On the Pulse…Important & Interesting Litigation Achievements*…We Are Proud of Our Attorneys for Their Recent Victories…
Casualty Department
Christopher Santoro, Christine Dower, Carol VanderWoude and John Hare (Philadelphia, PA) successfully convinced the Pennsylvania Superior Court, sitting en banc, to reverse a $14.5 million verdict in an asbestos case on two bases and remand for a new trial on liability and damages. In its 6-3 decision, the Superior Court awarded a new trial on liability because the testimony of plaintiff’s expert was invalid under Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), as applied to asbestos cases by the Pennsylvania Supreme Court in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012). The Superior Court further held that a new trial on damages was required because, in his closing argument, plaintiff’s lead counsel improperly suggested specific dollar amounts for the award of noneconomic damages, in violation of Pennsylvania law.
Rachael von Rhine (Cherry Hill, NJ) obtained summary judgment in a consolidated case filed by four plaintiffs arising out of a six-car motor vehicle accident. The defendant was a front seat passenger in a vehicle owned and operated by her co-defendant husband. The accident occurred when the co-defendant driver suddenly lost consciousness while operating the vehicle. As the vehicle was approaching a red light, the defendant unbuckled her seatbelt, climbed into the driver’s seat and drove the car into the concrete median in order to avoid striking stopped vehicles and cross traffic. The defendant was severely injured as a result. The plaintiffs argued that the defendant was negligent in not preventing her husband from driving the vehicle, even though she knew that he had taken medication without eating, despite the medication’s label, which advised that the medication must be taken with food. The defendant also admitted that her husband was pale and shaky when they entered the vehicle. The judge granted summary judgment, stating that there is no legal duty for a passenger in a vehicle to prevent the driver from operating his/her own vehicle. The plaintiffs argued that a “special relationship” existed between the husband and wife that gave the defendant the power and duty to prevent the co-defendant from driving. The court disagreed, citing case law suggesting that a “special relationship” only exists when the passenger is in a position of authority, such as a parent or employer, and declined to expand the definition of a “special relationship” to include spousal relationships.
Ben Nicolosi (Scranton, PA) obtained a defense verdict in a trial in Tioga County, Wellsboro, Pennsylvania. The premises liability action was brought directly against an international energy company conducting work in the Marcellus Shale region of Pennsylvania, Tioga County. The plaintiff alleged that she was ejected from a snowmobile, sustaining multiple fractures in her back, when it hit a drainage ditch that had recently been dug to accommodate a road for the energy company. The ditch was 4.5 feet deep and 5 feet wide, and, according to the plaintiff’s theory, it should have been clearly marked to alert snowmobilers who had used that area for decades. The ditch was partially located in the public right of way alongside a township road. The trial was an opportunity to learn how a local jury would treat a defendant heavily engaged in the Marcellus Shale exploration industry in their community.
Mike Connolly (Scranton, PA) obtained a compulsory non suit at the close of the plaintiff’s case during a jury trial in Luzerne County. The case stemmed from a fall that occurred in a grocery store. It was undisputed that the plaintiff experienced a hard fall after stepping on a small bottle containing an energy drink while shopping. The plaintiff suffered several injuries, including serious nerve damage to both legs as a result of the fall. The judge agreed with Mike that, although the plaintiff had alleged both actual and constructive notice of the allegedly dangerous condition created by the bottle on the floor, the plaintiff failed to introduce any evidence beyond mere speculation of that notice. The plaintiff also alleged that the manner in which the energy drink was merchandised caused it to fall and resulted in the plaintiff’s injury. The judge agreed with Mike that the record simply did not support that allegation.
