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

Casualty Department

Kevin Ryan (Long Island, NY) obtained a defense verdict in a labor law 240(1)(scaffold law) case. The plaintiff, an asbestos abatement worker, allegedly fell from a steel floor joist while removing sub-flooring covered with vinyl asbestos tiles (VAT). He injured his back and required fusion surgery. The plaintiff claimed our client, the owner of the property, did not provide protective devices required by statute and was, therefore, strictly liable. The plaintiff’s expert engineer opined that a work bridge spanning the joists should have been provided and, over objection, stated that the failure to do so was a violation of law. The plaintiff had discontinued his claims against the construction manager (CM) before trial, but the CM remained in the case on cross-claims. The CM had earlier hired the plaintiff’s employer to abate asbestos and lead products, but called it back to the job site when VAT was discovered during demolition. The CM claimed it did not have an obligation to supervise the plaintiff’s employer’s additional work because our client chose to pay them directly instead of through the CM. At the close of evidence in this bifurcated trial, the court directed a verdict dismissing the cross-claims against the CM (even though we established that the decision to pay the plaintiff’s employer directly was not made until after the plaintiff fell). In summations, we argued that the plaintiff could have worked from the ground below and that his decision to work from the steel joist was the sole proximate cause of his fall. The jury agreed.

After an three-day trial, John Heilman and Michael Archibald (Tampa, FL) obtained a defense verdict in a UM/UIM case in which available coverage was $500,000. The plaintiff had over $159,000 in undisputed past medical expenses. The plaintiff’s request in closing argument was for a total of $741,000. The jury deliberated 30 minutes and found there was no negligence on the part of the alleged tortfeasor, who was a pizza delivery driver making a delivery.

After a 14-day trial in the Supreme Court, New York County, Peter Read (New York, NY) obtained a unanimous defense verdict on behalf of a security company. The plaintiff alleged that the defendants failed to provide adequate security at a New York City homeless shelter by allowing an assailant to enter the grounds of the premises—who did so by climbing over a perimeter fence with the intention of shooting the plaintiff. The plaintiff offered evidence that, on a daily basis, residents entered the premises by climbing the fence and that over 600 weapons had been confiscated by security during the four-year period prior to the shooting. The plaintiff also alleged that the defendants had opportunities to prevent the shooting—when the assailant pulled out a box cutter during a fight with the plaintiff earlier in the day, which was the motivation for the later shooting, and when the assailant fired the gun on the shelter grounds hours before he shot the plaintiff in an outdoor courtyard. The plaintiff sustained three gunshot wounds to the back, resulting in injuries to the lumbar spine and internal injuries to the bladder, colon and stomach. He was hospitalized for a month and underwent two emergency surgeries to repair internal organs and remove bullet fragments from his spine. The plaintiff alleged permanent physical injuries as a result of the gunshots and post traumatic stress disorder. During closing, plaintiff’s counsel requested that the jury award $5.3 million for pain and suffering and past and future medical expenses. The jury found that the shooting did not occur as a result of any act or omission on the part of our client and accepted Peter’s argument that the intentional criminal act of the assailant was the intervening and sole cause of the shooting.

Gail McCallion (New York, NY) obtained summary judgment in a matter for a national clothing retailer in a premises liability case. The Supreme Court, New York County, rendered a 10-page decision and held that our client made a prima facie showing of entitlement to summary judgment by submitting evidence, including our client’s deposition testimony and the photographs of the accident scene, which demonstrated that the condition on which the plaintiff slipped and fell was not hazardous. The plaintiff alleged that she lost her footing because the path between a wheel chair ramp (with a railing) and a rolling clothing rack was too narrow. The court noted that the plaintiff failed to present any evidence that the rolling rack or the railing of the wheel chair ramp were themselves defective. Moreover, the plaintiff alleged that the wheel chair ramp was defectively designed but failed to have an expert affidavit to support this assertion, thereby failing to create an issue of fact. The court concurred with Gail’s argument that the plaintiff’s claim that she could not differentiate between the floor to the wheel chair ramp and the floor below because they were the same color was of no moment, since the railing served as an obvious barrier between the two. The court held that the condition created by the placement of the rolling rack was “open and obvious,” “not inherently dangerous,” and readily apparent by the reasonable use of one’s senses.

