On the Pulse…Defense Verdicts and Successful Litigation Results*
CASUALTY DEPARTMENT
Walter Klekotka, with assistance from Daniel Zachariah and Adam Fogarty (all of Mount Laurel, NJ), secured a defense jury verdict on behalf of a major propane company where it was claimed they provided negligent service to a stove which allegedly caused a trailer fire. The plaintiffs lost everything in the fire, including their pets, and sustained serious and permanent burn injuries. Total medical bills were in excess of $1.5 million, and there was a $227,000.00 Medicare lien. The plaintiffs’ demand was $5 million. In less than two hours, the jury returned a verdict in favor of the defense.
Adam Calvert and Taylor Bourguignon (both of New York, NY) successfully obtained summary judgment after oral argument in Kings County Supreme Court in New York. This case involved a motor vehicle accident where the plaintiff was a backseat passenger in an Uber that rear-ended a vehicle owned and operated by our clients. Summary judgment was granted by establishing that our clients were stopped for 10–15 seconds at a light when they were rear-ended by the Uber driver, who was precluded and could not submit any testimony in this matter. Further, by establishing that the plaintiff was asleep at the time, she could not offer any evidence of how the accident happened. Thus, there was no non-negligent explanation for the collision, and our clients had no liability.
Adam and Taylor also obtained summary judgment in favor of their client, a ridesharing platform that connects vehicle owners (hosts) with travelers and locals (guests) seeking to book those vehicles for a fee. The hosts list their vehicles on our client’s website to be rented by the guests. The plaintiff alleged that he sustained serious injuries when he was involved in an automobile accident that collided with a vehicle listed on our client’s website. The Bronx County Supreme Court granted summary judgment in favor of our client, ruling that the defendant demonstrated that it is a peer-to-peer car sharing service; it does not provide rental services; it does not own, maintain, or repair any of the vehicles on its platform; it is not responsible for the acts and omissions of the hosts or guests; and there is no agency relationship between the defendant and the hosts or guests.
In a final case successfully handled by Adam and Taylor, they won summary judgment in New York County, New York, where the plaintiff filed suit, claiming that she slipped and fell on stairs in our client’s building. The plaintiff alleged that she slipped on a wet condition on landing in an inadequately illuminated stairway. The defendant demonstrated that lighting conditions within the stairway were not inadequate by submitting the affidavit of its expert, wherein the expert stated that the lighting measurements taken in the stairway complied with code. The defendant also demonstrated that it did not create the condition by submitting an affidavit of the building’s porter, who stated that neither he nor any other porter mopped that morning. The affidavit further established that the defendant did not have notice of the alleged wet condition or defective lighting as it did not receive any complaints about a hazardous condition on the floor at any time before the accident, and that the porter inspected the premises approximately two hours prior to the plaintiff’s incident and did not observe any defective condition. The plaintiff’s testimony and expert report, stating that the landing was not adequately illuminated, was insufficient to rebut the defendant’s expert report that the lighting at the landing of the stairway was sufficient and the photographs revealing that the area where the plaintiff fell was illuminated. Moreover, the plaintiff’s claim that the area was mopped by the defendant was speculative, as she was unable to present any facts sufficient to establish when the stairway was mopped or if the cause of the wet stairway was due to the defendant’s mopping the stairway.
Carolyn Bogart, with assistance from Amy Fox (both of Mount Laurel, NJ) on the briefing, won summary judgment in a challenging dram shop liability case against a large restaurant chain where the demand was $1 million. The plaintiff alleged our client was responsible for overserving the co-defendant driver prior to the subject motor vehicle accident. The court agreed with our defense arguments that the plaintiff failed to establish a violation of the New Jersey Dram Shop Act. N.J.S.A. 2A:22A-3-5(b). The court had previously ordered the plaintiff’s expert reports to be served on or before March 15, 2024. The plaintiff failed to present an expert report until opposing our motion for summary judgment. The expert report, which was submitted as an exhibit to the plaintiff’s opposition brief, was that of a former law enforcement officer. This report did not extrapolate the defendant’s BAC at the time he left the defendant’s establishment. Nor was there eyewitness testimony on the issue of whether the co-defendant driver was visibly intoxicated when he was served alcohol at the defendant’s establishment. The court rejected the plaintiff’s arguments that there was sufficient circumstantial evidence to support a jury’s conclusion that the co-defendant driver was visibly intoxicated at the time of service based on police observations at the scene of the accident and a (.17) BAC reading, which was administered approximately one hour and 30 minutes after he left the restaurant. Distinguishing between prior case law and the subject circumstances, summary judgment was awarded based on the lack of either direct testimony or expert opinion as to the co-defendant’s state of intoxication at the time of service.
