On the Pulse…Important & Interesting Litigation Achievements*…We Are Proud of Our Attorneys for Their Recent Victories…

Casualty Department

Lisa Goldman (Cherry Hill, NJ) obtained a defense verdict in a case in which the insured failed to comply with several requests to take his Examination Under Oath. The issue was litigated in Superior Court, where the court mandated that the insured attend the Examination Under Oath as part of his contractual duties under his insurance policy. Eventually, the court found that the continued defiance of his attendance at the EUO amounted to a breach of his duties under the insurance policy. Consequently, the court voided the policy, and ultimately denyed PIP coverage to the insured. In the meantime, a medical provider had filed an arbitration for payment of services previously rendered to the insured. As the policy had been voided by the court order, Lisa defended non-payment of the demand, arguing that there was no longer a policy in place from which to seek recovery. Ultimately, it was found that the request for the EUO was both reasonable and contractually appropriate in this matter and found in favor of the defense.

Ray Freudiger (Cincinnati, OH) obtained a defense verdict on behalf of a defendant in Henry County, Ohio. The plaintiff accused the defendant of assault and battery by holding a loaded gun to his throat and threatening to kill him. The plaintiff alleged bodily and emotional injuries and sought compensatory and punitive damages, as well as attorney fees. A total of 10 witnesses testified. The three investigating police officers testified on behalf of the plaintiff. Ray was able to convince the court that the plaintiff initiated the fight and that the defendant did not assault or batter him. Rather, the defendant pulled out the gun momentarily, after he was assaulted by the plaintiff and had heard that someone had pulled out a knife. Further, Ray showed that the marks on the plaintiff’s neck were more likely caused by the plaintiff’s physical altercation with another person during the fight. The court held in favor of the defendant on all claims.

Joe Santarone (Philadelphia, PA) obtained a defense verdict in Philadelphia Court of Common Pleas after a six-day trial. Joe represented a company that teaches defensive tactics to police, military and federal law enforcement. They were providing training to a railroad passenger corporation’s (co-defendant) police officers when an extremely out-of-shape officer was injured during warm-up exercises. The officer suffered a rotator cuff tear, which required surgery and resulted in full disability. The plaintiff’s claim was that the warm-up exercises performed on a concrete floor in the attic, the co-defendant’s facility were dangerous and served no purpose. To rebut this, Joe had two trainers, as well as the husband and wife owners of the company, demonstrate the exercises and how those maneuvers translate into weapon retention training, etc. In one exercise, two individuals sit back to back and then stand up without either using their hands. The purpose is to teach balance using the other person’s momentum. After the trial, the jury foreman told Joe that the demonstration made the difference and that, during the deliberations, the jurors themselves tried the exercises, which included the back-to-back warm-up. The demand going into trial had been $700,000. The co-defendant repeatedly attempted to persuade our clients to pay 80 percent. Even while the jury was out, the co-defendant wanted to make a joint offer of $250,000. No offer to settle was ever made on behalf of our client. The 12-person jury found in favor of both defendants.

Tom Birris, Stu Sostmann and Joe Lesinski (Pittsburgh, PA) prevailed on preliminary objections in the nature of a demurrer in favor of their client, the mother of a mentally ill individual who went on a shooting spree at a psychiatric facility. The shooting resulted in one death and personal injuries to several others and received a great deal of media attention. The plaintiffs claimed the shooter’s mother should be liable because she “took charge” of her adult son and voluntarily assumed a duty to control him. Tom, Stu and Joe argued that the mother had no duty to control her adult son under the Restatement (Second) of Torts Sections 319 and 324A. In a 26-page opinion dismissing all claims against the mother, the Allegheny County Court of Common Pleas held that “tort law does not impose a duty on a parent of an adult child to control the conduct of that child so as to prevent the child from causing physical harm to another.”

