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

Casualty Department

Christopher Santoro, Kevin Hexstall, Carol VanderWoude, John Hare and Christine Dower (Philadelphia, PA) obtained a defense verdict in a case tried over two weeks in the Philadelphia County Court of Common Pleas. The plaintiff alleged her decedent/husband, who died at the age of 77, contracted lung cancer as a result of being exposed to asbestos from welding rods manufactured by our clients. Our defense contended that the welding rods do not release free respirable asbestos fibers and that, although the decedent had lung cancer, he had shown no signs of asbestosis or any other asbestos-related conditions. Therefore, his lung cancer was not caused by asbestos exposure. Even though the decedent testified in his videotaped deposition that he had quit smoking 50 years ago, we argued that, because the decedent had been previously diagnosed with emphysema, cigarette smoke was the cause of his lung cancer. The jury returned a verdict after deliberating for 50 minutes, finding that the welding rods were defective, but did not cause the decedent’s lung cancer.

Michael Archibald and Sam Higginbottom (Tampa, FL) obtained a defense verdict after a five-day trial on behalf of a client and its employee. The plaintiff alleged that, while sitting at a red light, he was rear-ended by the employee, who was driving a company work truck. The employee claimed the light was green and that the plaintiff suddenly stopped. The plaintiff claimed that he suffered injuries to his neck, back, shoulders, knees and jaw as a result of this low-speed collision. He treated under letters of protection with local medical providers known for cooperating with the plaintiff’s bar and underwent surgery to his right shoulder, TMJ and right knee. The plaintiff’s medical bills were in excess of $250,000. On three occasions, the plaintiff’s attorney elicited testimony regarding our client’s insurance from his witnesses. However, our client decided not to move for a mistrial. Michael and Sam were able to establish multiple inconsistencies regarding the plaintiff’s claim. On the last day of trial, the defendants changed strategies and admitted to negligence and only argued the issue of causation to the jury. After three hours, the jury returned a verdict that the plaintiff’s injuries were not caused by this accident.

Frank Baker and Wendy O’Connor (Bethlehem, PA) obtained summary judgment on behalf of our client, a highway construction contractor, in a wrongful death and survival action in which it was alleged that the plaintiff’s decedent, while operating his motorcycle on a winding stretch of road late at night, lost control of his vehicle and careened into a telephone pole, sustaining catastrophic injuries which led to 10 months of hospitalization, quadriplegia and, ultimately, to his death. The plaintiff sued the Commonwealth of Pennsylvania, alleging that it negligently designed and performed resurfacing to the roadway. The Commonwealth joined our client, with which it had contracted for the resurfacing operations on the section of the roadway in question. Upon completion of discovery and the exchange of expert reports, the court agreed with our contention that the evidence did not support a cause of action against our client.

David Wolf (Philadelphia, PA) obtained a defense verdict in a high/low ADR. David represented a parking lot attendant for a parking garage who was accused of assaulting a patron after she refused his request that she re-park her car. The patron was by occupation a security guard at Graterford Prison. She claimed that, as a result of the attendant pulling her arm back, she developed a brachial plexus injury. The attendant denied that he did anything other than tap her on the elbow as she hurried from the lot. Unfortunately for the plaintiff, the incident was captured on surveillance video. The video, however, was a panning video. As expected, the plaintiff claimed that the actual assault/battery occurred during a three-second lapse in the video. In her deposition, however, she was adamant that the contact lasted over a minute. David presented a frame-by-frame analysis of the video to show the physical impossibility of the plaintiff’s claim. The attendant also made a compelling appeal that he would never have treated a customer in that fashion.