Sean Greenwalt (Tampa, FL) won a motion for entitlement to attorney fees and costs. The defendant had previously prevailed on a final motion for summary judgment where the plaintiff rejected a previously served proposal for settlement. The plaintiff argued that the proposal for settlement was served in bad faith due to the nominal amount offered and, therefore, could not entitle the defendant to attorney fees and costs. Sean argued that the plaintiff was using the wrong standard to dispute entitlement because a nominal offer is a factor the court considers when awarding an amount of attorney fees, but not entitlement itself. The only consideration for the entitlement right to attorney fees and costs is whether a proposal for settlement is rejected and if it meets the 25% recovery threshold. The court agreed with Sean’s argument and granted entitlement to attorney fees and costs to the defendant.
Benjamin Goshko (Philadelphia, PA) successfully won summary judgment in Monroe County, Pennsylvania, where the plaintiff filed suit claiming he contracted a fungal infection from staying at the defendant’s hotel. The plaintiff produced an expert microbiologist’s report, in addition to his treating physician’s records, in support of his claims. Summary judgment was sought on the grounds that the plaintiff’s expert was not competent to identify a specific fungus from photographs of the hotel room and the treating physician’s records were equivocal as to the cause of the plaintiff’s infection. The judge entered judgment in favor of the defendant. In conformity with the defendant’s motion, the judge found the plaintiff’s microbiologist’s opinion speculative and not based on the facts of the case as the microbiologist did not conduct an inspection of the hotel, obtain fungal samples, or perform any lab testing. The judge further held that the plaintiff’s claim of a fungal infection was not sufficiently supported by his treating doctor’s diagnosis that was not definitely stated.
Vlada Tasich and Oswald Clark (both of Philadelphia, PA) won summary judgment in a premises liability case in Northampton County, Pennsylvania, where all claims against a national sporting goods retailer were dismissed. The plaintiff claimed he slipped and fell on a slippery substance inside the store while testing out bicycles. The plaintiff and his wife admitted that after he fell, they did not inspect the floor and quickly left the store. Months later, and after filing suit, the plaintiff and an engineer visited the store and claimed that there was an open can of bicycle grease in the area where the fall had occurred. Based on this evidence alone, the plaintiff theorized, through an expert report, that he must have fallen on bicycle grease negligently left on the floor by the store staff. Summary judgment was sought on the grounds that no witnesses to the fall ever actually identified bicycle grease, let alone any substance on the floor, and that the expert’s opinion was based on pure speculation about what was allegedly on the floor months earlier. The court agreed with the defense arguments, holding that the plaintiff’s theory could not be submitted to a jury because it was based on speculation and conjecture. Accordingly, the court dismissed all claims against our client.
HEALTH CARE DEPARTMENT
Carolyn DiGiovanni (King of Prussia, PA) obtained a defense verdict on behalf of her client, a surgical oncologist, in a binding high/low arbitration. The plaintiff alleged that the surgeon performed unnecessary surgery on a mass in her left arm, causing permanent scarring, continuous throbbing pain, and severe depression and anxiety. Two imaging studies were highly suspicious for malignancy, but the pathologic examination ultimately determined the mass to be benign and an allergic reaction to Lupron injections, which were given by the co-defendant gynecologist.
