On the Pulse…Defense Verdicts and Successful Litigation Results*

CASUALTY DEPARTMENT

Brittany Bakshi (Harrisburg, PA) secured a directed verdict on behalf of her client, a car mechanic, following an arbitration. The plaintiffs alleged they had purchased a truck from a used car dealership with a current state inspection sticker granted by our client. However, the following year, the truck did not pass inspection. The plaintiffs claimed our client negligently and fraudulently passed the truck for inspection the year prior. The arbitration panel concluded the plaintiffs failed to present expert testimony regarding the condition of the truck at the time of purchase and, therefore, could not prove the inspection sticker was improperly granted by our client.

In a case that attracted international media attention, Thomas Brown (Orlando, FL) successfully resolved a wrongful death action involving a 14-year-old boy who tragically fell from an attraction at a major entertainment complex. Representing the ride’s owner/operator, he was able to navigate the complexities of a concurrent criminal investigation, a State of Florida administrative review, and widespread media coverage.

Michael Connolly (Scranton, PA) obtained summary judgment on a case where the plaintiff fell down a flight of stairs at a raceway stand, sustaining multiple fractures. The plaintiff alleged that she fell due to water that had accumulated, presumably from patrons’ coolers dripping through the bleachers onto the staircase below. The court dismissed the plaintiff’s claims against the raceway in their entirety, agreeing with our argument that the plaintiff failed to adequately establish actual or constructive notice of a dangerous condition. 

Ephraim Fink (Westchester, NY) won summary judgment in a nine-year-old supermarket slip-and-fall case. The plaintiff claimed that on June 1, 2015, she tripped and fell on the corner of a pallet/box of watermelons in the store’s produce section, where customers first walk in. There was video capturing the incident, which the court had as an exhibit. Notably, the plaintiff admitted she did not see the pallet or its corner and was not looking where she was walking. After falling, she refused medical attention, continued shopping, and walked home. She came back the next day with her husband to report the incident. Ultimately, she underwent multiple surgeries, including cervical fusion. Her attorney’s demand was $4 million. We argued that the watermelon pallet was a temporary merchandise display that was open and obvious to all with common sense. Indeed, customers walked by the pallet display before and after the plaintiff’s accident at a rate of dozens per day. The store put the watermelons out in this manner as part of its display policy because the melons are delivered in cartons on pallets that cannot be taken apart. The plaintiff argued the pallet was a hazardous defect the store created and had notice of. The plaintiff submitted an expert engineer, who claimed the display violated American Society of Testing Materials’ (ASTM) designation F1637-10 regarding safe walkway surfaces. In reply, E.J. submitted a rebuttal engineer, who demonstrated the ASTM standard asserted by the plaintiff applied to permanent structures—like floors and buildings—not the temporary pallet, and that the standard did not exist on the day of the accident. Moreover, the ASTM was never codified in New York State law or in a local ordinance. In granting summary judgment, the court concluded, while a landowner must act reasonably in maintaining its property in a reasonably safe condition, it is not an insurer of ordinary obstacles that are readily apparent as a matter of common sense and visibility.

Scott Gemberling, Kimberly House and Thomas Nardi (all of Philadelphia, PA) were successful in having a wrongful death and survival action transferred from Philadelphia County to Centre County. This case involved the death of a 19-year-old woman who fell down an 11-story trash chute in a condo building. After three sets of preliminary objections on venue and nearly two years of venue discovery, the Philadelphia Court of Common Pleas sustained our objections and ordered that the case be transferred. The plaintiff recently filed a motion for reconsideration, which was denied. 

Brad Haas (Pittsburgh, PA) successfully defended a national car-sharing company, resulting in a dismissal of all claims. The case involved a multiparty suit arising out of a commercial auto accident. Through aggressive pleading, Brad obtained a dismissal by arguing that both federal and state law provisions prohibited any claims against the car-sharing company. Brad additionally argued the facts, as set forth in the plaintiff’s complaint, failed to establish any duty and/or breach on our client’s behalf.

Kevin Hexstall (Philadelphia, PA), Alicia Calaf (Roseland, NJ) and Walter Kawalec (Mount Laurel, NJ) were successful in their representation of a national home improvement store. Kevin and Alicia handled the case at the trial level, where the judge granted their motion for a directed verdict and dismissed the case. Walt convinced the Superior Court of New Jersey, Appellate Division, to affirm the trial court’s decision. The plaintiff had rented a flatbed truck in 2018 to move a cabinet he had just purchased. He alleged that a store employee gave him a set of ramps to use in the truck, but while doing so, they moved and he fell, sustaining a serious and permanent injury to his back. The plaintiff alleged he later returned to the store and was told he had been given the wrong ramps. The appellate panel said that the record included no actual evidence that the ramps did not fit the truck beyond the employee’s saying they were the wrong ramps, or that the ramps slipped because they were incompatible with the truck. Even in his testimony, the appellate panel said the plaintiff did not actually identify any physical cause for the ramps to move. The court, therefore, affirmed the case on appeal. 

Kevin McKeon (Mount Laurel, NJ) obtained a jury defense verdict in the Superior Court of New Jersey in a product liability case where the demand had been $650,000. The plaintiff alleged a defect in the handle of an ultraviolet light disinfecting device caused her to develop trigger finger. She alleged a design defect and failure to warn claim, claiming permanent damage to her ring finger and hand as a result of surgeries to correct the injury. The case included testimony from five experts, including two orthopedic experts, a civil engineer, biomechanical engineer, and mechanical/biomedical engineer. 

