,000 addition to his mansion in Villanova, Pennsylvania. The plaintiff brought claims of negligence, breach of contract, breach of warranty and claims pursuant to the Pennsylvania Unfair Trade Practices Act, seeking an award in the amount of the full $50,000 arbitration limits. At the hearing, the panel granted the motion to strike the plaintiff’s purported expert as unqualified to testify as to his expert opinions regarding the septic tank manufacture and installation, pursuant to Pa.R.E. 702. The defense also introduced evidence of subsequent construction that occurred at or near the septic tank system to argue that the plaintiff failed to meet its burden of proof that the crack in the tank was caused by the defendants. The arbitration panel found in favor of all defendants.

Carolin Pacheco (Orlando, FL ) obtained summary judgment for a truck rental and leasing company in an action where the plaintiff, an insurance company, attempted to subrogate a claim against the rental company in direct violation of its vehicle leasing service agreement. The plaintiff argued it was entitled to subrogation against the rental company pursuant to its breach of contract with the insured. The court disagreed and ruled that the plaintiff had no standing to bring a subrogation claim against its own additional insured.

Michael Packer and Shaghayegh Nowroozpour (Fort Lauderdale, FL) obtained a defense verdict on behalf of an insurance carrier in a first party property, breach of contract dispute in the Circuit Court of Palm Beach County. A water heater leak in a garage caused direct physical damage to the property, and our client paid the plaintiffs $956.95 for damages sustained to the garage, after applying the $1,000 policy deductible. The plaintiffs claimed that the defendant breached the contract of insurance by failing to fully indemnify them for all the property damage caused by the water leak. Specifically, the plaintiffs claimed: (1) the defendant underpaid for the garage by not allowing for “detach and reset of the water heater” in the amount of $600; (2) water from the water heater leak into the garage traveled through the crawlspace of the garage and caused the master bathroom vanity to warp; and (3) there was damage to “one” loose tile located on the toe-kick of the vanity that cannot be matched, requiring the replacement of the entire continuous tile in the home. The plaintiffs claimed total damages in the amount of $52,930.95 to allow for replacement of the vanity, detach and reset of the water heater in the garage, and full replacement of the continuous tile in the home. We defended the case at trial, arguing that the damages were limited to only the garage. Furthermore, we presented a case to the jury premised upon science, that is, water could not have traveled through the crawlspace of the garage for nine feet and caused damage to the master bathroom vanity, as the plaintiffs claim, without defying the laws of gravity.

Ray Freudiger (Cincinnati, OH) won dismissal of a professional negligence case against a surveyor filed in the U.S. District Court for the Northern District of Ohio. ​This action was filed by two title companies that had paid a title insurance claim to a property purchaser and sought subrogation from our client, a surveying company. They alleged that a defective survey was the cause of the title insurance claim. Ohio has a four-year statute of limitations for professional negligence claims against surveyors, and this case was filed more than four years after the allegedly defective survey was completed, rendering it untimely. The plaintiffs attempted to avoid dismissal by captioning their claims as claims for breach of contract, in order to take advantage of a longer limitations period. We argued that, despite how the claims were captioned, they were, in substance, claims for professional negligence and were time-barred. The court agreed and dismissed the case.

Jack Slimm (Mount Laurel, NJ) obtained an order of dismissal from the U.S. District Court for the District of New Jersey, which dismissed a breach of fiduciary duty claim in a legal malpractice case. ​The claim was brought by the nephew of the decedent against an attorney/administrator of an estate of a deceased lawyer, arising out of an underlying probate litigation. The court found that the claims were barred under the Entire Controversy Doctrine and pursuant to New Jersey’s controlling statute, N.J.S.A. 3B17-8, which provides that once a judgment allowing an account is entered, it exonerates and discharges the fiduciary from all claims. It should be noted that the probate case was the subject of an appeal in which the Appellate Division found no basis to disturb the Probate Court’s order that approved the accounting. The plaintiff then moved to vacate the dismissal pursuant to Rule 60(b). The court denied the motion to vacate since the breach of fiduciary duty complaint was barred pursuant to the Entire Controversy Doctrine and N.J.S.A. 3B17-8.

Michael Alberico and John Osorio (Mount Laurel, NJ) obtained injunctive relief for homeowners against their homeowners association, requiring the homeowners association to remove, repair and replace a defectively designed retaining wall abutting the homeowners’ property. ​In the same action, Michael and John successfully defended the homeowners against an order to show cause brought by the association that sought injunctive relief for the homeowners to participate in the removal and replacement of the wall.