Mike Kelly and Kevin Ryan (Melville, NY) obtained summary judgment on behalf of our client, a security company. In this Supreme Court, Bronx County action, a security officer employed by our client slipped and fell on ice while patrolling a public garage owned by the City of New York and managed by PSP. The plaintiff sued PSP and the City, and our client was thereafter impleaded. This case was complicated by the fact that PSP had entered into a contract for security services with another security company, but our client had purchased its assets out of bankruptcy (several years before the accident). Our client never entered into a new contract with PSP, nor did it assume in writing the terms and conditions (including indemnity and additional insured provisions) of the contract. We argued that the our client was not responsible for maintaining the premises (including snow and ice removal) and that the indemnity provisions of the contract were not enforceable because our client had not assumed the contract or specifically the indemnity provision therein. We also argued that the claims against our client were barred under New York State’s workers’ compensation law. PSP and the City of New York also moved for summary judgment, claiming they had no notice of the defective condition or reasonable opportunity to correct it. They also moved for summary judgment against our client for contractual indemnification. The court granted our motion, finding that our client was not required to maintain the premises and that, although it found a question of fact as to whether our client had assumed the contract by performance, the maintenance provisions of the prior company’s contract were deleted and therefore the indemnity agreement was not applicable. The court denied summary judgment to the City and PSP, finding questions of fact existed as to whether they had constructive notice of the icy condition.

In a case tried before the Philadelphia County Court of Common Pleas, Christopher Santoro, Christine Dower and John Hare (Philadelphia, PA) obtained a defense verdict. The plaintiff alleged her decedent husband, who died at the age of 59, contracted colon cancer as a result of being exposed to asbestos from welding blankets manufactured by our client. The defense argued that there is no medical or scientific causation between asbestos exposure and colon cancer and that it was the decedent’s family history of colon cancer and lack of screening which caused his condition. The jury of 12 returned a unanimous verdict, finding that the welding blankets were defective for failure to warn, but they were not the cause of the decedent’s colon cancer.

Health Care Department

After a three-week trial, Scott Eichhorn (Roseland, NJ) and Jay Hamad (New York, NY) obtained a defense verdict. Scott and Jay served as co-trial counsel on behalf of an attending physician accused of failing to properly monitor, diagnose and treat Compartment Syndrome (C.S.). Jay’s cross examination of the liability expert uncovered direct contradictions of deposition testimony, the addition of new allegations at the behest of counsel during trial, and an effort to mislead the jury about the extent of his experience with C.S. (resulting in refusal of counsel’s request to return for re-direct). Scott’s direct examination of defense witnesses/experts and his summation succeeded in presenting defenses as to liability and causation, while minimizing potentially damaging photographs, testimony of family members, and the lone co-defendant nurse who settled on the eve of trial and provided trial testimony criticizing our client. The jury returned a defense verdict on all counts.

Kevin Ryan (Melville, NY) successfully defended a major metropolitan medical center after a 12-day trial in the Supreme Court, Queens County. The decedent was admitted through the emergency room for complaints of headache and chest pain after chemotherapy for end stage metastic prostate cancer. Two days into the admission, a DVT was discovered and anticoagulant therapy administered. On day four, the decedent collapsed, and studies showed a compression fracture at T6 with bleeding in the intrathecal sac causing paralysis from the waist down. On day eight, a blister was noted on the sacrum, and this lesion progressed to Stage IV just prior to discharge. The decedent was transferred to a non-party rehabilitation facility but returned 10 days later with an infected sacral wound causing sepsis and presumed osteomyelitis. Intravenous antibiotics were administered and the sacral wound was debrided several times. The decedent was discharged again to the same rehab facility but returned the next day with fever and hypotension. C-difficile sepsis was diagnosed, and after 30 days, the decedent was discharged to the co-defendant rehab facility where he remained for three months. He was finally discharged home and passed away four months later. The plaintiff settled with the co-defendant in the early days of trial. We presented expert testimony to establish that the wound was a deep tissue injury caused by the extensive hematoma in the sacral area, which was caused by the intrathecal bleed. We argued that, although the charting was less then exemplary, the sacral wound that developed and progressed was in essence Stage IV from the date the hematoma developed and was not caused by deficient nursing care. The plaintiff claimed the insured’s charting was “sporadic and inconsistent” and that the nursing staff failed to prevent the development and progression of the sacral wound, causing almost 10 months of pain and suffering. The jury was asked to award $450,000 for pain and suffering. The jury found that the documentation and turning and position deviated from accepted nursing care, but felt this was not a substantial factor in causing injury.

