On the Pulse…Defense Verdicts and Successful Litigation Results*
CASUALTY DEPARTMENT
Michael Bradford and Valerie Lamb (Tampa, FL) obtained a summary judgment in an auto negligence case against their clients, a peer-to-peer car sharing app and an individual vehicle owner who rented out his car to someone using the app. The plaintiff alleged that under Florida’s Dangerous Instrumentality Doctrine, the app and the vehicle owner were vicariously liable for the co-defendant (the renter of the vehicle), who allegedly hit the plaintiff’s vehicle. Valerie drafted a motion for summary judgment, arguing that the Graves Amendment—a federal law long recognized to provide protection to traditional car rental companies—preempts the application of Florida’s Dangerous Instrumentality Doctrine and exempted our clients from vicarious liability for the alleged negligence of the driver. Michael presented these arguments to the Hillsborough County judge, who agreed and granted the motion for summary judgment in full.
Joanna Buchanico (Philadelphia, PA) and David White (King of Prussia, PA) obtained a $50,000 trial verdict ($100,000 with 50% negligence) in Montgomery County in a significant motor vehicle accident case. We represented a construction company and their dump truck driver. The driver made a left-hand turn in front of the tollbooth for the Pocono Interchange of the Pennsylvania Turnpike’s Northeast Extension in order to enter a PennDOT yard. The plaintiff was driving on the truck driver’s side while he attempted the turn, and he sideswiped her. The plaintiff complained of neck pain after the accident, although the ER records said she denied neck pain. She had three herniated discs in her neck and had two fusion surgeries. Both the plaintiff’s and the defense’s doctors agreed that two out of the three herniations were degenerative and pre-existing. The parties disagreed on the third herniation. The plaintiff’s treating orthopedic surgeon said she would need another surgery and put future medical expenses at $100,000. Past medicals were agreed upon at $50,000. The plaintiff also presented neuroradiologist M. Brooks, M.D. to discuss the disputed herniation. We retained orthopedic surgeon M. Murray, M.D. and neuroradiologist A. Schaer, M.D. We subpoenaed the plaintiff’s ER doctor to testify that she denied neck pain and left without receiving any X-rays or treatment. We also retained an accident reconstructionist to address the minimal impact of the accident and to determine that the plaintiff accelerated before impact (i.e., she was trying to pass our truck). Mediation and a settlement conference took place prior to trial. We had authority to settle for what the case was valued at both conferences. The plaintiff refused and said essentially it had be $1 million. The jury found the plaintiff 50% negligent. They awarded her zero past medicals, zero future medicals. and $100,000 for non-economic damages.
Oswald Clark and Kimberly House (Philadelphia, PA) obtained dismissal of their client via preliminary objections in a significant product liability matter venued in Philadelphia County. The plaintiffs were seriously injured in a workplace accident involving a tile packaging machine. We filed three sets of preliminary objections, all asserting that original process was never properly served on our client. The plaintiffs opposed all of our objections, claiming they served our client via certified mail. Despite the plaintiffs’ filing an affidavit of service, we successfully argued to the court that the purported certified mail receipt was never signed by an agent of our client and, in fact, simply said “COVID-19” on the signature block. We also argued that the third amended complaint failed to plead a prima facie case of negligence or strict liability because it failed to properly identify the manufacturer. In fact, the plaintiffs attributed a single serial number to the product, yet alleged that all 15 of the defendants manufactured it. The court sustained our third set of objections and dismissed the case as to our client.
Kimberly House, Thomas Wagner, and Carol Vanderwoude (Philadelphia, PA) successfully convinced the Pennsylvania Superior Court to affirm the trial court’s decision to sustain preliminary objections and dismiss a wrongful death case involving allegations of negligent transmission of COVID-19. Kimberly wrote the brief and argued to the Superior Court that no duty exists in Pennsylvania to prevent transmission of an illness, such as COVID-19, and that the court should not create a new duty under the Althaus factors. The plaintiff alleged that his elderly parents contracted COVID-19 from employees of our client who were providing non-medical, in-home care services, and that his parents ultimately died from the disease. In affirming the trial court’s dismissal of the action, the Superior Court held that no duty exists under current Pennsylvania law and that no new duty should be created under these circumstances. The Superior Court stated: “We certainly empathize with the family of the Decedents in this tragic case. … However, on this record and based on current legal authority, we are constrained to conclude that Appellee did not owe a duty of care to take precautions against spreading COVID-19 to Decedents, its customers.”
