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

Casualty Department

Joe Lesinski (Pittsburgh, PA) obtained a defense verdict in an automobile liability trial on behalf of our client, an international oilfield services company, and its employee. The employee was operating a semi-trailer truck while hauling 40,000 pounds of drilling equipment. The plaintiff alleged that she was rear-ended by our client’s employee while attempting to merge onto a highway at a cloverleaf intersection. The plaintiff’s vehicle was pushed off the highway and rolled many times. Through the testimony of an accident reconstruction expert, Joe effectively established that the plaintiff had come to a complete stop on the side of the highway while attempting to merge and had pulled out in front of our client’s truck, just seconds prior to impact, while obtaining a maximum speed of only 25 mph. After two hours, the jury returned a verdict finding the plaintiff 85% at fault for the accident.

After a three-day trial before the Superior Court of New Jersey, Atlantic County, Diane Magram (Cherry Hill, NJ) obtained a unanimous defense verdict in an auto case. The plaintiff alleged that he sustained permanent injuries to his cervical spine and lumbar spine as a result of an auto accident. The defense expert testified that the plaintiff did not sustain any permanent injuries as a result of the accident and that his current complaints were all related to preexisting degenerative conditions in his neck and back. Both the plaintiff’s expert physician and our doctor testified live. The jury deliberated only one and one-half hours and found that the plaintiff did not sustain a permanent injury as a result of the accident. The UM arbitration award had been in the amount of $65,000.

Ray Freudiger (Cincinnati, OH) obtained a defense verdict in a jury trial in Warren County, Ohio. The case involved a rear-end car accident in which Ray’s client admitted fault. Despite the minimal nature of the impact, the plaintiff alleged serious and permanent injuries. She incurred over $69,000 in medical expenses after the accident. The plaintiff’s expert was a pain management specialist. The defense’s expert physician testified that the plaintiff’s treatment was fueled by her subjective complaints, but that there was no objective evidence of injury. The plaintiff’s settlement demand had been $200,000, and she rejected our pretrial offer of $6,000.

In a case that attracted a high amount of media attention in central Pennsylvania, Brigid Alford and Allison Krupp (Harrisburg, PA) obtained a defense verdict following a six-day jury trial in Cumberland County. The plaintiff was a young, but experienced, sprint car driver who was permanently paralyzed in a racing accident. He had signed a release prior to entering the track that night. During the race, his car collided with another and flipped out of the track. His principal claim in his suit against the race track was that, because the track was poorly designed, it failed to keep his car on the track after the initial collision. We were not assigned the case until nearly ten months after a default judgment had been entered against the race track. After an initial evidentiary hearing, the default was opened, which allowed Brigid and Allison to litigate the issue of liability. The court denied the defendant’s later summary judgment motions as to both the release and assumption of risk/no duty arguments. The court also denied a defense motion to bifurcate, letting the jury hear testimony regarding damages and liability. The sole pretrial settlement demand had been $5 million (total liability limits), and no settlement offer was made. The jury returned a defense verdict, finding that the plaintiff had released the track from liability.

David Wolf and Michael Salvati (Philadelphia, PA) obtained summary judgment before the Philadelphia Common Pleas Court in a home repair accident claim. The plaintiff was a subcontractor hired by the prime contractor defendant to perform window repairs at our client’s house. At the end of the first day of work, the plaintiff fell off a ladder, resulting in a leg fracture and internal fixation surgery. He faulted the prime contractor for not holding the ladder, as he had done previously. He also faulted our client/homeowner, the only insured defendant, as being vicariously liable for the actions of the prime contractor, whom the plaintiff’s expert characterized as the “owner’s representative.” David and Michael argued that, although there was a quasi-family relationship between the prime contractor and our client, the prime contractor remained independent and there could not be vicarious or agency liability for his alleged culpable conduct. The court accepted our argument that the hiring of a contractor for home repair work does not establish an agency relationship in the absence of an explicit or implied understanding that such a relationship exists. The court found that there was no such understanding in this case, as the homeowner had hired the prime contractor for his independent, specialized expertise.

