DEFENSE DEFENSE D Diiggeesstt - Marshall Dennehey Digest Vol...who are zealous in the defense of their clients and who are always ... to the U.S. Patent Bar. As needed, we draw upon

Vol. 16, No. 3 September, 2010

OUR FORT LAUDERDALE, FL OFFICEBy Craig S. Hudson, Esq.*

Miami-Dade, Broward and PalmBeach Counties are home to more than5.5 million permanent residents and mil-lions more seasonal and vacation visitors. Itmade sense as Marshall, Dennehey, Warn-er, Coleman & Goggin expanded intoFlorida to open an office in south Florida.In 2002, the firm opened its third Floridaoffice in Fort Lauderdale. The office isstrategically located, being within walkingdistance of the Broward County and fed-

eral courthouses. The office’s close proximity to Interstate 95enables its attorneys to have easy access to the state and federalcourts located in Miami-Dade and West Palm Beach, both ofwhich are less than a one-hour drive from the office. The office alsoserves Monroe, Martin, Indian River, Lee and Collier Counties.

In 2006 the Executive Committee gave me the opportunityto become the managing attorney for the Fort Lauderdale office. Iaccepted, and after passing the Florida Bar examination, my fami-ly and I left Philadelphia, which had been my adopted hometownfor over 28 years, and moved to south Florida. Having been partof Marshall Dennehey since 1993, I brought to the Fort Laud-erdale office my strong relationship with attorneys in the Philadel-phia office and surrounding offices, and I am able to tap into thiswell of expertise when needed.

After a few months in the office, I recognized that therewas a core group of lawyers – consisting of Rick Ravine, ashareholder who heads up the office’s General Liability Prac-tice Group, and Andrew Marchese and Jonathan Kanov, expe-rienced associates in the Professional Liability Practice Group– upon which the foundation for a successful office could bebuilt. All three of them are dedicated, hardworking attorneyswho are zealous in the defense of their clients and who are alwayslooking for innovative, practical and cost-effective solutions to

(continued on page 4)

* Craig, a shareholder and managing attorney of our Fort Lauderdale, Florida, office,can be reached at (954) 847-4920 or [email protected].

* Steve, a shareholder who works in our King of Prussia, Pennsylvania, office, canbe reached at (610) 354-8250 or [email protected].

Volume 16 • No. 3 • September 2010

OnThePulse…MEDICAL DEVICE & PHARMACEUTICAL

PRACTICE GROUPBy Stephen A. Ryan, Esq.*

To be a superior defender of drug andmedical device liability cases requires a com-plement of lawyers and paralegals with med-ical, technical and scientific experience andproficiency, and damn good trial skills.

Fortunately, Marshall Dennehey has anabundance of talent in this area. We haveattorneys who hold leadership positions innational product liability professional andindustry organizations, such as Eric A. Weiss,Esquire, practice group co-chair. Eric also co-

chairs the firm’s Product Liability Practice Group. He has over 30 yearsof legal experience and for two years served as the Products LiabilitySection Chair of the Federation of Defense and Corporate Counsel(“FDCC”). He has successfully defended against efforts to establish adrug mass tort MDL, and he has also defended over 60 stroke, sud-den death and myocardial infarction cases in the Ephedra MDL, part-nering with me as co-chair of this practice group. My backgroundincludes over 30 years of defending healthcare providers in medicalmalpractice litigation, amassing a wealth of medical knowledge (par-ticularly in perinatal and catastrophic injury cases) and expert witnesscontacts, plus over 200 major jury trials, many involving catastrophicinjuries, with a defense verdict rate around 95%. Other members ofthe group have experience in former lives as nurses, and one is a physi-cian-consultant. Dave Krolikowski, Esquire, who works closely withme, was a pharmaceutical researcher for over 10 years and is admittedto the U.S. Patent Bar.

As needed, we draw upon other attorneys in our regionaloffices, not only for local insight, but also for their expertise insuch matters as insurance coverage, employment law and intel-lectual property law. As a result, there are few lawsuits against adrug or medical device manufacturer which we would not becomfortable handling.


DEFENSE DEFENSE DDiiggeesstt

Craig S. Hudson

Stephen A. Ryan

A T T O R N E Y S - A T - L A W

FEDERALEmployment Law

The Supreme Court Considers The Privacy Rights Of A Public Employee’s Communications On An Electronic Device Provided By The Public Employer . . . . . . . . . . 5

NEW JERSEYDram Shop

Long Live New Jersey’s Dram Shop Act: The New Jersey Appellate Division Confirms That N.J.S.A. 39:6A-4.5(B) Cannot Be Used As A Successful Defense To A Dram Shop Claim . . . . . . . . . . . . . . . . . . . . . . . . 6

Workers’ CompensationAdditional Question To Ask Before Paying Temporary Disability Benefits In New Jersey Even If Petitioner Is Disabled From The Work Injury. . . . . . . . . . . . . . . . . . 7

NEW YORKAdmiralty

Federal Maritime Law Preempts State Law Remedies For Incident Occurring On A Vessel On Navigable Water . . . . . . . . . . . . . . . . 10

PENNSYLVANIAAuto

Oh Tannenbaum, Oh Tannenbaum! Early Christmas Gift To UM/UIM Carriers From Pennsylvania Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Health Care LiabilityMCARE Exception Provides Courts With Broad Discretion For Qualifying An Expert On Standard Of Care . . . . . . . . . . . . . . . . 20

Insurance CoveragePennsylvania Stands Out Nationwide In Coverage Disputes Regarding Faulty Workmanship. . . . . . . . . . . . . . . . . . . . . . . . . . 21

Settlement & ReleasesCatch And Release: A Plaintiff May Expressly Preserve Actionable Claims Against Insurance Agent While Releasing Insurer Of Vicarious Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Workers’ CompensationDing Dong Kachinski’s Dead: Commonwealth Court Declines To Resuscitate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Page 2 Defense Digest


On The Pulse…

Profile Of Our Fort Lauderdale, FL Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Profile Of Our Medical Device & Pharmaceutical Practice Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Message From The Executive Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

On The Pulse…

Our Litigation Achievements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Our Recent Appellate Victories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Firm Background and Statement of Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

About Our Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

IN THIS ISSUE

Defense Digest Page 3


I would like to begin thismessage with a thank you to ourclients. The past two years havebeen exceedingly challenging giv-en the state of the economy. Inspite of this fact, you haveremained loyal. Why is that? Could it be that in the face ofthese devastating economic challenges, our firm has contin-ued to provide you with the highest level of service possibleat an affordable price? Could it be that we have been partnersfor a long time and are weathering this storm together?Could it be that our firm’s stability has attracted the kind ofperson who is willing to roll up his or her shirt sleeves andweather the storm when others have not? Or could it simplybe that our unflinching commitment to be the best defenselitigation firm in the areas we serve has given you a level ofcomfort no matter how tough the times may be? I do notknow why you have remained loyal to us, but I do know twothings: we are humbled by your commitment, and we do nottake this for granted.

As I believe most of you know, in addition to being amember of our Executive Committee, I also serve as ourfirm’s Chief Operating Officer. In a nutshell, this means thatin some way I am responsible for the costs of maintaining ourbusiness. Our firm is no different than any other business. Ifwe are not constantly vigilant about our costs in the sameway that you are, we will not be able to provide you withaffordable services. Fortunately for our firm, we have knownthis for many years. Consequently, when the economy beganits nosedive two years ago, we already had in place a cultureof fiscal conservatism. I regularly attend large law firm man-agement conferences. At these conferences, I am often askedhow we are able to manage such a large law firm when therates that we charge are often below or at times significantlylower than our competition. My response has always beenthat an understanding of what our clients want and canafford in combination with a no-nonsense approach to thecosts associated with providing our clients what they needhas enabled us to succeed. Never before has this pragmaticphilosophy been more important to the survival of our firmthan in the past two years.

