Defense Digest, Vol. 27, No. 1, January 2021

On the Pulse… Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*

Kimberly Berman (Fort Lauderdale, FL) and Bradley Blystone (Orlando, FL) convinced Florida’s Fifth District Court of Appeal to affirm an administrative law judge’s final order that determined that a claim was compensable under the Florida Birth-Related Neurological Compensation Plan. ​A minor child was permanently and substantially brain damaged as a result of his complicated birth. The parents sought compensation pursuant to NICA under protest. The parents contended that the brain injury that caused the child’s permanent and substantial mental and physical impairment occurred prior to the statutory period (i.e., during labor, delivery, or resuscitation in the immediate post-delivery period in a hospital). They claimed the injury occurred in the 34 minutes from when the cord prolapsed at home to when the mother arrived at the hospital, where she ultimately delivered the child via emergency cesarean section. NICA and the hospital argued that the permanent and substantial impairment occurred during the statutory period. The administrative law judge agreed, and the Fifth District Court of Appeal affirmed the final order determining the claim was compensable. Payne v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 5D20-1206 (Fla. 5th DCA Aug. 11, 2020).

John Gonzales and Shane Haselbarth (Philadelphia, PA) secured a dismissal of a civil rights action against Lancaster County (Pennsylvania), its Children and Youth Agency, and several C&A caseworkers and staff attorneys. ​The plaintiffs are the parents of a child who, at only five months of age, was brought to the hospital with a spiral fracture mid-shaft on his right humerus (the bone in the top half of the arm). The hospital team collectively concluded that the injury was probably accidental in nature, but a nurse reported the injury to C&A, concerned that it might have been caused by abuse. By law C&A is bound to investigate suspected child abuse and did so here. A judge approved the request for a safety plan that required a chaperone to be with the parents and child, even in the home, while the merits of the abuse investigation continued. At the end of the investigation, the judge concluded the injury was accidental, and the safety plan was terminated. The plaintiffs then filed this action, alleging the safety plan violated their Fourteenth Amendment substantive due process rights. The federal district court dismissed the case, concluding the plaintiffs’ allegations of interference with the family unit, even if true, do not rise to the level of “shocking to the conscience” necessary for a due process violation. On appeal, the Third Circuit affirmed, stating that the nurse’s report of possible child abuse, in conjunction with other evidence to support suspicion of the same, make the defendants’ actions not “shocking to the conscience,” and so no substantive due process claim was stated. Dismissal affirmed.

*Prior Results Do Not Guarantee A Similar Outcome


Defense Digest, Vol. 27, No. 1, January 2021 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. © 2021 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