Jonathan Kanov (Ft. Lauderdale, FL) obtained dismissal on the eve of trial as the plaintiff agreed to dismiss the case to avoid potential exposure to the defendant’s attorney’s fees and costs should a defense verdict be obtained. The case was before the U.S. District Court for the Southern District of Florida. The plaintiff, together with its affiliated company in Ecuador, arranged for the transport and shipment of $600,000 of computer equipment in two shipping containers from the Port of Miami to Guayaquil, Ecuador. We represented the trucking company. The ocean carrier and a freight forwarding company were also sued. Over 14,000 pounds of merchandise was allegedly loaded onto the two containers, and when the containers were opened in Ecuador, one had nothing but empty pallets and the other had a case of water bottles. An FBI investigation is ongoing. When we discovered the plaintiff did not own the missing cargo, we attacked its standing. Furthermore, the plaintiff failed to declare any value on the bills of lading, and the trucking company was limited to 50 cents per pound if a higher value was not declared. There was insufficient proof of other damages—such as lost profits or damaged reputation—and the judge let the parties know during the final pre-trial conference that he was very skeptical of how the plaintiff would be able to support or quantify such damages.

Health Care Department

Steve Ryan (King of Prussia, PA) and Michelle Wilson (Bethlehem, PA) obtained a defense verdict in Montour County on behalf of a neurosurgeon. The case involved the surgical resection of a recurrent pituitary tumor in a 37-year-old mother. Prior attempts by other surgeons had been through the nose, leaving an incomplete resection and scarring. The tumor was extremely adherent to the carotid artery and optic chiasm, and the artery ruptured during attempts to resect the last bits of tumor to prevent another recurrence, causing a stroke, blindness in one eye and other neuro deficits. Because our client is co-author of a peer reviewed journal article which concluded that the benefits of complete resection are outweighed by the risks when the tumor is “intimately adherent to neural and vascular structures,” as it was in this case, the plaintiffs withdrew their surgical negligence claim and proceeded to a bifurcated, liability-only trial on informed consent. Entities were granted summary judgment as the informed consent duties are ultimately non-delegable. This article was ruled to be an adoptive admission and used as substantive evidence and for cross-examination. The plaintiffs’ expert opined that, even if the defendant did not agree with the quoted sentence in the article, he should have disclosed that there is a controversy among neurosurgeons about this issue and little long-term data to show a superior benefit to total removal. The jury found that the plaintiffs did not prove that the defendant failed to disclose those risks and benefits that a reasonably prudent patient would require in order to make a decision.

Professional Liability Department

Kimberly Boyer-Cohen and John Hare (Philadelphia, PA) won a unanimous victory in the Pennsylvania Supreme Court in a case involving the statutory employer doctrine, which immunizes general contractors from liability for injuries to employees of subcontractors on construction sites. In refusing to apply the doctrine, the lower courts created a new standard that actually nullified the doctrine, with the result that it had not been applied in Pennsylvania in more than two years. Two dozen construction and insurance groups participated as amici in support of the appeal by Kim and John. By a vote of 7-0, the Pennsylvania Supreme Court reversed the lower courts, granted statutory employer immunity to our firm’s client and nullified a $1.5 million verdict against it.

Greg Kelley (King of Prussia, PA) and Adam Levy (Cherry Hill, NJ) obtained summary judgment for a masonry contractor in a construction defect case. The plaintiff, a major residential home developer, sued multiple parties seeking $2.3 million in damages incurred to repair 100 homes that had sustained water infiltration damages due to allegedly negligent installation of exterior cladding, windows, doors and decks. The plaintiff had a contract with our client for installation of brick cladding and building wrap. The plaintiff did not sue our client. Rather, it was joined as a third-party defendant by the defendant contractor, installer of the windows, doors and decks, on theories of contribution and indemnity. We first fought off the plaintiff’s efforts to amend its pleadings to assert a claim against our client, and then we moved for summary judgment against the defendant contractor on the grounds that it asserted tort claims that were barred by the Economic Loss Doctrine. We argued that an amended joinder complaint would be futile because the defendant did not have a contract with our client.

Lauren Burnette (Harrisburg, PA), as part of a team of appellate attorneys, successfully obtained an opinion from the Court of Appeals of Maryland that will prove beneficial for all debt buyers who utilize litigation as a means of debt collection. Our client, a third-party debt buyer, filed suit to recover a purchased consumer debt. The consumer filed a Notice of Intention to Defend, retained counsel and appeared at trial to defend himself against the collection claim. The consumer acknowledged opening, using and defaulting on his credit card obligation and confirmed that he received statements both from the original creditor and, subsequently, from our client. He, nevertheless, argued that our client failed to prove its ownership of his debt because the records attached to the collection complaint did not meet the business records exception to Maryland’s hearsay rule. After the district court entered judgment in our client’s favor, and after an unsuccessful de novo appeal to the Circuit Court for Baltimore City, the consumer petitioned Maryland’s highest court for review of the standard of proof a third-party debt buyer must meet when filing complaints and trying contested small claim matters. The Court of Appeals held that when debt buyers file complaints to collect assigned consumer debt under Maryland Rule 3-306(d), it must attach documents sufficient to pass muster under the business records exception to the rule against hearsay. Once a small claim action is contested and proceeds to a trial on the merits, however, the parties are not bound by the rules of evidence because, under Maryland’s rules of court, evidentiary rules do not apply to small claim proceedings. Finding no error of law or abuse of discretion in the lower court’s rulings, the Court of Appeals affirmed judgment in favor of our client. 