Jim Cole (Doylestown, PA) obtained a defense verdict before a Bucks County jury. The plaintiff was a resident in a condominium association and claimed her flip-flop got wedged under an old, decrepit, oak threshold while exiting the women’s pool deck bathroom, fracturing her foot. The plaintiff alleged that the defendants “repaired” the threshold before she could document its condition when she visited the scene with her attorney’s investigator the following week. Her description of the defective threshold was based on a short glance on her way to the hospital. Jim was able to persuade the jury that the plaintiff failed to meet her burden of proof. At the end of the day, the jury was left to decide between two scenarios. Either: (1) the plaintiff simply misstepped and there was no one to blame; or (2) there was a vast conspiracy involving lifeguards, property managers, janitors and contractors who conspired to secretly fix the defect and lie about it after. The jury accepted the first scenario in 30 minutes.

Michael Archibald (Tampa, FL) obtained a defense verdict in a two and one-half day trial. The plaintiff claimed to have slipped on a wet spot on the floor of our client’s premises. Security video footage showed multiple customers walking over the spot just prior to the fall, including an elderly gentleman with a cane. The jury returned a defense verdict in under 45 minutes.

Kevin McKeon (Cherry Hill, NJ) obtained a defense verdict in Atlantic County, New Jersey, after a four-day trial on behalf of a yacht builder/designer and two of its employees. During a test run of a boat after delivery to calibrate electronics, an employee ran the boat aground, causing it to take on water. Our client immediately made repairs by replacing and/or repairing electrical components and wiring that came in contact with water. However, the plaintiff claimed that those repairs, as well as repairs made to warranted items over the next two years, were not performed properly. Also, the plaintiff claimed misrepresentations were made prior to the time of sale. In addition to a marine surveyor expert, the plaintiff hired a marine engineer, who opined that the boat was defectively designed, which caused the mishap. The plaintiff claimed breach of contract, express and implied warranties, negligence and consumer fraud. The plaintiff claimed $382,000 in damages, subject to trebling pursuant to the New Jersey Consumer Fraud Act, which would have amounted to $1,146,000 in damages plus fees. All claims were dismissed after trial.

Health Care Department

Candy Barr Heimbach, Michelle Wilson and Wendy O’Connor (Bethlehem, PA) obtained a defense verdict following a two-week trial in Lehigh County, Pennsylvania. Outstanding paralegal support was provided by Bonnie Zemek. The plaintiff, who had a longstanding history of pelvic pain that had not responded to conservative treatment, underwent a total abdominal hysterectomy performed by our doctor and an elective appendectomy performed by the co-defendant in 2007. The plaintiff claimed that her informed consent was not secured prior to the procedure and that the procedure was not indicated. She further asserted that, during the course of surgery, she sustained a bladder injury, either as the result of a laceration or due to the erroneous placement of sutures in the bladder during wound closure. The plaintiff also alleged that the bladder injury caused a vesico-vaginal fistula to develop, which resulted in complications. The plaintiff underwent a repair of the fistula and was released from the care of her urogynecologist eight months after the surgery. For the next three years, she sought no treatment for any of the conditions alleged in this case, including stress urinary incontinence, overactive bladder, dyspareunia and interstitial cystitis. We were able to impeach the plaintiff’s credibility with respect to a number of issues, including her history of pelvic pain, urinary tract infections and smoking. The jury rejected the plaintiff’s claims and found in favor of our client on both the informed consent and negligence claims.

Bob Evers (Roseland, NJ) and Walt Kawalec (Cherry Hill, NJ) were victorious in the Superior Court of New Jersey, Appellate Division. Bob handled this medical malpractice matter involving a stillborn baby. Our client was the plaintiff’s obstetrician. Late in the pregnancy, the plaintiff made an unscheduled visit to the insured’s medical group, complaining of reduced fetal movement. An examination was done by another physician in the office, which produced a biophysical profile of the baby. The results of the biophysical profile were perfect and, among other things, showed a heart rate of 175 beats per minute. Our client’s only contact with this visit was to review the biophysical profile. Sadly, a week later, at the plaintiff’s regular visit, an ultrasound revealed that the baby had died. The suit against our client sounded in medical negligence on the theory that the heart rate of 175 should have led our client to take further actions, take other tests and ensure that the rate did not indicate any danger. The plaintiff also asserted, under an informed consent theory, that she should have been provided with additional information concerning the heart rate and should have been given the option to deliver the baby early. The jury returned a verdict for the defendant on both counts. The plaintiff only appealed the informed consent claim, arguing that, because the defendant and defense expert indicated that a heart rate of 175 beats per minute “might” indicate a problem, additional options had to be given to the plaintiff as a matter of law and that, therefore, there was a lack of informed consent. The Appellate Division agreed with Walt Kawalec’s argument that the jury’s verdict was proper because the testimony of both the insured and defense expert noted that the heart rate might indicate a problem, but only under certain conditions. However, the perfect biophysical profile score demonstrated that those conditions were not present in this case. Thus, the court affirmed the jury verdict.

