On the Pulse…Important and Interesting Litigation Achievements…We Are Proud of Our Attorneys for Their Recent Victories*
CASUALTY DEPARTMENT
Dean Aronin (New York, NY) obtained summary judgment dismissing his client, a dog rescue company, that was sued in a dog-bite case venued in New Jersey Superior Court, Middlesex County. The plaintiff was bit by a pit-bull mix that was adopted by the co-defendant from the rescue company approximately two weeks prior to the dog bite. Dean moved for summary judgment, arguing his client owed no duty to the plaintiff because it was no longer the owner on the date of the incident. The plaintiff argued that our client was a co-owner of the dog, even after the dog was adopted, and that our client had allegedly been given notice of the dangerous propensities of the dog. Dean argued that there was no notice of the dangerous propensities of the dog and that the adopter had sole possession and control of the dog after the adoption. After oral argument, the court granted Dean’s motion for summary judgment, finding that our client did not owe any duty to the plaintiff.
Steven Christman (New York, NY) and Erica Arias (New York, NY) obtained a favorable decision in a trip-and-fall case on a pre-note motion for summary judgement to dismiss the plaintiff’s complaint and all cross-claims in Bronx County. The plaintiff filed a summons and complaint, alleging common law negligence as a result of a trip and fall on broken, uneven, misleveled, cracked, and/or dilapidated condition on the roadway located outside of a school and adjacent to our client’s oil tank. Our client was in the business of renting empty oil tanks and would provide delivery and pick-up services pursuant to the rental agreement.
Steve and Erica argued two points. First, pursuant to the test in the New York Court of Appeals case Espinal v. Melville Snow Constrs., our client did not owe a duty to the plaintiff to inspect, care, and/or maintain the subject premises since the contractual obligation to the co-defendant for the delivery of the oil tank, standing alone, did not give rise to tort liability in favor of a third party (plaintiff). Second, in the event a duty was owed, the renting and/or delivery of oil tanks was not the proximate cause of the plaintiff’s injuries, as one of the co-defendant’s performed milling work at the subject premises subsequent to the delivery of the oil tank and prior to the plaintiff’s accident, thus constituting a superseding act and breaking the casual connection.
The plaintiff opposed our motion on the grounds that it was premature and that we failed to establish our client’s prima facie burden for summary judgment, as we did not sufficiently establish that our client did not, in fact, create the alleged defective condition in the roadway at the subject premises. The court found the plaintiff’s argument unpersuasive and granted our motion for summary judgement, rendering their decision under the guidance of Espinal v. Melville Snow Constrs.
The Supreme Court of Pennsylvania refused to review the Superior Court’s affirmance of a 2021 nonsuit obtained by Jack Delany (Philadelphia, PA) in hotly-contested litigation stemming from the death of a construction worker. John Hare and Shane Haselbarth (Philadelphia, PA) handled the appeal along with Jack.
The Supreme Court’s ruling ends more than five years of litigation that arose from the construction worker’s death while he was involved in the Pier 78 renovation project on the Delaware River in Philadelphia. The plaintiff sued the general contractor and others involved in the project and ultimately settled with the general contractor for $10.5 million. The general contractor then pursued a contractual indemnification claim against Jack Delany’s client, a subcontractor on the Pier 78 project. The indemnification claim included the $10.5 million settlement plus approximately $1 million in attorneys’ fees.
The case proceeded to trial in 2021 and, at the close of the general contractor’s case-in-chief, Jack moved for and was granted a nonsuit on the basis that the general contractor was the deceased construction workers’ statutory employer pursuant to the five-element test set forth by our Supreme Court in McDonald v. Levinson Steel, 153 A. 424 (Pa. 1930). The case was especially notable because, rather than retaining an attorney to address the reasonableness of the amount of the underlying settlement, which is typical, Jack retained an economist to explain that, based upon his analysis of comparable cases, the settlement amount was excessive.
The general contractor appealed the nonsuit. In an unanimous decision the Superior Court affirmed. The Supreme Court denial of allowance of appeal brings the lengthy litigation to an end.