Tony Michetti (King of Prussia, PA) won a motion for summary judgment in a case where the plaintiff suffered a hip fracture when he fell on the defendant’s sidewalk while delivering a food order. At the time of the accident, there was an active freezing rain and sleet storm, and generally slippery conditions prevailed. Tony filed a motion for summary judgment based on the “hills and ridges” doctrine. The plaintiff argued the doctrine was inapplicable due to human intervention that allegedly altered the natural accumulation. The defendant had applied rock salt to the sidewalk approximately 45 minutes prior to the accident. In granting our motion for summary judgment, the court found there was no evidence that the application of rock salt created a dangerous condition or increased the natural hazards of the existing ice; therefore, the hills and ridges doctrine applied.

Aaron Moore (Philadelphia, PA and Wilmington, DE) and Claire McCudden (Wilmington, DE) successfully defended a property owner in a two-day trial against its lessee. The plaintiff leased from the defendant a parcel of land upon which it operates a shopping center. The plaintiff claimed that after the excavation of a swale located on the defendant’s neighboring vacant property, mud, silt, and other debris flowed from the swale onto the plaintiff’s leasehold, which caused storm drains to become clogged and resulted in flooding and property damage. After complaints by the plaintiffs, the defendant remedied the problem by repairing the swale and claimed that this resolved the problem. However, the plaintiff disagreed. The court held the plaintiff failed to take any efforts to clear out the storm drains and that the paving had been damaged years before the water infiltration. Further, Delaware law recognizes the general right for an upper landowner to drain water by means of its natural flow. When the landowner artificially increases the flow of water, its conduct is judged based on a “reasonable user” rule. The court found that the defendant acted reasonably in promptly remediating the swale and, therefore, should not be held liable for any trespass or nuisance. The court further held that the plaintiff failed to prove that injunctive relief was warranted, especially when considering its own failure to maintain the property.

Lauren Purcell and James Cullen (both of Pittsburgh, PA) successfully secured summary judgment in the Westmoreland County Court of Common Pleas in favor of our clients in a neighbor dispute over alleged excessive water runoff. Our clients were sued by their neighbors for claims related to water runoff due to the installation of gutters and downspouts on a shed near the property line. Lauren and Jim effectively argued for summary judgment on the plaintiffs’ injunction, trespass, nuisance, and negligence claims, demonstrating the plaintiffs lacked the necessary expert testimony to substantiate their case as required under Pennsylvania law. Additionally, Lauren and Jim successfully argued that the plaintiffs’ negligence claim was barred by the two-year statute of limitations, which had expired at least six years before the suit was filed, as confirmed by deposition testimony from the plaintiffs themselves.

Patrick Reilly (Pittsburgh, PA) obtained summary judgment for a bar/restaurant in a brain injury dram shop case. The plaintiff had spent the afternoon at our client’s bar/restaurant before driving ten minutes to his local country club to continue celebrating his birthday. An hour and a half after he arrived at the club, he fell down the stairs and suffered a severe brain injury. His Blood Alcohol Content was a .239 legal/whole blood, roughly three times the legal limit. He had previously worked as a high-end custom wood finisher, but he is now unable to see color, among having other deficits. He is alleged to be fully disabled. After more than 20 depositions and despite varying reports as to what the plaintiff had to drink at our client’s establishment, Patrick argued that the plaintiff showed no signs of visible intoxication prior to the last service of alcohol by our client. Our motion was strenuously opposed by the country club, who argued there was testimony that the plaintiff appeared intoxicated upon his arrival at the club—a mere ten minutes after having left our client’s restaurant. The court agreed with Patrick’s argument that this was insufficient evidence for a jury to find that the plaintiff was served alcohol by our client while visibly intoxicated. As such, all claims against our client were dismissed.

Jennifer Roberts and Ian Glick (both of Melville, NY) were successful on a motion to dismiss. The underlying case involved allegations that the plaintiff was assaulted and battered by the under-aged insured. Further, the plaintiff alleged negligence claims against the insured. Having inherited the case from prior counsel, Jennifer and Ian first argued that the answer should be amended to include a cause of action for the breach of the statute of limitations. Second, Jennifer and Ian argued that, not only were the assault/battery allegations untimely under the statute of limitations, but the cause of action for negligence also arose out of the assault/battery claim and, thus, should be subject to the same one-year limit. The court granted leave to amend the answer and also dismissed all claims against the insured, finding they all arose out of the assault/battery and the statute of limitations had expired.

