On The Pulse…Important and Interesting Litigation Achievements* . . . We Are Proud of Our Attorneys for Their Recent Victories
Casualty Department
Tony Michetti (Doylestown, PA) obtained a defense verdict at arbitration in a slip and fall matter where the plaintiff was a tenant in an 89-unit apartment complex who claimed that the defendant owner failed to properly maintain bushes along a common sidewalk in the complex. The bushes were trimmed in the fall and spring but had grown to a point where they covered half the sidewalk. Also, the plaintiff claimed that the sidewalk itself was defective because there was an 11 degree pitch/slope to the side and a drop of three or four inches along the edge of the sidewalk. As the plaintiff walked around the bushes, she claimed that the pitch/slope caused her to move even closer to the sidewalk’s edge. Her foot landed on the edge, and because of the drop off, she fell and twisted her ankle. She sustained an ankle fracture that required surgery. The plaintiff also claimed a rotator cuff tear. The plaintiff acknowledged that she was very familiar with the conditions described above since she had lived at the complex for over a year and had used the sidewalk on a daily basis. Also, the plaintiff admitted that there was an alternative route. Tony argued that the property owner had no duty to protect the plaintiff from a known, obvious or apparent condition.
In a second slip and fall case, Tony Michetti (Doylestown, PA) obtained a defense verdict in a jury trial in Bucks County, Pennsylvania. The plaintiff claimed that she fell on ice and snow in a common area in a residential community where she lived. Tony represented the homeowners association and the management company retained by the association. The plaintiff suffered sacral fractures and a foot fracture, and she underwent surgery to remove sacral Tarlov Cysts, which she claimed were asymptomatic prior to the fall. There were a number of interesting issues in the case, including a factual determination as to when the accident occurred, causation and identification of the plaintiff’s status on the defendant’s property. At the charging conference, there was a discussion regarding whether the plaintiff was an invitee or a licensee. The judge agreed with Tony that the plaintiff was merely a licensee, and he so charged the jury. Ultimately, the jury determined that the plaintiff’s accident occurred more than two years prior to suit being filed and, therefore, the claim was barred.
Allison Krupp (Harrisburg, PA) obtained two defense verdicts from a Lancaster County arbitration panel in two separate neighbor dispute cases involving the same parties. In the first case, the plaintiff claimed that the insureds damaged his concrete driveway while using a boom lift on his property to install an air conditioning unit on the roof of their home. The plaintiff sued for trespass. At the arbitration, pre-loss photos established that the cracks in the driveway were pre-existing and were not caused by the boom lift. The arbitration panel unanimously ruled in favor of the insureds. In the second case, the plaintiff claimed that the insureds had trespassed and damaged his wooden fence that separates the two properties when tree stumps were being removed and a retaining wall was being installed on their property. Pre-loss photos and testimony from the landscaper established that there was no trespass and that the damage to the fence was pre-existing. The arbitration panel unanimously ruled in favor of the insureds with respect to this case as well.
Health Care Department
In a medical malpractice action against our client, a bariatric surgeon, Frank Leanza and Ryan Gannon (Roseland, NJ) obtained a defense verdict. The plaintiff had initially named the anesthesia and nursing teams as defendants; however, they were all dismissed before trial. Our client had performed a second revision gastric bypass procedure on the plaintiff. Following the 12-hour operation, the plaintiff was diagnosed with a brachial plexus injury that left her with deficits in her left arm and hand. Through her experts, the plaintiff alleged that the brachial plexus injury was caused by the plaintiff’s arms being overextended or stretched during the 12-hour procedure. The plaintiff’s experts alleged that our client had a duty to position the patient for the surgery or confirm proper propositioning prior to the operation. These experts further alleged that our client should have released the arms during the 12-hour operation to avoid the potential stretching of the brachial plexus. Through the testimony of our client and our experts, Frank and Ryan defended the case on both standard of care and proximate causation. They established that positioning the patient prior to a bariatric procedure is the role of the anesthesia and nursing teams and is not the function of the surgeon. They also established that the patient was positioned properly for the procedure. The claim that her arms should have been released during the lengthy operation was also challenged by our client and experts as not being within accepted standards of care. The jury returned a defense verdict in favor of our client and found that he did not deviate from accepted standards of care.