Health Care
Walter Kawalec (Cherry Hill, NJ) and Scott Eichhorn (Roseland, NJ) were victorious in a medical malpractice matter before the New Jersey Superior Court Appellate Division. The plaintiff had a congenital heart condition: bicuspid aortic valve disease, which put him at a greater risk for endocarditis, an inflammation of the inner lining of the heart. We represented the plaintiff’s cardiologist. Complaining of certain symptoms that our client believed indicated a viral illness, our client sent the plaintiff to see an internist. When he later returned to see our client without a resolution of the symptoms, blood cultures were ordered, and the plaintiff was diagnosed with endocarditis. As a result, the plaintiff’s aortic valve had to be replaced. Suit was instituted alleging that the delay in diagnosis led to the surgery. At trial, Scott obtained a jury verdict, finding that there was no violation of the standard of care on behalf of our client. The plaintiff appealed and raised two issues. The first issue was regarding a pre-trial order concerning his experts. After the time for providing expert reports was over, plaintiff’s counsel informed the court that Dr. Moss was “too busy” to testify and would no longer serve as plaintiff’s expert. The plaintiff then attempted to replace Dr. Moss with another expert, Dr. Klapper. The defendants objected, and the trial court held that the plaintiff did not show exceptional circumstances sufficient to add Dr. Klapper to the case. After Dr. Klapper’s participation was struck, Dr. Moss, notwithstanding the fact that he was allegedly “too busy,” nevertheless appeared at trial and testified on behalf of the plaintiff. On appeal, the Appellate Division found no error in the decision to bar Dr. Klapper’s report and testimony. The court found that the trial judge was correct that exceptional circumstances are not shown simply because an expert is “too busy.” The Appellate Division also rejected the plaintiff’s argument that an extension of discovery to take expert depositions granted the plaintiff permission to substitute his expert.
Joan Orsini Ford and Joseph Hoynoski (King of Prussia, PA) obtained a defense verdict in a wrongful death claim. The case involved the care provided to the plaintiff’s decedent, who was taken by ambulance to the emergency department of the defendant hospital on the afternoon of his 50th birthday after suffering a stroke. On arrival to the ED, the decedent was requesting tPA and knew it had to be administered within three hours. The co-defendant neurologist was consulted and agreed with the administration of the tPA. The patient was seen by his family physician, also a defendant. After tPA was administered, he was admitted to the ICU to be monitored. The plaintiff contended that the patient’s condition deteriorated while he was in the ICU and that the nurses failed to appreciate the signs of brain herniation and failed to contact the physicians. The patient suffered from agitation, vomiting, a worsening NIH score and an episode of bradycardia while in the ICU. When the nurse recognized unequal pupils, a neurologic change, later the next morning, the neurologist was contacted. A stat CT scan was ordered which revealed massive swelling in the brain. The neurologist recommended transfer to another hospital for consideration of hemicraniectomy. At the receiving hospital, no treatment was offered, and the patient died the next day. The plaintiff claimed that the defendants, specifically the nurses and house doctor, failed to appropriately monitor the decedent in the ICU, to appreciate the significance of the findings, and to notify the physicians of the deterioration. The plaintiff contended that the defendant physicians failed to promptly administer drugs to prevent/reduce the swelling of the brain and failed to timely transfer the decedent to a facility that had a neurosurgeon on staff. The defense established that the nurses were in contact with the house doctor and attending physician at various times concerning the patient’s condition. The defendants were able to convince the jury that the decedent received appropriate management and that the outcome was unavoidable. The decedent had been a pharmacist. At the time of the events, he was working as an executive for a pharmaceutical company earning over $325,000 a year. The wage loss claim was in excess of $5 million.
Joan Ford and Joseph Hoynoski (King of Prussia, PA) obtained a defense verdict in a medical malpractice case in Bucks County after a four-week trial. The plaintiff, who was 56 years old at the time of the treatment, is currently “locked-in” as a result of a rare brainstem stroke and requires total care. The life care plan estimated future medical expenses of over $13 million. The plaintiffs claimed that the defendants failed to promptly diagnose and timely treat the plaintiff’s stroke. After the three to four and one-half hour window for treatment with tPA passed, the plaintiffs claimed that, since this was a brainstem stroke, there was a 24-hour treatment window for more advanced therapies not offered at the defendant hospital. The plaintiffs argued that the defendants failed to transfer the patient to a hospital where he could have received these therapies, leaving him in a locked-in state. The plaintiffs aggressively pursued a corporate liability claim against the hospital, contending that the hospital was not prepared to accept stroke patients, failed to have appropriate policies and procedures in place, and was improperly certified as a primary stroke center. The onset of the patient’s symptoms was a contested issue. Contrary to the contemporaneous documentation, the plaintiffs maintained that he woke up feeling fine and that symptoms developed shortly after he awoke. Therefore, tPA was appropriate and the ED physician was negligent for not giving tPA. A brainstem stroke was considered by the co-defendant emergency room physician, but because this was a “wake-up” stroke, the patient was not eligible for tPA. The co-defendant neurologist was consulted, and the patient was admitted with plans for a stat MRI to evaluate the brainstem for a possible Pons stroke. The plaintiffs contended that the MRI was delayed and then misread as “artifact” in the brainstem by the co-defendant radiologist. Because the MRI did not support the diagnosis of stroke, the neurologist began treating the patient for Gullian Barre. When the plaintiff’s condition did not improve, the family requested that he be transferred to another hospital. He was transferred the next night to a tertiary center, and several days later, after several MRIs, the plaintiff was diagnosed with a bilateral pontomedullary brainstem stroke.
