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Casualty Department

Adam Herman and Amanda Podlucky (Orlando, FL) obtained a defense verdict in a premises liability case following a four-day trial. The plaintiff claimed that, when the heel of her sneaker got caught in a gap between the concrete and metal edge of a step, she tripped and fell at her apartment complex. Although the plaintiff was carrying a full laundry basket and not using the handrail, she claimed that the apartment complex and management company were negligent in failing to maintain the stairs. An inspection and photographs of the stairs taken on the date of the fall showed no apparent defect or other condition consistent with the plaintiff’s account of the fall. Further, we were was able to obtain several favorable rulings on various motions in limine that prevented the plaintiff from offering liability testimony from any other witnesses, as there was no one else with personal knowledge as to the cause of the fall. The plaintiff sought medical expenses and lost wages, past and future, totaling more than $230,000, plus pain and suffering. The defendants had offered $15,000 prior to the start of trial. The jury returned a defense verdict, finding that there was no negligence on the part of the apartment complex or management company that was a legal cause of injury to the plaintiff.

Ed Tuite and Nick Bowers (Philadelphia, PA) obtained the dismissal of a Bucks County matter pertaining to the plaintiff’s claim that the defendant (his landlord) stole approximately $100,000 worth of personal property from the plaintiff’s storage locker while he was traveling in Europe. At his deposition, the plaintiff testified that he filed for federal bankruptcy protection after the initiation of his civil claim. An investigation revealed, however, that the plaintiff did not disclose his claim against the defendant in his bankruptcy petition but did obtain a discharge of his debts. Ed and Nick filed a motion for summary judgment on behalf of the defendant, arguing that the plaintiff was barred by operation of law from pursuing his civil claim based on his failure to disclose the claim as an asset during his bankruptcy action. Rather than oppose the motion, plaintiff’s counsel admitted defeat and agreed to voluntarily dismiss the suit with prejudice.

Pamela Lynde (Jacksonville, FL) obtained a defense verdict in a case tried in Pensacola. A minister based in Elmira, New York, who allegedly was an independent contractor of a religious and charitable organization for which he served, was seriously injured in an auto accident while performing disaster relief work in Florida. He lost his leg and claimed to suffer from PTSD and depression. The religious and charitable organization is organized into separate territories, including a New York corporation and a Georgia corporation. After the accident, the minister received indemnity and medical workers’ compensation benefits from the workers’ compensation carrier for the New York corporation, but he asserted that, because he never petitioned for those benefits, he was not estopped from bringing a negligence lawsuit in Florida against the Georgia corporation (our client), which owned the vehicle in which he was riding at the time of the accident. The case involved issues of whether the minister was an employee or independent contractor of the New York corporation; whether he was an independent contractor or borrowed servant of the Georgia corporation; whether the driver of the vehicle in which the minister was riding was a borrowed servant of the Georgia corporation; and whether the minister was a volunteer of the Georgia corporation for purposes of Florida’s Workers’ Compensation Act. Prior to trial, the judge had denied multiple motions for summary judgment filed by the parties. Halfway through the trial, the parties agreed to waive their right to a jury trial, and the remainder of the case was tried before the judge alone. The judge ruled that the Georgia corporation enjoyed workers’ compensation immunity.

Jim Cole and Jennie Philip (Doylestown, PA) obtained summary judgment dismissing the plaintiff’s complaint against our client in the Court of Common Pleas, Philadelphia County. The plaintiff initiated a breach of contract action against our client arising out of an alleged oral agreement to perform construction work on the plaintiff’s commercial property. The plaintiff hired various contractors to overhaul the roof structure of his property. Our client was hired by a co-defendant to install a roof truss system on the plaintiff’s property. The plaintiff specifically alleged that portions of the roofing system were removed by our client and the co-defendants and not replaced in a timely manner, which caused rain water to enter the property, causing damages. Additionally, the plaintiff alleged that our client delayed in the installation of a parapet wall in connection with the roof and, as a consequence, delayed completion of the new roofing membrane, which was a substantial factor to the damages suffered by the plaintiff. During extensive discovery, the parties learned that the plaintiff’s property was decrepit, neglected and in a state of disrepair for several years. In granting the motion for summary judgment, the judge’s written opinion noted that the plaintiff failed to provide expert testimony to prove the causal link between any alleged water infiltration into the interior of the property with the corresponding damage and dismissed our client from the action.