Jack Delany (Philadelphia, PA) and Michael Logue (Philadelphia, PA) prevailed on a motion to dismiss for lack of personal jurisdiction in a case venued in Atlantic County, New Jersey. Jack and Mike moved to dismiss the lawsuit against their client based upon lack of personal jurisdiction in New Jersey. A co-defendant ordered an umbrella from our client’s website. Our client, which is located in Florida, merely processed the order. It did not ship the order to New Jersey and is not licensed to do business in New Jersey. The court agreed that New Jersey lacked personal jurisdiction over our client and dismissed the lawsuit.
Benjamin Goshko (Philadelphia, PA) successfully achieved summary judgment in a matter where the plaintiff alleged that our client and a neighboring property owner were responsible for water and septic intrusions onto the plaintiff’s property. The three Bucks County properties formed a large triangle between two roads. The plaintiff’s complaints against his neighbors went back over seven years. Ben argued that the trespass onto the plaintiff’s property was permanent in nature and was barred under the statute of limitations and that the plaintiff’s experts failed to establish the intrusion emanated from our client’s property.
Christin Kochel (King of Prussia, PA) obtained a favorable decision dismissing all claims and cross-claims against her client, a car rental company, in a motor vehicle accident case. The plaintiff filed a complaint, alleging several injuries due to a motor vehicle accident. The plaintiff sued several defendants, including our client, the rental car company that owned one of the vehicles involved in the accident. Citing the rental agreement and the policies covering the rental vehicle, Christin argued that the rental driver was not authorized to operate the vehicle as he rented the vehicle under false pretenses, permitted an unauthorized driver to operate the vehicle, and operated the vehicle for hire in violation of the policies. The court ruled in the rental company’s favor, finding there was no coverage under the policies pursuant to Pennsylvania case law and the policy language cited by Christin in her motion for judgment on the pleadings.
Paul Krepps (Pittsburgh, PA) and Carol Vanderwoude (Philadelphia, PA) were successful in obtaining the dismissal of our client who was joined as a third party in a trucking death case, pursuant to a FRCP 12(b)(6) motion to dismiss in the U.S.D.C. for the Northern District of West Virginia. The underlying action sounded in contract; however, the third-party joinder was a negligence claim that our client allegedly failed to ensure that the defendant trucking company was properly licensed pursuant to the Federal Motor Carrier Safety Regulations. The Magistrate Judge initially recommended that the Rule 12 motion be denied. Carol then drafted objections to the report and recommendation, and the District Court overruled the R&R and granted the motion. Carol was the architect of arguments that the joinder violated FRCP 14, was beyond the statute of limitations, and violated the Colorado River Doctrine. The court adopted our argument that the joinder was not related to the underlying claims and dismissed our client with prejudice.
Evan Saltzman (Philadelphia, PA) successfully argued a petition to strike a default judgment in front of the Philadelphia Court of Common Pleas. Evan’s oral argument was successful and the default judgment was stricken. Evan argued that the plaintiff’s notice to take the default judgment was deficient on its face.
In another matter, Evan was successful in having preliminary objections, in the nature of a demurrer, dismissed. The plaintiff had initiated that action for damages, allegedly arising from a slip and fall believed to have taken place at a clothing retail store. Our clients, a media company, did not own or possess the property in question and had nothing to do with creating the alleged dangerous condition. In his preliminary objections, Evan argued the plaintiff’s complaint did not actually state specifically the location where she fell. Evan also argued that our client did not own or possess the property in question, and did not create the alleged offending condition. The plaintiff amended her complaint without our client.
Seth Altman (Fort Lauderdale, FL) successfully filed a motion to dismiss because the case was barred by the statute of limitations. The court ordered a dismissal, with prejudice. The plaintiffs had filed suit for breach of contract claim after Hurricane Irma, with a date of loss of September 10, 2017. The plaintiffs attempted to use Fla. Stat. 627.70152(3)(b)’s ten-day safe-harbor provision to say the suit was timely filed. We argued that the plaintiffs would have had to file suit by September 12, 2022, to have been within the statute of limitations. Our argument was that the plaintiffs could not apply 627.70152(3)(b) retroactively and avail themselves of the safe-harbor provision because the subject policy was executed before Fla. Stat. 627.70152 became effective. The plaintiffs’ argument was that the statute could be applied retroactively, and that they could avail themselves of the safe-harbor provision and serve the notice of intent to litigate on September 12th, thus allowing them to file suit 10 business days after September 12th, or on September 26, 2022. Therefore, the plaintiffs argued, their suit was timely and not barred by the statute of limitations. The court rejected the plaintiffs’ argument, agreed with Seth, and held that the suit was barred by the statute of limitations. Thus, the case was dismissed with prejudice.