Justin Johnson and Eric Grogan (Roseland, NJ) obtained a defense verdict after a two-month trial in a case alleging an incorrect diagnosis of pathology samples at the time of a hysterectomy, leading to an 18-month delay in a diagnosis of cancer. The cancer was very rare Mullarian adenocarcinoma arising in the pelvis. The damages were significant, including exenteration (removal of all organs in the pelvic cavity), permanent urostomy, ileostomy and colostomy, and subsequent development of a recto-vaginal fistula. Despite a significant settlement offer, the plaintiff refused to lower her demand below $3 million. A no cause verdict was returned for all of the defendants.

Eric Grogan (Roseland, NJ) obtained a dismissal with prejudice in a case where the defendant doctor was sued by a court officer who had been sent to the doctor for a fitness evaluation. The doctor’s evaluation was that the court officer was unfit to fulfill his job duties. After this evaluation, and one by another doctor, the court officer was terminated. The officer sought an administrative hearing, which upheld the termination. The officer then sued the doctor in medical malpractice for his evaluation, alleging that his evaluation report contained false and defamatory statements. Dismissal with prejudice was granted based on the fact that the plaintiff failed to state a claim upon which relief could be granted as the report was created as part of a disciplinary proceeding and was covered by the litigation privilege. Also, the court found that the complaint failed to set forth any claim for defamation with specificity.

Professional Liability

Christopher Gonnella and William Waldron (Roseland, NJ) obtained summary judgment, dismissing a third-party plaintiff’s claim of professional negligence against our client, an engineering firm, in the Superior Court of New Jersey, Bergen County. In its complaint, the plaintiff asserted that our client deviated from accepted standards of engineering practice in connection with its design and construction administration services relating to the construction of a tennis court facility on the top level of the parking garage located within a condominium complex. The third-party plaintiff argued that our client’s bid specifications were deficient, which led to their installation of a tennis court that had various defects, some of which they claim our client should have noticed during the course of its construction administration responsibilities on the project. After extensive briefing and argument, the court granted our motion for summary judgment and dismissed the third-party complaint with prejudice on the basis that the third-party plaintiff could not prove a prima facie case of negligence through the evidence produced during the course of discovery. The third-party plaintiff later moved for reconsideration on the basis that the court had erred in reaching its decision, but the court denied the reconsideration motion and upheld the dismissal of all claims against our client.

Christopher Conrad (Harrisburg, PA) obtained summary judgment on behalf of an insurance agency sued for negligence and negligent misrepresentation. In 2002, the agency obtained for the plaintiffs a homeowner’s insurance policy issued by a national insurance company, which included coverage for a barn situated on their property. Coverage remained in place with this insurance carrier through 2011. In 2004, a representative of the agency toured the plaintiffs’ property, and, according to plaintiffs, the representative confirmed during this tour that the barn was covered as an “other structure” under the insurance carrier’s policy. The plaintiffs claimed, however, that the agency never advised them the barn might not be covered if it was used for “business purposes” rather than for personal use. In 2009, the plaintiffs rented their barn to a small business. The plaintiffs never advised the agency that they had rented the barn or of their tenants’ use of the barn. In May 2011, the barn was destroyed by a fire caused by the tenants’ use of heat lamps. The insurance carrier determined the loss claim was not covered because the barn was rented and, therefore, was being used for “business purposes.” In granting summary judgment for the agency, the court concluded that the plaintiffs could not recover because any duty to disclose information regarding the “business purposes” exception was satisfied by the clear language of the policy itself, which the plaintiffs admittedly received (but had not read), and because no insurance agent could have accurately represented to the plaintiffs in 2004 that the barn was not covered because the “business purposes” exception was not triggered until 2009 when the barn was rented. Therefore, the court concluded that any representation made by the agency in 2004 that the barn was covered was accurate, based on information known at the time, and was not a misrepresentation of material fact.