Adam Calvert (New York, NY) obtained summary judgment in the New York State Supreme Court, Kings County. Adam represented a company that provided management of the janitorial services for the codefendant, a hospital. The plaintiff, a patient in the hospital, slipped and fell on water outside of her hospital room. Adam was able to get the plaintiff’s direct claims dismissed because our contractor client did not owe a duty to the plaintiff. Adam was also able to have the hospital’s cross-claims against our client for contribution and indemnity dismissed because he was able to show that the hospital also had some involvement with maintenance and janitorial services at the hospital.

April Collins (Orlando, FL) represented a discount retailer in a negligence action in which she prevailed on a motion for final summary judgment. The plaintiff alleged that she had slipped, but did not fall, on some yogurt. She claimed a severe back injury. But she did not seek treatment until approximately nine months after the incident. April argued that the record evidence showed that her client did not have actual or constructive notice of the alleged dangerous condition. The plaintiff asserted that constructive notice could be inferred due to the location of a cashier’s close proximity to the yogurt. To counter this argument, April presented case law holding that the mere presence of an employee does not, on its own, create an inference of constructive notice.

Christopher Reeser (Harrisburg, PA) obtained a defense verdict in a binding high/low arbitration in a case that arose out of a rear-end collision. Both our client and the plaintiff were traveling in heavy fog. Our client truck driver admitted that he was traveling too fast for conditions when he rear-ended the plaintiff, who had undergone an L5-S1 fusion three years before the accident. She went on to have a second fusion after the accident, followed by radiofrequency ablation surgery and then implantation of a spinal cord stimulator. Although she worked an additional three years after the accident, she ultimately applied for and received Social Security Disability. A records review performed by our neurosurgeon concluded that the surgery was not causally related to the accident. However, our neurosurgeon could not do an IME due to a change in his work responsibilities. Therefore, an IME was requested with another neurosurgeon, who wrote a report very favorable to the plaintiff on the causation issues. We were able to persuade the neurosurgeon who did the records review to write a detailed report based on his records review. We took his deposition by videotape and subjected him to cross examination, even though it was not required that we take the doctor’s testimony under the arbitration agreement. At arbitration, Chris argued that the surgery was unrelated to the accident based upon statements that the plaintiff made before and after the accident, including a statement that she returned to baseline six weeks after the accident. Because the plaintiff was bound by the limited tort option and there were no out-of-pocket economic losses for the short period of disability following the accident, Chris argued that the plaintiff was not entitled to recovery. The judge agreed and ruled that the limited tort threshold had not been breached.

Health Care Department

Dan Sherry (King of Prussia, PA) obtained a defense verdict in a jury trial in Beaver County, Pennsylvania, on behalf of an interventional radiologist and his professional group. The radiologist was removing an infected dialysis catheter and replacing it with a new one when he inadvertently punctured or tore both the left jugular vein and the adjacent parietal pleura. Our client suspected a tear and did a venogram, which showed no active bleeding. The patient was admitted for observation and was initially relatively stable. However, the plaintiff subsequently went into a cardio-pulmonary code and could not be revived. Dan successfully defended this case on standard of care and causation, and the jury returned a verdict that our client was not negligent. No settlement offer was ever made.

Justin Johnson and Michael Levenson (Roseland, NJ) obtained a defense verdict in a two-week wrongful death trial in Somerset County. The plaintiff claimed that our client, an interventional radiologist, failed to diagnose and treat an acute cardiac tamponade caused by a tear to the superior vena cava (SVC) following a dialysis catheter exchange with balloon angioplasty. This condition occurs when blood fills the pericardial sac surrounding the heart, preventing it from beating properly. In response to the decedent’s deteriorating condition, the defendant doctor called a “code,” undertook efforts to resuscitate the patient and drained a large hemothorax, which had also developed as a result of the SVC tear. The plaintiff further claimed that the defendant doctor failed to obtain informed consent from the decedent before the procedure. The jury found for the defense on all claims.