Mark Wellman (New York, NY) successfully achieved affirmance of the trial court’s decision to dismiss all claims against a property owner and designer in a New York labor law matter. The plaintiff was injured when he fell from a ladder stacked atop a bakers scaffold while performing renovation work on a four-story brownstone. The 16-foot ladder and the scaffold were provided by his employer—the general contractor—and set up at his employer’s discretion. The plaintiff filed an action against the owner of the property and the designer, alleging violations of various labor law claims, including labor law Sections 240(1), 241(6), and 200. The defendants’ motion for summary judgment, seeking a dismissal of all claims, was filed after the plaintiff’s depositions but before any of the defendants were deposed and with extensive discovery outstanding. The plaintiff opposed the motion and cross-moved to compel further discovery. The Supreme Court granted the defendants’ motion for summary judgment, dismissing all claims, as the property owners qualified for the owner and two-family dwelling exception to the labor law. The decision also denied the plaintiff’s cross-motion to compel. The designer was dismissed as not a proper labor law defendant. The trial court held that the defendants did not direct, supervise, or control any of the plaintiff’s activities. The plaintiff’s counsel appealed to the Second Department and relied on an affidavit from his client, stating the owner and designer were involved in almost every aspect of the construction and alteration work and were directing the work performed by the plaintiff. Therefore, according to the affidavit, the single-family home exception did not apply. After oral argument, the Appellate Division affirmed the trial court’s decision with costs. 

HEALTH CARE DEPARTMENT

Sharon Campbell-Suplee and Jessica Wachstein (both of Mount Laurel, NJ) successfully defended a claim for failure to diagnose infectious endocarditis after a periodontal procedure. The plaintiff, who was 56 years old at the time, was diagnosed with streptococcal endocarditis after undergoing periodontal surgery with our client. As a result, he required an aortic valve replacement and claimed he had to sell his business as he could no longer work. It was asserted at trial that our client, the periodontist who performed the surgery, and the co-defendant dentist failed to recognize signs and symptoms of potential infectious endocarditis in post-op interactions with the plaintiff. The claim also alleged that, had the plaintiff been diagnosed sooner, he would not have required open heart surgery and could have successfully been treated with antibiotics only. 

After an eight-day trial, Joseph Hoynoski (King of Prussia, PA) secured a directed verdict on behalf of his client, an orthopedic surgeon, who allegedly breached the standard of care as it relates to his performance of a reverse right shoulder replacement. The court found that the plaintiff failed to establish that the surgery performed by the orthopedic surgeon was unnecessary, as alleged.

Julia Klubenspies, David Tomeo and Victoria Pepe (all of Roseland, NJ) were successful in defending against a motion to amend a complaint to add the CEO of a major New Jersey hospital under a theory that a certain provision in the New Jersey Administrative Code made the CEO responsible for ensuring that certain newborn metabolic test results were timely received and reported. Following extensive briefing by David and Tori and many discussions with Julia and opposing counsel, the motion was withdrawn just prior to oral argument.

Kathleen Kramer (Philadelphia, PA) and Gabor Ovari (King of Prussia, PA) obtained a defense verdict after a week-long jury trial in the Chester County Court of Common Pleas in a medical malpractice case. The plaintiff alleged she sustained a bowel perforation injury in the course of a robotic-laparoscopic hysterectomy performed by an obstetrician/gynecologist. During the course of the procedure, a general surgeon was called in to evaluate the bowel for injuries. There were no injuries found, so the procedure was completed, and the patient was discharged the following day. Two days later, the patient returned in critically ill condition, and a bowel perforation in the sigmoid colon was identified. The plaintiff alleged the health care providers negligently failed to detect the injury during the hysterectomy. After a week-long trial, the jury returned a verdict in favor of all defendants.

Donna Modestine (King of Prussia, PA) received a defense verdict in a high/low arbitration. She represented a surgeon in a case in which the plaintiff alleged a delay in the performance of an appendectomy for a perforated appendix. The plaintiff went on to require a prolonged hospitalization and two subsequent surgeries. Donna successfully argued that the delay in the performance of the surgery did not result in any of the plaintiff’s alleged injuries.  

Gary Samms (King of Prussia, PA and Philadelphia, PA) and Ryan Gannon (Roseland, NJ) obtained a defense verdict in a complex medical malpractice case after a two-week jury trial in New Jersey. The elderly plaintiff claimed his posterior lumbar laminectomy for decompression was negligently performed. It was alleged that care failures in performing the surgery caused a loss of bowel and bladder control that ultimately required an irreversible colostomy and placement of a suprapubic catheter, as well as subsequent infections requiring extended medical intervention and rehabilitative care. The plaintiffs also made a claim for lack of informed consent for a physician’s alleged failure to inform the plaintiff regarding the risks of the surgery, which was thrown out by the court at trial. Gary and Ryan were successful in obtaining favorable admissions from the plaintiff’s expert during cross-examination, and the strength of their standard of care expert’s testimony was convincing to the jury, resulting in a defense verdict.

Gary Samms also achieved a unanimous defense verdict in a hotly-contested wrongful death case that included allegations of failure to do a workup and diagnose lung cancer. The nine-day trial revolved around the care provided by the primary care and orthopedic physicians. The plaintiffs claimed the patient’s symptoms were related to a Pancoast tumor that was undiagnosed, resulting in his death. Gary was able to establish with the jury the superiority of the defense experts by comparison. He also successfully explained there can be concurrent diseases and there was an objective reason for each and every one of the patient’s symptoms.

In a medical malpractice matter where the jury deliberated until 10:15 p.m. on Halloween night, Gary Samms also received a unanimous defense verdict on behalf of an orthopedic and physical therapy practice. The plaintiff's demand was $5 million. The jury deliberated for approximately six hours and had to decide whether the injuries sustained by the plaintiff—detached retina, macular hole and other related eye injuries resulting in five surgeries in two years—were related to any negligence by his clients. Gary was able to prove, through aggressive cross-examination, that the injuries were not related to any negligence on the part of the practice, even though they occurred while the patient was being monitored and treated in physical therapy. Gary's paralegal, Nancy Farnen (Philadelphia, PA), was instrumental in the preparation and defense of the matter.