Christopher Power (Melville, NY) obtained a defense verdict in the Supreme Court, Kings County, in a case where the plaintiff, a supermarket employee, claimed he slipped and fell on water from a floor-washing machine being used to clean the floors. Chris represented the floor-cleaning company. During the investigation of the claim, Chris sent an investigator to speak with the supermarket’s store manager who witnessed the incident. She informed the investigator that the plaintiff did not slip and fall on water from the floor-washing operations but, rather, from frozen food the plaintiff was unpacking. The ice on the frozen food was melting, causing water to drip on the floor because the plaintiff was a slow worker. Chris then subpoenaed the store manager for a non-party deposition and secured her sworn testimony that the plaintiff slipped and fell on the supermarket floor from the ice melting, not from the floor-cleaning operations. At trial, Chris successfully argued to preclude the plaintiff’s expert from testifying that the floor-washing machine was leaking water in that this expert never inspected the machine. Chris also subpoenaed the store manager, who was the first witness, and read her sworn testimony in front of the jury. During the plaintiff’s testimony, he claimed he was being discriminated against by his employer and was being told to work “faster, faster, faster.” Chris’s client testified that she was not aware of the incident until 1½ years later, when she was sued. She further testified that no one ever made complaints to her about the manner in which the floors were cleaned. During summation, Chris stressed to the jury that the plaintiff clearly had a beef with his employer which had nothing to do with the floor-cleaning company he represented. He repeated the plaintiff’s claim that he was told to work “faster, faster, faster,” and read the store manager’s testimony again to the jury. He further stressed that the plaintiff produced no witnesses whom he claimed witnessed the accident and did not present any photographs of the accident location to show any foreign substance on the floor. The jury deliberated for 26 minutes and rendered a defense verdict.
HEALTH CARE DEPARTMENT
Andrew Campbell (Philadelphia, PA) obtained a successful outcome in a medical malpractice case involving the death of a one-year-old infant. The child, who twice presented to the ER with seizure complaints, was not admitted until such time as she died in ICU due to complications from an underlying and undiagnosed heart condition. Andrew’s client was a physician’s assistant student working in the ER who evaluated the patient, interviewed the mother, and recorded her findings in the medical record. Andrew filed a motion for summary judgment on the basis of a physician assistant student’s duties and scope of authority in a pediatric ER. The court in Philadelphia County entered summary judgment in her favor, dismissing all claims and cross-claims.
Ryan Gannon and Heather LaBombardi (Roseland, NJ) earned a unanimous defense verdict in a three-week trial of a medical malpractice case in Essex County, New Jersey. The plaintiff alleged that her total knee replacement components were improperly placed and mal-rotated during her total knee replacement surgery, which was performed by the orthopedic surgeon defendants. The plaintiff alleged the mal-rotated components in the initial surgery caused the need for a revision total knee replacement and four additional procedures due to complications that arose. According to the plaintiff, as a result of the alleged malpractice and need for subsequent surgeries, she was unable to walk beyond short distances. Ryan and Heather were able to establish, through their client and expert, that proper steps were taken by their client during the orthopedic surgery and that their client met accepted standards of care, despite the patient’s poor outcome. After weeks-long trial, the jury deliberated for three days and returned a unanimous verdict in favor of Ryan and Heather’s client on liability.
Michael Kelly’s (Melville, NY) motion for summary judgment in a medical malpractice action was granted by the Supreme Court, Kings County, New York, as reported in The New York Law Journal. The plaintiff, a 69-year-old man who was severely debilitated by a stroke, brought suit against the client, a nursing home, in 2015. He had been admitted to our client’s nursing home with 14 pre-existing pressure sores. Through our expert, the records, and our client’s deposition testimony, we established that none of the pressure sores worsened during his admission. In fact, they all either stabilized or resolved during the plaintiff’s roughly two-month admission. Thus, the court found there were no deviations from accepted standards of care, nor any injuries, and dismissed the case. The plaintiff’s settlement demand while the motion was pending had been $6 million.