Vicky Scranton (Scranton, PA) obtained a defense verdict at a non-jury trial on behalf of a student nurse anesthetist. The plaintiff alleged that the student nurse anesthetist used excessive force when intubating the patient, herniating the patient’s jaw. The plaintiff alleged that, as a result, she developed a TMJ disorder that required jaw surgery. Additionally, the plaintiff contended that, because her jaw had locked closed, she was unable to brush her teeth and her teeth rotted. She further asserted that, as a result, she required extraction of all remaining teeth and had upper and lower dentures placed. The plaintiff denied a pre-existing history of TMJ and poor dentition. However, medical records did not support her position. There were 19 trial experts disclosed. The judge found that the plaintiff was not credible and, because her experts had based their opinions on the plaintiff’s faulty assertions, the plaintiffs’ experts also were found not credible.
A defense verdict was obtained by Kevin Ryan (Long Island, NY) in a medical malpractice case involving an 82-year-old female admitted for aortic valve replacement. The plaintiff was discharged to a sub-acute rehab (SAR) facility but was readmitted seven days later for dehiscence of the sternal incision and anemia. During this admission, she developed Incontinence Associated Dermatitis (IAD) of the buttocks and later wounds in the gluteal cleft, described by the nursing staff as Stage 2 pressure ulcers. She adamantly refused discharge to another SAR, opting to return home with a visiting nurse service and physical therapy every other day. One of the wounds resolved. The other deteriorated to Stage 4, required two flap graft procedures and 40 sessions of hyperbaric therapy, finally closing after nine months. The plaintiff’s experts claimed various deviations in charting skin breakdown prevention, which proximately resulted in the wounds developing and deteriorating. Our expert, a wound care nurse, testified that the wounds were caused by IAD, not pressure, as the nursing staff had mistakenly characterized them. Our geriatric expert testified that the wounds would have healed sooner and not required flap grafts or hyperbaric therapy had the plaintiff accepted transfer to SAR, where she would have received a higher level of care. The jury was asked to award $1.5 million for past and $500,000 for future pain and suffering for the 87 year old. The jury found the hospital had deviated from accepted standards, but determined that proximate cause had not been established. The hospital offered a high-low arrangement of $100,000/$750,000 during trial, but the plaintiff would not accept less than $250,000/$950,000 in light of a $106,000 Medicare lien. The settlement demand prior to trial was $300,000 and, after jury selection, was increased to $650,000. When the jury indicated it had a verdict after 90 minutes, the plaintiff’s attorneys “agreed” to accept the hospital’s high/low offer, which the hospital chose to honor (even though it previously refused), but only if the plaintiff agreed to be responsible for the Medicare lien.
Stacy Delgros (Cleveland, OH) obtained a defense verdict in a case where she defended a surgeon who resected a sigmoid volvulus (long, twisted segment of the sigmoid colon) on an otherwise healthy 59-year-old woman. Ten days after the procedure, the woman died of septic shock as a result of a small defect in the surgical anastomosis (connection), which had allowed fecal contents to contaminate the woman’s abdominal cavity. The primary allegation against the surgeon was that he failed to perform an air or fluid leak test during the surgery to ensure that the anastomosis was intact, meaning there were no holes or defects. There were other allegations about post-operative follow-up and surgical management once the leak was discovered. Another surgeon was also party to the lawsuit, as he was covering for Stacy’s client over the weekend, and there were calls between him and the patient about which there was significant dispute. The jury found in favor of Stacy’s client and the other surgeon, finding that they met the standard of care in all respects.
Following a four-day trial in the Court of Common Pleas of Philadelphia County, Daniel Krebbs (Philadelphia, PA) obtained a defense verdict in a pharmacy malpractice case. The plaintiff was given the wrong medication by the pharmacy defendant and claimed that it caused him to develop Serotonin Syndrome, which affects the central nervous system and causes severe tremors and ataxia. The plaintiff claimed that the tremors and ataxia caused him to fall and aggravate his pre-existing myelomalacia, resulting in an emergency cervical fusion. The plaintiff has a permanent gait dysfunction and now uses a walker. The plaintiff introduced projected future medical expenses of $1.5 million. As the pharmacy admitted it provided the wrong medication to the plaintiff, liability was admitted, and the only issues for the jury were causation and damages. The jury found in favor of the defendant pharmacy and against the plaintiff on the issue of causation.