Let me give you a few examples. As we all know, technol-ogy can be and is expensive. It is also designed to have a short

lifespan. For as long as I canrecall, the industry standard forthe lifespan of a desktop comput-er was three years. Consequently,typical leases for desktop comput-ers were three years. Well before

2008, our firm developed a practice of extending the life of adesktop computer to three and a half years. Granted, there wasa little sacrifice in speed and flexibility, but this sacrifice had nomeaningful adverse impact on the ability of our attorneys toprovide timely service to our clients.

The billing and accounting system we currently have inplace has been in place for almost 20 years. Believe it or not,it is not a web-based system. You may ask yourself how is thispossible? It is possible in part because we have been able totailor it to suit our constantly changing needs, and, frankly,because we have not been satisfied that there was a replace-ment system on the market that was stable enough andsophisticated to do all that we needed to insure that ourclients’ billing needs were met.

For those of you who have visited any of our offices, youhave seen that we have modest surroundings. We have nevergone the route of mahogany and marble.

This year we have negotiated contracts with the compa-nies that perform our facilities management services and pro-vide our office supplies. We have been able to leverage our sizeto achieve significant savings. In addition to negotiating favor-able contracts, we have significantly improved the ratio of sup-port staff to attorney in our firm through attrition over the pastthree years. We are currently in the midst of deciding whetherto move from our current location in Philadelphia or staywhere we are. The cost associated with such a decision will bethe paramount factor in our ultimate decision.

In addition to the obvious benefit to our clients of beingable to provide affordable services, there are the less obviousbenefits. Our firm’s stability is recognized in the legal defensecommunity. Over the past 20 years, we have been able toacquire some gifted and talented attorneys who have comefrom failed businesses. We have been able to do this because wehave managed our business responsibly. The addition of thistalent has given you a tremendous advantage.


MESSAGEfrom theEXECUTIVECOMMITTEEBy Peter S. Miller, Esq.*COO & Chairman of the Board

* Pete Miller can be reached at (215) 575-2610 or [email protected].

OUR FORT LAUDERDALE, FL OFFICE(continued from page 1)

the issues they face. From this foundation the office has grownin four short years, expanding our office space and increasingfrom six lawyers to fourteen lawyers, practicing in three of thefirm’s primary practiced groups: general liability, professionalliability and insurance coverage.

In addition to my role as managing attorney, I am also thesupervising attorney for the Professional Liability PracticeGroup throughout the state of Florida, and I have an active caseload. The Professional Liability Practice Group handles complexlitigation matters, primarily defending non-medical profession-als including lawyers, accountants, architects, engineers andproperty managers. The group also routinely defends these pro-fessionals in proceedings before their licensing and disciplinaryboards. The group represents non-profit organizations and theirdirectors and officers, particularly homeowner associations andcondominium associations. Additionally, the group handles anumber of employment matters, including defending individu-als and organizations against claims of discrimination and otheremployment practices.

Lawyers in this group have extensive experience handling alltypes of professional liability cases. Each attorney has developedconsiderable knowledge and experience in unique areas that canbe applied to a particular case. In addition to representing non-medical professionals, my practice includes representing non-profit associations and boards, FDCPA and FCCPA matters andemployment discrimination claims.

Andrew Marchese has focused part of his practice on casesinvolving the sale of financial products, employment discrimi-nation and the defense of condominium and homeowner asso-ciations and their officers and directors.

Jonathan Kanov has become very active in defending attor-neys, real estate agents, brokers, appraisers, title agents andlenders in the exploding litigation that has risen out of the realestate crash as individuals, investors and banks look to litigationas a means of recouping their losses. Jonathan also handles avariety of complex commercial cases.

Wendy Leavitt, who joined our firm in 2009, brings to thegroup her extensive experience defending corporations and theirofficers and directors in security actions, breach of fiduciary lit-igation and other corporate/governance disputes. Wendy hasbeen involved in a number of class action cases in both state andfederal courts. She has also been extensively involved in defend-ing individuals and corporations against claims made pursuantto the FDCPA and FCCPA.

These four senior attorneys are assisted by Jeannie Liebegottand Marcie Cohen, who bring their energy and enthusiasm to

the practice of law to better enable the group to service its pro-fessional liability clients efficiently.

Rick Ravine has been defending individuals and companiesfor over 30 years. As head of the office’s General Liability Prac-tice Group, Rick handles cases involving the entire spectrum ofcommercial, individual automobile and general liability policies,including slip and falls, products liability, automobile accidents,truck and transportation litigation, negligent security, construc-tion site accidents and construction defect claims. In his capaci-ty, he handles some significant exposure cases and oversees gen-eral liability files in the office. Rick is a trial attorney in everysense of the word.

In 2008, Abigail Cohen joined the General Liability PracticeGroup. Abby brought with her over 10 years of defense litigationexperience. She has a great deal of experience in handling pre-suit claims with bad faith exposure, including global mediationon behalf of national insurers. Abby also has experience in masstort litigation, having served as national coordinating counsel fora chemical company in defense of thimerosal claims nationwide.

Rick and Abby are supported by Ryan Burns, JosephMendelsohn and our most recent addition, Alan Nash. Togeth-er these three associates bring their energy and creativity to theGeneral Liability Practice Group, enabling the group to serveour clients in the most efficient manner possible. All three ofthese attorneys already have considerable courtroom experienceand have developed the confidence of several of the firm’s long-time clients who assign cases to them directly.

Michael Packer joined the firm’s Fort Lauderdale office in2007. Michael has become the firm’s supervising attorney ofInsurance Coverage Practice Group in the state of Florida. TheInsurance Coverage Practice Group assists our clients in allaspects of coverage disputes, including coverage evaluations andbad faith litigation. In particular, Michael defends propertyinsurers throughout the state of Florida in first party coveragematters, where he responds to claims for losses from wind-storms, sinkholes, fires, mold, theft and water. Michael’s groupalso conducts examinations under oath and SIU investigations.In addition, Michael serves as the Chairman of the firm’s sub-practice group focusing on Chinese drywall litigation.

Joining Michael Packer in the Insurance Coverage and BadFaith Practice Group is Steven Poljak, who has been a memberof the firm since 1997. Steve practiced out of the Pittsburghoffice until he recently passed the Florida Bar and joined theFort Lauderdale office. Steve brings with him extensive appel-late, insurance, bad faith and professional liability litigationexperience. Like me, Steve has strong relationships with manyattorneys in our Pittsburgh office.






The United States Supreme Courtprovided guidance to governmentemployers regarding employee use of elec-tronic media in City of Ontario, Californiav. Jeff Quon, et. al, (“Quon”), 2010 U.S.LEXIS 4972 (June 17, 2010). The Courtheld that a government employer’s searchof text messages sent and received on awork-issued device when the appropriatepolicy was in place did not violate Fourth

Amendment search and seizure protections.

The Court approached the issue cautiously, however, so asnot to upset the balance of the plurality in O’Connor v. Ortega,480 U .S. 709 (1987). Although this case is not likely to createany shock waves in employment litigation, it did provide a num-ber of guideposts to all employers in navigating through thechoppy waters of monitoring electronic media.