Lynne Nahmani (Mount Laurel, NJ) and Justin Johnson (Roseland, NJ) obtained a directed verdict in Gloucester County, New Jersey, in a subacute rehab case. The plaintiffs claimed their father, who suffered from dysphagia, was negligently left unattended by the nursing staff to choke and die in his room while eating his breakfast. At the close of the plaintiffs’ case, three motions for directed verdict were made. The court agreed that the plaintiffs had not met their burden on causation with their expert testimony. The plaintiff had filed a $3 million offer of judgment in the case. The tremendous help of associate Brian Rice (Mount Laurel, NJ) and paralegals, Elina Sheldon (Roseland, NJ) and Dana Fiorella (Mount Laurel, NJ), was paramount to our success in this case.
Victoria Scanlon (Scranton, PA), assisted by Patrick Halferty (Pittsburgh, PA), obtained a medical malpractice arbitration defense award. The plaintiff, then 29 years old and newly married, presented to the emergency room for a 10/10 headache. A non-contrast head CT scan was performed that was read as normal. Several days later, the plaintiff re-presented to the hospital again and, with additional and more-sensitive imaging performed, and was diagnosed with a cerebral venous thrombosis (CVT). The plaintiffs alleged that the defendant radiologist misread the head CT scan. As a result, her thrombosis expanded to 100% occlusion, she lost the opportunity for cure, and suffers lifelong, daily, debilitating headaches. We successfully argued that, prospectively, the head CT scan showed what appeared to be a normal anatomical variant. It is only in retrospect, with the benefit of additional and more sensitive imaging studies, that one was able to determine that the abnormality on the CT scan was thrombus, not a normal anatomical variant.
PROFESSIONAL LIABILITY DEPARTMENT
Brigid Alford and Seth Perago (Harrisburg, PA) obtained dismissal of a bad faith claim arising from a motor vehicle accident and resultant UIM claim in a case filed in the U.S. District Court for the Eastern District of Pennsylvania. The six-page opinion included the court’s candid acknowledgement that “the reality is that most insurance denials are not a product of bad faith, just a disagreement about the merits or value of the claim.” The court did not allow the plaintiff the opportunity to amend his complaint in order to cure the pleading defects.
Kimberly Berman (Fort Lauderdale, FL) and William Estes (Jacksonville, FL) obtained a dismissal, with prejudice, in an action against a not-for-profit based on an alleged violation of contract, and a constitutional challenge of a Florida statute, and that sought enforcement of a third-party settlement agreement. We represented an international not-for-profit private membership organization in an action by a former member for violation of his membership in said organization. The plaintiff attempted to use a settlement agreement from a prior case to show he was in compliance with the organization’s membership requirements. The plaintiff also argued that the requirement to be a member of an underlying organization was unconstitutional because of an antiquated Florida law. We argued that a settlement agreement could not be enforced against a third-party with no privity or connection to a settlement agreement; that the plaintiff failed to follow the procedural requirements to challenge the statute and, even if he did, the law was wholly inapplicable to our client; that claim and issue preclusion were appropriate because the plaintiff had incorporated the issues and claims into his complaint, which demonstrated the same set of operative facts and issues were again being litigated for a third time; and that the plaintiff failed to state a cause of action under the Florida Declaratory Judgment Act because the elements were not met and the court did not have jurisdiction under the Declaratory Judgment Act. The judge ruled from the bench after oral arguments, granting the dismissal for prejudice for failure to state a breach of contract and failure to state a cause of action under the Declaratory Judgment Act.