Christopher Conrad (Harrisburg, PA) also obtained summary judgment in a negligence and breach of contract action brought against an insurance agency in Northumberland County. The plaintiff was a mink farming operation that had been raising mink for pelts since the 1950s. Between May 2007 and July 2008, approximately 8,800 mink died from exposure to a naturally occurring virus known as the Mink Aleutian Disease. The plaintiff’s insurance carrier denied the loss claim on the basis that it did not insure against mortality caused by disease, and also because mink did not fall within the definition of livestock under the policy. The plaintiff claimed that the insurance agency, which procured the policy from the insurance carrier, breached its duty to the plaintiff by not obtaining coverage for the type of loss in question and that the agency misrepresented that mink would be covered in the event of death from disease. In granting summary judgment, the court concluded that the plaintiff could not avoid the clear and unambiguous terms of the insurer’s policy, which the plaintiff’s owner read and understood, by simply assuming mortality coverage for its mink was included because the plaintiff had requested “blanket coverage.” The court also concluded that the record did not support the plaintiff’s claim that the agency misrepresented that mortality coverage was included in the insurance policy, reasoning “this would clearly be an atypical type of coverage that no one could reasonably expect by a simple request to an agent for a farm owner’s policy.”

Samuel Cohen (Philadelphia, PA) obtained an order from a FINRA arbitration panel recommending the expungement of a customer complaint from our broker client’s central registration depository records maintained by FINRA. In granting the expungement request, the FINRA arbitration panel found that the claim was factually impossible or clearly erroneous. The panel found there was persuasive evidence that the broker was experienced, competent and ethical. The panel further found that the investments at issue were suitable for the claimants and that the broker did not do anything improper.

James McGovern and Danielle Vugrinovich (Pittsburgh, PA) obtained a dismissal of all claims against an insurance agent on preliminary objections in a case filed in the Court of Common Pleas of Allegheny County. The plaintiff, a well-known Pittsburgh attorney, alleged that the insurance agent agreed to meet with him on an annual basis and advise him of the amount of premium he needed to pay with respect to variable interest rates in order to reach the “vanishing premium” point in year 12 of the policy. Not all of these annual meetings actually occurred, and the plaintiff’s premiums increased dramatically in year nine of the policy, requiring either annual payments in excess of $215,000, or a lump sum payment of $550,000, to keep the policy in force. The plaintiff’s complaint set forth causes of action against the agent and the insurance company for breach of fiduciary duty, breach of contract, bad faith, and violations of unfair trade practices and consumer protection law. The court dismissed all claims against the agent and let stand only a claim for breach of contract against the insurance company, which had separate counsel.