Kevin FitzPatrick (King of Prussia, PA) obtained a unanimous defense verdict in a week-long trial in Delaware County. The plaintiff, a 58-year-old female, underwent a total right hip arthroplasty at a local hospital. She claimed that, while she was recovering in the Transitional Care Unit, her right femur fractured as one of the hospital nurses assisted her back into bed. Kevin and his client offered fact and expert support to establish that the nurse did not cause the fracture and that, instead, the plaintiff had sustained a periprosthetic fracture during the initial elective hip replacement surgery, which had gone unrecognized. The development of this fracture is a known complication of this surgery.

Dan Sherry (King of Prussia, PA) successfully tried a case in the Philadelphia Court of Common Pleas in which he represented an emergency medicine physician. The patient presented with facial and tongue swelling secondary to medication she took for hypertension. The allegation was that our client did not promptly request the involvement of anesthesia, surgery and/or the ENT physician. The patient ultimately required intubation and a tracheotomy, but she went into cardiac and respiratory distress, suffered brain damage and died four days later. The case was defended primarily on standard of care. The jury found no negligence on the part of both the physician and the hospital.

Steve Ryan and Dave Krolikowski (King of Prussia, PA) obtained a defense verdict in a two-week trial in Dauphin County involving a 21-year-old who was totally blind from retinopathy of prematurity after birth at 26 weeks gestation in 1993. The claim, brought by a firm that had secured a $20 million verdict in a similar case, using an expert who had helped bring in a $38 million verdict in yet another case, alleged that the pediatric ophthalmologist had failed to appreciate that the child’s eyes had reached the threshold for treatment. Because of this, and the failure to secure a second opinion, both retinas detached and were beyond treatment. Light perception in one eye, the only “vision” remaining, was eventually lost. The boy was an excellent pianist and top student, but was not able to live independently. Loss of future earning capacity and future support services and equipment totaled $4.6 million. Our firm defended the hospital against a claim of ostensible agency, where the initial contact was in the hospital, but the latter half of visits were as a private out-patient. We also actively defended the care rendered by the ophthalmologist, our alleged ostensible agent. The defense offered affirmative damages evidence, despite the concern that a floor would be set. The jury found the doctor negligent but found there was no causation. Post-verdict interviews revealed that they felt a second examination/opinion was warranted, but accepted the defense argument that it was sheer speculation what that exam would have concluded. A high-low agreement was put in place after closing arguments.

John Aponick and Vicky Scanlon (Scranton, PA) obtained a defense verdict in favor of a podiatrist who was claimed to have made a delayed diagnosis of melanoma of the foot in a 65-year-old male patient, resulting in lymph node involvement and metastasis to the lungs. The defendant treated this patient for seven months before performing a biopsy. The plaintiffs’ experts contended that an immediate biopsy was mandated because the lesion on the foot bled when debrided, was painful, and must have had a suspicious appearance because it was malignant. The plaintiff and his wife testified that the lesion was pigmented and changed in appearance over time. The defendant claimed the lesion appeared to be a typical callous or wart; however, when it did not respond to conservative treatment, excision and biopsy were scheduled. On the date of surgery, it was discovered for the first time that the appearance had changed. The defendant’s podiatric expert testified that, according to the defendant’s records, there was no earlier suggestion of a malignancy requiring a biopsy and that the biopsy was timely. The defendant’s oncologist testified that, even if a biopsy had been done earlier, the outcome would have been no different. After approximately 35 minutes of deliberation, the jury found no negligence.