PROFESSIONAL LIABILITY DEPARTMENT

Adam Levy and Eduardo Ascolese (both of Mount Laurel, NJ) won a motion dismissing all claims with prejudice against our client, an engineering design professional, in a case involving a major $18 million public roads project. Adam and Ed filed a motion to dismiss in lieu of an answer to the plaintiff’s amended complaint. Using New Jersey’s Fictitious Pleadings Rule, the plaintiff had attempted to add our client—an engineering design professional—as a defendant after the statute of limitations had run. Adam and Ed argued that the Fictitious Pleadings Rule was created to protect a diligent plaintiff who is aware of a cause of action against a defendant whose name was not known; however, the practice is unavailable to a plaintiff who, through due diligence, could have identified the client as a defendant before filing the complaint after the statue had run. The plaintiff’s knowledge of other potential defendants, which he should have then attempted to identify before filing his complaint, was shown through his own deposition testimony, as cited in relation to the pleadings, and as taken prior to our client’s entry into the case. The court agreed that the plaintiff’s lack of due diligence was fatal and dismissed all claims as to our client, with prejudice. 

Carly Edman (Pittsburgh, PA) obtained a dismissal, with prejudice, of all claims in a Dragonetti action in federal court in the Western District of Pennsylvania. Our clients, a family law attorney and her law firm, were sued after they filed a series of emergency motions on behalf of a mother embroiled in a contentious divorce. The emergency motions concerned the welfare of children and contained sensitive allegations relating to purported abuse. Following the disposition of these motions, the husband and his current partner sued our clients for wrongful use of civil proceedings, abuse of process, and defamation. In a motion to dismiss, Carly successfully argued that all claims should be dismissed. Notably, the court’s opinion quoted Carly’s brief in support directly for its analysis of the controlling cases. The court dismissed all claims against our clients with prejudice. 

Christin Kochel (King of Prussia, PA) obtained a defense verdict after a bench trial in the Philadelphia Court of Common Pleas, which found the plaintiff did not meet the definition of an insured entitled to underinsured motorist (UIM) coverage. The case arose out of a May 13, 2018, motor vehicle accident in which the plaintiff was a back-seat passenger in a vehicle that was struck by the tortfeasor. After settling his bodily injury claim with the tortfeasor and with the underlying UIM carrier that insured the vehicle he was a passenger in, the plaintiff submitted a UIM claim seeking UIM benefits under his alleged sister’s (Ms. Handy’s) UIM policy with our client. As a result of the accident, the plaintiff claimed numerous injuries with years of extensive treatment, including bilateral total knee replacements and multiple lumbar injections. As to coverage, there was no dispute the plaintiff was living with Ms. Handy at the time of the accident. Therefore, the only issue was whether the plaintiff could show he was an insured and entitled to coverage by proving he was related to Ms. Handy by blood, adoption, or marriage to meet the definition of a “family member” under the policy. Ms. Handy testified during discovery and at trial that she is not related to the plaintiff by blood, adoption, or marriage. After determining the plaintiff had no evidence supporting his claim of being a family member of Ms. Handy, other than his self-serving testimony, the judge found the plaintiff failed to meet his burden of proof and entered a defense verdict for our client. The plaintiff did not appeal the court’s decision.

Christin Kochel also obtained an order granting her motion to dismiss for failure to allege facts supporting a bad faith claim pursuant to Pennsylvania and federal case law. The case arose out of an uninsured motorist (UM) claim from a January 2, 2023, motor vehicle accident involving the plaintiff and a phantom vehicle. As a result of the accident, the plaintiff averred that he sustained various injuries, including to his head, neck, back, both knees, and left shoulder. The alleged tortfeasor fled the scene, so there was no credit. The plaintiff asserted an uninsured motorist benefit claim under his insurer’s policy, with $50,000 in UM benefits and with no stacking. In the complaint, the plaintiff asserted claims for breach of contract and bad faith. After Christin filed a motion to dismiss the bad faith count for failing to allege facts specific to support such a claim, the court agreed and dismissed the bad faith count, with prejudice. Shortly after the decision, the plaintiff settled his UM claim for a little over $8,000.

Christopher Reeser and Coryn Hubbert (both of Harrisburg, PA) won summary judgment in the Middle District of Pennsylvania on behalf of a highway construction company in a case that involved the alleged negligent installation of the end terminal of a guiderail on Interstate 81. The plaintiff’s vehicle struck the end terminal, which then went through the floor board of the plaintiff’s vehicle and severely injured his foot. Chris and Coryn argued that since the guiderail system was installed in 1999 through a contract with PennDot and the accident occurred in 2020, the claims against the contractor were barred by statute of repose. The court agreed that all elements of the statute of repose defense were met and dismissed all claims against the contractor. 