Brett Shear (Pittsburg, PA) obtained a defense jury verdict on behalf of his client, a cardiologist. The patient came to the hospital with chest pain radiating to his arm and shortness of breath. The attending physician ordered a stress test, which was performed by the defendant cardiologist, that was interpreted as normal. The patient was then discharged from the hospital and, less than two weeks later, died from a heart issue. An autopsy found significant narrowing of all of the arteries of the heart, including a 90% narrowing in the LAD (i.e., the “widowmaker”). The pathologist and coroner opined that the decedent had a cardiac event caused by the significant narrowing of the arteries, which caused his death. The ensuing claim was that the stress test was misinterpreted by the defendant cardiologist. The plaintiff’s cardiology expert criticized the defendant doctor, who graduated from Yale University. Our expert, a local cardiologist, testified that our client properly interpreted the stress test and that 10% of patients with coronary artery disease will still have a normal stress test. The jury returned a verdict finding no negligence by the defendant cardiologist.
Justin Johnson, David Tomeo, Victoria Pepe (Roseland, NJ) and Walter Kawalec (Mount Laurel, NJ) obtained summary judgment on behalf of an obstetrician in a medical malpractice action. The plaintiff alleged that our client did not obtain the requisite informed consent from the plaintiff to undergo a trial of labor after having two prior cesarean section deliveries (TOLACx2). The court found that the plaintiff’s lack of informed consent claim was without foundation as she had an awareness of the risks of TOLAC x2. Rather, the court found that her claim was premised on the assertion that the physician performing the TOLAC x2 failed to convert the TOLACx2 to a C-section quickly enough when complications arose. The court held that, as a matter of law, our client had no obligation to discuss the risk that the doctor in the delivery room may wait too long to pivot to a C-section, which was the actual cause of the plaintiff’s alleged harm.
PROFESSIONAL LIABILITY DEPARTMENT
Robert Morton (King of Prussia, PA) and Joseph Santarone (Philadelphia, PA) won a defense verdict after a seven-day jury trial in a case involving a defamation claim based on an article published in a local community newspaper. The defendants were the local Community Council and the two individuals who wrote and published the article. According to the plaintiff, the article named him and implied he wrote an anonymous letter that threatened legal action, which was seen as contrary to the community’s interest. The demand had been $1.75 million, and the plaintiff was offered $50,000. The jury answered “no” to the first question on the verdict sheet, “Do you find that the April 2020 article contained a defamatory statement about (plaintiff)?”
James Hanratty (Jacksonville, FL) secured a directed verdict in favor of his client in a high-exposure and high-risk defamation lawsuit. He was called to try the case on behalf of the CEO of a local chapter of a well-known national nonprofit after the plaintiff was permitted to amend the complaint to seek punitive damages from the CEO personally. When Jim received the case, the trial was set to begin in four weeks. Jim secured a brief continuance and built a client-specific defense focused on the CEO while working with a team of other firms representing other defendants, including the nonprofit organization which had formerly represented all of the defendants jointly. The plaintiff was a volunteer at a camp. A decision was made to separate him from the camp and the organization. The plaintiff alleged the CEO personally defamed him by alerting other volunteers and committees of the decision. He demanded an eight-figure sum prior to trial. After a six-day trial and several hours of argument at the close of the plaintiff’s case, the court granted our motion for directed verdict, ruling that the evidence presented confirmed that the communications by the CEO were covered by a qualified privilege and that, based on cross examination of the plaintiff and his witnesses, the defense established that there was no malicious conduct by the CEO. The case had been pending since 2020, and in fewer than 100 days, Jim was able to become familiar with the factual and legal details to bring home a win for the client.
