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John R. Ninosky

Portrait of John R. Ninosky

John is a member of the firm's Health Care Department. He concentrates his practice in medical malpractice, representing correctional health care providers, health systems, long term-care facilities, assisted living facilities, physicians, nurses and mental health professionals. John also has extensive experience in handling general liability matters which is a significant asset in defending legal malpractice actions, particularly as they relate to claims against trial counsel. When a legal malpractice claim derives from an underlying medical malpractice or general liability matter, John brings depth and added knowledge to the defense of the matter. He has successfully tried cases to verdict in all three of Pennsylvania's federal courts, and in 12 county courts of common pleas. John has also participated in various types of ADR activities, including arbitrations and mediations, throughout Pennsylvania.

John partners with his clients to resolve matters as efficiently and effectively as possible. He evaluates each case with an eye toward prompt resolution, whether through ADR or trial. An experienced trial attorney, John assesses the risk of exposure and focuses on developing a persuasive story that is easily understandable for the jury. 

While attending the Dickinson School of Law, John was a member of the ATLA trial team. He was also an adjunct professor with the Advocacy Program. Prior to law school, John graduated summa cum laude from Indiana University of Pennsylvania. As an undergrad, he participated in varsity baseball and was named a three-time PSAC scholar athlete award winner. John remains active with IUP and has served as the president of the Alumni Association Board of Directors. He was the recipient of the Distinguished Alumni Award for Service in 2018.

John has been recognized among the Best Lawyers in America since 2018, and has been selected a Best Lawyers “Lawyer of the Year” in the Harrisburg region in both 2022 and 2020. He has additionally been selected a Pennsylvania Super Lawyer numerous times since 2014.  

As an active member of the legal and civic communities, John is involved in various organizations. He is a member of the Federal Bar Association, Middle District of Pennsylvania Chapter, as well as the Dauphin and Cumberland County Bar Associations, the Pennsylvania Defense Institute, and the St. Thomas More Society. John is the former Mayor of Paxtang Borough and past president of the Paxtang Borough Council. He coached youth sports through the Wilhem Paxtang Athletic Association and the St. Margaret Mary Athletic Association for a number of years.

    • Penn State Dickinson Law (J.D., 1996)
    • Indiana University of Pennsylvania (B.A., summa cum laude, 1993)
    • Pennsylvania, 1996
    • U.S. District Court Eastern District of Pennsylvania, 1997
    • U.S. District Court Middle District of Pennsylvania, 1997
    • U.S. Court of Appeals 3rd Circuit, 1997
    • U.S. District Court Western District of Pennsylvania, 2002
    • Supreme Court of the United States, 2002
    • West Virginia, 2013
    • U.S. District Court Southern District of West Virginia, 2013
    • The Best Lawyers in America®, "Lawyer of the Year," Harrisburg, Litigation - Insurance (2020, 2024)
    • The Best Lawyers in America®, Personal Injury Litigation - Defendants; Litigation - Insurance (2018-2026)
    • Pennsylvania Super Lawyers (2014-2018, 2021-2025)
    • Pennsylvania Super Lawyers Rising Star (2010-2011)
    • Federal Bar Association, Middle District of Pennsylvania Chapter
    • Cumberland County Bar Association
    • Dauphin County Bar Association
    • Defense Research Institute
    • Pennsylvania Defense Institute
    • St. Thomas More Society