In Quon, the City of Ontario issued pagers capable of trans-mitting text messages to its SWAT team, including Jeff Quon.Each member had a certain limit of characters per month pur-suant to the City’s service contract with a third party. The pur-pose of the pagers was to facilitate mobilization and response toemergency situations. The City’s policy was as follows:

[The City] reserves the right to monitor and log allnetwork activity including e-mail and Internet use,with or without notice. Users should have noexpectation of privacy or confidentiality whenusing these resources.

Quon signed an acknowledgment that he read and under-stood the policy. The SWAT team was instructed during a meet-ing and a through a follow-up memorandum that, despite thefact that they were not routed though the City’s server, text mes-sages would be covered under the policy.

After the pagers were distributed, Quon exceeded the allot-ted number of characters under the City’s plan. Quon’s supervi-sor reminded him of the policy but that “it was not his intent toaudit the messages to see if the overage was due to work-relatedtransmissions.” The supervisor suggested that he reimburse theCity for the overages. Quon continued to exceed the limit andpay for overages. The chief performed an audit to determinewhether the existing character limit was too low, causingemployees to incur personal cost. The Chief requested tran-scripts of the text messages from the third party. Many of Quon’stext messages were found to be personal. The matter was turnedover to internal affairs, and it was concluded that Quon violat-ed City policy.

In its analysis, the Court looked to the 1987 case ofO’Connor v. Ortega, which involved the search by hospitaladministration of an employee’s physical office, as guiding caselaw in its leap into the electronic world. If it is found that theindividual has an expectation of privacy, the “employer’s intru-sion on that expectation for non-investigatory, work-relatedpurposes, as well as for investigations of work-related miscon-duct, should be judged by the standard of reasonablenessunder all the circumstances.”

Despite the policy in place and the specific instruction thattexts would fall under that policy, Quon maintained that he hadan expectation of privacy because of his supervisor’s statementthat an audit would be unnecessary if Quon paid for the over-ages. The Court acknowledged the swiftness with which tech-nology changes and how employees’ privacy expectations maychange; therefore, in crafting its holding, the Court “assumed”that (1) Quon had a reasonable privacy interest in his text mes-sages; (2) review of the transcript constituted a Fourth Amend-ment search; and, (3) the principles applicable to a governmentemployer’s physical office apply to the electronic media world.


Federal – Employment

THE SUPREME COURT CONSIDERS THE PRIVACY RIGHTS OF A PUBLIC EMPLOYEE’S COMMUNICATIONS ON AN ELEC-

TRONIC DEVICE PROVIDED BY THE PUBLIC EMPLOYERBy Danielle M. Vugrinovich, Esq.*

* Danielle is an associate in the Pittsburgh, Pennsylvania, office and can be reachedat (412) 803-1185 or [email protected].

● Implication of electronic media on private as well as governmental employers.● Employers must have electronic media policies in place. ● A search on employer’s devices for electronic media transmitted during working hours subject to

privacy implications.

KEY POINTS:

Danielle M. Vugrinovich



To further solidify New Jersey’sstrong public policy against drinking anddriving, the New Jersey Appellate Divi-sion recently issued an opinion holdingthat New Jersey’s Dram Shop Act is stillthe premier statutory authority when itcomes to liquor licensee liability in thestate. The court’s opinion came inresponse to the latest in a series of casesinvolving N.J.S.A. 39:6A-4.5(b), a motor

vehicle statute which bars individuals guilty of driving whileintoxicated (“DWI”) from bringing suit for losses sustained as aresult of their underlying alcohol-induced accident. The bar onsuch claims was introduced in 1997 as an amendment toN.J.S.A. 39:6A-4.5 of the “New Jersey Automobile ReparationReform Act” (“NJARRA”). The amendment to the NJARRAwas intended to reduce or stabilize the cost of automobile insur-ance that had been on the rise as a result of increased insurancefraud at that time. N.J.S.A. 39:6A-4.5 focused on three areas ofreform: (1) deterrence of drunk driving; (2) deterrence of the useof automobiles as weapons; and (3) deterrence of the operationof uninsured vehicles.

In Voss v. Tranquilino, 413 N.J. Super 82, 992 A.2d 829(App. Div. 2010), an individual who was convicted of a DWIattempted to bring suit against the restaurant that served himalcohol on the date of his DWI-induced accident, claiming hehad been served alcohol while visibly intoxicated in violation

of the “New Jersey Licensed Alcoholic Beverage Server FairLiability Act,” N.J.S.A. 2A:22A-1 to -7, otherwise known asthe “Dram Shop Act.” New Jersey’s Dram Shop Act stipulatesthat a licensed alcoholic beverage server can be held liable innegligence when the server serves a visibly intoxicated personunder circumstances where the server knew, or reasonablyshould have known, that the person served was intoxicated.The defendant restaurant moved to dismiss the plaintiff ’scomplaint based upon the bar on claims by those convicted ofa DWI pursuant to N.J.S.A. 39:6A-4.5(b) of the NJARRA.Although the trial court initially denied the motion, the deci-sion went to the New Jersey Supreme Court, which grantedthe defendant restaurant leave to appeal. On remand to theAppellate Division, the court held that N.J.S.A. 39:6A-4.5(b)did not bar dram shop claims and that the plaintiff ’s claimswere permissible under the circumstances.

On appeal, the court was asked to reconcile whether theNJARRA’s ban on actions by individuals who were either con-victed of, or plead guilty to, driving while intoxicated, whichwas introduced into law ten years after the state’s Dram ShopAct, somehow overrode an individual’s right to bring a dramshop claim, even if the individual bringing the claim had beenconvicted of a DWI. The Voss Court held that N.J.S.A. 39:6A-4.5(b) does not bar a dram shop claim for three reasons. First,the court explained that the legislative purpose behind N.J.S.A.39:6A-4.5(b) was to reduce automobile insurance premiumsand, the court reasoned, that legislative policy should notextend its scope beyond the motor vehicle statutes outlined in


New Jersey—Dram Shop

LONG LIVE NEW JERSEY’S DRAM SHOP ACT: THE NEW JERSEYAPPELLATE DIVISION CONFIRMS THAT N.J.S.A. 39:6A-4.5(B)CANNOT BE USED AS A SUCCESSFUL DEFENSE TO A DRAM

SHOP CLAIMBy Robert A. Diehl, Esq.*

* Bob is an associate in our Roseland, New Jersey, office. He can be reached at(973) 618-4157 or [email protected].

● N.J.S.A. 39:6A-4.5(b) is an automotive insurance reform statute barring individuals guilty of drivingwhile intoxicated from bringing suit for losses sustained as a result of their underlying alcohol-induced accident.

● New Jersey’s Dram Shop Act, N.J.S.A. 2A:22A-1 to -7, states that it is the exclusive civil remedy forclaims alleging negligent service of alcohol to a visibly intoxicated person.

● In light of conflicting public policy concerns, the New Jersey Appellate Decision has consistentlydecided in favor of New Jersey’s strong public policy against drunk driving and had repeatedly heldthat N.J.S.A. 39:6A-4.5(b), while attractive as a defense, is inapplicable outside of the automotiveclaims arena.

KEY POINTS:

Robert A. Diehl



In many states, to determine if aninjured worker is entitled to temporarydisability benefits, the only question thatneeds to be asked is: “Is the petitioner’sinability to work (or disability) caused bythe work injury?” If the answer is yes, thepetitioner would be entitled to temporarydisability or wage loss benefits. However,in NewJe r s e yworkers’

compensation, claims adjustersmust ask themselves one veryimportant additional questionbefore paying temporary disabilitybenefits: “Is the petitioner suf-fering an actual and currentwage loss?”