Jay Hamad and Lori Quinn (New York, NY) obtained a dismissal of our client from litigation in a maritime/inland marine case. The client, a subcontracted trucking company, was sued by a global fashion house for a lost shipment of product. The pre-litigation claim sought a recovery exceeding $400,000. The client offered to pay the shipper of record the entire amount of the contractual limitation on lost/damaged goods, but the offer was rejected, and the plaintiff initiated suit in federal district court naming the shipper of record and other parties, including our client. In response to our attempt to obtain a swift pre-discovery dismissal of the claims against our client for amounts beyond the contractual limitation, the shipper of record amended its cross claims to include a negligent selection claim in order to avoid being subject to the contractual limitation on damages. After unsuccessfully petitioning the court to dismiss all claims and cross claims, multiple depositions were conducted. During this time, Jay and Lori crafted and executed a strategy that culminated in the testimony of the shipper of record’s CEO, who indicated that his company—with over 1,000 employees—not only does not require/perform the allegedly required steps to avoid negligent selection (as indicated in the cross claim by the shipper of record against our client), but that he informed counsel of same (despite counsel’s failure to ask). Armed with this testimony, Jay and Lori refused to produce any witnesses from our client and withdrew the longstanding offer to pay the contractually mandated amount for lost goods. Jay and Lori also sought and were granted a court conference to obtain permission to move for a dismissal and sanctions where the judge granted our client dismissal from litigation.

Tony Michetti and Michelle Frisbie (Doylestown, PA) obtained a non-suit in Bucks County. The plaintiff was injured on the defendants’ property when a 1946 Farmall Tractor owned by defendants suddenly “jumped into” gear, running over the plaintiff. The plaintiff sustained serious injuries, including burst fractures at six levels of his spine. The tractor had a history of getting “stuck” in gear, but there was no evidence that the tractor had ever “jumped into” gear prior to the subject incident. At the conclusion of the plaintiff’s case, the defense moved for a non-suit, which the judge granted.

Tony Michetti (Doylestown, PA) and Tom Song (King of Prussia, PA) obtained a non-suit in Northampton County. While the defendant was delivering home heating oil to the plaintiff’s residence, 80 gallons of fuel oil spilled onto the plaintiff’s property. The defendant performed a cleanup of the spill, and Act II Certification of the clean up process was obtained. Nevertheless, the plaintiff brought a claim for diminution in property value. The plaintiff claimed that the oil spill created a “stigma” that reduced the property value. The defense argued that the diminution in value claim should be dismissed because the plaintiff’s experts did not opine that the “stigma” was permanent. The judge agreed and granted a non suit. 

Ed Radzik, Jim Ruddy and Lori Quinn (New York, NY) successfully resolved a case involving the capsizing and sinking of the container ship off the coast of St. Lucia in February 2010. After extensive litigation in the U.S. District Court, Southern District of New York, Ed, Jim and Lori were successful in overcoming the vessel owners’ petition for limitation and exoneration of liability by establishing fault and privity on the part of the owners and charterers. Our marine subrogation group represented nearly 100 cargo claimants, including subrogated insurers. Ed, Jim and Lori were successful in negotiating a settlement in excess of $2 million for this casualty, close to the full value of the claims’ claims, subject to package limitations.

Sarah Brown (Philadelphia, PA) obtained a defense verdict following a one-day bench trial before the Philadelphia Court of Common Pleas. Sarah represented a homeowners insurance company in a breach of contract claim by a plaintiff/policyholder who claimed the insurance company should have paid for replacement of undamaged parts of the rental property so that there would be a “matching” of the entire roof—a wind storm had damaged five shingles. The insurance company paid for emergency repair and the damaged shingles but declined to pay to replace undamaged shingles. The plaintiff sought to have the entire roof replaced. The plaintiff alleged that he was entitled to replacement of the entire roof because prior to the loss he did not have any mismatched shingles. Sarah argued that the policy only provided coverage for direct physical loss to insured property and did not include a contractual duty to “match” missing shingles. The defense’s expert testified at the trial that the roof was likely replaced two years ago and that the shingles were still readily available on the market. The court ruled in favor of the defendants, finding that the insurance carrier had paid the plaintiff for the direct physical loss to the property and that its only obligation was to provide payment for like kind and quality materials.