Dante Rohr (Orlando, FL) was successful in having the court affirm an arbitrator’s decision in a construction defect case involving the design and construction of a $13 million custom home. The owners’ direct claims against the general contractor and our client, the window and door supplier and installer, were arbitrated. The owners claimed the window company misrepresented the fitness of the windows and doors for use in Florida’s coastal environment. The custom wood windows and doors, with multi-point locking mechanisms, split and the locks froze in the humid, salty air environment. Dante argued the windows and doors were specified by the owner and architect and that our client performed proper due diligence by visiting the manufacturing facility and consulting with the manufacturer’s engineers with regard to the application. The arbitrator found no liability as to our client because there was no evidence it was negligent in its recommendation of the product, as the product meet the very precise criteria specified by the owners and architect, and our client performed proper due diligence to ensure the product met those criteria. 

Lee Durivage and Alexandrea Freeman (both of Philadelphia, PA) obtained a defense verdict on behalf of the owners of a for-profit college following a three-day AAA arbitration before a panel of three arbitrators. The plaintiff was the former CFO of a college, who sought approximately $1 million in damages for unpaid salary, severance, and return of money he provided to the college after his termination from employment. Following the three-day hearing and extensive post-arbitration briefing, the panel determined there was no liability to the two owners in either their official or individual capacities.

Estelle McGrath (Pittsburgh, PA) was successful in having a federal district judge from the Western District of Pennsylvania granted our motion to dismiss with prejudice a putative class action lawsuit in a case where we represented a child care center. The plaintiffs were nine minority employees who were involuntarily furloughed in the fall of 2020. They filed suit, alleging their employment was terminated in violation of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Pennsylvania Human Relations Act, the Wage Payment and Collection Law, and Section 1981 of the Civil Rights Act. The court agreed with Estelle’s arguments, finding that the plaintiffs’ class claims were not timely exhausted. The court disagreed with the plaintiffs’ arguments that their charges gave notice of their putative class claims because each charge only focused on the individual complainant’s alleged personal disparate treatment. The court also found that the plaintiffs were not entitled to equitable tolling as they did not exercise reasonable diligence in obtaining essential information bearing on their claim. Accordingly, the court dismissed the entire complaint with prejudice, finding no need to address the other bases for dismissal or our client’s request to strike the class action allegations. 

John Mueller and Michelle Michael (both of Mount Laurel, NJ) recently completed a two-week trial in the Superior Court of New Jersey and obtained a “no cause” verdict in an employment law case. The plaintiff, an employee of a New Jersey State entity, asserted violations of the Contentious Employee Protection Act (CEPA). According to the plaintiff, after reporting purported deficiencies with an environmental permit, he was subjected to retaliation and a hostile work environment. We successfully argued that the plaintiff did not articulate a violation of law or public policy, nor did he prove that the various employment actions he received created a hostile work environment or were even caused by the alleged whistleblowing. 

Jeffrey Chomko (Philadelphia, PA) obtained dismissal of a subrogation case involving a claim brought by an E&O insurer on behalf of an insurance agency against a lighting distributor due to its failure to procure adequate insurance coverage. Jeff effectively argued that the plaintiff/subrogor lacked standing to proceed against the distributor as there was no privity among the parties or any duty owed by the distributor to the subrogors. The case was withdrawn on preliminary objections.

Candace Edgar (Harrisburg, PA) prevailed in the U.S. Court of Appeals for the Third Circuit in a precedential decision upholding application of a household vehicle exclusion. A fifteen-year-old was seriously injured while riding an uninsured dirt bike on private property. After recovering the bodily injury limit of the tortfeasor’s policy, he sought to recover UIM benefits under two household policies. Coverage was not excluded under the one policy, so the carrier paid the policy’s UIM limit. However, the other household policy underwritten by the same carrier contained a household vehicle exclusion, which excluded UIM benefits under the facts of the accident, so coverage was denied. The carrier then filed a declaratory judgment action in the Eastern District Court of Pennsylvania, but lost because the District Court concluded that the household vehicle exclusion acted as an impermissible de facto waiver of stacking as a result of the carrier paying UIM benefits under the other household policy. On appeal, a unanimous panel of the Third Circuit vacated the District Court’s order, holding in a precedential opinion that the household vehicle exclusion was valid and enforceable because the dirt bike involved in the underlying accident was uninsured. 

Christopher Woodward and Allison Krupp (both of Harrisburg, PA) secured dismissal of a Pennsylvania state agency from a lawsuit alleging the agency owed statutory coverage of $1 million for an underlying medical malpractice claim. The case has broader implications for similar claims in that the decision reaffirmed the agency’s interpretation of its statutory duties—or lack thereof, as the case may be. The case originated in the Commonwealth Court and was argued before a panel of three judges of that court.

Matthew Flanagan (Melville, NY and New York, NY) and Jamie Sanderson (New York, NY) secured a decision granting our motion to dismiss in full in an attorney malpractice matter. The plaintiff and daughter of the co-defendants sued her parents and our client for breach of contract, breach of fiduciary duty denominated as promissory estoppel, and constructive trust and sought damages of $800,000. The co-defendants allegedly purchased a property for the plaintiff to live and work in and agreed to deed the property to the plaintiff once she paid the mortgage in full. Our client created a family trust for the family, naming the plaintiff as trustee, in which the property would be transferred to the plaintiff following the death of both parents. However, following a family dispute, the co-defendants replaced the plaintiff as trustee with our client. Upon the request of the co-defendants and in accordance with the terms of the trust, our client transferred the house to another beneficiary. We filed a motion to dismiss on all counts which the court granted in full.