HEALTH CARE DEPARTMENT
Melissa Dziak and Thomas Specht (Scranton, PA) obtained complete dismissal of all claims on the eve of trial where the plaintiff’s demand was $10 million. The plaintiff was an Emergency Medicine Technician who was severely assaulted during an ambulance transport of a minor patient to a psychiatric facility. The client-physician discharged the minor patient with orders for sedation and restraints, if needed, during transport. The plaintiff-EMT alleged these discharge orders were insufficient and violated the standard of care. Tom successfully argued that under Pennsylvania’s MCARE Act our client-physician did not owe a duty to the plaintiff-EMT, only to the minor patient. Further, Tom successfully argued that the plaintiff’s Emergency Medicine expert was not qualified to opine on the standard of care of our client-physician who is an Internal Medicine specialist in that plaintiff’s expert had no expertise in the long-term management of psychiatric patients. Without an expert to opine on the applicable standard of care, the plaintiff’s claim failed. As a result, the court granted our motion for summary judgment and dismissed plaintiff’s claims.
Eric Grogan (Roseland, NJ) and Heather LaBombardi (Roseland, NJ) were successful in obtaining dismissal with prejudice for a physician and a medical facility in a medical malpractice matter in Essex County, New Jersey, due to the plaintiff providing an inadequate affidavit of merit.
Joseph Hoynoski (King of Prussia, PA) obtained a defense verdict on behalf of an emergency room physician, hospital physician group, and hospital. The plaintiff filed a medical malpractice case, claiming the emergency room physician failed to appropriately treat her elevated blood sugar and groin abscess, leading to necrotizing fasciitis. The evidence presented to the jury supported the argument that the emergency room physician appropriately treated the small spontaneously draining groin abscess as presented, there were no signs of systemic infection, and the physician gave appropriate instructions for the plaintiff to return to the hospital if her symptoms changed or worsened. She did not require admission for treatment of her elevated blood sugar as she was a long-time diabetic and the glucose level of 497 was not abnormal for her. The plaintiff stayed home for seven days with her condition worsening, and when she finally returned to the hospital, she had developed the necrotizing fasciitis. The trial lasted four days, and the jury returned the verdict in 16 minutes.
Michael Mongiello (Harrisburg, PA) obtained summary judgment on behalf of his orthopedic surgeon client based on the statute of limitations, despite the plaintiff’s claimed application of the discovery rule. After conducting written discovery and deposing the plaintiff to solidify that the medical professional liability action was untimely commenced, Mike filed a motion for summary judgment in an effort to avoid the incurrence of significant additional expense in defending the case through the remainder of the discovery process. At oral argument, the presiding judge commented that the matter was “extraordinarily briefed” and “even better presented.” Mike’s success on the timeliness issue, which is almost always reserved for decision by the jury, brought a quick end to the litigation, in which there were significant liability concerns.
PROFESSIONAL LIABILITY DEPARTMENT
Brigid Alford (Harrisburg, PA) and Christopher Woodward (Harrisburg, PA) were successful in obtaining summary judgment relating to a claim for bad faith stemming from an uninsured motorist claim in the Eastern District of Pennsylvania. Brigid and Chris were also successful in having a claim for alleged violation of the Unfair Trade Practices and Consumer Protection Law dismissed with prejudice earlier in the litigation via a motion to dismiss.
Matthew Behr (Mount Laurel) successfully obtained dismissal of our client. The plaintiff, a high school wrestler, was not permitted to wrestle due to an alleged violation of the rules concerning hair style and covering requirements. The wrestler had his hair cut by the athletic trainer in order to wrestle. This incident was recorded by a local reporter and went viral. Matthew was successful in arguing that the plaintiff did not set forth causes of action for negligence, constitutional violations, and a violation of the New Jersey Law Against Discrimination.