Professional Liability Department
John Hare (Philadelphia, PA) filed an amicus curiae brief for the Pennsylvania Defense Institute in a case in which the Pennsylvania Supreme Court unanimously upheld the reversal of a multimillion dollar verdict against an electric company on the basis that the plaintiff had not satisfied the “retained control” exception to the general rule of non-liability for independent contractors. The decision resulted in a judgment notwithstanding the verdict for the electric company. Nertavich v. PPL Electric Utilities, No. 21 EAP 2015 (October 27, Pa. 2015).
In a civil rights case, Don Carmelite, Lauren Burnette (Harrisburg, PA) and Kim Boyer-Cohen (Philadelphia, PA) obtained dismissal of the plaintiff’s claim against a local bank. The plaintiff alleged that his lender violated his civil rights when it foreclosed on his property. The bank initiated foreclosure proceedings, and three times the plaintiff filed for bankruptcy protection, staying the foreclosure. However, the plaintiff never followed through with the bankruptcy and obtained a discharge. Eventually, the bank foreclosed on the property and obtained a judgment for the outstanding loan amount, plus costs and accruing interest. The plaintiff alleged that he offered to satisfy the judgment, but the bank unilaterally increased the amount owed in violation of his due process rights. The property was sold at a Sheriff’s sale for tens of thousands of dollars less than the judgment. We filed a motion to dismiss, arguing that the plaintiff received all the process he was due under the foreclosure. We also established that the plaintiff obtained notice of the Sheriff’s sale and, thus, could have satisfied the judgment. The U.S. District Court granted our motion to dismiss and, on appeal, the Third Circuit upheld the dismissal.
Jack Slimm, Jeremy Zacharias and Walter Kawalec (Cherry Hill, NJ) prevailed on appeal in the Third Circuit, which affirmed a dismissal Jack had obtained in the District Court in favor of a matrimonial attorney who, along with her firm and client, were the subject of claims for legal malpractice, conversion and misappropriation of trust funds arising out of an order in an underlying matrimonial action. The case spanned 25 years and invoked the jurisdiction of several state and federal courts. In the district court action, the claimant brought common-law fraud and § 1983 claims against our client, the matrimonial attorney, and her client, the plaintiff’s ex-wife. The Third Circuit affirmed and held that, under the Rooker-Feldman Doctrine, the District Court was divested of jurisdiction. In addition, the Third Circuit found that the plaintiff had previously litigated in the District Court for the District of Montana, which had found that the matrimonial orders were final and, thus, that the plaintiff was collaterally estopped from bringing the action. Moreover, the Third Circuit agreed that the dismissal of the District Court action was proper because the claims were barred by New Jersey’s statute of limitations. The plaintiff had been alleging fraud and misrepresentation of trust funds against the attorneys and their clients since at least 2002 in various jurisdictions. The plaintiff even made the allegations in the underlying matrimonial case in 2006. Therefore, the Third Circuit agreed that all of the claims were time-barred and affirmed the District Court’s order of dismissal.
Jack Slimm (Cherry Hill, NJ) obtained the dismissal of a complex legal malpractice action in the U.S. District Court for the District of New Jersey. The plaintiff alleged that our client, an attorney from Pennsylvania, as well as various other defendants, was involved in a transaction involving the plaintiff’s acquisition of a 50 percent ownership in an LLC that owned and operated apartment buildings in Pennsylvania. The plaintiff agreed to the purchase, and the plaintiff and the seller visited our client’s office in Pennsylvania and hired him to draft the contract. The plaintiff alleged that our client breached a fiduciary duty when he failed to disclose his knowledge of several pending lawsuits against the LLC and its owners. In addition, the plaintiff alleged that, because of the attorney’s breach of fiduciary duty, he was defrauded of funds and proceeds paid to the LLC. Jack moved to dismiss for lack of jurisdiction because the plaintiff did not prove that the attorney had sufficient minimum contacts in the state of New Jersey; the plaintiff and the principal owner of the LLC unilaterally approached our client at his offices in Pennsylvania to draft the contract; the attorney never met with the plaintiff in New Jersey; and the plaintiff could not show that the attorney had any ties to New Jersey. The contract the attorney drafted pertained solely to property within the Commonwealth of Pennsylvania. Accordingly, the plaintiff could not demonstrate a basis for the court to exercise personal jurisdiction over the Pennsylvania attorney.