Rosalind Herschthal (Roseland, NJ) obtained a defense verdict after a 10-day trial in Monmouth County, New Jersey. The 54-year-old plaintiff alleged that she was injured by our client, a physical therapist, during the administration of Functional Capacity Examinations that were performed in 2005 and 2006. The FCE is an evaluation physical therapists use to evaluate an examinee’s ability to perform activities of daily living and work-related tasks. It assesses the examinee’s ability to walk, balance, lift, push, pull and grip. The plaintiff alleged that our client was negligent by utilizing weights that were too heavy and far beyond her physical limitations for the exam. She alleged that there were no safeguards in place to prevent her from over-exerting and injuring herself during the FCE, despite the fact that the FCE was isometric and the plaintiff was instructed to only perform to her limits and to stop if a task became too painful. She alleged that she developed a shoulder impingement syndrome and was unable to work and perform many activities as a result of the two examinations. The defense highlighted her prior injuries and surgeries, which were the subject of other litigation where she made many inconsistent statements regarding her pain and limitations on cross examination. The jury saw the actual video of the FCE during our client’s direct examination to demonstrate the plaintiff’s lack of straining or complaining during the exam. At the close of the plaintiff’s case, Rosalind’s motion to dismiss the lost earnings claims was granted. The jury returned a defense verdict on all counts within a half hour.

Professional Liability Department

Brooks Foland and Allison Krupp (Harrisburg, PA) obtained summary judgment on behalf of our insurance carrier client in a coverage case involving underinsured motorists (UIM) benefits and waivers of stacking. The insureds’ minor son was tragically killed when he was struck by a motor vehicle as he exited the insured’s driveway while riding his bicycle. The insureds settled the third-party claim against the driver of the car and then made a claim for UIM benefits under a policy issued by our client. Consistent with the declaration sheets and premiums paid, the amount of UIM benefits available under the policy at the time of the accident was $50,000, non-stacked. The insureds demanded payment of stacked UIM benefits notwithstanding the named insured’s previously signed rejections of stacked coverages, contending that the addition of a new car to the policy since its inception obligated our client to obtain new waivers of stacking from the first named insured. Our client tendered the non-stacked limit to its insureds and commenced a declaratory judgment action in state court to resolve the issue of stacking. The insureds asserted a counter-claim against our client for statutory insurance bad faith. At the close of discovery, Brooks and Allison filed a motion for summary judgment on the stacking issue and on the insureds’ counter-claim for bad faith. The court granted our motion, ruling that the waiver of stacked benefits form signed by the name insured was valid and enforceable and precluded stacking of UIM benefits. The court also dismissed, with prejudice, the insureds’ counterclaim for bad faith.

Terry Lefco and Alesia Sulock (Philadelphia, PA) won dismissal of a legal malpractice lawsuit based on an underlying civil rights and RICO case. The owner of a restaurant claimed that, after he gave a smaller discount than usual to an inspector for the Department of Agriculture, the inspector retaliated by using her official powers to shut down the restaurant and drive it out of business. After that case was dismissed on summary judgment, the plaintiff and his corporation sued each of his lawyers for malpractice in the form of negligence and breach of contract. In a nine-page opinion, the Philadelphia Court of Common Pleas agreed with us that the plaintiffs’ negligence claim was barred on its face by the statute of limitations; the individual plaintiff could not have prevailed on the underlying RICO claim because there were no predicate acts; the individual plaintiff suffered no harm personally; and the corporation could not sustain a breach of contract action itself because the defendant lawyer never represented the corporation. Thus, the court granted our preliminary objections and dismissed the claims against our clients with prejudice. The case is on-going as to various lawyer defendants who did not raise the same arguments in preliminary objections.