After a seven-day bench trial, Martin Schwartzberg (Melville, NY) achieved dismissal of a breach of contract and professional malpractice claim against a professional engineering firm that provided construction monitoring services for a lender. When the project went south (for a multitude of reasons unrelated to the engineer’s services), the project developer, who had obtained an assignment of rights from the lender, sought to hold the engineer responsible for project cost overruns. After a bench trial and testimony from nine witnesses, the court dismissed the complaint in its entirety. In dismissing the breach of contract claim, the court held that the plaintiff failed to establish any breach of contract by the engineer, finding that the reports prepared by the engineer during the course of the project complied with its contractual obligations, with the terms of the contract being clear and unambiguous. This included a contract provision which stated that the engineer was not responsible for the malfeasance of others, including the general contractor, or the errors and/or omissions of the project architect. The court further found that, even had the plaintiff proven that there was a breach of contract by the engineer, the plaintiff still failed to prove that the lender sustained any actual damages. In dismissing the professional malpractice cause of action, the court found that the expert testimony by the plaintiff was insufficient to establish a prima facie case. Specifically, the trial testimony on the plaintiff’s direct case failed to establish any deviation from the accepted standards of practice in the services the engineer provided as the lender’s representative.
Jillian Dinehart’s (Cleveland, OH) motion to dismiss was affirmed on appeal after the Ninth District Court of Appeals found that the plaintiff had sued a non sui juris entity by suing a county department in a personal injury suit. The plaintiff initially filed suit against the department, which was later dismissed without prejudice to allow more time to develop the plaintiff’s medical records. When he refiled his suit, he again named a county department as the defendant. Jillian filed a motion to dismiss, arguing that a county department does not have the capacity to be sued. The plaintiff then filed a motion to amend the complaint and again named the county. In her motion to dismiss the amended complaint, Jillian argued that the plaintiff was outside of the statute of limitations and that the change in defendant could not relate back to the originally filed suit. The plaintiff’s argument, that naming the department was merely a misnomer and that the amended complaint should relate back to the original filing, failed, and the trial court dismissed the case. After oral argument, the appellate court affirmed the decision.
Jack Slimm (Mount Laurel, NJ) obtained a dismissal of a RICO action against a well-known commercial law firm. This case resulted from an underlying case in the Court of Common Pleas and another underlying case in Camden County arising out of the plaintiff’s claims, that the majority shareholders and their attorneys masterminded a scheme in several jurisdictions and abused the court systems in order to seize control of the plaintiff’s shares of the company. The court granted our motion and dismissed the action, with prejudice.
Josh J.T. Byrne (Philadelphia, PA) achieved dismissal of disciplinary claims where the IP address from the account which accessed sealed criminal dockets was related to the attorney’s address. Josh was able to work with the attorney to explain to the Office of Disciplinary Counsel’s satisfaction that the attorney was unaware of the access or the leaked information, and that it appeared that his login information had been compromised. Josh and the attorney explained the steps the attorney had taken before and after the incident to maintain cyber security.
Josh also achieved dismissal of a disciplinary claim where a client alleged his attorney failed to communicate with him, asserting he was not informed about what was going on in the case. Josh and the attorney were able to present a narrative regarding the totality of the communications, while acknowledging that the attorney did not do a particularly good job at documenting his many oral discussions with his client.
Finally, Josh achieved dismissal of a disciplinary claim arising out of an underlying divorce action. In the divorce action, it was alleged the attorney did not take action on the divorce and charged an excessive fee. Josh and the attorney were able to explain the breadth of work that had been done and were able to rebut many incorrect allegations in the complaint.
Alesia Sulock (Philadelphia, PA) successfully defended an attorney in a disciplinary matter arising from the client’s alleged failure to properly maintain client funds and records of the attorney’s IOLTA account. By emphasizing the client’s long history of practice without disciplinary history, mitigating factors, and remedial measures, Alesia was able to secure dismissal of the disciplinary complaint on behalf of her client.
Ian Glick (Melville, NY) successfully obtained a permanent stay of arbitration for uninsured motorist benefits in Kings County Supreme Court. Following oral argument, the court granted a permanent stay of the respondent’s demanded arbitration for uninsured motorist coverage pursuant to an insurance policy issued by our client. In doing so, the court agreed with Ian’s arguments that the petition and the attached exhibits made a prima facie showing that the vehicle the respondent operated was not insured by our client’s policy on the date of the accident because it had been removed from the policy the day before and was covered by a policy issued by another insurer at the time of the accident. The court rejected the respondent’s arguments that he was entitled to coverage under our client’s policy because his claim for coverage for the accident was denied by this other insurer; no uninsured motor vehicle was involved in the subject accident; he failed to cooperate in the investigation of his claim; and he made material misrepresentations as to where the subject vehicle was being garaged at the time the policy was obtained in order to acquire a lower premium.