In a three-week trial in Montgomery County Pennsylvania, Arthur “Terry” Lefco and Alesia Sulock (Philadelphia, PA) obtained a defense verdict in a malpractice trial in which we represented one of the largest law firms in the country. The plaintiffs—automobile dealerships, related entities and their owners—discovered in the summer of 2005 that they were $7 million out of trust with their bank as a result of an alleged fraud perpetrated by their chief financial officer. The plaintiffs claimed that their CFO tricked the bank’s third-party car counter into verifying inventory that the plaintiffs believed did not actually exist. The plaintiffs claimed that our client breached its contract with them by failing to preserve their claims against that third party during the negotiation of loan workout documents with the plaintiffs’ bank. The plaintiffs alleged that, had our client properly preserved those claims, they would have prevailed against the third party in the underlying lawsuit and recovered nearly $20 million in damages. The jury credited the testimony of our client that the effect of the documents signed by the plaintiffs was fully explained and understood. After two hours of deliberation, the jury found that our client had not breached its contract with the plaintiffs and did not even reach the merits of the underlying lawsuit.
David Henry (Orlando, FL) obtained summary judgment in Charlotte County, Florida for a private club, supported by recorded declarations and covenants, that obligated communities within the planned development to pay dues. The plaintiff, a homeowner’s association (HOA) in one of the originally planned communities, sought to permanently withdraw from club membership and the dues obligation. David was able to convince the court that the dues obligation was mandatory as created by the developer and was not modifiable by the HOA because the dues obligation ran with land directly to the lot owners, not through the HOA or HOA membership.
Paul Krepps and Estelle McGrath (Pittsburgh, PA) obtained summary judgment for a police officer accused of malicious prosecution. A municipal police officer received a complaint that an unknown male attempted to lure a 15-year-old female into his car. A day later, the victim and her mother went to the police department and advised the same officer that the victim saw the suspect’s car and followed it to a local business. When the driver exited the vehicle, the victim viewed him and was adamant that he was the individual who attempted to lure her into the same car the previous day. The officer prepared a photo array that contained a photograph of the owner of the vehicle, which the victim immediately identified. The officer obtained a warrant and arrested the suspect. Several months later at his criminal trial, criminal defendant produced cellular telephone evidence that he was 35 miles away at the time the alleged crime was committed. He was acquitted and subsequently sued the officer for malicious prosecution and a Fourteenth Amendment claim to be free from prosecution based upon false or fabricated evidence. Summary judgment was granted after the court “corrected” the affidavit of probable cause to the criminal complaint and determined that “no reasonable jury could find facts that would lead to the conclusion that the reconstructed affidavit lacked probable cause.”
Estelle McGrath (Pittsburgh, PA) obtained a defense verdict at arbitration for a Pennsylvania borough in a slip and fall case. After falling on a sidewalk, the plaintiff sued the Borough under a negligence theory for failing to properly inspect and maintain the sidewalk. Estelle successfully argued that the Tort Claims Act insulated the Borough from immunity as the Borough was not on notice of the allegedly dangerous condition of the sidewalk.
In a Title VII race discrimination and hostile work environment case filed in the U.S. District Court for the Eastern District of Pennsylvania by a former correctional officer at a county prison, John Gonzales, Tom Szymanski and David Salazar (Philadelphia, PA) persuaded the court to grant reconsideration of an earlier order denying summary judgment. The plaintiff was terminated after it was determined that he obtained the personal bank account information of an inmate and took money from the account. The court originally denied summary judgment, concluding there were issues of fact concerning the existence of a hostile work environment based on evidence that images of a noose had been circulated at the prison. After a detailed investigation and analysis, we uncovered new evidence that undermined these allegations and filed a motion for reconsideration, which the court granted on the eve of trial.