Mark Wellman (New York, NY), Steve Kaplan (New York, NY) and Dante Rohr (Cherry Hill, NJ) secured a discontinuance for a multi-national auto financing company in a Chancery Division action in New Jersey arising out of claims by a potential franchisee against a dealership, the vehicle manufacturer, the financing company and a potential third-party buyer. The plaintiff’s claims sought over $30 million in damages stemming from alleged violations of the New Jersey Franchise Act, breach of contract claims, tortious interference allegations and a companion declaratory judgment action. The case involved the exchange of over half a million documents and extensive ESI discovery concerning sensitive consumer credit evaluations, personal net worth summaries, proprietary franchise statements, environmental impact studies, internal board meeting minutes, cell phone records, emails and due diligence materials, all subject to an order of confidentiality. The discontinuance was instrumental in clearing the path for the client to secure a key financing agreement with a new franchisor in a multi-million dollar dealer purchase. The settlement with the potential franchisee did not involve any contribution by the client.

Lila Wynne and Kevin Bright (Cherry Hill, NJ) obtained summary judgment in a toxic tort case involving claims of mold exposure. We represented an environmental testing company hired by the company that performed a remediation in the plaintiffs’ home following a sewage backup that resulted in several inches of raw sewage backing up in the plaintiffs’ basement. This occurred in September of 2007, but our client was not named as a defendant until a guardian for several minor plaintiffs was appointed and filed a separate suit, more than two years later. The original plaintiffs amended their complaint to also assert claims against our client, alleging negligence and fraud. We established that the plaintiffs’ claims for property damages would not be attributable to the alleged conduct of our client since our client’s work was performed after the sewage backup occurred. As a result, the plaintiffs were limited to claims of personal injury. Thus, a two-year statue of limitations applied. The judge agreed and granted our client’s motion for summary judgment. The judge rejected the plaintiffs’ claim that they were unaware of the offending conduct until they received an expert report that set forth various alleged violations committed by our client. The plaintiffs attempted to argue that the discovery rule would toll commencement of the limitations period until they received that report. The judge, however, found that the plaintiffs had a duty to act diligently and their failure to do so was fatal to their claims.

Jim Connors (Westchester, NY) and Dan Levin (Melville, NY) obtained summary judgment on behalf of our client, a national clothing retailer, in a case alleging wrongful termination on the basis of pregnancy and gender under New York Executive Law section 296. The plaintiff had been employed by our client as a store manager. She directed a cashier to perform a $10 pay-out to her so that she could purchase lunch. Our client had a no-tolerance policy prohibiting personal use of store funds, and the plaintiff was terminated. To show that the profferred reason for her termination was not a pretext, we relied on the plaintiff’s own deposition testimony that she understood that employees were not permitted to take cash from the register for personal use and that she had trained others regarding that policy. The plaintiff could present no evidence that raised an issue of fact contradicting that the improper personal use of funds was the true reason for her termination, or showing that discrimination on the basis of her pregnancy was the real reason she was terminated.

Robert Jozwik (Philadelphia, PA) obtained summary judgment in favor of an insurance company in a declaratory judgment. In the action, our client requested a determination of its obligations with respect to an alleged assault on a patient by the insured chiropractor. The policy provided a supplemental defense expense coverage limit of liability for civil proceedings involving alleged sexual misconduct, but coverage was otherwise excluded under the policy once the defense expense reached the specified limit of liability. Robert argued that all of the allegations asserted against the insured fell within an exclusion in the policy and, thus, no defense and indemnity were owed beyond the defense expense coverage. The court agreed, and once the defense coverage limit of liability was exhausted, our client withdrew from the defense of the underlying action.

Jack Slimm, Dante Rohr and Art Wheeler (Cherry Hill, NJ) obtained summary judgment in a legal malpractice action in which an attorney’s secretary failed to provide him with information, emails, notes and other data she had received from a potential new client regarding a tort claim against a municipality. The secretary spoke with the new client and took notes. The potential client sent the secretary photos of the defective condition of the street and background about the matter. However, the secretary was busy and never provided the information to her employer, our client. The time to file a Late Notice of Claim against the municipality expired. At that point, months had passed, and when the plaintiff finally followed up with our client, she learned that a file was never opened. Of course, the plaintiff had never received the retainer agreement in the interim. The plaintiff then filed suit against our client. The court ruled on our motion for summary judgment that the claim failed because the plaintiff did not establish an attorney-client relationship with the attorney. The court found that the attorney did not know, or have reason to know, that the plaintiff relied on him for legal services on a claim against the municipality because his secretary failed to notify him of a conversation she had had with the plaintiff. The court found that it was unreasonable for the plaintiff to rely on the attorney, and the court rejected the plaintiff’s claim that the lawyer was liable for the mistakes of the secretary.