Nicholas Rimassa and Robert Evers (Roseland, NJ) obtained a unanimous defense verdict in a psychiatric malpractice case involving claims of wrongful death by suicide. The plaintiff’s decedent was a 21-year-old man who attended Duke University. Over the course of a year, the defendant provided the decedent with twice weekly intensive psychotherapy sessions. The defendant diagnosed him with Bipolar Disorder and managed various medications over the course of a year. Four months prior to his death, the plaintiff’s decedent attempted suicide by prescription drug overdose. He returned to the defendant’s care for continued medication management and psychotherapy. The decedent’s mother claimed that four days prior to the suicide, she and her son phoned the defendant and told him of the decedent’s plan to jump in front of a train. The defendant disputed being advised of a plan, but confirmed this conversation and suicide assessment. Days after this conversation, the plaintiff’s decedent completed suicide by jumping in front of a train. At trial the plaintiff alleged a delay in diagnosing Bipolar Disorder, failure to hospitalize, failure to change the treatment plan and failure to consult with another physician after the first suicide attempt. The defendant disputed these allegations and presented expert testimony from a national authority from Harvard University on suicide prevention. After two hours of deliberations, the jury returned a unanimous defense verdict finding no liability as to the defendant.
Frank Leanza and Rosalind Herschthal (Roseland, NJ) obtained a defense verdict after a five-week trial in Essex County. The plaintiffs alleged that our clients, an emergency medicine physician and a nurse practitioner, failed to diagnose and test for a subarachnoid hemorrhage (brain bleed) in a patient who came to the emergency department with a non-traumatic nosebleed and hypertension. When she arrived at the ER, the 59-year-old plaintiff was evaluated by the nurse practitioner, who performed a full exam of the patient and treated the nosebleed with nasal packing. Following the packing, the plaintiff complained of a headache and was seen by a physician. Since the plaintiff had not taken her blood pressure medicine for a few days, her antihypertensive medication was restarted and Tylenol, or a Percocet, was ordered for the headache. By midnight, our client felt the patient’s blood pressure was still elevated, and she was admitted to the hospital. The case was discussed with the attending physician, and a cardiology consult was ordered, ending our client’s responsibility to the patient. Overnight the plaintiff had nausea, vomiting and an excruciating headache for which the attending physician ordered Dilaudid. She was seen by her cardiologist in the morning, who attributed the symptoms to nasal packing. At approximately 7:00 p.m. (27 hours after she arrived at the ER) the plaintiff had a sudden loss of consciousness. An immediate CT scan revealed a massive subarachnoid hemorrhage. In a CT angiogram taken a few hours later, no aneurysm was seen, although brain death was confirmed. The plaintiff contended that the ER physician, the hospitalist and cardiologist all missed the signs of a sentinal bleed (bleed from an aneurysm in the brain) and that a CT scan should have been performed in the ER (or later) which would have been positive for a bleed. The plaintiffs contended through their neurosurgical expert that further studies would have revealed an aneurysm, which was treatable before the massive hemorrhage. They argued a CT scan is a simple test that should have been performed to rule out a potentially life threatening bleed. We contended that the patient did not exhibit signs of a sentinal bleed in the ER; the headache was clearly attributable to the nasal packing; and a test isn’t done just because it is “simple.” Our endovascular neurology expert testified that there was no aneurysm and that there were no symptoms of a sentinal bleed while under our clients’ care. The co-defendant’s experts, a neurosurgeon and neuroradiologist, also testified there was no aneurysm. The jury deliberated two hours and returned a defense verdict.