Christopher Conrad and Nicole Ehrhart (Harrisburg, PA) prevailed on a motion to dismiss in a civil rights case. As set forth in a claim under 42 U.S.C. § 1983 for the deprivation of her Fourth Amendment rights, the 16-year-old plaintiff alleged that her rights were violated when she was physically restrained, shocked with a Taser, placed into handcuffs and forcibly removed from the public school premises by a police officer. Further, the plaintiff alleged that our client, the school district, was liable as the proximate cause of the constitutional tort alleged since the school district, through its principal, failed to advise its staff that the plaintiff was supposedly permitted to have a cell phone on school property, and because the school district “permitted and became a willing accomplice to the illegal and unconstitutional acts which then transpired” when the officer was called to the school in response to a dispute that the plaintiff was having with a hall monitor who was attempting to relieve her of her phone. We filed a motion to dismiss on behalf of the school district, asserting that the plaintiff failed to state a claim against the school district for which relief could be granted. The Magistrate Judge agreed, and his report found that there were no allegations in the complaint that came close to alleging an actual policy, custom or practice necessary to expose the school district to Monell liability for the principal’s alleged failure to notify school staff about the plaintiff’s use of a cell phone. The judge further recommended that, despite having been granted an opportunity to articulate facts to support this claim, the plaintiff had been unable to do so, and her claims remained conclusory and speculative, and the claim against the school district should be dismissed. Upon receipt of the judge’s report and recommendation, the plaintiff voluntarily withdrew her complaint.
Joe Santarone (Philadelphia, PA) recently had a Rule 50(a) motion granted in federal court in the Eastern District of Pennsylvania at the close of the plaintiffs’ case. Joe represented the Pennsylvania SPCA and six of its humane officers who were sued by a husband and wife who were selling dogs out of their 1,350 square foot house. At the time the search warrant was executed, there were 26 dogs, 8 family members, 3 cats, and 1 parrot in the house. The plaintiffs alleged malicious prosecution based on the animal cruelty charges brought against them. They also alleged a Fourth Amendment violation, arguing that the search warrant was executed before it was approved by the Magistrate Judge. A discrepancy regarding the time that the inventory was removed from the house had led to the underlying criminal charges against both plaintiffs being dismissed.
Phillip Harris (Tampa, FL) obtained a dismissal from the Florida Commission on Human Relations. The complainant was a teacher at an exclusive Tampa charter school, our client. The complainant alleged that the school discriminated against him due to his alleged disability. Specifically, the complainant argued that he was diagnosed with sleep apnea and that the school failed to provide a reasonable accommodation for his abnormal sleep patterns during school hours. Students had video-recorded the complainant sleeping during class, and the videos were later published to YouTube. After both parties extensively briefed the issues, the Florida Commission on Human Relations issued a Determination of No Cause, finding that no discrimination had occurred as there was no evidence that the school had violated the Florida Civil Rights Act.
Workers’ Compensation Department
Tony Natale (Philadelphia, PA) successfully defended a local university in an alleged work-related case involving a serious fall from heights. The claimant alleged he was working on a loading dock and accidentally fell off the dock, dropping six feet into a dumpster. He alleged serious injuries, including herniated discs in the neck, traumatic brain injury, concussion, post-concussion syndrome, blurred or lost vision, aggravation of lumbar degenerative disc disease, herniations and a plethora of strains, sprains and muscular injuries. The university questioned the incident based primarily on the position the claimant was found inside the dumpster when the rescue squad arrived. Tony presented an accident reconstruction witness who developed an opinion (based on the physics of the alleged fall coupled with the co-efficient of friction assigned to the loading dock) that the claimant could not possibly have slipped and fallen off the dock. Tony was able to aggressively cross-examine the claimant and established a previous history of injury and disc herniations in the claimant’s neck that were not revealed to the claimant’s treating physician. The judge determined that, at most, the claimant sustained only minor strains that had fully recovered. The traumatic brain injury, cervical disc herniations, lumbar disc herniations, concussion syndrome and loss of vision were found to be non-work-related.
Tony Natale (Philadelphia, PA) successfully defended two appeals before the Workers’ Compensation Appeal Board. In the first appeal, Tony represented a local credit union on the issue of whether alleged workplace abnormalities (including allegations of harassment and racial bias) rose to the degree of a mental injury under the Pennsylvania Workers’ Compensation Act. After arguing the case, the Board upheld the original dismissal of the claimant’s petition, holding that the evidence of record did not meet the standard of a workplace injury within the meaning of the Act. In the second appeal, Tony represented a prominent university on the issue of whether the Workers’ Compensation Judge improperly terminated a claimant’s right to benefits by failing to give greater credence to the opinions of a treating physician over those of an independent medical examiner. The Board held that the judge is not bound to accept opinions of the treating physician over that of an independent examiner despite the humanitarian objectives of the Act.
¤ *Prior Results Do Not Guarantee A Similar Outcome
Defense Digest, Vol 22, No. 1, March 2016
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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 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 tamontemuro@mdwcg.com.