Will Waldron and Patricia McDonagh (Roseland, NJ) obtained summary judgment on behalf of their surveying client against the plaintiffs’ allegations of Super Storm Sandy damage to their property. The allegations arose out of a foundation location survey prepared by our clients in 1996. In 2006, our client learned of an error in the survey and notified the plaintiffs that the error resulted in the home being built below the local base flood elevation. The plaintiffs alleged that, at the time the error was revealed, our client made a personal promise to “take care of any damages sustained as a result of his error.” On that basis, the plaintiffs took no action to raise their home or protect their property. When Super Storm Sandy struck in October 2012, the plaintiffs’ home took on water, requiring repairs to be made to the damaged finishes, appliances and mechanical equipment at the property. The plaintiffs sought damages in the amount of $250,000 for the property damage as well as the cost to lift the home. We relied upon the Statute of Repose for the purpose of establishing that the claim was time-barred since the professional services were rendered in 1996 and more than 10 years had elapsed. In an effort to circumvent the Statute of Repose and defeat dismissal, the plaintiffs argued that, even if the Statute of Repose served to bar the action for the deficient survey, they could maintain an action for breach of contract since our client was no longer honoring the “promise” made in 2006 to “take care” of the damage caused by Super Storm Sandy. We aggressively pursued a dismissal in lieu of filing an answer. The court denied that relief and directed that discovery was necessary. We deposed the plaintiffs and subsequently moved for summary judgment on the basis that there were no facts to preclude the enforcement of the Statute of Repose in this matter, and that, even if a “promise” was made by our client, it did not serve to toll the Statute of Repose. The court dismissed the claim on summary judgment, and the plaintiffs did not appeal.

Jonathan Kanov (Ft. Lauderdale, FL) successfully defended a title/closing agent and his law firm in a South Florida real estate transaction after a week-long jury trial in Miami-Dade County. The plaintiffs were private hard money lenders who contended that the title agent failed to advise them and failed to list as an exception on the title policy that a conditional certificate of reoccupancy was obtained due to zoning violations, rather than a full certificate of reoccupancy pursuant to the City of Hialeah ordinances. The plaintiffs brought claims for negligence, breach of fiduciary duty, negligent misrepresentation, and constructive fraud and sought $300,000 in damages. Numerous defenses were asserted, including that the Hialeah ordinance specifically provides for conditional certificates to pass title. Furthermore, Jonathan argued that the plaintiffs were aware of the code violations with the property, failed to conduct sufficient due diligence when making the loan and received a valid, first mortgage lien on the property, satisfying the title agent’s duties to the lender. After two hours of deliberations, the jury found no breach of fiduciary duty, negligent misrepresentation or constructive fraud, and they apportioned 50% fault to the plaintiffs for negligence.

Mark Clouser (Harrisburg, PA) obtained dismissal of our client, the director of a public school board. The petitioners were 75 taxpayers of Snyder County who sought to remove the defendant from her office as public school board director based on several allegations of refusal or neglect to perform mandatory duties under the school code. The petitioners alleged that during the selection of a new superintendent, our client intentionally withheld information from other school board members relating to a phony doctorate degree possessed by one of the candidates, who was ultimately selected as superintendent. However, shortly after his selection, the superintendent was removed by the board for poor performance. The petitioners’ basis for removal of our client was that her failure to disclose information about the phony doctorate degree to the board resulted in an unqualified superintendent being hired within the school district. Mark filed preliminary objections to the petitioners’ second amended petition for removal, arguing that, even if our client withheld information regarding the phony doctorate degree, she cannot be removed as a school director because a doctorate degree is not listed among the many requirements for qualification as a superintendent under the school code, and that, while it may have been unwise for our client not to disclose this information to the entire board before hiring the superintendent, the conduct did not rise to the level of a breach of her mandatory duties as a public school board director to warrant her removal under Pennsylvania law. After oral argument on preliminary objections, the court agreed with Mark’s position sustaining the preliminary objections and dismissed the petitioners’ second amended petition for removal.