Samuel Cohen (Philadelphia, PA) and Jeremy Zacharias (Mount Laurel, NJ) successfully obtained dismissal with prejudice of their client, a financial broker/dealer, in a case concerning an internal familial dispute involving the plaintiff’s family after the death of the plaintiff’s brother. Sam and Jeremy argued that the allegations of fraud and undue influence were unsubstantiated based on the evidence of record, which included written discovery responses and deposition testimony. Sam and Jeremy maintained that, based on the financial transactions at issue, the plaintiff had no entitlement to these financial accounts at any time. Our client, the financial broker/dealer, had a longstanding professional relationship with the decedent and his family, and this professional relationship and the conversations that the broker had with the decedent and the family were vital in obtaining this dismissal, with prejudice.
Christopher Conrad (Harrisburg, PA) prevailed on summary judgment on a 4th Amendment civil rights claim in a case filed in U.S. District Court for the Middle District of Pennsylvania. The plaintiff, a former social worker employed by a local school district, alleged that the district’s assistant superintendent and Right to Know Law officer conducted an unlawful “search and seizure” of her work space by breaking into her office filing cabinet and taking personal and confidential records. The plaintiff also alleged that the district’s Right to Know Law officer unlawfully produced these records in response to a Right to Know request from the plaintiff’s estranged husband, the former superintendent of the school district, with whom the plaintiff was in the midst of a very contentious divorce. The court agreed that the plaintiff failed to produce any evidence to show that either the assistant superintendent or the Right to Know Law officer actually searched her filing cabinet or seized her personal property. There were no eyewitnesses to the alleged break in (our clients adamantly denied breaking into the plaintiff’s cabinet), and the plaintiff acknowledged she did not know whether any records were actually removed from her filing cabinet, even though the lock allegedly had been broken. The court reasoned that the information the school district produced in response to the plaintiff’s husband’s Right to Know request actually came from the school district’s payroll system, not the plaintiff’s cabinet. The plaintiff’s lawsuit also included claims under the 14th Amendment, the Rehabilitation Act, and the Pennsylvania Human Relations Act, all of which were dismissed previously on a Rule 12(b)(6) Motion.
Christopher Conrad (Harrisburg, PA) prevailed on a motion to dismiss in a hazing lawsuit filed in the U.S. District Court for the Middle District of Pennsylvania against a local school district. The plaintiff, who was a member of his high school football team, alleged he was subjected to hazing and physical abuse by several other members of the team while attending a team dinner at the home of one of his teammates. The plaintiff claimed the school district knew the alleged hazing had been a tradition of the football team for years but failed to prevent it, and that the school district failed to appropriately respond and investigate when he reported the alleged hazing incident. The plaintiff asserted claims against the school district under Title IX for, among other relief, emotional distress damages and punitive damages. He also asserted several state law claims, including negligence, failure to rescue, and failure to warn. The court agreed with our arguments that emotional distress damages and punitive damages are not recoverable under Title IX as a matter of law, and that all of the state law claims were barred by sovereign immunity as embodied in the Political Subdivision Tort Claims Act.
Scott Eberle (Pittsburgh, PA) received dismissal of a disciplinary complaint that involved allegations that the attorney improperly terminated a non-refundable, flat-fee representation and then collected an excessive fee. Scott successfully argued that the attorney, our client, complied with Rule 1.16 when he terminated his representation after his client failed to pay the entire amount of the agreed-upon flat fee. Scott also contended that the fee our client did collect was clearly not excessive under Rule 1.5 due to the amount of work our client performed on the matter prior to termination.
Carly Edman (Pittsburgh, PA) obtained a dismissal of a plaintiff’s legal and accounting malpractice claims in the U.S. District Court for the Western District of Pennsylvania. The plaintiff filed suit against a number of defendants as a result of tax liability stemming from a prior unrelated legal settlement. The plaintiff claimed that our attorney client was negligent in providing legal and accounting advice in regard to corrective tax filings following a legal settlement with a state entity. The plaintiff asserted claims of legal malpractice, accounting malpractice, fraud, and a host of constitutional violations. Carly sought dismissal via a number of arguments, including a lack of subject matter jurisdiction. After multiple rounds of amended pleadings and briefing, the court entered an order adopting Carly’s jurisdictional argument and dismissed the plaintiff’s latest complaint, without prejudice, based upon a Rule 8 violation for his failure to plead a proper jurisdictional basis. While the dismissal order was without prejudice, the running of the statute of limitations results in our client obtaining the win.