Health Care

Bob Evers and Julia Klubenspies (Roseland, NJ) obtained a defense verdict after a six-week trial. The plaintiffs contended that their son, who was born with cerebral palsy in 2002, sustained in utero injuries as a result of placental insufficiency and meconium aspiration. On the day of delivery, the mother (who was 39 weeks gestation) reported to her obstetrician (co-defendant) that she had not felt fetal movement all day. She emergently saw the co-defendant late in the afternoon, who sent the plaintiff to our client, a maternal fetal specialist, for a non-stress test (NST) at a local university medical center with the plan to deliver the infant that same day. The results of the NST were reported back to the obstetrician as “non reactive,” which does not necessarily indicate fetal distress, but does indicate that further work-up is needed. The obstetrician advised that he was coming to the hospital to deliver the child. The mother underwent further work-up while the obstetrician was traveling to the hospital to deliver the infant. Delivery occurred approximately 90 minutes after the NST results were reported. A total of 13 experts testified at trial. Through the use of experts in placental pathology, pediatric neurology and neuroradiology, we established that the infant’s injuries had occurred prior to the involvement of our client and that the infant had suffered a partial prolonged hypoxic event due to placental insufficiency. The jury deliberated for approximately six hours. While the jury deliberated, it was placed on the record that the plaintiffs rejected a combined settlement offer of $3.25 million and countered with a demand of $3.8 million. Shortly thereafter, the jury returned a verdict in favor of our client, but found against the co-defendant obstetrician. The jury awarded damages totaling $9.5 million, which was reduced by 35 percent by the jury for the pre-existing placental condition.

Candy Barr Heimbach, Michelle Wilson and Wendy O’Connor (Bethlehem, PA) obtained a defense verdict in a two-week trial. The plaintiff, whose decedent suffered a stroke and later died from pulmonary embolism, sued the primary care physician, the small community hospital where her decedent was treated, three internists at the hospital who directed his care during his hospital course and our client, a neurologist whose care was limited to a single consultation. The plaintiff claimed that, had the primary care physician immediately directed her decedent to go to the hospital, he would have been a candidate for tPa, despite his many co-morbidities (hypertension, uncontrolled diabetes, obesity) and would have had a favorable outcome. She also claimed that our client should have ordered DVT/PE prophylaxis. Our neurology and neuroradiology experts were able to establish that there was no way to time the onset of the decedent’s stroke such that he would not have been a candidate for tPa. Those experts also testified that the decision to order DVT/PE prophylaxis is generally made by attending physicians who, in this case, were aware of the decedent’s risk for DVT/PE, directed his care throughout his hospital course, and were highly trained and experienced in caring for stroke patients. Although the plaintiff settled her claims with the hospital and the internists prior to trial, the court permitted the non-settling defendants to cross-examine the plaintiff’s experts as to their criticisms of the settling internists. Finding that the plaintiff’s expert had established a prima facie case of negligence as to those doctors, the court ordered that they should remain on the verdict slip for the purpose of apportioning liability as among all defendants. After several hours of deliberation, the jury returned a verdict against the plaintiff and in favor of all defendant physicians.

Tony Michetti (Doylestown, PA) and Joe Hoynoski (King of Prussia, PA) obtained a defense verdict following a two-week trial. The plaintiff brought a medical malpractice case against her gynecologist, a radiologist and a local hospital. The plaintiff claimed that the defendants failed to diagnose her ovarian cancer until it had developed to a Stage III. Eleven months prior, an ultrasound performed at the hospital was interpreted by the radiologist as depicting two small cysts (one with a single septation) in the right ovary. The radiologist did not make any recommendation for follow-up surveillance. The gynecologist reviewed the radiologist’s impression and interpreted the two small cysts as benign and not concerning. Three months later, the plaintiff had genetic testing and was found BRCA1 positive. The defendant gynecologist did not order a follow-up ultrasound or CA-125 testing. Ultimately, the plaintiff underwent a prophylactic hysterectomy, and during that procedure, Stage III ovarian cancer was unexpectedly found. The plaintiff’s experts testified that the standard of care required a follow-up ultrasound within three months after the initial ultrasound. The plaintiff’s experts further testified that, had a follow-up ultrasound been done, the cancer would have been discovered at an earlier stage, thereby increasing the plaintiff’s chance of survival. The defendants’ experts testified that the ultrasound was correctly interpreted as benign and the standard of care did not require a follow-up ultrasound or CA-125 testing. After deliberating only 35 minutes, the jury returned a verdict in favor of the defendants.