Pursuant to N.J. Stat.Ann. 34:15-12(a), temporarydisability benefits are payableduring the period of disabilityfrom the day the employee isfirst unable to work because ofthe injury until the employee isable to resume work and con-tinue permanently. Temporarydisability continues until theemployee is able to resumework and continue permanent-ly there at or until he is as farrestored as the permanent character of the injuries will permit,whichever happens first. Actual absence from work is a prerequi-site to a temporary disability award. The purpose of temporarydisability benefits is to provide an individual who suffers a work-related injury with a partial substitute for loss of current wages.

It is the petitioner’s burden to prove not only that he is avail-able and willing to work, but that he would have been working ifnot for the disability. This may lead to the question of whether apetitioner is entitled to temporary disability benefits if he becomesdisabled at a time when he is no longer employed. The seminalcase of Dennis Cunningham v. Atlantic States Cast Iron Pipe Co.,188 N.J. 492 (2006) discusses this very issue. In that case, thepetitioner suffered a compensable injury, returned to full-duty

work, and was later terminatedfor cause. Before he obtainedother employment, his injurydisabled him from the ability towork. There was no disputethat it was the work injurywhich caused the petitioner tobecome unable to work. TheCourt explained that becausetemporary disability benefitsconstituted replacement foractual wage loss, the employeemust prove that, but for the dis-ability, he would have beenemployed. Here, when the peti-tioner became disabled fromthe work injury, he was nolonger employed by the respon-dent, nor was he employed byany other employer. The Courtfurther commented that theyfound no material differencebetween termination for cause

versus a voluntary departure. The Court further stated that therehad been no allegation that the respondent fired the petitionerbecause of the disability or to avoid payment of temporary dis-ability benefits (making it unlawful for an employer to discrimi-nate against an employee because an employee has claimed orattempted to claim compensation benefits).


New Jersey—Workers’ Compensation

ADDITIONAL QUESTION TO ASK BEFORE PAYING TEMPORARY DISABILITY BENEFITS IN NEW JERSEY EVENIF PETITIONER IS DISABLED FROM THE WORK INJURY

By Kristy N. Olivo, Esq.*

● Before paying temporary total disability benefits, ask the question: “Was the petitioner employed as ofthe first date that he became disabled?”

● The purpose of temporary disability benefits is to provide an individual who suffers a work-relatedinjury with a partial substitute for loss of current wages.

● Actual absence from work is a prerequisite to a temporary disability award

KEY POINTS:

Kristy N. Olivo

* Kristy is an associate who works in the firm’s Cherry Hill, New Jersey, office.She can be reached at (856) 414-6405 or [email protected].

Did you know...

… that Marshall, Dennehey,Warner, Coleman & Goggin

was founded in 1962?

?

www.marshalldennehey.com

Melanie Chapman joined the firm in 2009 and is part ofthe Insurance Coverage Practice Group. Melanie has over 10years experience handling insurance-related matters and bringsto the firm her substantial experience in the insurance cover-age, bad faith arena.

In discussing the Fort Lauderdale office, I would be remissif I did not mention our Administrative Office Manager, San-dra Doersam. She has been working in the legal service indus-try for over 25 years and knows the state and Florida court sys-tem as well as anyone. Her experience and knowledge areinvaluable. Frankly, without her, the success and growth of theFort Lauderdale office would not have been possible.

For in-depth descriptions of each attorney’s backgroundand experience, I would encourage you to access the attorneys’profiles through the firm’s website at marshalldennehey.com. I,along with the other lawyers in the Fort Lauderdale office, amproud to be part of Marshall, Dennehey, Warner, Coleman &Goggin. We are committed to upholding the firm’s tradition asa leader in the defense litigation field, providing conscientiousand quality legal representation to our clients. Please call me orany of the attorneys in the office if you have a question or ifwe can assist you in any way. We are located at 1 East BrowardBoulevard, Suite 500, Ft. Lauderdale, Florida 33301. Mydirect telephone number is (954) 847-4920, and our facsimilenumber is (954) 627-6640. ★



OUR FORT LAUDERDALE, FL OFFICE(continued from page 4)

Our geographical reach is broad and is not limited to thejurisdictions in which we maintain offices. In the EphedraMDL, we traveled all over the country, meeting with world classexperts and conducting or defending depositions of experts, andwe presented the Defense Coordinating Committee’s genericcausation expert on cardiac electrophysiology during two weeksof Daubert hearings in the United States District Court in theSouthern District of New York. On the drug side, we have rep-resented manufacturers, component part or raw product suppli-ers, distributors, retail pharmacies and compounding pharma-cies. On the device side, we have handled cases involvingimplants, prostheses, hospital equipment (from beds to verysophisticated critical care devices), pedicle screws and out-patient or home care drug delivery devices, such as insulinpumps and oxygen concentrators. We have advised new insurerson insuring agreements and exclusions relating to patent cover-age for drug companies, an esoteric field, to be sure.

Almost every case involving an alleged injury from a drugor medical device not only raises scientific questions about theproduct, but also a myriad of questions about alternate causes,background rates, life expectancy with or without the injuryand often also future medical care needs. This is where ourdepth of experience in medical litigation really pays off. It per-mits us, for example, to show why the “overdose” of an antibi-otic or blood thinner, due to an alleged pharmacy error, wasnot the cause of a premature newborn’s morbidity. It permits usto show why a hypertensive, diabetic home dialysis patientwith poor sterile technique who had previously been treatedwith antibiotics (and resultant fungal overgrowth) did notacquire his fungal peritonitis from a contaminated product,but rather was destined to be part of the “background rate” for

these infections. It permits us to show, when a harmonicscalpel or electrocautery devices malfunctions, that thepatient’s chance of being alive in five years, despite his cancereven without the complication, was less than 15 percent.

Sometimes, we are called upon to serve a limited purpose.In one toxic tort case involving a drug alleged to have causedthe death of a young mother of three, a national firm widelyrecognized for its expertise in this area hired us to serve as localcounsel but also to conduct the depositions of all treatingphysicians, not only to rebut causation, but to seek and findalternate explanations for the death, and to line up expert tes-timony in support of an alternate cause and to help select theright mediator to get a satisfactory resolution. We also have agood bit of experience in mass tort mediations.

Because our firm represents so many companies at therequest of insurance carriers and TPAs, our rate structure, qual-ity assurance and litigation guideline compliance programs per-mit very substantial differentials from the traditional “big firm”billing approach without sacrificing results. We have litigatedside by side with the best in the business, and while we admireand respect them, we know that we can produce the sameresults for a lot less cost. More than one of our major insurancecompany clients has collected the data regarding fees, cycle timeand, most importantly, outcomes, and “it don’t lie.”

The national insurers who utilize our services know whatwe can do. As economic pressures force drug and device man-ufacturers, who are either self-insured or have a high SIR, toreconsider their litigation budgets, they might consider, ratherthan settling defensible cases to avoid costs, using our firm toachieve superior litigation results at significant cost savings. ★

MEDICAL DEVICE & PHARMACEUTICAL PRACTICE GROUP(continued from page 1)



However, in spite of our best efforts, there do come timesin our business, like all other businesses, when expenses mustbe incurred. Do you remember that billing and account systemI talked about earlier? Well, the time has come! It must bereplaced. The system that currently operates our computer net-work must also be replaced.

We have tried as hard as we possibly could to keep ourrates down. Last year, in many instances, we did not press forrate increases because we realized how difficult it was for ourclients to meet their obligations. However, this year we havebeen compelled to seek rate increases. Candidly, this is notsomething we take lightly. However, if we would not be able to

secure modest increases in our rates, we would not be able tosupply you with the talent pool you rightfully expect.