Jack Slimm and Jeremy Zacharias (both of Mount Laurel, NJ) successfully defended an appeal in a multi-million-dollar legal malpractice action arising out of an underlying dram shop case. In the dram shop case, the plaintiff suffered debilitating injuries, including skull fractures and brain injuries. The Appellate Division affirmed the trial court’s order and opinion, which found that the plaintiff’s legal malpractice expert had offered net opinions in connection with what should have been done at the trial of the dram shop case, which resulted in a no cause for action. However, Jack and Jeremy were able to demonstrate, due to their attorney client’s good lawyering, that he successfully negotiated a high-low agreement which provided the plaintiff with some recovery, even though the jury found against her.
Jack and Jeremy also successfully defended an appeal from a trial court’s order that granted our motion to dismiss a contribution claim filed by predecessor counsel against successor counsel. We represented successor counsel who tried to fix the error of the predecessor attorney in drafting and documenting a complex real estate transaction. This case reinforces the New Jersey Rule that successor counsel owes no duty to predecessor counsel.
Ray Freudiger and Donielle Willis (both of Cincinnati, OH) won a decision from the First District Court of Appeals, affirming the trial court’s decision to grant their client’s motion to enforce an oral settlement agreement. Ray and Donielle defended a condominium owners association against a lawsuit filed by several unit owners. The parties went to mediation, and then their attorneys exchanged emails in which they agreed on the settlement terms. However, several of the plaintiff unit owners refused to sign the written settlement agreement. Ray and Donielle argued to the trial court that the oral agreement should be enforced because memorializing the agreement in writing was not a material term of the parties’ agreement, and that the parties did not intend for the settlement agreement to only be enforceable upon the execution of the writing. Further, all the material terms of the agreement had been agreed on. The First District Court agreed and upheld the decision in favor of the condominium owners’ association.
Ray and Donielle also won a decision from the Ohio Civil Rights Commission dismissing the charging party’s complaint for discrimination against its client, a grocery store. Ray and Donielle defended the grocery store against a claim filed by a patron after a special needs employee of the grocer tried touching the African American patron’s hair. Ray and Donielle argued the Ohio Civil Rights Act does not explicitly protect against hair discrimination; and, while the CROWN Act does, it has not been passed in Ohio nor has it become federal law. The Ohio Civil Right Commission agreed and determined it was not probable that the grocery store had engaged in an unlawful discriminatory practice.
Matthew Behr and Katherine Chrisman (both of Mount Laurel, NJ) were successful in obtaining summary judgment for our client, a homeowners' association. Our client filed a lawsuit to enforce the Covenant of Restrictions banning barnyard animals and claiming that the homeowners failed to obtain necessary approvals to build a coup and run for six chickens. The homeowners claimed the six chickens were emotional support animals, pursuant to the Fair Housing Act (FHA) and New Jersey Law Against Discrimination (NJLAD). The court held that the chickens were not emotional support animals, pursuant to both FHA and NJLAD, and granted summary judgment. Whether non-domesticated animals could be considered emotional support animals was an issue of first impression in New Jersey.
Christopher Conrad and Jacob Gilboy (both of Harrisburg, PA) and Thomas Specht (Scranton, PA) obtained dismissal of a joinder complaint through successful presentation of a motion for reconsideration. The original cause of action arose from a Reading, Pennsylvania, real estate agreement occurring in the Spring of 2019. The plaintiff-buyer sued the defendant-seller on a breach of contract theory. The underlying action had been fully litigated for a period of three years and was ultimately resolved through arbitration. An arbitration panel issued an award in favor of the plaintiffs for $48,000. Thereafter, the original defendants filed a joinder complaint, seeking indemnification against the additional defendant, the real estate company involved in the real property transaction, but which had no involvement whatsoever in the case up to that point. Preliminary objections were filed against the joinder compliant. Although the judge originally overruled the objections without explanation, Chris, Jake, and Tom were successful in presenting their motion for reconsideration to the judge, arguing that the late joinder against the real estate company was improper, untimely, and prejudicial to their client. Following oral argument in Berks County, the judge dismissed the joinder complaint.