Jeffrey Chomko (Philadelphia, PA) obtained summary judgment in the Philadelphia Court of Common Pleas on behalf of a national home inspection company. ​The plaintiff fell from a spiral staircase, sustaining multiple personal injuries. Jeff successfully argued that a residential home inspection, which took place months before the incident, did not create liability because the plaintiff acknowledged ascending and descending the staircase hundreds of times (over a four-month period without incident) and without reporting any issues with the stability of the staircase to anyone.

Aaron Moore (Philadelphia, PA) and Art Aranilla (Wilmington, DE) successfully defended a legal malpractice claim where the plaintiffs alleged their former attorneys caused them to sustain more than $1.3 million in damages. ​The plaintiffs, a collection of property developers, were named as defendants in a series of debt collection actions brought by their lender. Our client represented them in those matters and sought to renegotiate the debt; however, they were unsuccessful, and the lender prevailed. In the legal malpractice matter, the plaintiffs sought to recover amounts they were required to reimburse the bank for its legal fees, their own expert witness fees and the legal fees they paid to our client. In a matter of first impression, the Delaware Superior Court held that a legal malpractice plaintiff, who was a defendant in an underlying matter, must demonstrate that it was caused to lose a judgment in order to prevail on its legal malpractice claim. It was insufficient to suggest that the attorneys should have settled the cases before the attorneys’ fees escalated. Because the plaintiffs could not demonstrate that they would have prevailed in the underlying cases, they could not prevail on their subsequent legal malpractice claim.

John Gonzales and Monica Simmons (Philadelphia, PA) had a motion to dismiss granted for their client in a Section 1983 case filed in the U.S. District Court for the Eastern District of Pennsylvania. ​The plaintiff, a real estate investment firm, sued the Borough of Norristown, alleging the municipality’s enforcement of its building code violated its 14th Amendment due process rights. The court rejected the plaintiff’s claims and ruled that the actions of the building and code officials comported with constitutional protections.

Jeffrey Chomko (Philadelphia, PA) and Christopher Conrad (Harrisburg, PA) were successful on a motion to dismiss an action against a financial planning and investment firm and its employee, a certified financial planner, filed in Federal District Court in Maryland. The plaintiffs claimed that the financial planner advised them to purchase a life insurance policy that was indexed to the stock market and that he made certain representations about the expected return on investment, which never came to fruition. Instead, according to the plaintiffs, the value of the policy plummeted, and they lost significantly on their investment. The court dismissed all claims against the firm, agreeing that the company could not be liable for the alleged advice given to the plaintiffs by the financial planner, inasmuch as the firm did not exist at the time the alleged advice was given. Also, the court dismissed a claim for breach of fiduciary duty against the financial planner, agreeing that both federal and state courts in Maryland do not recognize a standalone cause of action for breach of fiduciary duty when only monetary damages are sought. As well, the court dismissed a conversion claim against the financial planner, concluding that the plaintiffs failed to allege sufficient facts to plausibly demonstrate the financial planner wrongfully exercised ownership or dominion over their finances.

Workers’ Compensation Department

Tony Natale (Philadelphia, PA) successfully had a penalty petition dismissed. The claimant alleged that the employer utilized its collective bargaining agreement to violate the Pennsylvania Workers’ Compensation Act by failing to pay benefits that were adjudicated to be due and owing to the claimant in an underlying decision. The claimant was injured during the course and scope of employment during a fist fight on a bus. During the litigation of the principal action, the claimant testified that he was collecting his “personal sick time,” which paid him near full salary while out of work. Upon receiving a decision from the workers’ compensation judge finding a work injury, the employer utilized its collective bargaining agreement to set off the amount of benefits due and owing by the sick time received. In so doing, the employer restored the claimant’s used sick time back into his sick time bank. The claimant filed a penalty petition, arguing he was entitled to collect his personal sick time and then get paid again for that same period with workers’ compensation benefits. The judge ruled that the Workers’ Compensation Act has always allowed the use of collective bargaining agreement policies as long as the claimant is not put in a worse position in terms of payment for lost time. The judge found that, since the claimant’s sick time was restored and the sick time paid more than the compensation benefits for the period in issue, there was no violation of the Act, regulations or Constitution.

Tony Natale (Philadelphia, PA) successfully defended a Pennsylvania transit authority in an appeal action before the Workers’ Compensation Appeal Board. The Board affirmed the workers’ compensation judge’s determination that dismissed a claim petition filed after a trolley collision injured the claimant. The claimant alleged serious and permanent injuries, including head, neck and back conditions. The judge found that the claimant was not in the course and scope of employment based upon his violation of positive work orders at the time of the accident. Tony successfully argued to the Board that the judge’s conclusions were supported by substantial evidence since the claimant was cited for sleeping on the job, using his cell phone while operating the trolley, and failing to stop at a signal light (which the claimant thought for some reason was a different color). The claimant’s appeal was dismissed.