Matthew Flanagan also successfully defended an attorney from malpractice claims stemming from a missed court appearance which resulted in a default. Matt filed a pre-answer motion to dismiss, arguing the complaint failed to allege that the outcome of the underlying proceeding would have been different but for the attorney’s alleged malpractice. He also argued that the damages which the plaintiff sought—including emotional distress and pain and suffering—are not recoverable under New York law in a legal malpractice action. 

Aaron Moore (Philadelphia, PA and Wilmington, DE) obtained a dismissal of claims brought derivatively and directly by a corporation, including aiding and abetting, breach of fiduciary duty, and tortious interference with contract. The claims were brought against our client, an out-of-state attorney who previously represented the corporation and its former director. The court granted our motion to dismiss, concluding the plaintiffs failed to sufficiently allege facts that would confer personal jurisdiction over the attorney under a conspiracy theory.

Aaron Moore also obtained dismissal of wrongful use of civil proceedings claims brought against two attorneys who were alleged to have wrongfully prosecuted a professional negligence claim against the plaintiff, a real estate agent. The plaintiff would not accept any settlement that was less than policy limits. After five years of litigation, the court granted Aaron’s summary judgment motion, concluding the plaintiff failed to adduce facts that would reflect that the attorneys prosecuted the underlying action in a grossly negligent manner, or without probable cause. The court also held the plaintiff was unable to demonstrate that the underlying lawsuit was prosecuted for an improper purpose.

Dante Rohr (Orlando, FL) won a motion to dismiss in a case arising from our client’s representation of a plaintiff in a criminal matter. The plaintiff claimed that, due to the attorney’s negligence in failing to notify him of his pretrial hearing, he was incarcerated for 437 days based on his failure to appear at the hearing, resulting in the revocation of his bond. The court granted Dante’s motion to dismiss because the plaintiff could not establish a necessary element of his claim—actual innocence. Although the court released the plaintiff based on a showing that counsel failed to notify him of the hearing, thereby exonerating him from the failure to appear, the plaintiff could not meet the actual innocence element. Therefore, the State entered a nolle prosequi and dropped the case.

John “Jack” Slimm (Mount Laurel, NJ) was successful at the trial and appellate levels in a complex and high-profile legal malpractice action with $10 million in damages on the line. The plaintiffs, a group of entities created for the estate planning of a married couple (now deceased), appealed the trial court’s decision to deny their request to extend the time for discovery and to dismiss their claims against several defendants, including lawyers and law firms. The plaintiffs accused these defendants of negligence, breach of trust, misuse of funds, and legal malpractice related to a previous settlement and the handling of family business matters. The court found the plaintiffs did not provide the necessary evidence or expert testimony to support their legal malpractice claims. On appeal, the plaintiffs argued the court used the wrong standard when denying their request to extend discovery and claimed they had valid reasons for needing more time and the court unfairly dismissed their claims. However, the appeals court reviewed the trial court’s actions and found no mistake in how the court handled the case. In agreement with Jack, the appeals court affirmed the trial court’s ruling, emphasizing that the plaintiffs’ inability to meet court requirements and present strong claims warranted the dismissal of their case. 

Jack Slimm was again successful at the trial and appellate levels in another high-profile legal malpractice action after a decade of litigation in various courts stemming from a judgment a multinational conglomerate obtained against the plaintiffs in which litigation ensued over debt collection. The plaintiffs alleged, as a result of the statements and arguments made by the defendant attorneys in the underlying litigation regarding the debt, the attorneys committed fraud and misrepresentation that led to the plaintiffs’ damages, which they claimed were well in excess of $10 million. Jack argued the assignment agreement actually reduced the amount owed to the corporation and asked the court to dismiss the case, contending that his client was protected by legal privilege, the statute of limitations had passed, and it had no legal duty to the plaintiffs. The trial court agreed to dismiss the case, finding that the plaintiffs’ claims were not supported by evidence. On appeal, the court once again agreed with Jack and upheld the decision, rejecting the plaintiffs’ arguments. The Appellate Division found that our clients owed no duty to the plaintiff-debtors as non-clients since the attorneys’ alleged misrepresentations were made during adversarial litigation and, thus, were not intended to induce reasonable reliance by a specific non-client. In addition, the Appellate Division rejected the plaintiffs’ reliance on the Rules of Professional Conduct (RPC) to sustain their cause of action since in New Jersey a violation of the RPC, standing alone, does not create a cause of action for damages. Further, the court rejected the plaintiffs’ request to permit malpractice claims by non-clients in the presence of fraud, collusion, or malicious acts. This decision is extremely important to the trial bar and provides attorneys with a level of protection/immunity in connection with statements and arguments they make as adversaries in litigation.

Dante Rohr (Orlando, FL) obtained dismissal in a data breach class action arising out of a ransomware attack against a hospital network. The attack compromised the personal information of over 90,000 patients. Class actions were filed in state and federal court. The federal court matters were dismissed for lack of jurisdiction. In state court, Dante’s motion to dismiss was granted for lack of standing. The state court also granted our motion as to each cause of action for failure to state a claim on the basis that no implied contract existed with the entities for privacy protection and the negligence claims were not available under Florida law.