Alesia Sulock (Philadelphia, PA) obtained judgment on the pleadings on behalf of their real estate agent clients. The plaintiff, a prospective home purchaser, entered into an Agreement of Sale to purchase a property which was purportedly being sold by a relocation company. The defendant was the relocation company’s realtor. After the property owners backed out of the sale, the plaintiff sued the real estate agent, alleging a failure to disclose under the seller’s disclosure law and detrimental reliance on representations allegedly made by the agent regarding the sale. We successfully argued that the plaintiff could not prove her claims because she could not establish that any material defect was not disclosed or that the real estate agents made any misrepresentation to her on which she relied to her detriment.
Christopher Conrad (Harrisburg, PA) successfully defended claims for alleged violations of the Individuals with Disabilities Education Act (IDEA) and the Family Educational Rights and Privacy Act (FERPA) included in a complaint filed in the Dauphin County Court of Common Pleas. The plaintiff, a former student of a local school district, claimed that while he was a student, the school district subjected him to discrimination, denied him equal opportunity to access his education, and violated his rights to privacy and confidentiality in his educational records. Chris filed preliminary objections in response to the complaint. As to the IDEA claim, Chris argued that the plaintiff failed to exhaust his administrative remedies under the IDEA, since he did not first file a special education due process complaint and pursue that case to conclusion before filing suit. As to the FERPA claim, Chris argued that because there is no private right of action under FERPA, the plaintiff could not maintain a claim under the statute. The court agreed with Chris’s arguments, sustained the preliminary objections, and dismissed the IDEA and FERPA claims with prejudice.
Samuel Cohen (Philadelphia, PA) and Jeremy Zacharias (Mount Laurel, NJ) obtained an Appellate Division decision affirming the trial court’s order dismissing a fraud and fraudulent concealment case filed against their clients, various attorneys, and broker dealers. In its decision, the Appellate Division agreed with the trial court’s orders and opinions dismissing the case based on entire controversy, collateral estoppel, and litigation privilege grounds. In this comprehensive decision, the Appellate Division held that the plaintiff’s claims were mirrored claims that had been fully litigated in a prior proceeding, where Sam’s and Jeremy’s clients either represented the litigants in the first case or were directly involved in the first case as defendants.
WORKERS’ COMPENSATION DEPARTMENT
Gregory Bartley (Roseland, NJ) successfully defended a motion to implead a staffing company. The petitioner’s company, where he was injured, admitted the accident, paid for medical treatment and temporary disability benefits, and also moved the case to permanency with an agreed-to settlement. Approximately four and a half years into the case, the company filed a motion to implead the staffing company, alleging dual employment. In opposing the motion, Greg argued that there was no contractual agreement to implead and that, on the fairness side, waiting over four years to file such a motion was unduly prejudicial. The petitioner’s company provided an alleged contract to support the motion to implead, and Greg argued it was not a contract but, rather, a nebulous one-page letter that did not even mention either party. The judge agreed and indicated that there was every likelihood that the motion would be denied if litigated. As a result, within a week, the petitioner’s attorney advised that they were withdrawing the motion and moving ahead with the previously-agreed-upon settlement.
David Levine (Roseland, NJ) prevailed where a federal employee filed a claim petition for workers’ compensation benefits under the New Jersey workers’ compensation statute. David argued that, under N.J.S.A. 34:15–36, an employee eligible for workers’ compensation benefits under the Federal Longshore and Harbor Workers’ Compensation Act is not considered an “employee” under New Jersey workers’ compensation Law. The workers’ compensation judge agreed and granted our motion to dismiss.