Ross Carrozza (Scranton, PA) was successful in defending a claimant’s claim and review petitions. ​The claimant filed a claim petition, alleging a concussion, post-concussion syndrome and a cervical injury when he struck his head on a cross member underneath a truck. The workers’ compensation judge found the claimant’s testimony, that he sustained a disabling work injury as alleged, not credible. Based on employer witnesses and medical expert testimony, the judge specifically found the claimant not to be credible. Further, the judge found that the claimant’s expert witness was not sufficiently credible or persuasive to establish that the claimant’s condition was related to a work injury. The judge specifically called out Ross’ cross-examination of the claimant’s medical expert, which showed that the claimant was initially treated for a stroke and did not return for medical treatment for neck pain until six weeks later, at which time the emergency room records were suspicious for acute coronary syndrome or heart attack, as opposed to the alleged work-related injury.

Heather Byrer Carbone (Jacksonville, FL) successfully defended a motion for summary judgment filed by another insurance carrier related to a disputed employer/employee issue. ​The issue involved whether the injured employee was the statutory employee of our client or of the subcontractor who actually hired him. The worker was hired by a subcontractor during the aftermath of the Category 5 storm, Hurricane Michael, that hit near Panama City, Florida on October 10, 2018. The subcontractor’s company could not provide hiring paperwork that would have confirmed workers’ compensation coverage by the employee leasing company due to lack of electricity, internet connections and cellular service. Therefore, the parties agreed that the hiring paperwork would be hand delivered to the risk manager for the employee leasing company. The worker was injured one day before the hiring paperwork was hand delivered, but after the parties had agreed on hand delivery of the paperwork. The court found this to be sufficient evidence of detrimental reliance and of a disputed issue of material fact. The motion for summary judgment was denied.

Benjamin Durstein (Wilmington, DE) successfully handled a workers’ compensation case before the Delaware Supreme Court. ​In its order, the Supreme Court affirmed a decision of the Superior Court that had affirmed a Board decision regarding the compensability of travel expenses for trips to and from medical appointments. The claimant had petitioned for parking and toll expenses incurred during her trips to visit a doctor in Philadelphia, Pennsylvania, from her residence in Dover, Delaware. Although the amounts in question were low, the case is significant as it potentially applies to every Delaware workers’ compensation case. Specifically, the court agreed with the employer’s arguments that the plain language of the applicable Delaware statute provides that mileage expenses are to be reimbursed by the employer for travel to and from compensable medical appointments.

Tony Natale (Philadelphia, PA) successfully defended a machine shop in the litigation of a claim petition involving post-concussion syndrome. The claimant was struck in the head with a wrench while repairing a machine for the employer. The carrier accepted a head laceration by way of medical only notice of compensation payable. The claimant was treated for a laceration to the side of his head and released to return to work. Several months later, he was taken out of work by his treating neurologist for symptoms allegedly related to post-concussion syndrome. The claimant then returned to modified duties within new work release restrictions. He abandoned that job several weeks later, alleging he was totally disabled due to post-concussion syndrome. Tony presented surveillance evidence demonstrating the claimant’s ability to perform all activities of daily living. A nationally renowned neurologist testified that, while the claimant suffered a mild concussion at the time of injury, he did not suffer from post-concussion syndrome and was fully recovered. The claimant’s co-workers testified that they observed the claimant after the injury, and he was able to continue working with no signs of concussion symptoms. Tony cross-examined the claimant, and it was discovered that he was performing work duties on his own in the carpentry field, despite alleging he was totally disabled. The workers’ compensation judge opined that the claimant’s injuries were limited to a head laceration and mild concussion. The judge then concluded that those injuries had fully resolved. The claimant was due no additional workers’ compensation benefits other than what he had already received. The claim petition for disability was dismissed.

Tony Natale (Philadelphia, PA) successfully defended a Philadelphia-based lithographic company by having a utilization review determination, with regard to opioid and non-opioid treatment, set aside by the judge as void ab initio. ​The claimant had been treating with an orthopedic surgeon who prescribed an inordinate amount of medication for a work-related knee injury. The physician’s office was raided by the FBI for other issues, and the treatment to the claimant was ultimately found unreasonable and unnecessary by the URO and the judge. The claimant then side-stepped the Act and began to treat with a new physician, who prescribed the EXACT same medications. A second UR was filed regarding this physician’s treatment, and the UR reviewer indicated in the body of the UR report that there were no records to support the ongoing medication. However, the UR reviewer did not “want to be the one who cut off medication,” so he ultimately found the treatment reasonable and necessary for no reason. This UR decision was appealed to the judge, who found that the treatment unreasonable from the outset.