Michael Salvati, Vlada Tasich and David Shannon (all in Philadelphia, PA) prevailed on a motion to dismiss in a data breach class action pending in the Eastern District of Pennsylvania. A group of sixteen named plaintiffs filed a class action alleging a hacker had stolen the personal information of over one million individuals nationwide. Mike, Vlada, and Dave represented the debt collector whose computer servers were hacked. The plaintiffs’ theories against our client were expansive and novel, including not just a negligent failure to protect the plaintiffs’ data, but also breach of implied contract, invasion of privacy, negligence per se, and various state consumer protection statutes. Mike, Vlada, and Dave challenged the plaintiffs’ overreaching, and succeeded in having eight of the named plaintiffs dismissed for lack of standing and 15 of the plaintiffs’ 17 causes of action dismissed with prejudice. 

Scott Dunlop and Nathan Marinkovich (both of Pittsburgh, PA) obtained judgment in favor of their municipal client in a federal civil rights suit filed by a former volunteer firefighter (also a sitting city councilman). The plaintiff theorized that his arrest by a county detective on charges of mishandling fire company funds had been orchestrated through the malevolence of the City’s fire chief, who was alleged to have provided the detective with false information in order to retaliate against the plaintiff based on political rivalry within the fire department. The case was dismissed by a district judge, who granted a Rule 12 motion to dismiss, and, in his opinion, quoted a segment of the argument contained in our brief with approval.

Christian Marquis (Pittsburgh, PA) obtained dismissal of an enforcement claim against a municipal township. The case involved claims brought by property owners who sought the township to enforce its zoning ordinance against a cellular phone carrier that allegedly constructed generators on adjacent property in violation of a setback requirement of the township’s zoning ordinance. The court sustained the township’s preliminary objections, accepting Christian’s argument that a local municipality is generally under no duty to enforce its zoning ordinance. Furthermore, the court determined that the claims sounded in mandamus, which have been held to be improper based on precedent. Therefore, the court correctly held the plaintiffs were unable to utilize 53 P.S. § 10617 of the Pennsylvania Municipalities Planning Code to compel the township to enforce its zoning ordinance against third parties because this section did not permit such a cause of action against a municipality. 

Aaron Moore (Philadelphia, PA and Wilmington, DE) successfully persuaded a plaintiff to voluntarily discontinue her claims against a real estate agent. The plaintiff, a recent homebuyer, sued the seller and the seller’s agent, claiming the agent should have known of material defects in the plumbing system at the property. The agent’s preliminary objections pointed out that in order to prevail against a real estate agent for non-disclosure of a material defect, the plaintiff must be able to prove the agent was actually aware of the material defect, which the agent failed to disclose to the buyer. Upon receiving the agent’s preliminary objections to her complaint, the plaintiff voluntarily discontinued her claims.

Christopher Conrad and Jacob Gilboy (both of Harrisburg, PA) achieved dismissal of a suit against a school district by way of preliminary objections. The case involved allegations that the district deprived the plaintiffs of certain educational rights, premised on procedural due process violations, negligence, and subornation of perjury. Preliminary objections were filed to the plaintiffs’ original complaint on both procedural and substantive grounds. The plaintiffs were granted leave to amend their complaint to correct their deficiencies. Following the filing of an amended complaint and additional preliminary objections on similar grounds, argument was held. As a result, the court agreed with Chris and Jake and dismissed the plaintiffs’ amended complaint with prejudice and had the case marked as closed. 

William McPartland and Rachel Insalaco (both of Scranton, PA) obtained summary judgment on behalf of two school districts in a matter brought by various plaintiffs against a consortium of eight school districts and four of its sending school districts. The plaintiffs had asserted claims under Title IX, the 14th Amendment, and Section 8542(b)(9) of the Pennsylvania Political Subdivision Tort Claims Act based on the sexual abuse by an automotive technology instructor. While permitting some claims to proceed against the consortium, the court dismissed all claims against the sending school districts on the grounds that: (1) the plaintiffs failed to demonstrate that any individual at any of the defendant-school districts had actual knowledge of the automotive technology instructor’s conduct, and (2) the instructor was not an employee, independent contractor, or ostensible agent of any school district by virtue of his employment by the consortium. 

WORKERS’ COMPENSATION DEPARTMENT

Michael Duffy (King of Prussia, PA) received a favorable decision where the workers’ compensation judge granted our termination petition and denied the claimant’s Petition for Penalties and Petition to Review Utilization Review Determination. The employer had accepted a right middle finger sprain. In prior litigation, the claimant’s review petition seeking to expand this injury was denied. In the pending termination petition, the judge found the claimant not credible with regard to his ongoing complaints. The claimant alleged to be bed bound, and the judge opined that this allegation as a result of a finger sprain was absurd. The penalty petition related to payment of medical bills, and the judge found that, since the medical bills were related to the hand and not the finger, the penalty was denied. He also denied the claimant’s Petition to Review the Utilization Review Determination, finding that more than 185 physical therapy visits were not reasonable for a finger sprain and, also, that the opinions of the reviewer were corroborated by the employer’s expert’s opinion of full recovery.