Josh Byrne (Philadelphia, PA) achieved dismissal of recent disciplinary complaints. In the first matter, Josh’s client was the victim of a sophisticated scam. The scam caused our client to send IOLTA (Interest on Lawyers’ Trust Accounts) funds belonging to another client out of the country. In a second case, Josh achieved dismissal of a 99-paragraph disciplinary complaint alleging lack of communications with clients over the course of a 12-year-long underlying matter.
Josh also had preliminary objections sustained in a legal malpractice case. The court found that the plaintiff’s breach of contract claim was barred by the gist of the action doctrine and the statute of limitations had expired on any potential negligence claim. In another legal malpractice case, Josh successfully argued that the wrongful use of civil proceedings [Dragonetti] claim was barred as a matter of law by the applicable statute of limitations. The Superior Court affirmed an order of the trial court sustaining preliminary objections.
Michael Connolly (Scranton, PA) obtained summary judgment on a construction defect claim. The court dismissed the plaintiffs’ claims against the defendant, a homebuilder, in their entirety due to the plaintiffs’ failure to adequately prove breach of contract, breach of express and implied warranties, fraud in the inducement, wrongful conversion, and various alleged violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law.
Christopher Conrad (Harrisburg, PA) successfully defended a real estate agent in an investigation by the Pennsylvania Bureau of Professional and Occupational Affairs (BPOA). The real estate agent represented a buyer in the purchase of a home in Adams County. Prior to closing, the buyer had the property’s septic system inspected, and the system passed the inspection. Several months after closing, the real estate agent’s client decided to sell the property. When the new prospective buyers had the septic system inspected, the system failed the inspection, and they would not agree to close until the client fixed the system. The client then learned after the fact that the original sellers had experienced many issues with the septic system, that it had failed several prior inspections because the ground would not perc, and that the sellers failed to disclose this information when they sold the property to the client. The client filed a complaint against the real estate agent with the BPOA under the the Real Estate Licensing and Registration Act, alleging the agent engaged in misrepresentation and unprofessional conduct, and specifically the client claimed that the agent allegedly had knowledge of the prior history with the septic system but failed to disclose it to her. Chris was able to demonstrate to the BPOA investigator that the real estate agent had no knowledge of the prior history with the septic system, that neither the sellers nor their agent ever disclosed information about the system, and that if she was aware, she would have advised the client not to close on the purchase until the septic system was repaired. The BPOA declined to prosecute and closed its investigation.
In a separate matter, Christopher successfully defended a real estate agency and agent who had represented the plaintiffs/buyers of a home in Lehigh County. The plaintiffs alleged that prior to closing, the agent advised them to forego a home inspection and represented that they would not have any problems with the home. Shortly after closing, the upstairs ceiling collapsed from accumulated rainwater, and there was flooding in several bedrooms, causing significant property damage. Upon inspection, the plaintiffs learned the roof had partially collapsed some time prior to closing, which allowed rainwater to accumulate in the ceiling. The plaintiffs sued the agency, alleging negligence and negligent misrepresentation by the agent. In his answer to the complaint, Chris asserted that the negligence claims were barred by the broad exculpatory and release language contained in the parties’ Agreement of Sale and that any alleged oral representations by the agent were superseded by the written terms of the Agreement, relying upon Blumenstock v. Gibson, 811 A.2d 1029 (Pa. Super. 2002). After reviewing the answer and new matter, the plaintiffs conceded that their claims against the agency were barred and agreed to stipulate to the dismissal of the agency with prejudice. The co-defendant, the home appraiser, would not stipulate, however. Therefore, it was necessary for Chris to file a motion for discontinuance under Rule 229. After a hearing and oral argument, the court granted the motion and dismissed our client from the case with prejudice.
Brooks Foland (Harrisburg, PA) and Christin Kochel (King of Prussia, PA) were successful in obtaining summary judgment in the Eastern District Court of Pennsylvania on behalf of their client, an insurance company. In this underinsured motorist (UIM) claim, summary judgment was granted based upon the “other insurance” clause in the policy and valid stacking waivers. After the plaintiff was struck as a pedestrian by a motor vehicle, she recovered the bodily injury limits from the driver’s policy and her personal UIM policy. The plaintiff then submitted UIM claims under her daughter’s and granddaughter’s UIM policies. Both insurers denied the claims, citing the “other insurance” clause in the policies and claiming the plaintiff was not entitled to stacked coverage under her relatives’ policies as she and her relatives waived stacking under each of their respective policies. The court granted our motion for summary judgment, dismissing all claims against the insurer, including for breach of contract, bad faith, and unjust enrichment. In granting the motion, the court adopted Brooks’ and Christin’s arguments that: (1) the plaintiff and her relatives knowingly waived inter-policy stacking; (2) the “other insurance” clause applies to bar the plaintiff’s claims; and (3) the “other insurance” clause does not violate public policy or the Pennsylvania Motor Vehicle Financial Responsibility Law.