I wanted to share with you a few examples of our firm’scommitment to be fiscally conservative. We have struggledover the past few years like all businesses. I think we havebeen able to manage the storm a little better than othersbecause we have a culture of cost consciousness. However, wealso realize that there is a constant need to invest in peopleand technology in order to be in a position of strength. It isthat strength which you count on. Thank you for riding outthis storm with us. ★

MESSAGE FROM THE EXECUTIVE COMMITTEE(continued from page 3)

THE SUPREME COURT CONSIDERS THE PRIVACY RIGHTS(continued from page 5)

Accordingly, the Court focused on whether the City vio-lated Quon’s Fourth Amendment right through its search. Inthe O’Connor opinion, the Court recognized that if the searchwas conducted for a “non-investigatory, work-related pur-pose[e]” or for the “investigation[n] of work] related miscon-duct,” a government employer’s warrantless search is reason-able if it is “justified at its inception” and if the “the measuresadopted are reasonably related to the objectives of the searchand not excessively intrusive in light of the circumstances giv-ing rise to the search.” Citing O’Connor, supra at 480 U.S.725-726. The Court held that the search did meet the stan-dard applied under O’Connor and was, thus, reasonable.

In so finding, the Court recognized that the search wasreasonable because its purpose was to determine whether thecharacter limit was exceeded for work-related purposes andto ascertain whether an upgraded character plan was neces-sary. The Court noted that the search was not “excessivelyintrusive” due to the two-month scope of the review and thatthe audit was limited to on-duty messages. Importantly,Quon should have expected, due to his SWAT team position,that it may be necessary to audit the messages for emergencypurposes. The Court held that because the search was moti-

vated by a legitimate work-related purpose, and because itwas not excessive in scope, the search was reasonable.

In relation to Quon’s impact on the employment world,the following points are instructive:

● All employers must have policies in place for allelectronic transmissions, require the employees toacknowledge receipt of the policy, and demon-strate efforts to ensure that employees understandthe policy.

● Instruct supervisory employees to not make excep-tions to or make comments about the applicationof the electronic media policy in place that wouldundercut the policy.

● Employees retain a modicum of a right of privacyeven if a policy is in place and the electronic mediais contained on a work-issued device.

● Be prepared to articulate the intent of any search ofelectronic transmissions.

As with all other employment relations activities, it is cru-cial to document policies, the distribution and understandingof such policies and the basis for any employment relationsactivities in order to withstand the scrutiny of litigation. ★

Title 39 of the New Jersey Annotated Code. Second, the courtfelt that barring dram shop claims under such circumstanceswould constitute an unjustified repeal by implication of NewJersey’s Dram Shop Act. The court reasoned that absent clearand compelling legislative intent, it would be improper tooverride an individual’s ability to bring a dram shop claim.

Third, the court felt that immunizing liquor licensees undersuch circumstances would go against the state’s strong publicpolicy against drinking and driving.

The court’s holding in Voss is of interest because the public policy behind both the Dram Shop Act and N.J.S.A.


LONG LIVE NEW JERSEY’S DRAM SHOP ACT(continued from page 6)



Whether a case falls within thepurview of admiralty jurisdiction, eitherin state or federal court, can have a sig-nificant impact on remedies available toan injured employee. The threshold testis whether the structure on navigablewater can be classified as a “vessel.” If so,the federal Longshore and Harbor Work-ers’ Compensation Act (“LHWCA”) willapply. If not, the New York State LaborLaw §§240(1) and 241(6) will apply.The standards utilized, the burden ofproof needed and the applicability ofcomparative negligence are all effected.

These issues were raised and deter-mined in a case entitled Lee v. AstoriaGenerating Co., et. al., 13 NY.3d 382(Court of Appeals 2009), 2010 AMC206, cert. pending.

The Gowanus Gas Turbines electricgeneration facility in Brooklyn, New York, owned and operatedby Astoria Generating Company and Orion Power, maintainedfour barges on the Gowanus Canal that supported gas turbinegenerating units. The barges were attached to a power grid butwere moved approximately once per decade for maintenance.Two had been moved for use as additional power sources.

Elliott Turbomachinery Co., Inc. and Elliott Company(“Elliot”) were hired to overhaul the turbines at the Gowanusfacility and employed the plaintiff. The plaintiff was injuredwhen he slipped off of a ladder entering a hatch on barge num-ber one, and he subsequently received benefits under the LHW-CA as a land-based maritime employee.

The plaintiff commenced suit against Astoria/Orion alleg-ing New York Labor Law §§200, 240(1) and 241(6) claims

and common law negligence claims. Astoria/Orion filed athird-party complaint against Elliott for indemnification. Thedefendants both moved for summary judgment on the basis thatthe state labor law claims were preempted by the LHWCA andfederal maritime law. The New York Supreme Court grantedsummary judgment in favor of the defendants on the basis that33 U.S.C.S. §905(a) precluded the claims against them as anemployer (Elliot) and via preemption (Orion). The AppellateDivision reversed and granted summary judgment for the plain-tiff, holding that the barge did not constitute a vessel and theNew York Labor Law claims were therefore not preempted. TheAppellate Division awarded summary judgment as to Labor Law§240(1). The Appellate Division granted the defendants’ leaveto appeal to the Court of Appeals. The Court of Appealsreversed, and the order of the trial court was reinstated.

The Court of Appeals first examined whether the barge incontroversy could be classified as a vessel in order to determine ifthe LHWCA was applicable law in this case. Under the LHW-CA, an injured person cannot assert an action directly against hisemployer, but the Act allows for negligence claims against thirdparties or any vessel involved in the injury. To evaluate whetherthe barge in question could be classified as a vessel, the courtlooked to the U.S. Supreme Court’s definition of a vessel, a“watercraft or other artificial contrivance used, or capable ofbeing used, as a means of transportation on water.” Using thisdescription, the court reasoned that because the barge was locat-ed on navigable waters, was capable of being moved for mainte-nance and in emergencies and was not permanently anchored ormoored, it fell within the Supreme Court’s definition of a vessel.The court therefore held that the LHWCA was applicable law.

The court then analyzed the second issue, whether theLHWCA, as federal law, preempted the New York labor lawclaims asserted by the plaintiff. Under the Supremacy Clause, a state law is preempted by a federal law by “express provision, by implication, or by a conflict between federal and state law.”


New York—Admiralty

FEDERAL MARITIME LAW PREEMPTS STATE LAW REMEDIES FOR INCIDENT OCCURRING ON A VESSEL

ON NAVIGABLE WATERBy Daniel G. McDermott, Esq. and Laura V. Block, Esq.*

* Dan, a shareholder who works in our New York City office, can be reached at(212) 376-6432 or [email protected]. Laura, an associate in or New YorkCity office, can be reached at (212) 376-6466 or [email protected].

● Choice of law—federal maritime or state labor law—can have profound effect.● Structure on navigable water can be classified as “vessel” if capable of being used as a means of trans-

portation. ● If incident occurred on a “vessel,” Long Shore Harbor Workers’ Compensation Act preempts state labor law.

KEY POINTS:

Daniel G. McDermott

Laura V. Block



In Cunningham, the Court found that if temporary disability benefits were awarded for a period that the petitionerwas not actually employed, then the benefits received wouldhave been replacement for nothing more than a theoretical orfictitious wage loss.