John Gonzales and Joshua Brownlie (Philadelphia, PA) obtained a defense trial verdict in the U.S. District Court for the Eastern District of Pennsylvania in a Section 1983 malicious prosecution trial. The plaintiff alleged that our client’s police officers falsified evidence and testimony in order to maliciously prosecute him for conspiracy for engaging in the illegal sale of narcotics. The plaintiff had been observed operating a motor vehicle that re-supplied a group of individuals selling drugs. The plaintiff relied upon the testimony of a former narcotics detective, who admitted to lying during the investigation and claimed that other officers assisted him in fabricating the evidence. The defense contended that the former narcotics detective was lying and called various members of our client’s narcotics field unit to testify about the investigation and the evidence that connected the plaintiff to the narcotics activity.
John Gonzales (Philadelphia, PA), Walter Kawalec, and Ashley Toth (Mount Laurel, NJ) won a motion for summary judgment before the U.S. District Court for the Eastern District of Pennsylvania. The plaintiff filed a Section 1983 14th Amendment Due Process claim, arising out of the eviction of a property owner and several tenants following a number of disputes concerning the ownership of the property and various permits and citations issued concerning the property.
John Hare and Shane Haselbarth (Philadelphia, PA) prevailed in a unanimous, precedential decision of the Superior Court of Pennsylvania that applied Pennsylvania’s statute of repose to bar construction defect claims brought by a number of homeowners. The plaintiffs were joined by 55 amici, and the national builder represented by John and Shane was joined by numerous construction organizations as amici. The decision reconciles conflicting case law and will be dispositive of hundreds of pending construction defect lawsuits in Pennsylvania.
Walter Kawalec and Michelle Michael (Mount Laurel, NJ) successfully handled an employment litigation case involving claims of racial and sex-based discrimination. Michelle successfully argued a summary judgment motion in the Law Division. The plaintiff had alleged that her disciplinary actions against her subordinates were not being treated seriously, especially compared to those of white supervisors. She also claimed disciplinary actions were taken against her for unfounded claims involving workplace violence; she was given new and disagreeable duties; her two Equal Employment Division complaints were mishandled and inappropriately dismissed by the Division; her workstation was transferred to a grossly inadequate area; and she experienced an overall racist and sexist workplace, including instances of racial slurs and offensive language being used against her and others. The Law Division agreed with Michelle’s arguments to dismiss. Walter then successfully argued before the New Jersey Appellate Division and obtained an affirmance of the dismissal of the claims.
Allison Krupp and Brigid Alford (Harrisburg, PA) presented a successful motion for judgment on the pleadings and obtained dismissal of a bad faith claim when the court agreed that the applicable statute of limitations barred the claim. The case was docketed in the U.S. District Court for the Eastern District of Pennsylvania. Counsel for the plaintiffs was already representing them at the time the statute of limitations expired. Prior to filing of the dispositive motion, as a matter of discretion and professional courtesy, we approached the plaintiffs’ counsel and proposed that their clients voluntarily dismiss the bad faith count, so as to avoid a situation where the court might grant the motion and issue a written opinion on the statute of limitation that would thereafter then become part of a public record. Counsel refused. As a result, a judicial finding that the plaintiffs failed to toll the statute of limitations is now part of the public record in the case.
William McPartland and Rachel Insalaco (Scranton, PA) achieved a defense jury verdict in a 4th Amendment civil rights trial in the U.S. District Court for the Middle District of Pennsylvania. The plaintiff alleged that two officers of the Wilkes-Barre Township Police Department used excessive force to transfer him from the police station’s processing room to a holding cell. We argued that the officers’ actions were reasonable under the circumstances, because it was brief in duration, used techniques within the officers’ training, caused no injury to the plaintiff, and that the force applied only was used after the plaintiff repeatedly refused to walk to the holding cell on his own. The jury returned a unanimous verdict in our favor after approximately an hour of deliberation.