Ray Freudiger (Cincinnati, OH) obtained dismissal of an Ohio insurance agent who was sued by a condominium association. The allegation was that the insurance agent inappropriately and unlawfully inserted himself into the insurance company’s investigation and tortiously interfered with a contract that resulted in the insurance company paying far less than the $1.3 million in damages alleged by the condominium association. After taking depositions of the individuals from the condominium association, the insurance company, and defending his client’s deposition, Ray convinced the plaintiff’s attorney to dismiss all claims against the insurance agent.
Ray and Donielle Willis (Cincinnati, OH) successfully argued a motion for summary judgment in a discrimination case. The court found that the plaintiff’s claims against an apartment complex (our client) were precluded by law because: (1) the plaintiff could not prove the elements of a prima facie case of racial discrimination; and (2) the plaintiff could not prove his disability was the reason for any denial of housing. The plaintiff tried arguing his case for discrimination based on race and disability because he was denied housing twice. The court ultimately granted our motion and dismissed the plaintiff’s claims.
Ray and Donielle also successfully argued a motion for summary judgment in a school leaders’ liability case. Ray and Donielle argued that the plaintiffs’ claims were precluded by law because the general grant of immunity pursuant to R.C. § 2744.01 applied to them as a political subdivision and no exception to immunity existed. The plaintiffs, a minor student and parent, filed suit against the school district, school board, supervising teacher, and principal, alleging they were negligent when an afterschool science project (through the STEM program) caught fire, causing burn injuries to the student. Specifically, the court agreed with Ray and Donielle that the “physical defect” on the grounds exception to immunity did not apply. Further, the individual employees were also granted immunity because they were acting in their official capacities rather than their personal capacities. The court also agreed that, even if the employees were acting in their personal capacities, reasonable minds could only conclude they were not reckless. The judge ultimately granted our motion and dismissed the plaintiffs’ claims.
Congratulations to John Hare (Philadelphia, PA) and Shane Haselbarth (Philadelphia, PA) for their victory in the Pennsylvania Superior Court, which granted a judgment notwithstanding the verdict and nullified a $5.6 million judgment in a construction accident case. In a unanimous, precedential opinion, the court ruled that the general contractor represented by John and Shane was the plaintiff’s statutory employer and thus immune from suit.
Paul Krepps and Nathan Marinkovich (Pittsburgh, PA) successfully obtained a recommendation from a Magistrate Judge for the grant of summary judgment in an excessive use of force case where four police officers engaged in a gun battle with the plaintiff. There was no evidence that the third officer was not involved in the shooting. The plaintiff was subsequently found guilty of numerous criminal charges, but the initial motion to dismiss was denied to afford the plaintiff the opportunity to engage in discovery. After extensive discovery, the court determined that there were no fact issues to question the officers’ use of deadly force as being reasonable under the circumstances. The court also determined that there was no basis for claims that the municipality failed to have appropriate policies, training, and supervision of officers. Finally, the court found that there was no basis to proceed against the Chief of Police in her personal capacity and that all four officers were entitled to qualified immunity.
Aaron Moore (Philadelphia, PA) obtained a nonsuit at the beginning of trial in a legal malpractice case. In the underlying matter, our client represented a subcontractor in connection with its efforts to collect payments on a project. The contractor who hired the subcontractor was terminated from the project. The project owner orally promised payment to the subcontractor if it completed the work. The work was completed, and the subcontractor did not get paid. Thereafter, the subcontractor retained our client to prosecute a civil action. Our client sued the owner by its trade name, and the subcontractor was awarded all amounts owed at the underlying trial. The subcontractor stopped paying our client’s legal fees; thus, execution on the judgment was not completed. The subcontractor then sued our client, claiming that its judgment was uncollectible because it was against a trade name. Before the jury came into the courtroom, the court granted our motion for nonsuit based on the court’s orders granting our motions in limine seeking to preclude certain evidence and arguments.