Michele Punturi (Philadelphia, PA) successfully prosecuted a termination petition on behalf of a national water company. ​After securing all prior medical records, Michele uncovered a past medical history of similar complaints and treatment, and a later fall that was not disclosed by the claimant. After questioning, the claimant admitted to the nature and extent of his prior treatment, including office visits, prescription medication and MRIs, which supported our contention that his prior complaints were virtually identical. The workers’ compensation judge found that the claimant was not credible because his testimony contradicted the defense medical expert. Additionally, the judge found the defense medical expert to be competent, credible and persuasive. The defense expert established that the claimant was fully recovered from his work injuries, the resulting three surgeries, and all residuals. As such, the termination petition was granted.

Joseph Vender (Scranton, PA) successfully handled a matter where the claimant had filed a claim petition alleging disabling injuries to her low back, mid back, upper back, buttocks, neck, and head as a result of a slip and fall in the employer’s restroom. The claimant reported the alleged event to the employer, who immediately advised that it would provide sedentary work to accommodate the claimant. The claimant refused, went out of work and filed her petition. We presented testimony of two employer witnesses to establish that work was at all times available to the claimant. We also presented the testimony of the IME doctor, who found nothing wrong with the claimant. The workers’ compensation judge found the testimony of the employer’s witnesses to be credible. He also found our medical evidence to be credible, accepting our argument that the claimant’s medical evidence did not establish the required causal connection between the alleged disability and the work injury. The claim and penalty petitions were dismissed.

Joseph Vender (Scranton, PA) also successfully handled a workers’ compensation cases in which the the claimant sustained injuries to his left shoulder and arm, and carpal tunnel syndrome due to 24 years of repetitive use of his upper extremities. ​The claimant underwent surgery to his left wrist, elbow and shoulder in July 2018. The employer obtained an IME in October of 2018, which indicated full recovery, and a termination petition was filed. The workers’ compensation judge granted the petition after accepting the expert medical testimony of the employer’s doctor and finding that the claimant had fully recovered from his work injuries.

Ashley Eldridge (Philadelphia, PA) prevailed on a suspension petition against a claimant who suffered a work-related gunshot injury. ​The claimant was shot in the hand while making a delivery for the insured. He underwent multiple surgeries but cited ongoing neurological deficits as the reason he was unable to return to work. Ashley successfully proved not only a release to work, but his refusal of a job within those restrictions. The judge found in favor of the insured and granted the suspension petition.

Ashley Eldridge (Philadelphia, PA) also successfully defended a claim petition before one of the most claimant-friendly judges in the Commonwealth of Pennsylvania. The claimant was working as a landscaper for the insured when he suffered injuries from a fall at work. A claim petition was filed for significant injuries to the lumbar spine, cervical spine, thoracic spine, left knee and right ankle, which, according to expert testimony from a neurosurgeon and podiatrist, required surgery. Ashley presented an orthopedic surgeon and neurologist in rebuttal, both of whom the judge found to be more credible and persuasive than the claimant’s experts. The judge went on to accept the diagnoses of our experts and limited disability to three months of time.

Ashley Eldridge (Philadelphia, PA) also successfully litigated a termination petition by establishing that the claimant was no longer entitled to workers’ compensation benefits. In this case, the carrier accepted a right knee injury and paid total disability benefits to the claimant. The claimant underwent extensive treatment. Ashley was able to persuade the judge that, pursuant to the findings of our medical expert, the claimant was no longer disabled and could return to work full duty. The judge found our expert to be credible and granted a termination of benefits.

Michele Punturi (Philadelphia, PA) successfully prosecuted a termination petition for an international automobile manufacturer. ​An aggressive and detailed cross-examination of the claimant’s medical expert, who had opined that the claimant was not fully recovered, established that he could not offer any explanation for his opinion. The defense questioned the expert’s understanding of the mechanism of injury, the nature and extent of medical treatment, and the lack of causation to the work injury. The judge did not find the claimant’s alleged ongoing symptoms/restrictions and the need for treatment related to the accepted work injury to be credible. The judge further found the defense was not liable for the claimant’s litigation costs given his findings of full recovery. The termination petition was granted.

Tony Natale (Philadelphia, PA) successfully defended a Philadelphia-based university in a claim petition that alleged a disabling medial meniscus tear of the knee, with surgery, due to the claimant’s repetitive job duties as a university shuttle driver. The claimant alleged that the bumpy ride and the non-ergonomic position of his driver’s seat in relation to the gas and brake pedals caused his injury and need for surgery. Upon cross-examination of the claimant’s medical expert, it was conceded that the meniscal tear likely was pre-existing. Evidence was also presented concerning the university’s allegation that the claimant illegally doctored the shuttle bus log, which put his credibility in doubt. The judge found the claimant’s meniscal tear, surgery and disability were not work related.

*Prior Results Do Not Guarantee A Similar Outcome

_{Defense Digest, Vol. 26, No. 1, Spring 2020 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. © 2020 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.}