The more recent unreported case Sheila Condi v. Compu-Com, circulated on April 16, 2010, affirmed the principles laidout in Cunningham. In Condi, the petitioner sustained com-pensable orthopedic injuries. The respondent had a companypolicy that, once an employee had been on medical leave for 12months, the employee’s employment would be terminated. Percompany policy, the petitioner was terminated on August 17,2008, as this marked the twelth month on leave. About oneweek before that 12-month period was up (August 11, 2008),the petitioner filed a motion for temporary and medical benefitsbased upon the authorized treating doctor’s June 3, 2008, pre-scription for a psychiatric consultation, evaluation and treat-ment for reactive depression. The respondent opposed themotion, relying upon a July 24, 2008, Independent MedicalEvaluator’s conclusion that the petitioner’s chronic depressionpre-existed and was unrelated to the work injury. Although ter-minated from her employment, the respondent continued toreceived her temporary disability benefits because she had notyet been released by the authorized treating doctor from herorthopedic injuries. A few months later, on December 9, 2008,the petitioner was released to return to work with permanentrestrictions on an orthopedic basis, and temporary disability

ceased. One day later, December, 10, 2008, the petitioner pre-sented to a psychiatrist for an evaluation who wrote in thatreport that the petitioner had major depressive disorder relatedto the work injury and was in need of psychiatric treatment.That report did not address the petitioner’s ability to work.Based upon this, the petitioner filed another motion for tempo-rary and medical benefits on January 28, 2009. A second Inde-pendent Medical Evaluation was scheduled with a differentphysician, who found that the petitioner did have pre-existinganxiety disorder which was aggravated by the work injury.While the respondent authorized medical treatment, they didnot reinstate temporary disability benefits, relying on Cunning-ham, claming the petitioner had no actual and current lostwages as she was terminated on December 9, 2008, one day pri-or to the December 10, 2008, evaluation (which was the firstdate that any doctor related the psychiatric condition to thework injury).

The Court looked to the Cunningham case, which tells oneto look at the petitioner’s status at the time of her disability anddetermine whether or not the petitioner is actually losing wages.Here, the petitioner was terminated for cause (she was out onleave for more than 12 months) and there were no current wageloss to replace as of December 10, 2008. The Court reiteratedthat the sole inquiry is whether an injured worker has lostincome because of the work-related disability. More simply put,whether the petitioner was actually employed at the time shebecame disabled. ★

ADDITIONAL QUESTION TO ASK(continued from page 7)

39:6A-4.5(b) of the NJARRA was to lower insurance premi-ums. In the New Jersey Legislature’s initial statement of leg-islative findings and declarations on the Dram Shop Act, theLegislature acknowledged the need to enact measures to makeliability insurance coverage for liquor licensees more availableand more affordable and also indicated the Legislature’s hopethat the Act would result in the improvement of the alcoholicbeverage liability insurance market in New Jersey. Insurancecompanies, the Legislature rationalized, would be moreinclined to offer favorable policies to liquor licensees if the lim-its of civil liability were better defined and, thereby, the poten-tial incidences of liability were more predictable. By clearlyindicating the liability of liquor licensees for serving visiblyintoxicated individuals, it reasoned, less expensive insurancepolicies could be drafted with this risk in mind.

The Voss decision was not the first time that N.J.S.A. 39:6A-4.5(b) has had to take a back seat in light of conflicting public

policy provisions. In 2002, the Appellate Division held in Campv. Lummino, 352 N.J. Super. 414, 800 A.2d 234 (App. Div.2002), that an underage plaintiff was not barred under N.J.S.A.39:6A-4.5(b) from bringing suit against the social host at whosehome he had been drinking before his automotive accident.Three years later, in Walcott v. N.J. Ins. Co., 376 N.J. Super. 384,392, 870 A.2d 691 (App. Div. 2005), the Appellate Division alsodeclined to apply the bar to the recovery of PIP benefits by drunkdrivers. In the wake of the most recent decision in Voss, it is ques-tionable whether N.J.S.A. 39:6A-4.5(b) will ever be an effectivedefense to bar liability in any context outside of the motor vehi-cle liability arena. It is clear that New Jersey’s Dram Shop Act isstill the exclusive civil remedy for injuries resulting from the neg-ligent service of alcoholic beverages by a liquor licensee and thatNew Jersey’s strong public policy against drinking and driving isstill a driving force in determining the superior statutory author-ity in the state of New Jersey. ★

LONG LIVE NEW JERSEY’S DRAM SHOP ACT(continued from page 9)



CASUALTY DEPARTMENT

Joanna Buchanico (Philadelphia, PA) obtained an order fromthe Philadelphia Court of Common Pleas dismissing all countsagainst our client homeowner in a case where the plaintiff wasshot in the head while on our insured’s property. The courtruled, in essence, that because no special relationship existedbetween the homeowner and the plaintiff, the homeownerowed no duty to protect the plaintiff from the criminal acts ofthird parties as a matter of law under TA v. Allen, 669 A3d 364(Pa. Super. 1995).

Rick Ravine and Ryan Burns (Ft. Lauderdale, FL)obtained a defense verdict after a four-day trial in a caseinvolving a trip and fall over a crowd control device (stan-chions and velvet ropes defining the VIP bottle room at anupscale bar). On liability, the defense presented that therewas no negligence, the hazard was open and obvious, andthat the plaintiff was intoxicated and more than 50 per-cent at fault for her own injuries as a result of the intoxi-cation, which would bar her claim by statute. The plain-tiff argued that the low hanging ropes between the stan-chions were negligent, particularly in a bar. The jury wasout for two hours and returned a defense verdict of nonegligence on the part of the defendant.

Rick Ravine and Ryan Burns (Fort Lauderdale, FL)received a defense verdict after nine days of trial in a neg-ligent security case tried in Dade County Florida. Theplaintiffs’ case was against a restaurant for the shootingdeath of their 24-year-old son. The plaintiffs’ son and afriend of his had been involved in a shouting match withanother group of customers in the lounge area of therestaurant. The argument erupted after the plaintiffapproached a group of girls who were in the other partywhen the males in their party went outside for a smoke.When they returned, they accused the decedent of “disre-specting” them, and insults were exchanged. Althoughmanagement quickly responded and calmed the situation,the plaintiffs’ son and his friend left the restaurant, drovearound the back and waited for the other party to leave.When they did, they exited their vehicle, ran up to mem-bers of the other party and “sucker punched” one of them.In reaction, a member of the other party drew a weaponand shot and killed the plaintiffs’ son and his companion.The incident was recorded by the restaurant’s outside

security camera. The plaintiffs’ claim was founded on neg-ligence both for premises liability and mode of operation.Their claims were that the restaurant mishandled theargument by failing to call the police or monitor the par-ties after the argument in the lounge and failing to haveadequate security (they had an armed guard in place). Thedefense centered around the lack of negligence, compara-tive negligence of the decedent, the decedent’s status onthe property at the time of the shooting, the unpre-ventability of the crime and statutory defenses related tothe decedent’s blood alcohol level and the commission ofa felony battery. The case presented unsettled issues inFlorida law relating to the duties owed to the decedent,and the jury was presented with a special interrogatoryverdict with eight questions related to possible liabilitydefenses. After approximately seven hours of deliberation,the jury returned a defense verdict, finding that at thetime of the incident, the plaintiff was a trespasser.

Walter Klekotka (Cherry Hill, NJ) obtained a defenseverdict in Middlesex County, New Jersey. The plaintiff fellfrom a single step at a darkened concert at a venue inSayreville, New Jersey. As a result, she fractured her ankleand shortly thereafter RSD set in. The trial lasted four anda half days. After 30 minutes, the jury returned a 5-1 ver-dict finding no negligence.