Joseph Santarone (Philadelphia, PA), Shane Haselbarth (Philadelphia, PA) and Joshua Brownlie (Philadelphia, PA) successfully obtained from the U.S. Court of Appeals for the Third Circuit affirmance of a district court order dismissing a federal civil rights lawsuit.
A unanimous panel of the Third Circuit affirmed an order of the U.S. District Court of the Eastern District of Pennsylvania, which had granted a Rule 12 motion to dismiss in favor of a former Assistant District Attorney. The plaintiff had plead guilty to murder and other offenses in 1990 after shooting a man in the back four times. In 1993, the plaintiff filed a petition under Pennsylvania’s Post Conviction Relief Act (PCRA), claiming ineffective assistance of counsel. The crux of his argument being his counsel failed to object when the court incorrectly stated the meaning of life imprisonment. According to the original transcript, the court said, “Life implies 17 ½ to 35 years.” Our client, a former Assistant District Attorney, worked on the opposition to the plaintiff’s PCRA petition and contacted the court stenographer about that line in the transcript. The stenographer admitted the transcripts contained an error and filed a certified copy of the corrected page to reflect that the court said, “Life plus 17 ½ to 35 years.” The PCRA petition was denied. Then, in 2019, the plaintiff obtained a handwritten note by our client which referenced needing a “new and improved version” of the transcript. The plaintiff filed another PCRA petition. The current administration of the Philadelphia District Attorney’s Office and the plaintiff reached a stipulated agreement to resolve the case. The plaintiff’s 1990 guilty plea was vacated, he re-pleaded to third-degree murder and robbery, and was sentenced to 17 ½ to 35 years’ imprisonment, and was then released for time served.
The plaintiff filed a lawsuit against our client under 42 U.S.C. § 1983, arguing that our client’s ex parte communication with the stenographer violated his right to due process and to a jury trial. We moved for dismissal pursuant to Rule 12(b)(6), arguing our client’s actions were protected by absolute prosecutorial immunity and qualified immunity. The District Court agreed and dismissed the lawsuit with prejudice. The plaintiff appealed. Writing for a unanimous panel, Judge Nygaard concluded the claims asserted by the plaintiff “lack merit[.]” Affirmance was decided solely on the issue of qualified immunity. The court concluded the claims were “fatally deficient” because: (1) the plaintiff defined his right to due process and jury trial at too high a level of generality; and (2) the plaintiff failed to cite authority establishing that his rights to due process and a jury trial entitled him to protection from our client’s ex parte communication with a court stenographer. Thus, our client was entitled to qualified immunity, as argued by us in the District Court.
Jack Slimm (Mount Laurel, NJ) obtained, on pretrial motions, an order of dismissal of a legal malpractice action involving $12 million in liquidated damages. This case arose out of two underlying Law Division actions, two bankruptcy matters, a federal district court action, an appeal to the Third Circuit, an underlying foreclosure and note action, and an appeal to the Appellate Division. Jack represented a well-known bankruptcy practitioner in connection with claims made by the plaintiff borrower against the lending bank, the bank officers, and counsel.
In another matter, Jack was successful on pretrial motions in obtaining dismissal of a legal malpractice action arising out of an assault at a bar. The case involved extremely significant brain damage claims from several skull fractures the plaintiff sustained in the assault. Because of his serious injuries, the plaintiff made a multimillion dollar settlement demand in that case. Jack was able to demonstrate that the decisions made by the plaintiff’s attorney in the underlying trial against the bar were all strategic and judgment calls regarding how to try the case, what witnesses to call, what witnesses not to call, what exhibits to introduce into evidence, and what exhibits not to introduce into evidence.
Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) were successful before the New Jersey Appellate Division, which affirmed a decision dismissing a complex legal malpractice action. This case arose out of an underlying first-party coverage action involving hundreds of thousands of dollars in building damage caused by Superstorm Sandy. The plaintiffs filed a complaint alleging claims for legal malpractice. At the close of discovery, a motion for summary judgment was filed on behalf of defendants, which was granted by the trial court. Upon affirming the trial court’s decision, the Appellate Division held that the plaintiffs had not established proximate cause as a matter of law and that expert testimony was necessary to prove proximate causation and damages. The court held that the expert’s opinion was an impermissible net opinion with no evidential weight since the expert failed to explain the why and wherefore behind the opinion. This decision is key to many areas of practice since the Appellate Division opined on many thorny aspects of litigation, including the parameters of expert reports in legal malpractice claims and the extent that a party could maintain an individual legal malpractice claim when no attorney-client relationship existed.
Jeremy obtained complete dismissal on behalf of his client, a local well-known law firm, from a complaint alleging defamation for statements made in a legal filing. In this matter, the statements that were allegedly defamatory were included in a certification by the law firm’s client in opposition to a motion filed by the plaintiff in this matter. Jeremy successfully argued that the litigation privilege barred the plaintiff’s claims against the law firm and its attorneys based on the absolute immunity afforded to attorneys in representing clients before the court. The court agreed with Jeremy’s arguments regarding the application of the litigation privilege and dismissed the plaintiff’s claims, with prejudice, against the law firm and its attorneys.
WORKERS’ COMPENSATION DEPARTMENT
Eli Hassinger (Philadelphia, PA) successfully defended a late answer against a claimant’s Yellow Freight motion by convincing the judge that the claimant’s claim petition was not well-pled and did not meet the claimant’s burden of proof with respect to disability. The claim petition alleged that the claimant did not return to work for the employer and sought payment of ongoing disability. In defense of the motion, Eli submitted evidence showing that the claimant returned to work for the employer within days of the alleged work injury, arguing that the claimant was not disabled as alleged. Accordingly, the judge was convinced that, although the employer’s answer was late, the claim petition was not well-pled and the Yellow Freight motion was denied.
Tony Natale (Philadelphia, PA) successfully prosecuted a termination and modification petitions on behalf of a police department. The claimant sustained a fractured ankle and other injuries after a slip and fall on ice during the course and scope of employment. Subsequent to the injury, the employer made many offers of employment within the claimant’s restrictions in order to return her to gainful employment. Not only did the claimant refuse the work, she also filed a petition trying to add additional injuries to the compensable claim which were never raised at the time of injury. The parties presented expert testimony on all issues to the court, and the judge found the employer’s medical experts to be more credible than the claimant’s. Critical to the judge’s decision was a medical intake form completed by the claimant, which failed to highlight any additional injuries over and above what the employer accepted as compensable. Even more compelling to the judge were the fundamental admissions grinded out on cross examination of the claimant’s medical expert which supported a full recovery from all injuries.
Tony also successfully defended an American multinational telecommunications conglomerate in the litigation of a claimant’s petition to review a Utilization Review Determination. The UR Determination found a mix of habit-forming narcotics to be no longer reasonable and necessary. Once the UR request was made, the claimant promptly switched treating doctors in order to have the opioid prescriptions referred by a provider not under review. The judge saw through this and found that the underlying UR Determination was proper. The judge noted that the claimant had a spinal cord stimulator implanted, paid for by the employer, which greatly mitigated his pain complaints. The employer proved that the claimant’s medication prescriptions did not slow down after the implantation, and even increased. The judge properly found that the dangerous use of opioids in this manner was not justified.
In a final matter successfully handled by Tony, he prosecuted a termination petition, securing a full recovery opinion from the court with reference to a Medicare eligible claimant who worked for a local Philadelphia financial institution. The claimant suffered a knee injury during the course and scope of employment. She ultimately required knee surgery for a torn meniscus. Tony made the decision to present evidence from claimant’s treating surgeon, coupled with an independent expert, to produce an evidence record that demonstrated by preponderance of the evidence that the knee injury had fully resolved.
Michele Punturi (Philadelphia, PA) successfully defended a petition for review of a Utilization Review Determination on behalf of a local hospital filed by the medical provider, a chiropractor. Michele’s evidence included the Utilization Reviewer’s report and CV, two IME examinations of a board certified orthopedic, and a records review. Michele also submitted into evidence the cross-examination of the claimant, during which she was able to establish only minimal improvement without a specific treatment plan or specific documentation/data to support the reasonableness and necessity of ongoing treatment. Of significance, despite the chiropractor’s and the claimant’s position that such treatment was beneficial, it was emphasized that the chiropractor failed to discuss the case with the reviewer and, also, the claimant never submitted a statement to the reviewer regarding the need for treatment.