Robin Snyder and Mark Kozlowski (Scranton, PA) obtained summary judgment after the court granted a motion for reconsideration and dismissed all claims against a municipal defendant and the individual borough council members. Previously, the court had granted summary judgment as to false light and reputation claims but allowed a Fourteenth Amendment procedural due process claim to move forward. In reconsidering its prior decision, the court held that, where a plaintiff brings a claim for a violation of the right to procedural due process, a plaintiff must have taken advantage of the processes that were available, unless those processes were patently inadequate. The record reflected that the plaintiff, a part-time police officer, followed steps one and two of the grievance process contained in the Collective Bargaining Agreement, but that he did not follow step three, which required him to appeal by serving upon the head of the political subdivision written notice of his intent to proceed to arbitration. The plaintiff argued, and the court initially agreed in denying the motion for summary judgment, that, even if the plaintiff did not exhaust his administrative remedies, he was still entitled to pre-termination processes. After reconsideration, the court reversed and stated, “The court’s determination that plaintiff had a state-law conferred property interest in his employment in addition to the right conferred on him by the CBA was in error and so the court’s determination that plaintiff would be entitled to pre-termination process is no longer apposite.” The court then admitted that its reliance upon 8 Pa. C.S. § 1190 (which provides members of a police force a property interest in their employment) was misplaced because it did not take into account 8 Pa. C.S. § 1170, which defines police force and excludes extra police serving from time to time or on an hourly or daily basis. The court found that there was no dispute that the plaintiff was a part-time police officer who was paid on an hourly basis and, as such, that he did not have a protected property interest in his continued employment. Absent a property interest, he was not entitled to any pre-termination process.

Andrea Diederich and Brad Blystone (Orlando, FL) successfully appealed in the U.S. 11th Circuit Court of Appeals in an Americans with Disabilities Act/Rehabilitation Act claim. The minor plaintiff, through his parents, contended that our hospital client discriminated against him by not providing a certified ASL interpreter during his stay for emergency abdominal surgery. The hospital defended on the grounds that neither the minor nor his parents ever requested an outside interpreter and that the hospital used multiple modalities to effectively communicate with the minor. Andrea briefed the issues at the trial and appellate levels. Brad presented oral argument to the U.S. District Court, while Andrea made appellate argument before the 11th Circuit.

John Gonzales (Philadelphia, PA) obtained a defense verdict after a four-day jury trial in the U.S. District Court for the Middle District of Pennsylvania. The plaintiff had significant injuries to his left shoulder, which left him with permanent nerve damage—his left arm is paralyzed and without sensation—after he was removed from his vehicle following a high-speed pursuit by members of a police department. The plaintiff alleged that the officers used excessive force in violation of the Fourth Amendment. With the assistance of Mark Kozlowski (Scranton, PA), who played the role of the plaintiff, the officers demonstrated the techniques they used to pull the plaintiff from the car and subdue and handcuff him. The jury deliberated for 15 minutes before delivering its defense verdict.