Professional Liability
Christopher Boyle (King of Prussia, PA) and John Hare (Philadelphia, PA) obtained the Pennsylvania Supreme Court’s affirmation of a judgment as matter of law. Voting 6-0 for our clients, a Pennsylvania police department and its officers, the court held that police owe neither a statutory nor common law duty to unknown passengers in fleeing vehicles. In December of 2006, Officer Howley attempted to pull over a high-performance Ford Mustang operated by an individual who had spent the better part of the day and evening drinking with family and friends. Plaintiff’s decedent, who had been drinking with the operator and another passenger, sought and obtained a ride from the intoxicated driver. The three men were on their way home when Officer Howley activated his lights and sirens to pull them over. The entire incident, from 30 seconds before the lights and sirens are activated, until several hours after the ensuing crash, was captured on Officer Howley’s in-car video camera. That video established that the get-away car was only within the officer’s view for 16 seconds and that a mere 74 seconds passed from activation of lights and siren, to the crash that killed plaintiff’s decedent. The Supreme Court’s ruling confirms that the police did nothing wrong in attempting to pull over the speeding Mustang. The Pennsylvania Fraternal Order of Police, The Pennsylvania Chiefs of Police Association, the County Commissioners Association of Pennsylvania, the Pennsylvania Municipal League and the Pennsylvania Association of Boroughs joined as amici curiae to support Marshall Dennehey’s position in the Supreme Court. Sellers v. Township of Abington, et al, 2014 Pa. Lexis 3463 (December 29, 2014).
Christopher Gonnella (Roseland, NJ) obtained a defense verdict on behalf of his client, a home improvement contractor, in a contract/construction defect matter which was tried in the Superior Court of New Jersey, Middlesex County. The claims of breach of contract, common law fraud and consumer fraud were brought by the homeowners who had contracted with another party to renovate and construct an addition to their home in Piscataway, New Jersey. The plaintiffs alleged that the excavation for the addition was done improperly and ultimately caused the foundation of the existing home to settle, crack and become unstable over a period of more than five years due to soil erosion around the footings for the existing foundation, which required them to demolish the home in December 2013 due to the structural issues caused by the work on this project. The plaintiffs claimed that our client was retained by the general contractor in August 2007 to perform the excavation work as one of its subcontractors. The plaintiffs also claimed that our client was hired by them directly in November 2007 to remove dirt that had been improperly stockpiled on a neighboring lot as a result of the excavation on their project and to backfill the new foundation walls that had been installed by the general contractors after the excavation work was completed. Although no contract was ever produced, the plaintiffs argued that they had direct knowledge of our client’s involvement as the excavator based upon conversations they had with an operator of a machine who was performing the excavation work in August of 2007, and who identified himself as an employee of our client. Our client denied performing any of the excavation work, or backfilling the new foundation walls as the plaintiffs alleged. Instead, our client claimed that they simply rented their equipment to the general contractor to use for the excavation at the site in August 2007 and to remove the dirt from the neighboring lot in November 2007. We countered the plaintiffs’ theory of the case through the testimony of our witnesses and various documents. Ultimately, the judge granted our motion to dismiss the plaintiff’s common law fraud and consumer fraud claims at the close of the defendant’s case. However, the jury was left to determine the breach of contract issue, where they found that no contract existed for our client to perform the excavation work in August 2007, and that our client did not breach its agreement with the plaintiffs in November 2007 regarding the removal of dirt and/or backfilling.
Howard Mankoff (Roseland, NJ) represented an Orthodox Jewish synagogue, through a non-profit Directors and Officers policy, that was sued by its former Cantor, a member of the clergy, for wrongful termination. The Cantor claimed that under Talmudic law, he had the job for life. We disputed the argument and alleged that the Cantor’s disrespect for the Rabbi with whom he worked justified the termination. The claim was for $1.7 million. The parties, by an arbitration agreement enforceable in civil court, submitted the dispute to a rabbinic court, known as a Beth Din. The Beth Din consists of three Rabbis knowledgeable in civil law and supported by an administrative attorney. There is no formal pretrial discovery, though the Beth Din can require the parties to exchange information before the hearing. The Beth Din heard testimony from the Cantor and several witnesses from the congregation and then had to decide the wrongful termination based on Jewish law, civil law and the good of the community. After hearing extensive witness testimony and reviewing voluminous post-trial submissions, the Beth Din decided in our client’s favor, finding that the termination was justified and awarded the plaintiff nothing. The award cannot be appealed.