Jack Slimm (Cherry Hill, NJ) obtained an order from the New Jersey Supreme Court denying a petition for certification filed by a plaintiff/developer in a multi-million dollar legal malpractice case arising out of the Hopewell Down Zoning Ordinance. In the malpractice case, the plaintiff/developer brought suit against the attorney who tried, and lost, the action in lieu of prerogative writs in the chancery division. Jack was successful in obtaining an order for summary judgment from the trial court in the legal malpractice action. The appellate division affirmed, finding that in the underlying prerogative writs case, the attorney would report to a steering committee formed by several property owners and developers in the township. The plaintiff/developer was a member of the steering committee group. The appellate division agreed that, as a member of the group, the plaintiff/developer’s conduct constituted a de facto assignment of decision-making authority to the steering committee. There was no legal impediment to the attorney’s reliance on the consensus of the committee in connection with how the prerogative writ case was to be handled and tried. The plaintiffs’ expert was critical of our client because he did not call at trial a hydrology expert and witnesses from the New Jersey Department of Environmental Protection. The court ruled that it was purely speculative as to how the state’s witnesses would have testified had they been called to trial and whether their testimony would have been favorable to the plaintiffs’ position. The court agreed with Jack’s argument that the attorney made a strategic decision on how to prosecute the case, without a hydrologist, based upon his experience and the financial constraints of the committee. The court found that the attorney was immune from liability for the strategic decisions he made, and also because he followed the consensus of the steering committee. The appellate division also found that the plaintiffs’ expert’s opinion did not carry the day and, therefore, there was no basis for a legal malpractice claim. 

Joe Santarone and Tim Ventura (Philadelphia, PA) were successful in having a legal malpractice case dismissed in the Philadelphia Court of Common Pleas. Joe represented a law firm whose attorney had failed to respond to a motion for summary judgment in a slip-and-fall case. After the case was dismissed, suit was brought against our client along with the individual attorney. The plaintiff, well-coached in the legal standard, testified that she clearly fell on hills and ridges and that if a response had been filed to the motion for summary judgment in Philadelphia Common Pleas Court, it would have been denied. During the course of the investigation, we discovered that the photographs the plaintiff took that day did not match up with the weather conditions on record. The plaintiff had emailed the original photographs, which she said she took that day, to our client at the time they were representing her. Jen Bickel, our paralegal, was very suspicious of the weather reports and the photographs, and through investigation, she was able to determine by the metadata that the photographs were actually taken much later in the week, after a significant snowfall had occurred. Presented with this evidence, counsel for the plaintiff voluntarily dismissed the lawsuit.

Craig Hudson and Kerri O’Brien (Fort Lauderdale, FL) obtained a dismissal with prejudice for lack of personal jurisdiction over a Massachusetts lawyer who had drafted a life insurance trust and served as the trustee of the trust. The lawyer worked closely with an insurance agent, who marketed high-premium, high-value life insurance policies to wealthy individuals, such as the plaintiff, as an estate planning tool. The plaintiff moved ten years earlier from Massachusetts to Florida. The insurance agent represented to the plaintiff that the investment return on the insurance policy would offset the interest rate charged by the premium finance company. The opposite occurred, and the plaintiff was losing thousands every month. The plaintiff first sought to rescind the policy. When the insurance company refused to rescind, the plaintiff sued the Massachusetts lawyer and the insurance agent on a variety of theories, including malpractice, breach of fiduciary duty, misrepresentation and fraud. The insurance agent, who at one time had offices in Florida and Massachusetts, defaulted, and the court later entered an award of $885,000 in favor of the plaintiff. On behalf of the lawyer, Craig and Kerri had been contesting jurisdiction for several years, culminating in an evidentiary hearing held this past November. The plaintiff argued that jurisdiction could be established in Florida because: the lawyer met the plaintiff several times in Florida; the lawyer made telephone calls and sent emails to the plaintiff while the plaintiff was in Florida; the plaintiff was a Florida resident when he established the trust; the beneficiaries were Florida residents; the lawyer was part of the insurance agent’s team; and the plaintiff claimed the injury took place in Florida. Craig and Kerri argued that the court lacked jurisdiction because: the lawyer did not solicit or do business in Florida; the plaintiff made the first contact with the lawyer and met in the lawyer’s office in Massachusetts; the trust and related documents were all drafted by the lawyer while he was in his office in Massachusetts; the trust provided that it was to be administered in Massachusetts and interpreted according to Massachusetts law; and any injury took place in Massachusetts, not Florida. After the evidentiary hearing, followed by several rounds of briefing and argument, the court granted the motion to dismiss with prejudice. The case was assigned to our office in late 2009. Part of the strategy was to delay a decision on the motion to dismiss to allow the Massachusetts statute of limitations to expire by the time the court ruled on the motion to dismiss. By the time the court decided the motion, the statute of limitations under any theory of liability had expired.