Kate Kramer and Jennifer Reno (Philadelphia, PA) obtained a defense verdict in a birth injury case on behalf of our client, a hospital. The case involved allegations that our client failed to timely diagnose and treat preeclampsia in the plaintiff’s mother, leading to a placental abruption which caused catastrophic injuries to the child, including cerebral palsy. The plaintiff’s demand was $100 million, and plaintiff’s counsel refused a request to mediate the case prior to trial. Further, during the course of the trial, plaintiff’s counsel boarded $430 million in future damages. A two-week trial was held, and the 12-member jury deliberated for approximately six hours before returning a verdict for the defense.

Candy Barr Heimbach, Michelle Wilson and Wendy O’Connor (Bethlehem, PA) obtained a defense verdict in a medical malpractice action against our client, a family practitioner, following a seven-day trial. The plaintiff’s decedent presented to our doctor complaining of stress and fatigue. While taking the plaintiff decedent’s history and conducting a physical examination, our doctor elicited a complaint of chest pain, for which he conducted an EKG, which was normal. As the plaintiff’s decedent had no risk factors for cardiac involvement other than his age, our doctor concluded that his complaints where most likely stress-related, and after an extensive discussion with the patient, it was agreed that he would get lab work, begin taking an anti-depressant, seek counseling for his stress and return in four weeks for follow-up. The patient did none of these things and died six months later. The plaintiff then filed suit, claiming that her decedent’s death was attributable to an 80-85 percent occlusion of the left anterior descending artery or from ventricular fibrillation caused by a prior myocardial infarction. At trial, we were able to establish that there was no evidence of the “risk factors” claimed by the plaintiff’s standard of care expert, who was decimated on cross-examination when confronted with the extent of his earnings for medical legal consulting work. The plaintiff’s cardiology expert further conceded that there was no evidence of any such risk factors in the medical records, while the forensic pathologist who performed the autopsy and who testified on behalf of the plaintiff was contradicted in a compelling presentation by the defendant’s forensic pathologist, who was able to rebut many of the coroner’s findings. The jury returned a verdict in which they found no negligence on the part of our doctor.

Professional Liability

Christopher Gonnella (Roseland, NJ) obtained summary judgment dismissing the plaintiff’s complaint and claims of professional negligence and breach of contract against our client, an architectural firm, in the Superior Court of New Jersey, Morris County. In the complaint, the plaintiff asserted that our client deviated from accepted standards of architectural practice in connection with its preparation of plans and specifications for the construction of a 20,000+ square foot luxury home. After extensive motion practice and oral argument, the court granted our motion for summary judgment and dismissed the complaint with prejudice after finding that the plaintiff could not demonstrate a prima facie case of negligence or breach of contract against our client, based upon the evidence presented and testimony offered during discovery in this matter. 

Terry Lefco and Aaron Moore (Philadelphia, PA) won the Pennsylvania Superior Court’s affirmation of the Delaware County Court of Common Pleas’ dismissal of a plaintiff’s wrongful use of civil proceedings claim that had been asserted against our client. The plaintiff alleged that the defendant attorney was liable to him for prosecuting a civil action for unpaid legal fees against him, even though the legal fees were incurred solely by the plaintiff’s wife. The Superior Court affirmed the trial court’s determination that the plaintiff was unable to demonstrate a lack of probable cause or an improper purpose in prosecuting the fee claim.

Jack Slimm and Dante Rohr (Cherry Hill, NJ) obtained dismissal of all claims after a four-week trial in the Superior Court of New Jersey, Chancery Division, Burlington County. The plaintiffs alleged fraud, deceit, misrepresentation and illegal kickbacks arising from a complex probate litigation in which our attorney clients were retained to represent the administrator in protracted litigation. The attorneys reached a settlement agreement in the underlying matter, but a disagreement with the estate occurred, and a complaint was filed against the attorneys. After dismissing the claims against our clients, the court then awarded attorney’s fees in pursuing the underlying probate litigation. The fees were awarded on a quantum meruit basis because our clients forgot to enter into a retainer agreement with the estate.