Craig Hudson and Kerri O’Brien (Fort Lauderdale, FL) obtained a defense verdict in a legal malpractice case in Broward County, Florida. Our clients were two board certified construction lawyers who had unsuccessfully defended the plaintiff, a real estate developer for a project in West Palm Beach, Florida, in a lawsuit brought by the general contractor that ended with an adverse jury verdict of over $1 million. In the underlying lawsuit, the two lawyers pursued a litigation strategy that, upon reflection, had little chance of success. The lawyers never communicated to their client the prospect of an adverse result, at least not in writing. During the underlying trial, the judge made critical comments concerning the attorneys’ preparation and made several adverse rulings, including dismissing a third-party complaint against one party, stating that the lawyer had sued the wrong party, and another ruling excluding their primary expert because the expert’s opinions were not properly disclosed during discovery. Kerri and Craig pursued a defense built on the theme that the legal advice and strategy the attorneys provided to their client was based on inaccurate information supplied by the client; that the client deliberately withheld critical information; that their developer was the one in control of the underlying litigation strategy; and that his own actions and trial testimony undermined his case, not the actions of his attorneys. The trial lasted 14 days. The plaintiff’s case took 10 and one half days to present three live witnesses. There were over 500 exhibits admitted into evidence. The defense case was presented in two and one half days with testimony from four live witnesses, including the plaintiff’s attorney from the underlying trial. The jury deliberated for less than two hours before returning a defense verdict on all counts. Craig and Kerri had a proposal for settlement in place, and there will be a considerable fee claim by the defendants under Florida law, which we anticipate to be collectible.
Aaron Moore (Philadelphia, PA) obtained a non-suit at trial before the Philadelphia Court of Common Pleas. The plaintiff was involved in extremely contentious support and custody proceedings in Family Court. Disgruntled with the outcome of those proceedings, he brought a civil action pro se against our client, the attorney who represented the plaintiff’s ex-wife in Family Court, claiming that she was liable to him for wrongful use of civil proceedings, 42 Pa. C.S. 8351, et seq., and for violating 18 Pa. C.S. §4092 regarding unsworn falsifications to authorities. The plaintiff did not allege, and could not demonstrate, any of the elements of a wrongful civil proceedings claim, and §4094 does not give rise to a private right of action. Nonetheless, the court overruled our client’s preliminary objections and denied her summary judgment motion without opinion. Accordingly, the matter was scheduled for trial. During his opening statement, the plaintiff conceded that he was unable to offer any evidence in support of his claims. Accordingly, our motion for non-suit was granted.
Christopher Block (Roseland) obtained summary judgment in the Supreme Court of Westchester County, New York, on behalf of our client, a home inspection service. The case involved claims for negligent home inspection, gross negligence and fraud as a result of the plaintiffs’ discovering over $1.4 million in actual damages from mold and vermin following their purchase of a home in Armonk, New York. The plaintiffs executed a home inspection agreement and hired the defendant to perform the pre-sale home inspection. Our client’s contract with the plaintiffs reduced any damages to liquidated damages equivalent to the cost of the home inspection, or $850. In our motion, we argued that the plaintiffs’ claims should be limited to the liquated damages because New York law fully embraces the notion that parties to a contract freely negotiate the terms at arms’ length and should be held to the letter of those terms. The court agreed with our client’s position and reduced the plaintiffs’ potential damages to $850.
Workers’ Compensation
Judd Woytek (Allentown, PA) successfully defeated an appeal filed by a claimant from a decision of a Workers’ Compensation Judge that awarded him a closed period of benefits and then terminated benefits. Judd argued to the Workers’ Compensation Appeal Board that the judge’s decision to terminate benefits was supported by the substantial competent evidence of record. The Appeal Board agreed and found that the testimony presented by the claimant’s treating physician was insufficient to show that the claimant had not fully recovered from his work injuries. The Appeal Board found that the judge properly credited the employer’s medical expert opinion, and they upheld the termination of benefits.
Tony Natale (Philadelphia, PA) successfully defended a large mushroom processing plant in Berks County. The case involved a claim petition in which an employee alleged a debilitating work-related injury involving a lumbar spine disc herniation with radicular components after alleged heavy lifting a work. Based on the claimant’s average weekly wage and the severe nature of his injury, this was a high-exposure claim. A complete medical exam was undertaken on behalf of the mushroom facility by a nationally recognized orthopedic surgeon. At first, the case appeared compensable based on the claimant’s history and the surgeon’s clinical findings. However, Tony was able to uncover historical emergency room records which demonstrated that the claimant suffered from the disc herniation prior to his employment with the mushroom facility. Through the use of those hospital records, Tony was able to establish that the claimant told the ER physician that he did not want to treat for the disc herniation until he secured employment and had medical insurance. The claimant never revealed these facts to his current treating expert or the court during direct examination, which Tony used to question his credibility. The Workers’ Compensation Judge found the claimant to be less than credible and dismissed the claim in its entirety.
*Prior Results Do Not Guarantee A Similar Outcome
Defense Digest, Vol. 21, No. 2, June 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.