William McPartland and Rachel Insalaco (Scranton, PA) obtained dismissal of our client, a township police department, in a pro se matter alleging various constitutional violations stemming from the plaintiff’s detainment for DUI. The U.S. District Court for the Middle District of Pennsylvania recommended that the plaintiff’s claims against our client be dismissed because the plaintiff failed to state a municipal liability claim against the department and because the police report from the events at issue established that the arresting officer was not employed by our client. All claims against our client were dismissed.
Patricia Monahan (Pittsburgh, PA) prevailed on summary judgment in Allegheny County for a borough that had been sued in 2019 in an Act 600 pension matter. The defendant, a police chief, claimed the borough had contracted with him to establish an Act 600 pension plan and that he was entitled to Act 600 pension benefits, even though an Act 600 Ordinance had not been enacted and the police chief had a pension under a different ordinance. Summary judgment was finally awarded to the borough after a successful interlocutory appeal and a remand.
John Slimm and Jeremy Zacharias (Mount Laurel, NJ) obtained a dismissal, prior to trial, of a complex legal malpractice action arising out of a multiparty, medical malpractice “failure-to-diagnose” case in Burlington County, New Jersey. In this case, Jack and Jeremy represented one of Philadelphia’s most well-known and highly-respected plaintiffs’ medical malpractice firms. Prior to granting dismissal, the trial court found that the plaintiff’s expert’s opinion was net. In addition, the court barred the plaintiff’s malpractice expert from testifying at trial. The court also denied the plaintiff’s motion for reconsideration, notwithstanding the fact that the plaintiff submitted a new amended expert report in an attempt to cure the deficiencies in the deposition we took of plaintiff’s expert. It is significant that in its decision, the court relied upon the Appellate Division’s decision in Morris Properties, Inc. v. Wheeler, et al., 300 A.3d 980 (N.J. Super. App. Div. 2023) (approved for publication August 22, 2023), an appeal successfully handled by Jack and Jeremy. The court found that the Appellate Division decision was dispositive and required the court to strike the plaintiff’s expert report and precluded his testimony at trial. The court then dismissed the case with prejudice.
John Slimm (Mount Laurel, NJ) obtained an order from the Superior Court in Burlington County, New Jersey, on the eve of trial, granting our motion to dismiss in a multiparty complex legal malpractice action. This suit was filed against a court-appointed administrator of an estate, the sellers of the property, the beneficiaries of the estate, and the estate itself. The case involved two actions in the Chancery Division, two actions in the Law Division, and an appeal arising out of the same, all involving claims for breach of contract, breach of fiduciary duty, negligence, and legal malpractice against the administrator. The case was filed because the property was contaminated, and it was alleged that the estate and the administrator knew or should have known about the unlawful dumping but ignored those activities, allowed the property to become damaged, and kept the information about the contamination from the plaintiff’s beneficiaries. However, the court found that the claims against the lawyer/administrator were barred because, in the underlying probate action, the court had held that the administrator fulfilled his duties and was discharged from all duties and obligations under New Jersey’s Probate Code. Accordingly, the court dismissed the Law Division action based upon the Entire Controversy Doctrine, res judicata, collateral estoppel, and judicial estoppel.
Pauline Tutelo and William Waldron (Roseland, NJ) obtained summary judgment on behalf of their architectural client against one of the top construction/design defect law firms in the state on the basis that the plaintiff’s expert’s opinion was a “net opinion.” The order for summary judgment was entered after three separate argument appearances. The court agreed that the plaintiff’s expert’s report failed to substantively establish a deviation from the architectural standard of care, which could be submitted to a jury for determination. The plaintiffs subsequently filed a motion for reconsideration, that was also argued before the court and denied. No appeal was taken.