Sarah Argo (Scranton, PA) obtained a defense verdict in a premises liability case. The plaintiff alleged that during a softball game, he sustained a lisfranc fracture, which required two surgeries, when his foot was trapped under a fence owned by the borough, our client. The case involved issues of negligence and municipal liability under the Political Subdivision Tort Claims Act. The plaintiff alleged that gaps between the borough’s fence and the ground and the failure to use tie downs created a dangerous condition. Prior to trial, the judge denied the borough’s motion for summary judgment and subsequently denied our client’s motion for non-suit. Despite the plaintiff’s admission that his conduct was dangerous, the court declined to charge the jury on comparative negligence or assumption of the risk. The jury returned a defense verdict, finding no negligence on the part of our client.

Jonathan Kanov (Fort Lauderdale, FL) obtained a defense verdict in a legal malpractice and misrepresentation trial. The plaintiff brought suit against the borrower and our client, an attorney, concerning a promissory note and mortgage associated with the purchase of a $250,000 motor home. The plaintiff contended that the note and mortgage, which were prepared by our client, had deficiencies due to the lack of required disclosures under the Truth in Lending Act, 12 CFR 226. The plaintiff also alleged that our client misrepresented the priority of the mortgage on the borrower’s residential property. We disputed that an attorney-client relationship existed between the plaintiff lender and our client, arguing that our client only represented the borrowers. Furthermore, we disputed the plaintiff’s allegations as to negligence and misrepresentation. The judge reserved jurisdiction to award the defendant his reasonable attorneys’ fees and costs pursuant to a rejected proposal for settlement.

Jeff Chomko (Philadelphia, PA) obtained a defense verdict in a binding arbitration on behalf of an insurance agent and agency in a procurement case involving the sale of a commercial package of insurance for a restaurant. The plaintiff alleged that the agent failed to sell the restaurant adequate limits of coverage, triggering a co-insurance penalty under the policy following the discharge of a sprinkler that resulted in water loss. The arbitrator agreed with Jeff that the contributory negligence doctrine (and not the comparative negligence statute) should be applied where the restaurant owner failed to supply the agent with necessary documents, including the lease, evidence of prior coverage and notice that his prior insurance coverage had lapsed for non-payment.

Brigid Alford, with assistance from Lauren Burnette and Allison Krupp (Harrisburg, PA), obtained affirmation by the Superior Court of the trial court’s decision that had granted summary judgment to the insurer on both breach of contract and bad faith claims in a first party property claim arising from damage to the insured’s condominium. The Superior Court’s opinion affirming summary judgment for the insurer included finding, as a matter of law, that the policy was not ambiguous in setting forth the limits of coverage. The court also noted that the insured had cited no authority to support the claim that the insurer acted in bad faith when it disputed various aspects of coverage, but ultimately paid the policy limits on the claim.

Sam Cohen (Philadelphia, PA) obtained a defense verdict in a FINRA arbitration on behalf of his clients, a broker and a broker-dealer. The case involved allegations that the broker failed to advise the claimant of the tax ramifications of the liquidation of a variable annuity held in an IRA account. The claimant sought damages in the amount of the taxes incurred for the liquidation and the early withdrawal penalties because the claimant was not 59 and one-half years of age at the time of the liquidation.

Eric Brown (Cherry Hill, NJ) obtained a verdict in favor of a national insurance carrier following a bench trial before the Delaware County Court of Common Pleas. Our client had filed a declaratory judgment action seeking to determine whether collateral estoppel prevented its insured from pursuing a second-layer underinsured motorist (UIM) claim after the insured had previously arbitrated her UIM claim with another carrier, resulting in an award less than that carrier’s UIM limit. The insured argued that her need for surgery after the first arbitration meant that the issue litigated in the arbitration was not identical (a requirement for collateral estoppel). Despite the issue being primarily one that could be addressed as a matter of law, a trial was needed due to the lack of any record as to what issues were actually litigated in the prior arbitration. Following trial, verdict was entered in favor of our client, declaring there was no obligation to provide UIM benefits.

Defense Digest, Vol. 20, No. 1, March 2014

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

*Prior results do not guarantee a similar outcome.