After a five-week medical malpractice trial, Jay Hamad (New York, NY) obtained a defense verdict on behalf of a cardiothoracic surgeon. The suit against our client and the co-defendants alleged deviations from the standard of care relating to the diagnosis, management and treatment of a post-catheterization femoral bleed, resulting in permanent disability, nerve damage, pain and atrophy. During cross examination of the plaintiff’s surgery and cardiology experts, Jay elicited testimony directly contradicting their respective reports, depositions and trial testimony. After presentation of the defense case-in-chief and cross examination of the co-defendants and their experts, Jay succeeded in foreclosing the co-defendants’ ability to implicate our client. At the conclusion of evidence (including 11 experts) and summations by counsel for the co-defendants, Jay’s summation capitalized on blow-ups of the trial testimony of the plaintiff’s experts’ assertions/diagrams (“promises”) presented during the plaintiff’s opening to demonstrate that the plaintiff’s liability/causation arguments lacked context, relied upon unfounded factual assumptions, and were in contradiction of aspects of counsel’s “promises” and testimony of his experts. After 43 minutes of deliberations, the jury returned a unanimous defense verdict on all counts.

Chanel Mosley (Orlando, FL) obtained summary judgment in a premises liability case in which she successfully defended a hospital that was sued after the plaintiff alleged that she slipped and fell in water while walking down a patient hallway. The testimony in the case established that neither the plaintiff nor the hospital had any knowledge of how the water got on the floor, who was responsible for its presence or how long it had been there. Therefore, the court found that the plaintiff failed to meet her burden of proving that the hospital had actual or constructive knowledge of the presence of the water, as required under the Florida transitory foreign substance statute.

Professional Liability Department

Christopher Gonnella and William Waldron (Roseland, NJ) obtained summary judgment dismissing the plaintiff’s claims of professional negligence, breach of contract, unjust enrichment and fraud against our client, an architect, in the Superior Court of New Jersey, Gloucester County. In the complaint, the plaintiff/homebuyer asserted that our client breached his contract with the developer/seller and deviated from accepted standards of architectural practice in connection with his professional design services related to the repair and renovation of a fire-damaged home. In essence, the plaintiff alleged that our client’s plans and specifications for the project failed to comply with applicable building codes and did not provide sufficient information for the contractor to properly perform the renovation of the structure. After extensive briefing and argument, the court granted our motion for summary judgment and dismissed the complaint with prejudice on the basis that the plaintiff could not establish a prima facie case as to our client based upon the evidence produced during the course of discovery.

In a case filed in Delaware, Wilhelm Dingler (Philadelphia, PA) and Art Aranilla (Wilmington, DE) obtained the dismissal of a case against an Arizona accounting firm sued for alleged malpractice, breach of fiduciary duty, breach of contract and vicarious liability. Total damages with parallel litigation in Arizona exceeded $2 million. The plaintiff’s claims were barred by the statute of limitations, but the plaintiff attempted to avoid early dismissal by omitting certain allegations in the complaint that would have established a time frame. We moved to dismiss, attaching one of the plaintiff’s IRS filings from an audit in which the plaintiff had admitted to actual knowledge of the alleged claims five years ago. Delaware’s statute of limitations for all the alleged causes of action is three years. As grounds for requesting the court’s consideration of evidence outside of the complaint in reviewing the motion to dismiss, we argued that the court could take judicial notice of the content of documents required by law to be filed, and actually filed, with federal or state officials, pursuant to Delaware Rule of Evidence 201. In response, the plaintiff filed a notice of dismissal without answering our motion to dismiss.

Frank Baker and Wendy O’Connor (Allentown, PA) obtained summary judgment in an action surrounding the publication of allegedly defamatory statements on the website of a political action committee. The plaintiffs—a candidate for public office and his friend, a former elected official involved in local politics—sued several defendants over comments published on a website created by one of the defendant’s political action committees that described two instances in which the plaintiff/candidate had stolen public property and assaulted a man during a road rage incident. The plaintiffs did not name our client as an original defendant and did not seek leave to join our client until 18 months after they became aware of the alleged tortious conduct. Finding that the plaintiffs did not commence their actions against our client within a year of becoming aware of the alleged harm, the trial court ruled that the claim was barred by the statute of limitation. It also rejected the plaintiffs’ argument that the inclusion of a John Doe defendant served to toll the statute. Additionally, the court was unpersuaded by the plaintiffs’ argument that the discovery rule should apply to toll the statute because they were allegedly unable to discover the alleged involvement of our client in the creation of the website, notwithstanding their suspicion that individuals other than the original defendants were involved. The court also granted summary judgment on behalf of the remaining defendants, noting that the mere re-publication of a link to a website does not constitute defamation. Finally, the court had further determined that the plaintiffs, as public figures, had failed to show that the statements were made in reckless disregard for the truth.

