On the Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories

Chuck Craven (Philadelphia, PA) succeeded in obtaining an affirmance of a defense medical malpractice judgment in favor of a defendant emergency room physician from a unanimous three-judge panel of the Pennsylvania Superior Court (Judges Musmanno and Kelly and President Judge Emeritus McEwen). Our client, the defendant emergency room physician, successfully stopped the bleeding of and cleansed a contaminated leg wound of a patient. While in the ER, the patient was seen by her family physician, who happened to be making his rounds in the hospital at the time of treatment. Both physicians agreed that the family doctor would prescribe an antibiotic for the patient after reviewing her extensive chart, given her complicated medical conditions and her prior adverse reactions to certain antibiotics. Plaintiff contended, however, that both doctors were negligent for not administering an antibiotic before the patient was discharged from the ER and for not conducting certain tests and consulting an infectious disease specialist. On the following day, the patient developed an infection from which she eventually died. The jury found that the doctors had not been negligent, and plaintiff asserted on appeal that the trial court erred in charging the jury on the "two schools of thought" doctrine and in not permitting cross-examination of a defense expert on the absence of an entry in a pharmacy's records confirming that the family doctor's office had called in a prescription for an antibiotic. The Superior Court panel rejected plaintiff's contentions and accepted the defense arguments that the jury instruction was proper and that there was no abuse of discretion in limiting cross-examination. The "two schools of thought" instruction was supported by the testimony of medical experts on both sides and explained to the jury that the doctrine applied only to the plaintiff's claim that a prophylactic antibiotic should have been administered and not to any other claim. The cross-examination was limited because the plaintiff never established that the pharmacy records actually showed prescription call-ins. Smith v. Isaac, No. 3554 EDA 2008 (Pa. Super., December 21, 2009).

Kim Boyer-Cohen (Philadelphia, PA) successfully had the Superior Court vacate the jury verdict, which awarded the plaintiff $50,000 in compensatory damages and $350,000 in punitive damages, on an invasion of privacy claim. The case involved the attempted unionization of medical/surgical nurses, and during hearings held before the NLRB, the defendant hospital introduced employment records of various members of the defendant's staff in order to show that a specific nursing position was supervisory and should be excluded from the proposed bargaining unit. One of the documents introduced related to the job performance of the plaintiff, who was a member of the union organizing committee. After allegedly being informed by a co-worker that the defendant had used a document from her personnel file at the NLRB hearing, the plaintiff filed a complaint against the defendant claiming invasion of privacy due to the defendant's dissemination of a document from her confidential personnel file. In its decision, the Superior Court concluded that because the NLRB hearing constitutes a judicial or quasi-judicial proceeding, the defendant's disclosure was absolutely privileged as a matter of law and there was no evidence of abuse of that privilege. The court further determined that the trial court improperly submitted the issue of punitive damages to the jury because the plaintiff did not present evidence of intentional, willful, wanton or reckless conduct. As a result, the Superior Court remanded the case for entry of JNOV in favor of the defendant. Doe v. Wyoming Valley Health Care System, Inc., 1390 MDA 2008.

Eric Brown and John Hare (Philadelphia, PA) secured a reversal in the Third Circuit Court of Appeals of a District Court ruling that State Farm had a duty to defend, under an "accident" insurance policy, a lawsuit claiming that the intoxicated insured assaulted and attempted to kill the plaintiff before taking his own life. In its precedential decision, the court addressed "tension" in the case law regarding whether and to what extent allegations of intoxication can convert otherwise intentional conduct into an accident for purposes of securing insurance coverage. In reconciling the two conflicting lines of cases, the court explained that it is against public policy to extend insurance coverage to obviously intentional conduct, and it held that allegations of intoxication can create a duty to defend only when the allegations suggest that the insured was so intoxicated that he lacked conscious awareness of his actions or lacked the ability to form intent. State Farm Fire & Casualty Co v. The Estate of Thomas Mehlman, Nos. 08-2220, 08-2261, and 08-2262 (3d Cir., December 16, 2009).

Kim Boyer-Cohen (Philadelphia, PA) succeeded in having the Pennsylvania Superior Court affirm the imposition of sanctions and dismissal of the plaintiff's complaint. After the pro se plaintiff's prior suit against the defendants had been dismissed with prejudice for failure to plead a proper cause of action, the plaintiff filed a separate action asserting the same claims against essentially the same defendants. As a result, the defendants filed motions for sanctions, which the trial court granted and dismissed the plaintiff's complaint with prejudice. On appeal, the Superior Court found that the trial court had authority to dismiss the plaintiff's complaint as a sanction under the circumstances and affirmed the dismissal of the complaint. Saterstad v. Stover, 1884 MDA 2008 (Pa. Super., October 20, 2009).

Kim Boyer-Cohen (Philadelphia, PA) also succeeded in having the Pennsylvania Superior Court quash an appeal in two separate cases. In both cases, the Superior Court determined that the respective plaintiff's brief failed to conform to the Pennsylvania Rules of Appellate Procedure and was so defective as to preclude meaningful appellate review. Murphy v. Jokelson, 1673 EDA 2007 (Pa. Super., September 11, 2009) and Vonson v. Martin, 195 EDA 2009 (Pa. Super., December 2, 2009).

Audrey Copeland (King of Prussia, PA) was successful in obtaining the Superior Court's affirmance of the trial court's determination denying the motion to amend the complaint and motion in limine to include punitive damages, which were filed after the expiration of the two-year statute of limitations. The Superior Court reasoned that the complaint alleged insufficient operative facts and the addition of punitive damages would constitute a new, time-barred cause of action and that another trial judge had previously denied amendment and nothing new had occurred; also, expert testimony regarding recklessness and an indemnity agreement was properly precluded as lacking foundation. Antenna Corporation v. Pulse Technologies, 2434 EDA 2007 (Pa. Super., October 16, 2009).

Defense Digest, Vol. 16, No. 1, March 2010