Michele also successfully prosecuted a termination petition on behalf of a multinational automotive manufacturing corporation. Michele’s evidence included a records review of all diagnostic study films and two physical examinations by a Board-certified orthopedic surgeon. Michele also conducted an aggressive cross-examination of the claimant, establishing that the claimant’s current symptomatology/diagnoses were due to non-work-related advanced degenerative disc disease of the cervical spine and were no longer contributing to the claimant’s cervical radiculitis and trapezius spasm, both of which were part of the original work-related injury. The judge accepted our evidence as fully competent, persuasive, and credible and terminated the claimant’s benefits.
Michael Sebastian (Scranton, PA) successfully defended a termination petition for an accepted lumbar strain injury. Mike established that the claimant had an identical, pre-existing condition that she lied about during her original testimony. The judge found the claimant not credible and her expert not credible because he relied on the claimant’s history and did not review the prior treatment records.
Michael also successfully defended a claim petition, finding that the claimant did not suffer a work-related injury. The judge found our witnesses credible, that the claimant did not report his knee condition as work-related. Their testimony was supported by the medical records provided for the six months after the alleged injury, which showed the claimant had nine office visits with five doctors but never indicated that he suffered a work-related injury. In addition, the claimant never told his own expert that he suffered a work-related injury until several months afterwards. Finally, the judge believed our expert that the knee condition was inconsistent with the mechanism of injury.
Kristopher Starr (Wilmington, DE) represented a national internet retailer in the successful denial of a proposed lumbar fusion surgery and indemnity benefits. The claimant was awarded the injury and conservative medical treatment, however, the lumbar spine fusion surgery was denied, as were total and partial disability benefits. The client avoided a complex multi-level lumbar spine fusion surgery (L3-S1), total and partial disability benefits, and the post-surgical care. Because the surgery will not occur, the client is also relieved of a large post-operative permanent impairment award and surgical disfigurement. Key to the Board’s determination was our defense medical expert casting doubt on the surgery; Kris’s cross-examination of the claimant and his spine surgeon; and Kris’s closing argument, which was quoted by the Industrial Accident Board in their decision on the merits. An appeal is unlikely.
John Swartz (Harrisburg, PA) successfully defended modification petitions based upon an impairment rating evaluation and an earning power assessment. The judge accepted the testimony of the employer’s medical and vocational experts and rejected the claimant’s medical and vocational expert testimony. The judge denied claimant counsel’s request for Lorino counsel fees of $11,200 in its entirety. The claimant submitted a request for litigation costs of $4,700. The judge only awarded reimbursement of litigation costs of $1,018. The judge also reversed the Utilization Review Determination in part based on the employer’s expert’s medical testimony, denied the payment of Lidocaine medication, and reduced the claimant’s ongoing use of Oxycodone/OxyContin to 50 mgs from 142.5.
Kacey Wiedt (Harrisburg, PA) successfully prosecuted a termination petition on behalf of a multinational manufacturing corporation. Kacey presented medical evidence, including a record review of all diagnostic study films and medical records from a Board-certified physiatrist, to establish that the claimant had physiological complaints that were unrelated to a work injury. The judge accepted our evidence as fully competent, persuasive, and credible and terminated the claimant’s benefits.
In another matter, Kacey successfully defended the Bureau’s dispute of the insurer’s Application for Supersedeas Fund Reimbursement. The parties submitted written legal argument before the Workers’ Compensation Judge to support the insurer’s entitlement to reimbursement. The judge found that the underlying decision against the insurer was erroneously issued. The judge reversed on appeal before the Appeal Board, allowing the insurer to recover the monies paid on behalf of the claimant.
Judd Woytek (King of Prussia, PA) won a favorable decision granting the employer’s termination petition. The claimant had suffered a work-related head injury when she walked into a pole. However, the Workers’ Compensation Judge credited the opinions of our medical expert over those of the claimant’s treating physician and found the claimant to be fully recovered.
*Results do not guarantee a similar result.
Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.