Joe Santarone (Philadelphia, PA) obtained a defense verdict in the Eastern District of Pennsylvania in a seven-day jury trial. The case was brought by a Major in the Air Force Reserves who alleged that he was denied a position as a township manager because of his ongoing military reserve obligation. Under the federal statute, USERRA, the burden is on a plaintiff/applicant to show that the military obligation was a motivating factor in the decision not to hire. The burden then shifts to an employer to show by a preponderance of the evidence that the applicant would not have been hired, even without the military obligation. In Joe’s case, the jury found that the plaintiff had carried his burden, but, in answering yes to the second question on the verdict sheet, the jury found that the township had met its burden of showing that the applicant was not hired because there were more qualified candidates. Joe brought in as witnesses the three candidates who were offered the job, but eventually turned it down, as well as the fourth candidate, who is the current township manager. The defense case involved a total of 15 witnesses.

Christopher Boyle (King of Prussia, PA) obtained dismissal of his client, a suburban police department, on a motion to dismiss. The plaintiff was a 92-year-old man caring for his terminally ill wife. He alleged that two officers from the client’s department “manhandled” him in his driveway, where he was having a dispute with his wife’s home health care aide. He alleged that the officers threatened to arrest him for keeping the home health care aide as a hostage. A suit was brought against the police department and the home health care agency. A sit-down with Chris and the chief of police went a long way in the plaintiff’s decision to put up only token resistance to the motion, which was granted. The action against the home health care agency will continue in state court.

John Gonzales and Lee Durivage (Philadelphia, PA) obtained dismissal of two lawsuits involving claims of defamation, breach of contract and interference with contractual relations on behalf of a township supervisor in Montgomery County, Pennsylvania. The plaintiffs, former employees of the township, were both separated pursuant to general releases and separation agreements, which contained a confidentiality clause and a non-disparagement clause. Also, both plaintiffs received a severance package. The supervisor spoke to a local newspaper reporter to explain why he opposed paying a severance to the two employees and to express his concern that the employees were fired for cause. We argued that a township supervisor is immune from liability under the doctrine of high government official immunity. The court agreed, holding that, even if the statements were defamatory, speaking to the media to comment on township business is within the scope of a township supervisor’s duties and, therefore, such statements are protected by absolute immunity.

Lauren Burnette (Harrisburg, PA) obtained a memorandum opinion from the Third Circuit Court of Appeals affirming judgment in favor of our school district clients. The appellants were the parents of several minor students who were bullied while on school property. The parents alleged that when they complained of persistent bullying, district administrators and teachers took no action to stop the bullies’ behavior. The parents claimed that they were forced to withdraw their children and place them in private school, and that one child sustained facial injuries, resulting in compromised vision in one eye. The parents claimed that by doing nothing to protect their children, the district and its personnel violated the students’ rights under the First and Fourteenth Amendments. The Third Circuit affirmed the district court’s dismissal of the parents’ claims, noting that in order to sustain a First Amendment retaliation claim, the parents had to plead that the district and its administrators took some action which could be construed as retaliatory. The parents, alleging that the district took no action whatsoever, thus, failed to state a claim for which the court could grant relief. The Third Circuit similarly affirmed dismissal of the parents’ Fourteenth Amendment claim, finding that the due process clause does not impose an affirmative duty upon the state to protect its citizens from the acts of private individuals. The court also noted that the “special relationship” and “state-created danger” exceptions to this general rule were inapplicable to the facts alleged by the parents.

William McPartland and Mark Kozlowski (Scranton, PA) obtained a defense verdict for a school district in a case in which the plaintiff, represented by the ACLU, challenged the district’s random drug testing policy under Article I, Section 8 of the Pennsylvania Constitution. The court found that the policy is constitutional based upon evidence demonstrating that: (1) a drug problem existed within the district; (2) the students tested were likely to be part of the problem; and (3) drug testing was an effective means to address the problem.