Results

Thought Leadership

Defense Digest

Third Circuit Holds There Is No Right to Intervention in a Medical Context

March 1, 2024

Key Points:  There is a constitutional right to medical care for those individuals in custody.  Although there is a right to have a government actor intervene when the underlying constitutional violation involves excessive force or sexual assault of a person in custody or detention, the Third Circuit, in Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023), has definitively stated that there is no cause of action for a failure to intervene in a medical context. In correctional medicine, the Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” With respect to prisoner confinement, the Eighth Amendment obligates the government “to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Thus, for decades those individuals in custody have had a constitutional right to medical care.  Creative plaintiffs’ lawyers have since brought federal civil rights claims seeking to create a cause of action for a failure to intervene against both law enforcement and medical staff personnel, arguing those individuals had a duty to prevent a violation of the right to medical care where medical care was not provided or adequately provided to a person in custody. For years there had been conflicting case law as to whether there was a cause of action for a failure to intervene in the medical context in correctional facilities.  Older authority stood for the proposition that medical providers could not be liable for failing to intervene in situations involving excessive force. See, e.g., Ali v. McAnany, 262 Fed. Appx. 443, 446 (3d Cir. Jan. 25, 2008); Goldsmith v. Franklin County, 2016 WL 6440141, at *7 (M.D. Pa. Sept. 30, 2016) (“[T]he [Third Circuit] has expressly declined to extend its holding in Smith beyond correctional officers to impose a duty to intervene upon medical employees working within a prison setting.”); Harris v. Hershey Med. Ctr., 2009 WL 2762732, at *6 (M.D. Pa. Aug. 27, 2009). In Goldsmith, the District Court explained:  [A]lthough [the Third Circuit in] Smith announced that corrections officers have a legal duty to intervene . . . the court clearly grounded its decision in the fact that a corrections officer, like a police officer, is a law enforcement officer, sworn to uphold the law, and authorized to use force if necessary. 2016 WL 6440141, at *7. Thus, a medical provider has “no legal duty to intervene on behalf of an inmate in the midst of physical altercations with staff.” Id. More recent decisions have been decided differently. District courts have found plausible causes of action for failure to intervene against medical professionals where they have allegedly failed to provide emergency medical care. See Thomas v. Harrisburg City Police Dep’t, 2021 WL 4819312 (M.D. Pa. Oct. 15, 2021) and Cyr v. Schuylkill Cnty., 2023 WL 1107879 (M.D. Pa. Jan. 30, 2023).  The Thomas decision was appealed to the Third Circuit by individual police officers on qualified immunity grounds after their motion to dismiss was denied. See Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023). The decedent in Thomas ingested cocaine at the time of his arrest. The plaintiff argued that the arresting police officers had a duty to intervene to prevent the violation of the decedent’s constitutional right to medical care. Specifically, it was alleged that the police officers should not have taken the decedent to the county booking center but, rather, should have taken the decedent to the hospital for evaluation. The police officers argued that they had qualified immunity.  The Third Circuit found that the District Court properly denied the police officers’ motion to dismiss as to the failure to render medical care. However, the Third Circuit held that the District Court erred in denying the motion to dismiss on the failure to intervene claim. The court stated: The Officers contend that the District Court improperly denied their motion to dismiss because (1) Sherelle Thomas cannot adequately plead a violation of failure to intervene to prevent a violation of the right to medical care where no such cause of action exists and (2) there is no clearly established right to intervention in the context of medical care.  The District Court does not directly address whether individuals have a clearly established right to intervention. We agree with the Officers that we have not recognized any such right, nor has the Supreme Court. Though we have recognized a right to have a government actor intervene when the underlying constitutional violation involves excessive force or sexual assault of a person in custody or detention, we have since concluded that our precedent does not establish, let alone clearly establish, a right to intervention in other contexts.  Thomas, 88 F.4th at 285.  Thus, the Third Circuit has definitively stated that there is no cause of action for a failure to intervene in a medical context, and this holding has been followed by at least one subsequent district court case where such a claim was pursued. See Rossman v. PrimeCare Medical, Inc., 2024 WL 115203 (M.D. Pa. Jan. 10, 2024). As such, neither medical professionals nor law enforcement should be required to defend a failure to intervene claim arising from medical care, and these claims should be challenged. John is a shareholder in our Harrisburg, Pennsylvania, office. He can be reached at (717) 651-3709 or JRNinosky@mdwcg.com.    Defense Digest, Vol. 30, No. 1, March 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.