Christopher Conrad (Harrisburg, PA) successfully defended a school district in a special education due process hearing. A high school student with Type 1 Diabetes, who was a member of the high school marching band, tried out to play bass drum in the percussion ensemble for the outdoor season. After several months of tryouts, the band director and percussion coordinator concluded the student lacked the technical skills to march with and play the instrument, and the student was not offered a position with the bass drum. The student’s overall skill set had not progressed from prior seasons, largely because he sat out of many practices—reportedly because of low blood sugar and other effects of his diabetes—and he did not avail himself of other opportunities to make up the work he missed in practice. Notwithstanding, the student was offered alternatives to allow him to participate in the marching band, including marching with cymbals or playing drums in the auxiliary percussion section, but he refused those alternatives and quit the band. The student’s parent then filed a complaint alleging the school district violated the student’s rights under Section 504 of the Rehabilitation Act, claiming the district discriminated against the student and failed to accommodate his diabetic condition. The hearing officer found in favor of the school district, concluding the parent failed to meet her burden of proof under 504. The hearing officer found the student was not “otherwise qualified” to play the bass drum and that the district’s decision not to offer the student the bass drum was for legitimate, non-discriminatory reasons, and not because of his diabetes. The hearing officer also found the district made reasonable efforts to accommodate the student’s condition and that the student failed to take the opportunities offered to him.

Workers’ Compensation Department

Tony Natale (Philadelphia, PA) successfully defended a major Philadelphia federal credit union in the litigation of a workers’ compensation claim petition involving issues of alleged workplace racial harassment that lead to mental and physical injuries. The case was litigated over a two-year period before two separate workers’ compensation judges. The initial judge chose to recuse himself after the claimant wrongfully accused the judge of bias. The second judge allowed the claimant to present her case, despite being met with the same type of accusations by the claimant. Based on Tony’s cross examination of the claimant, among other things, the judge ultimately found that there was not sufficient evidence to establish a work-related injury or work-related disability. The claim petition was dismissed in its entirety.

Michelle Punturi (Philadelphia, PA) was successful in limiting exposure on a claim petition and a penalty petition based upon the testimony of three strong factual witnesses from the employer. These witnesses were able to provide evidence to support the fact that the claimant executed an Employee Rights and Duties form at the time of hire and time of injury, yet failed to treat with the panel physician for 90 days. Based on that evidence, the judge found that the employer was not liable for medical expenses for the period of time up until the denial. Further, strong medical evidence from an IME physician, who had the opportunity to review all the medical records past and subsequent to the work injury, as well as the diagnostic study films, persuaded the judge to accept that the claimant had fully recovered from the work injury. As a result, the claim was limited to two months.

Tony Natale (Philadelphia, PA) successfully prosecuted a suspension petition on behalf of a large seafood restaurant. The claimant suffered a serious injury during the course and scope of his employment. Some years later, the insurance carrier attempted to have the claimant physically examined by an orthopedic surgeon. The carrier scheduled three examinations, and each time the claimant made an excuse for his failure to attend. Tony secured an order compelling the claimant’s attendance at the exam, and the claimant hired counsel. Thereafter, the claimant continued to fail to attend two more scheduled physical exams before finally appearing for an exam. Tony petitioned the court to suspend the claimant’s right to benefits. The claimant motioned to dismiss the case since he ultimately attended an exam. The judge found that, even though the claimant ultimately attended an evaluation, he should nonetheless be punished for his “unreasonable” actions leading up to his attendance. The judge then prospectively suspended the claimant’s right to benefits for his actions. The case represents one of first impression in Pennsylvania since the claimant’s right to indemnity and medical benefits were at issue.

Tony Natale (Philadelphia, PA) successfully defended a professional athletic team in a case of first impression in the state of Pennsylvania. The claimant was invited to the team’s hockey camp as part of a professional team try-out. The claimant was known as an “enforcer” in professional hockey circles, which meant that he had the propensity to fight during games. During the camp, the claimant injured and/or aggravated a pre-existing injury to his dominant hand during a drill, thus eliminating his ability to hit, check or fight. The claimant then filed a claim petition alleging that he was an “employee” of our client at the time of the injury and was entitled to medical and lost wages. Tony was able to defend the claim with the use of the team’s Collective Bargaining Agreement and testimony from the team’s general manager. The judge formulated a complex, bifurcated decision that accepted all of Tony’s arguments as they related to Pennsylvania contract law. The claimant was found not to be an employee of the team, and his claim was dismissed in its entirety.

*Prior results do not guarantee a similar outcome

^{Defense Digest, Vol. 21, No. 1, March 2015}

^{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 © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}