Lila Wynne and Kevin Bright (Cherry Hill, NJ) successfully defended an appeal of a prior order granting summary judgment as to all five counts of the plaintiffs’ complaint. In this environmental and toxic tort action, our office represented the prior owner of a property where it was discovered that an underground storage tank had leaked and contaminated the soil and underground water of two adjacent properties. The plaintiffs sued for strict liability under the Spill Contamination and Control Act, the abnormally dangerous activities doctrine, negligence, trespass and nuisance. The plaintiffs sought damages for diminution in property value, bodily injury and emotional distress. Our office obtained summary judgment at the trial court level, and the plaintiffs appealed, arguing that the trial court erred in dismissing the nuisance and trespass claims on the basis they were not required to show that the defendants’ conduct was unreasonable if a claim is based on a continuing nuisance/trespass. The Appellate Division disagreed and held that, where the underlying intrusion was unintentional, the standard for nuisance and trespass requires the plaintiff to show that the defendant’s actions were unreasonable. The Appellate Division therefore affirmed.

Michael Detweiler and Shane Haselbarth (Philadelphia, PA) prevailed on a motion to dismiss on jurisdictional grounds on behalf of a California golf resort that was sued by the plaintiff for severe head and cognitive injuries. The matter was originally dismissed on jurisdictional grounds by the Eastern District of Pennsylvania Court. On appeal, the Third Circuit remanded the matter for the purposes of jurisdictional discovery, and we obtained a favorable ruling in which the court found that it did not see any basis for specific or general jurisdiction, to date. On remand and at the conclusion of jurisdictional discovery and depositions, we filed a renewed motion to dismiss on jurisdiction grounds. The motion cited the recent U.S. Supreme Court decision in Daimler AG v. Bauman and argued that general jurisdiction as to the golf resort had not been established. The Eastern District dismissed the plaintiffs’ complaint with prejudice.

Workers’ Compensation Department

Jeff Watson (Harrisburg, PA) obtained an opinion from the Workers’ Compensation Appeal Board affirming a previous dismissal of a reinstatement and review petition. The claimant received workers’ compensation benefits for a 1991 work injury. In 2010, the claimant filed a reinstatement petition, alleging entitlement to reinstatement of benefits due to a layoff while under restrictions. The claimant also field a review petition, alleging an incorrect description of injury. The judge found that both petitions were time-barred under §413 of the Workers’ Compensation Act and also discredited the claimant’s medical witness on the substantive merits of the petitions. The claimant attempted to argue that the “discovery rule” was applicable and that he had an injury separate and apart from a specific loss. These arguments were also rejected.

Ross Carrozza (Scranton, PA) obtained a favorable decision defending a claim petition for an alleged rotator cuff tear. The Workers’ Compensation Judge denied and dismissed the claim petition, stating that he found the claimant lacked credibility. He also found the testimony of the defendant’s doctor to be more credible than that of the claimant’s doctor. The judge found that the claimant did not sustain a rotator cuff tear with his current employer, but rather, had sustained the tear two years prior when he was working for a different company that had no insurance.

Tony Natale (Philadelphia, PA) successfully defended a large Philadelphia-based university. The claimant originally injured his right shoulder at work and suffered a right rotator cuff tear. He refused repair surgery and maintained his right to ongoing benefits, including medical payments. Tony presented evidence that, despite the ongoing tear, the claimant had full range of motion of his shoulder (as depicted in surveillance videos) and had no ongoing functional limitations from an orthopedic standpoint. The Workers’ Compensation Judge found that the claimant was “fully recovered” from the work injury, even though the tear still existed, and that all disability related to the injury had ceased.

Defense Digest, Vol. 20, No. 3, September 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.