David Levine and William Murphy (both of Roseland, NJ) obtained orders for dismissal, with prejudice, where four New Jersey medical providers alleged they were entitled to additional monies for medical treatment provided in New Jersey to a New York resident. The underlying accident involved a laborer who resided in New York, worked in New York, and sustained the injuries in New York. Four medical providers filed medical provider claims against the employer in New Jersey, seeking $811,260.24 for treatment rendered in relation to this accident. David and Bill filed motions to dismiss these claims for lack of jurisdiction, asserting there were insufficient contacts with the state of New Jersey to establish jurisdiction. In their responses, the treatment providers argued that performing treatment in New Jersey was sufficient to establish jurisdiction. The judge of compensation ruled in favor of the employer, dismissing the four medical providers’ applications with prejudice. 

William Murphy (Roseland, NJ) was able to permanently close a matter involving a serious shoulder injury with a Section 20 resolution. In New Jersey, Section 20 settlements (full and final) are only approved in a small number of limited cases, including denied claims, minimal treatment, dispute as to whether there is any permanent disability, and the like. In this case, the petitioner sustained significant injuries to her shoulder, with an MRI showing tearing. The petitioner ultimately underwent two shoulder surgeries, and our own permanency expert found permanent disability of 7.5% partial total. Based upon wage statements we obtained, we asserted that any permanency award should be paid at a reduced rate—making the monetary award about $40,000 less than what would be paid at the full chart rate. When the workers’ compensation judge attempted to have the parties settle for a higher percentage of disability—to make up for the lower rate—we indicated our intent to take the matter to trial. In order to avoid a trial, the judge indicated he would approve a Section 20 settlement. Thus, in an admitted claim involving serious injuries, two surgeries and our own doctor conceding permanency, we were able to close the matter permanently with a Section 20 resolution. 

Tony Natale (King of Prussia, PA) successfully defended a nationwide tight-tolerance manufacturer serving OEMs in the aerospace, defense, semiconductor, and high-tech industries. The case involved a Claim Petition with complex injury allegations and a disturbing initial judgment on the pleadings, since the employer failed to timely answer the Claim Petition. When Tony became involved, he was able to limit the judgment on the pleadings to the date that a timely answer could have been filed. Ongoing disability in the case turned on the credibility of the claimant’s medical evidence. The claimant presented an expert witness who opined that the claimant’s virtual lifetime of serious low back and neck abnormalities were “aggravated” by his having sat down at work after feeling dizzy. Tony presented rebuttal expert evidence from a well-respected orthopedic surgeon demonstrating no architectural change in the claimant’s lumbar spine or cervical spine due to the alleged injury event and no ongoing or acute problems. The court accepted the defense evidence as credible, and the claimant was found to be without ongoing disability and fully recovered from any condition subject to the former judgment on the pleadings. 

Tony Natale also successfully defended a Pennsylvania-based industrial linear actuator supplier on appeal before the Workers’ Compensation Appeal Board. The claimant appealed a termination order which found her to be fully recovered from work injuries to her low back and multiple other body parts. The claimant alleged on appeal that factors considered by the underlying workers’ compensation judge supporting the full recovery opinion (including a post-injury new slip and fall) were not supported by the evidence record. To the contrary, Tony successfully argued on appeal that the workers’ compensation judge’s decision was based on cross examination of the claimant’s own medical expert wherein he gleaned a history from the claimant of subsequent injuries that were never disputed by the claimant in follow-up testimony. The Appeal Board held the workers’ compensation judge can only decide cases based on evidence before the court, and the Board would not overturn the judge based on new allegations of the claimant (after closure of the evidence record) about her post-injury history. 

In a final case, Tony Natale successfully defended litigation surrounding a penalty petition which alleged the insurer unilaterally suspended indemnity benefits on an open and accepted work injury claim. Tony presented complex evidence from the insurer that Pennsylvania’s Workers’ Compensation Automation and Integration System (WCAIS) electronic system has internal problems which result in unwanted and unrequested claim documents being issued when simple data changes are made to an open claim. Tony was able to prove that the carrier properly suspended the claim in the system and any and all updated “acceptance” documents filed by the WCAIS system were on the basis of a faulty data system. Moreover, the sequence of form filings in the electronic space (as opposed to the paper filings) conclusively demonstrated timely filing of all documents and no unilateral suspension. The penalty petition was dismissed in its entirety.

Andrea Rock (Philadelphia, PA) secured a decision granting a termination petition. Andrea presented the deposition testimony of the employer’s Board-certified orthopedic surgeon. The workers’ compensation judge found this expert’s testimony more credible than the claimant’s treating doctor, a Board-certified family doctor. Thus, the claimant’s benefits were terminated as of the date of this doctor’s medical exam, just six months after her original injury.

Kacey Wiedt (Harrisburg, PA) secured a decision denying the claimant wage loss benefits for an accepted work injury. The claimant sustained a left wrist contusion and extensor carpi ulnaris (ECU) peri-tendonitis injury when a 50-pound lid crushed his left arm in the course and scope of his employment. The claimant alleged that, as a result of the injury, he was unable to perform light-duty work as a system operator. Through medical evidence, Kacey was able to establish that the claimant had non-work-related medical issues unrelated to the accepted work injury that caused him to be out of work. The workers’ compensation judge found the defendant’s expert testimony more credible than the claimant’s medical expert. Wage loss benefits were denied, resulting in a successful outcome for the defendant. 

*Results do not guarantee a similar result. 

_{Defense Digest, Vol. 30, No. 4, December 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.}