WORKERS’ COMPENSATION DEPARTMENT
William Murphy (Roseland, NJ) successfully obtained orders for dismissal, with prejudice, where two New Jersey medical providers alleged they were entitled to additional monies for medical treatment provided in New Jersey to a New Jersey resident. The underlying accident involved a truck driver who resided in New Jersey and regularly worked in New Jersey, but sustained injuries in Massachusetts. While the injured worker initially filed a New Jersey workers’ compensation claim, he subsequently opted to pursue his claim in Massachusetts, in part, because Massachusetts allowed him to select his own treatment providers (unlike New Jersey, where the employer designates the treatment providers). Each provider claimed that, because the injured worker was a resident of New Jersey, worked in New Jersey, and treatment was rendered in New Jersey, there was sufficient contact for the court to exercise jurisdiction for a Medical Provider Application. As such, they claimed their bills should be paid at New Jersey’s standard of a usual and customary rate, as opposed to Massachusetts’ fee schedule. The providers’ billed amounts were $173,927.52 and $128,088.00. The employer made payments in the amount of $13,872.87 and $7,149.01, respectively, per Massachusetts’ fee schedule. Bill successfully argued that, because the injured worker had opted to pursue a Massachusetts workers’ compensation claim and had selected these medical providers pursuant to said claim (as a New Jersey claim would have required the employer’s approval), the payment of these medical providers should be governed by Massachusetts’ workers’ compensation system. Therefore, the providers could not seek additional money in New Jersey based on its usual and customary standard, as opposed to Massachusetts’ fee schedule. This saved the employer up to $280,993.64 in potential medical payments. Both Medical Provider Applications were dismissed with prejudice.
Andrea Rock (Philadelphia, PA) successfully defended a claim petition alleging a lumbar strain and sprain, lumbar disc herniation, and lumbar radiculopathy. Andrea presented the testimony of a Board-certified orthopedic surgeon with an active clinical and surgical practice who testified that the claimant was fully recovered from the work injury. She also presented testimony from three compelling, employer fact witnesses. All of this testimony supported no wage loss due to the claimant’s termination for cause, which was associated with a non-related physical altercation at work. In addition, a detailed and effective cross examination of the claimant further supported the defense and findings of embellishment and symptom magnification, with no medical treatment following the injury. This evidence resulted in a judge’s award of only limited medical bills and no wage loss.
Robin Romano (Philadelphia, PA) successfully argued for denial of the claimant’s petition to review to add a right hip injury. Because the claimant was planning to proceed with right hip replacement surgery, the exposure in this matter was high. The claimant had already succeeded in having a claim petition granted that acknowledged the left hip and for left hip surgery. Moreover, the claimant’s petition to review the treatment he received from a chiropractor was dismissed. The Workers’ Compensation Judge carefully considered the testimony of both medical experts. Importantly, the judge rejected the testimony of claimant’s surgeon, Dr. Nelson, which found a causal relationship between the right hip and the work injury. Given that Dr. Nelson was the claimant’s long-time treating physician and surgeon, rejection of that testimony was significant. Robin presented the testimony of the defense medical expert—Dr. Horenstein—who credibly testified that the mechanism of the original injury would not have caused a right hip injury. Dr. Horenstein also convincingly testified that an altered gait, suffered by the claimant allegedly as a result of the accepted left hip surgery, did not lead to a right hip injury or aggravation of what was clearly pre-existing osteoarthritis.
Kacey Wiedt (Harrisburg, PA) prevailed on termination, suspension, and review petitions, where the workers’ compensation judge found that the claimant was fully recovered as of the date of our medical expert examination. The judge also found our employer’s witnesses more credible and persuasive than the claimant’s, that the claimant was terminated for cause, and that the claimant should not have received wage loss benefits. The judge also denied the claimant’s review petition to expand the accepted injury. We are successfully recovering $33,508.00 from the Supersedeas Fund for our client.
Kacey Wiedt (Harrisburg, PA) prevailed on a claim petition, where the workers’ compensation judge found that the claimant did not sustain a work-related back injury. The claimant had alleged that repetitively lifting heavy boxes at work caused his back injury. The judge found our employer’s witness more credible and persuasive after testifying that the claimant had an attendance issue and only reported a work injury after he was going to be terminated from his employment. Our medical expert also established that the claimant did not have any medical issues correlating with a work injury.
*Results do not guarantee a similar result.
Defense Digest, Vol. 29, No. 4, December 2023, 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. © 2023 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.