Jack Slimm, Art Wheeler and Dante Rohr (Cherry Hill, NJ) obtained dismissal of a $55 million claim asserted by a Wall Street group against closing counsel and our client, general counsel for a hospital. Our client, a health care regulatory expert, became general counsel of a Wall Street group that was purchasing a hospital out of bankruptcy. The Wall Street group knew that the hospital would be extremely profitable if run properly. Therefore, counsel was retained to handle the purchase. Our client was retained to handle the regulatory aspects of the takeover, which were significant. He was relied on by his clients (purchasers), the purchaser’s attorneys and the bankruptcy counsel. Therefore, there were no privity issues. However, we were able to demonstrate that our client covered each and every aspect of the transaction and advised the purchasers of the pitfalls in accepting the old hospital’s Medicare provider numbers. Therefore, the court found that the claims against our client were not viable, despite expert reports.

Howard Mankoff (Roseland, NJ) obtained summary judgment in a legal malpractice suit. Based on our subsequent motion, the court awarded us $86,000 in legal fees and costs, agreeing with Howard’s argument that the legal malpractice suit was frivolous. Our client had represented the plaintiff in a commercial dispute that had been tried non-jury. After the trial, the plaintiff wrote a letter to the Administrative Office of the Courts complaining about our client and alleging that our client failed to introduce critical evidence during the trial. Shortly after that, our client sued the plaintiff for unpaid legal fees and obtained a judgment. After waiting more than six years, the plaintiff filed this legal malpractice suit, arguing he was entitled to the benefit of the discovery rule. The court granted the plaintiff eight extensions of discovery. Shortly before the expiration of the final extension, the plaintiff attempted to substitute new counsel, which the judge characterized as trying to jump off the Titanic as it was going down. The court granted Howard’s summary judgment motion, agreeing that the complaint was barred by the statute of limitations and the entire controversy doctrine. As required by New Jersey Court Rules, we filed a separate motion for counsel fees based on the argument that the claim was frivolous. The court agreed with us again, finding persuasive Howard’s argument that after eight discovery extensions, the inability of the plaintiff to obtain an expert was conclusive evidence the claim had no factual or legal basis.

Following a three-week trial in the Chancery Division in New Jersey, Jack Slimm (Cherry Hill, NJ) obtained a dismissal on behalf of an accountant in connection with an action filed by a Trust against the purchasers of land appraised at $6 million, but which was purchased by the defendant purchasers for only $2 million. The chief of Psychiatry at Jefferson Hospital testified on behalf of the Trust that the seller, a wealthy widow, suffering from Alzheimer’s at the time she signed the agreement of sale, attended the closing and sold the property to the defendant purchasers. Based upon his examination of the plaintiff and his review of voluminous hospital and medical records, the psychiatrist opined that the seller did not have sufficient mental capacity to enter into the agreement of sale and did not appreciate what she had done. The seller had memory deficits for years, and when examined for purposes of trial, she had prominent deficits in memory and executive function. Performing a retroactive opinion, the expert testified that the cognitive deficits he observed in May of 2014 were evident at the time of the sale in May of 2013. The expert for the purchasers testified that it is inappropriate for an expert to give a retroactive opinion. The appraiser for the Trust testified that the property value was $6 million, while the appraiser for the purchasers testified that the property was now worth $3.5 million. However, the plaintiff’s banker testified that the property was worth $2 million, the exact amount that was in the agreement of sale that the plaintiff Trust was trying to set aside. Our client handled the accounting matters for the partnership that owned the land, including filing of all returns. When he learned that the property was being sold, he referred the plaintiff to a well-known tax and estate planning attorney for the formation of a Trust in an effort to undo the agreement of sale. Our client, together with the seller’s nephew—who is the sole heir—were joined for tortiously interfering with the contract of sale. Ultimately, the plaintiff Trust settled with the purchasers through a deal that rescinded the transaction, including payments by the Trust to the purchasers, and an agreement to lease the property to the purchasers with options to buy.