David Wolf and Mike Salvati (Philadelphia, PA) were successful in raising preliminary objections in the nature of a demurrer in a case in which they defended a minor student accused of bullying a fellow student, who suffered not only verbal taunts, but physical injuries. Plaintiff’s counsel brought suit against a group of bullying students, each of their parents, school teachers, officials and the Archdiocese. The student David and Mike represented was accused only of name calling, not the physical attacks on the plaintiff allegedly committed by the other named minors. David and Mike argued that Pennsylvania did not recognize a tort for negligently conspiring with or participating with another to ridicule a third party. The most analogous tort is intentional infliction of emotional distress, which requires a showing of “ultra extreme,” or “utterly intolerable” conduct, and which goes beyond merely offensive verbal taunts. The Philadelphia Court of Common Pleas judge sustained the preliminary objections, rejecting the plaintiff’s argument that verbal taunts amount to “acts of violence,” and that the client had the duty to stop physical assaults by others. The preliminary objections of the other minor defendants were overruled.

Workers’ Compensation

Tony Natale (Philadelphia, PA) successfully defended a large Pennsylvania transportation company in a case involving a potential seven-figure loss arising out of a bus accident. The claimant alleged injuries in the form of bilateral knee crush with bilateral total knee replacement, along with multi-level disc herniations, resulting in debilitating radiculopathy and permanent nerve damage. The Workers’ Compensation Judge ruled that the claimant’s spine and knee injuries, along with the accompanying surgeries, were not part of the work-related injury and that all soft tissue-related injuries had fully recovered.

Tony Natale (Philadelphia, PA) also successfully defended a large Pennsylvania electric service company in a case involving a horrific motor vehicle accident. The claimant alleged injuries ranging from disc herniations, riddled through his neck and back, significant tears in both shoulder tendons, bilateral carpal tunnel syndrome and epicondyle nerve damage, and a fractured ankle with total ankle replacement. The carrier involved in this matter contemplated accepting the injuries and prepared for a high-exposure claim. Interestingly, the claimant decided to get a ruling in the workers’ compensation case before taking the case to trial in the MVA third party case. The carrier asked that Tony do his best to limit exposure. Tony was able to effectively cross examine all of the claimant’s medical witnesses, and the Workers’ Compensation Judge found that all neck, back and shoulder injuries to be fully recovered, while also finding that the bilateral wrist conditions were not work-related.

Tony Natale (Philadelphia, PA) also successfully defended a large transportation company in a tortuously litigated workers’ compensation claim petition. The claimant was a bus driver whose demeanor lead him to fisticuffs with an equally belligerent passenger. The fight started inside the bus before a mob of jeering passengers and ultimately spilled outside the bus doors onto the streets. Most of the battle was captured by the in-house bus video recorder. The litigation involved very sensitive issues, thus provoking claimant’s attorney to make over five recusal motions in an attempt to replace the judge of record. The judge found that Tony’s cross examination of the claimant established clear and convincing evidence that the claimant was not in the course and scope of employment at the time of the melee. The claim petition was denied and dismissed.

Bob Fitzgerald (Cherry Hill, NJ) successfully defended his client, a local university, against a subrogation claim. A teaching assistant sustained significant injuries in a motor vehicle accident while driving back from a research facility and had to be air-lifted from the scene. The teaching assistant’s PIP carrier filed a subrogation claim in the workers’ compensation division against the university alleging that the injuries were work-related. Despite having a written contract of employment as a teaching assistant and utilizing a university-owned vehicle at the time of the accident, Bob was able to prove that, at the time of the injuries, the teaching assistant was performing his own personal research for his dissertation and was not involved in any teaching activities. The last demand before the judgment dismissing the claim had been $150,000.

*Prior Results Do Not Guarantee A Similar Outcome

Defense Digest, Vol. 20, No. 2, June 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.