Anthony Natale (King of Prussia, PA) successfully defended a claim petition for a Philadelphia-based vitamin/supplement producer, securing a complete defense verdict. The claimant alleged exposure to hazardous chemicals at the workplace when a batch of a proprietary blend of chemicals splashed into her face, eyes, nose, and mouth during the course and scope of her employment. The claimant alleged inhalation and dermatologic injuries, causing total and full disability. The parties presented competing medical evidence on the nature of injury and the claimant’s disability status. The court found that the employer’s evidence, which included medical treatment records and expert opinions, supported no identifiable injury whatsoever by a preponderance of the evidence. This was highlighted in Tony’s cross-examination of the claimant’s medical expert. The court further found the claimant to be less than credible based on her inability to recall the facts pertaining to the injury on cross-examination and her failure to follow up with her treating physicians after the incident.
Michele Punturi (Philadelphia, PA) successfully prosecuted a termination petition, the employer’s petition to review compensation benefits, and also defended the claimant’s petition to review compensation benefits on behalf of a well-known local hospital. Michele’s evidence included a comprehensive physical examination by a Board Certified orthopedic surgeon along with a records review of all pre- and post-injury MRIs. Michele also cross-examined the claimant, establishing that the claimant’s pre-existing condition, contrary to her testimony, was active up to seven days prior to the work injury. In addition, Michele presented surveillance capturing the claimant’s physical activity for a significant time period without any observable difficulty or use of any orthopedic devices. Michele established the claimant’s medical evidence completely failed to support that her disability had any relationship to the work injury. Cross-examination of the claimant also revealed her complaints contradicted her medical providers, none of whom could support a mechanism of injury beyond sprain/strain and contusion of the lumbar and cervical spine.
Kelly Scifres (Jacksonville, FL) obtained a workers’ compensation defense verdict on behalf of an employer/carrier in a previously compensable claim. Kelly was able to prove the claimant knowingly and intentionally made false, fraudulent, and misleading statements under oath during two depositions and to two authorized treating providers, which were contradicted by surveillance and other evidence, ultimately barring the claimant from further benefits. The fraud/misrepresentation defense is an affirmative defense, and the burden was on the employer/carrier to prove same. The case involved multiple expert and fact witnesses and presentation of multiple days of surveillance to the court. The claimant was represented by a seasoned attorney who put forth an aggressive defense, considering the potential criminal implications for workers’ compensation fraud.
Michael Sebastian (Scranton, PA) received a favorable decision dismissing a claim petition involving a claimant, a physician’s assistant, who alleged CTS and a neck injury from working at home on a computer while sitting on her couch. The claimant had been allowed to prescribe medications in the past, but her new supervisor/doctor would not allow her to continue to prescribe the medications. The claimant was terminated for forging a doctor’s signature on her state authorization form for prescribing medication. Mike submitted the claimant’s testimony from the third-party litigation demonstrating conflicts with her testimony in the workers’ compensation case in order to impact her credibility. Mike argued it did not make sense that the claimant, who was earning $2,000.00 a week, could not buy a desk to work at home and that she kept working from her couch for one year, despite her symptoms. The judge did not find the claimant credible in any material respect. In fact, the judge found her testimony, that she was forced to work from a couch while working from home, unconvincing, especially as she alleged experiencing progressive physical distress for over one year. He also did not understand why the claimant would not purchase a desk when she was earning $2,000.00 per week. The judge further acknowledged Mike’s emphasis on the claimant’s pre-existing condition, even though she told her medical expert that she was asymptomatic, which was untrue since she had been receiving chiropractic care for 38 years. Regarding the medical testimony, the judge found the defense medical expert more credible and competent than the claimant’s medical expert, noting that the claimant’s medical expert did not have an accurate history and did not review the prior treatment records. The judge further emphasized that the history relied upon by the claimant’s medical expert was based upon what the claimant told him, which he found not credible. Important in the judge’s finding was that the claimant’s condition did not improve, even though she was no longer working. The judge dismissed the claim petition, deciding that the claimant did not meet her burden of proving that she suffered a work-related injury.
*Results do not guarantee a similar result.
Defense Digest, Vol. 30, No. 3, September 2024, 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. © 2024 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.