Michael Decandio (Jacksonville, FL) obtained an Order ofDismissal of an Arbitration Petition against a window man-ufacturer, who had provided $642,000 worth of windowsto be installed by others under our client’s supervision in an$18 million dollar residence on Sarasota Bay. The Petition for Arbitration was filed by a claimant who boughtthe home from the original owner/builder prior to comple-tion of the project. The home was found to have multipleand serious water intrusion problems that allegedly necessi-tated complete gutting and restoration costs that were equalto the original price of construction. The basis of dismissalwas that the purchaser/claimant was not an intended thirdparty beneficiary to the contract between the manufacturerand the original owner and, further, that the contract didnot contain any provision that would contemplate a suc-cessor in interest to that agreement.

Eric Weiss, Claire Ventola and Joshua Romirowsky(Philadelphia, PA) were successfully granted a dismissal for

OnThePulse…IMPORTANT & INTERESTING LITIGATION ACHIEVEMENTS*...

We Are Proud Of Our Attorneys For Their Recent Victories

(continued on page 13)* Prior Results Do Not Guarantee A Similar Outcome



OnThePulse… (continued from page 12)

our client who manufacturers, installs and maintains theelevators at a hospital in Montgomery County. The allega-tions contained in the plaintiff ’s complaint involve allegedinjuries sustained by the plaintiff, a woman making a “salescall” to a doctor’s office located at the hospital. After thesales call, the plaintiff decided to walk down the stairsbecause the elevators were not functioning, when sheallegedly slipped on a wet surface and fell at the bottom ofthe stairwell. We filed Preliminary Objections, arguingtwofold that (1) the elevator company did not have a legalduty to maintain the stairwells where the plaintiff allegedlyfell; and (2) the functionality of the elevators was not theproximate cause of the plaintiff ’s injuries. We researchedand argued that there is not one identified case across thecountry where an injured party using a stairway due to non-functioning elevators has been able to recover from the ele-vator maintenance company. In analogous scenarios, courtsin New York, Illinois, Texas and Louisiana unanimously cutoff liability to elevator and escalator companies.

Bradley Remick, Alex Norman and Kaitlin DeCrescio(Philadelphia, PA) obtained a defense verdict in a premis-es liability/products case. The plaintiff alleged that ourclient, a large retail chain, failed to properly maintain theautomatic entry doors, causing them to violently strike her.She also alleged that our client outrageously refused to ren-der medical assistance and call for an ambulance. Thedefense was able to undermine the plaintiff ’s liabilityexpert by confronting him with prior inconsistent expertreports and deposition. The plaintiff ’s medical expertopined that the store’s refusal to call an ambulance lead toa significant delay in treatment which exacerbated theplaintiff ’s injuries. Using screen captures from the storesurveillance video and the emergency room records, wewere able to prove that there was not any delay in treat-ment. In fact, store employees responded within seconds,the plaintiff was put in transport within ten minutes of herfall, and she was admitted to the hospital within 15 min-utes of her fall. After the completion of the plaintiff ’s case,the judge granted our motion for directed verdict on theplaintiff ’s punitive damages claim.

Edward Tuite (Philadelphia, PA) obtained an excellentresult at a Montgomery County binding arbitration. Edsuggested to his client that this matter would be more suc-cessfully defended at binding arbitration as opposed to sub-mitting the case to a Montgomery County jury. The caseinvolved a slip and fall of a young UPS driver who allegeda fracture of his ankle with attendant ligament tears andRSD. The workers’ compensation lien totaled $216,000,

and Ed argued that this number was not recoverable due toa waiver by the carrier. Also alleged was a loss of earningcapacity of $1.8 million as the plaintiff had not returned tohis prior 75k job at UPS. The sole arbitrator took testimo-ny and found in favor of the defendant, finding significantcomparative on the part of the plaintiff.

Edward Radzik and Crystal Moroney (New York, NYII) successfully obtained a release of their internationalclient’s $12 million, which was previously attached andheld in the Southern District of New York’s court reg-istry. Ed and Crystal argued for the release of the moneyunder the Court of Appeals for the 2nd Circuit’s ShippingCorporation of India v. Jaldhi case 585 F.3d 58 (2d Cir.2009) which overruled Winter Storm and deemed allelectronic fund transfers an invalid form of attachmentfor Rule B under maritime law. The plaintiff unsuccess-fully argued the money attached was not subject to theJaldhi case because it was not being currently held underattachment but had been transformed into the court registry’s account.

HEALTH CARE LIABILITY DEPARTMENT

Scott Eichhorn (Roseland, NJ) obtained a defense verdictafter a 3 ½-week obstetrical malpractice trial. The plaintiffgave birth to a premature infant at 27 weeks gestation. Theinfant died at approximately one month of age due to necro-tizing enterocolitis as a result of prematurity. The plaintiffsalleged that the obstetrician negligently failed to perform anevaluation and testing upon the plaintiff when she voicedcomplaints suspicious for preeclampsia. The jury unani-mously found no negligence on the part of our client. Therewere no settlement negotiations as our client would not con-sent to settle the case. Damage claims consisted of a signifi-cant emotional distress claim of the mother (six years of psy-chotherapy with a psychologist), the per quod claim of herhusband, and a wrongful death claim based upon the deathof their child.

Bradley Goewert, Lori Wolhar (Wilmington, DE) andSteve Ryan (King of Prussia, PA) successfully defended ahealth care provider in a two-week trial in federal court inDelaware in a case involving “Lazarus Syndrome,” or spon-taneous restoration of circulation and respiration, in awoman who had been coded for over 30 minutes, with 13attempts at defibrillation, absence of pulses and respirations,virtually throughout the code, followed by pronouncementof death. More than 30 minutes later, a tech went back intothe room to take the body to the morgue and detected respirations. The woman was resuscitated and survived with

* Prior Results Do Not Guarantee A Similar Outcome (continued on page 16)


Vol. 16, No. 2 June, 2010

OFFICE LOCATIONS & CONTACT INFORMATION

PENNSYLVANIA

Philadelphia1845 Walnut StreetPhiladelphia, PA 19103(215) 575-2600 • Fax (215) 575-0856 Thomas A. Brophy, Esq., President and CEO(215) 575-2748 • [email protected]

Bethlehem1495 Valley Center Parkway, Suite 350Bethlehem, PA 18017-2342(484) 895-2300 • Fax (484) 895-0208 William Z. Scott, Esq., Managing Attorney (484) 895-2306 • [email protected]

Doylestown10 N. Main Street, 2nd FloorDoylestown, PA 18901(267) 880-2020 • Fax (215) 348-5439 R. Anthony Michetti, Esq., Managing Attorney(267) 880-2030 • [email protected]

Erie717 State Street, Suite 701Erie, PA 16501(814) 480-7800 • Fax (814) 455-3603 G. Jay Habas, Esq., Managing Attorney(814) 480-7802 • [email protected]

Harrisburg4200 Crums Mill Road, Suite BHarrisburg, PA 17110(717) 651-3500 • Fax (717) 651-9630 Timothy McMahon, Esq., Managing Attorney (717) 651-3505 • [email protected]

King of Prussia620 Freedom Business Center, Suite 300King of Prussia, PA 19406(610) 354-8250 • Fax (610) 354-8299 Wendy J. Bracaglia, Esq., Managing Attorney(610) 354-8256 • [email protected]

PittsburghU.S. Steel Tower, Suite 2900600 Grant Street, Pittsburgh, PA 15219(412) 803-1140 • Fax (412) 803-1188Scott G. Dunlop, Esq., Managing Attorney (412) 803-1144 • [email protected]