Christopher Boyle (King of Prussia, PA) obtained summary judgment on behalf of a municipality, its chief of police and a detective/sergeant. The plaintiff had been a contracted security guard at a naval installation 20 years ago. While he was treating at a local hospital, he approached a security guard there, looking for work. Showing his old security guard identification, which he still kept in his wallet, he convinced the guard that he was a police officer and gained access to the hospital’s director of security. Our clients were contacted by the director of security to investigate, and the plaintiff was charged with impersonating a public servant. The plaintiff was eventually acquitted of that charge, and he brought suit against our clients, alleging false arrest, municipal liability and malicious prosecution. Chris successfully persuaded the court that the plaintiff had not been “seized” as a matter of law, as he was ordered to appear in court on a summons, was never handcuffed and had never had restrictions placed on his liberty. It certainly helped when the plaintiff showed his current identification during his deposition, which Chris recognized as the off-duty badge case of a police officer. The plaintiff was at a loss to explain where he obtained it.

Christopher Conrad (Harrisburg, PA) successfully defended a school district in a special education due process hearing. The parent of a 7th grade student diagnosed with ADHD, oppositional defiant disorder and mood disorder, and who was eligible for and received special education and related services, sought an order to compel the district to fund a private placement for her son in a partial hospitalization program, which would have cost the district more than $60,000 per school year. The parent argued that the out-of-district placement was necessary, contending the district failed to and could not offer an intensive enough program to address her son’s behavioral and emotional needs. Several members of the student’s education team offered testimony to show that the student demonstrated measurable progress, both academically and behaviorally, with the itinerant level of learning and emotional support provided to him through his Individualized Educational Program. The hearing officer concluded that the district had offered the student an appropriate program and placement, and that the parent failed to show there was a need to place her son in such a highly restrictive setting at the district’s expense.

Sharon O’Donnell and Lauren Burnette (Harrisburg, PA) obtained summary judgment in favor of a school district and its administrators who had terminated a high school honors English teacher for blogging derogatory comments about her students. The plaintiff argued that her blog entries were free speech protected by the First Amendment. The plaintiff argued that her termination was unlawful retaliation for exercising her First Amendment right to free speech. The district argued that her speech was disruptive, which is not protected by the First Amendment. The Eastern District agreed, observing, “Education is one of the most heavily protected public interests in modern American jurisprudence, [and] free speech is the ‘matrix, the indispensible condition, of nearly every other form of freedom.’ The plaintiff’s speech, both in tone and effect, was sufficiently disruptive so as to diminish any legitimate interest in its expression and thus her speech was not protected.”

Workers’ Compensation Department

Tony Natale (Philadelphia, PA) successfully defended a large mushroom manufacturer from a claimant attempting to reinstate workers’ compensation benefits after his discharge from employment. The claimant argued that he was terminated without merit and was entitled to ongoing benefits. Tony argued that the discharge was for cause and proffered a video of the claimant at work violating company policy by sleeping on the job, using his cell phone for personal reasons, eating a hot dog in a sterile work environment and making obscene gestures to the security cameras. The Workers’ Compensation Judge found that the claimant was not entitled to ongoing benefits based on a discharge for cause and dismissed the claimant’s reinstatement petition.

Tony Natale (Philadelphia, PA) also successfully defended a large mushroom distribution company in a claim petition. The claimant slipped and fell at work and landed on her knee. Within a month she had meniscal repair surgery and, a few months later, total knee replacement surgery. Between surgeries, the claimant was discharged from employment for violation of the company absenteeism policy. Despite original testimony to the contrary, Tony was able to have the claimant admit that she violated the company policy at issue by failing to produce medical records certifying the cause of her various absences. Tony cross-examined the claimant’s medical expert and, as a result, the Workers’ Compensation Judge found the claimant’s surgery not to be work related. The judge also found the claimant to be fully recovered from any and all injuries sustained during the slip and fall.

* Prior Results Do Not Guarantee A Similar Outcome

Defense Digest, Vol. 20, No. 4, December 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.