ScrantonP.O. Box 3118Scranton, PA 18505-3118(570) 496-4600 • Fax (570) 496-0567Robin B. Snyder, Esq., Managing Attorney (570) 496-4610 • [email protected]

WilliamsportP.O. Box 68Williamsport, PA 17703(570) 326-9091 • Fax (570) 326-5507Timothy J. McMahon, Esq., Managing Attorney(717) 651-3505 • [email protected]

NEW JERSEY

Cherry HillWoodland Falls Corporate Park200 Lake Drive East, Suite 300Cherry Hill, NJ 08002(856) 414-6000 • Fax (856) 414-6077 Richard Goldstein, Esq., Managing Attorney(856) 414-6013 • [email protected]

Roseland425 Eagle Rock Avenue, Suite 302Roseland, NJ 07068(973) 618-4100 • Fax (973) 618-0685Joseph A. Manning, Esq., Managing Attorney (973) 618-4103 • [email protected]


Vol. 16, No. 2 June, 2010

DELAWARE

Wilmington1220 N. Market Street, 5th FloorWilmington, DE 19801(302) 552-4300 • Fax (302) 651-7905Kevin J. Connors, Esq., Managing Attorney (302) 552-4302 • [email protected]

OHIO

Akron39 E. Market Street, Suite 301Akron, OH 44308(330) 255-0037 • Fax (330) 255-0040 Samuel Casolari, Jr., Esq., Managing Attorney (330) 255-0039 • [email protected]

FLORIDA

Ft. LauderdaleOne E. Broward Boulevard, Suite 500Ft. Lauderdale, FL 33301(954) 847-4920 • Fax (954) 627-6640Craig S. Hudson, Esq., Managing Attorney (954) 847-4955 • [email protected]

Jacksonville200 W. Forsyth Street, Suite 1400Jacksonville, FL 32202(904) 358-4200 • Fax (904) 355-0018Michael J. Obringer, Esq., Managing Attorney (904) 358-4204 • [email protected]

OrlandoLandmark Center One315 E. Robinson Street, Suite 550Orlando, FL 32801(407) 420-4380 • Fax (407) 839-3008Cynthia Kohn, Esq., Managing Attorney (407) 420-4388 • [email protected]

Tampa201 E. Kennedy Boulevard, Suite 1100Tampa, FL 33602(813) 472-7800 • Fax (813) 472-7811Edward F. Gagain, III, Esq., Managing Attorney (813) 472-7804 • [email protected]

NEW YORK

New York140 Broadway, 19th FloorNew York, NY 10005(212) 878-1700 • Fax (212) 878-1701Jeffrey J. Imeri Esq., Managing Attorney (212) 878-1708 • [email protected]

Wall Street Plaza, 88 Pine Street, 21st FloorNew York, NY 10005-1801(212) 376-6400 • Fax (212) 376-6494Daniel G. McDermott, Esq., Managing Attorney (212) 376-6432 • [email protected]



* Prior Results Do Not Guarantee A Similar Outcome


brain damage. Aside from agency liability, the claim againstthe hospital focused upon a failure to properly triage thepatient, who had presented with indigestion, chest pain andrisk factors for cardiac disease, a failure to implement the hos-pital’s own Chest Pain Protocol, and a failure to promptlyobtain an EKG. The jury was unable to reach a unanimousverdict on negligence, but did agree that proximate cause hadnot been proven, resulting in a defense verdict.

Bradley Goewert and Lorenza Wolhar (Wilmington, DE)obtained a defense verdict in a medical negligence case. Thedefendant, a pulmonologist, was alleged to have breached thestandard of care by failing to give the 46-year-old decedentinformed consent prior to performing a bronchoscopy withtransbronchial biopsy; more specifically, for failing to advisethe patient that death was a risk of the procedure and failingto offer less risky alternatives to the transbronchial biopsy. Itwas undisputed that the physician did not advise the patientthat death was a risk, nor was the patient offered less invasivealternatives to the transbronchial biopsy. Prior to trial, thedefense convinced the court that the plaintiffs must prove notonly that the physician failed to inform the patient of risksand alternatives and the undisclosed risk materialized causinginjury, but also that a reasonable patient in the position of thedecedent would have declined to undergo the procedure hadshe been properly informed. Prior to this ruling, in the con-text of a proximate cause for an informed consent case,Delaware required only that plaintiffs prove the procedure,surgery or treatment caused injury and no consideration wasgiven as to whether a proper informed consent would haveimpacted the patient’s decision to undergo the procedure.The jury found in favor of the physician on this newly recog-nized proximate cause standard for informed consent cases.

Frederic Roller and Jonathan Bradbard (Philadelphia, PA)obtained a defense verdict in Philadelphia County on behalfof a podiatrist in a case in which it was alleged that he failedto schedule a timely follow-up visit for evaluation of a toeinjury to a 75-year-old diabetic with severe peripheral vascu-lar disease. Three weeks after the visit with our client, theplaintiff presented to the hospital with a severe infection thatinitially required a partial amputation of the affected toe. Asa result of his diabetes and PVD, he was unable to heal, andover the course of the next year, he underwent four addition-al amputations, the last of which was an above-knee amputa-tion. The plaintiff ultimately died from unrelated causes, andthe survival action damage claim was based on the pain andsuffering he endured in undergoing a total of five amputa-tions in an 18-month period. Although our client’s treatmentrecords were poorly documented, our defense was based ontraumatic incidents which occurred subsequent to the visit

with our client, and the jury returned a defense verdict with-in an hour of deliberation.

PROFESSIONAL LIABILITY DEPARTMENT

Hillary Fraenkel (Roseland, NJ) obtained a dismissal on thepleadings of the plaintiff ’s complaint wherein it was allegedthat the plaintiff suffered damages arising from the construc-tion of a barn by plaintiff ’s neighbor on a farm downhill andacross the street from the plaintiff ’s property. The plaintiffalleged that the construction of the barn was subject to the NewJersey Soil Erosion and Sediment Control Act and, therefore,the neighbor was required to have a soil erosion and sedimentcontrol plan reviewed by and monitored by our client, SussexCounty Agriculture Development Board, and the co-defen-dant, Sussex County Soil Conservation District. The courtagreed with our argument that the plaintiff ’s claims are gov-erned by The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 etseq., and that the plaintiff failed to comply with the require-ments for the timely filing of a Notice of Claim, which havebeen strictly construed by the New Jersey courts. Pursuant toN.J.S.A. 59:8-1 et seq., the court granted our motion to Dismissin Lieu of Filing an Answer upon grounds that the plaintifffailed to timely serve a Notice of Claim.

Edward Tuite and Joshua Romirowsky (Philadelphia, PA)received a motion for summary judgment in the representationof a construction company in a suit where the plain-tiff/decedent and his estate sued the construction company, aswell as a number of contractors, sub-contractors, manufactur-ers and the premises owners (like owners of refineries), claim-ing that the plaintiff suffered and died from Mesothelioma dueto exposure to asbestos-containing products. The plain-tiff/decedent was a pipe fitter and welder for over 30 years andworked at plants and refineries throughout the greater Philadel-phia area. After deposing several product and actor identifica-tion witnesses, we filed a Motion for Summary Judgment argu-ing that (1) any exposure to asbestos while the plaintiff was anemployee at the construction company is barred by the Work-ers’ Compensation Act; (2) the plaintiffs have not establishedthat the plaintiff was frequently, regularly and proximatelyexposed to asbestos products attributable to the constructioncompany when he was not an employee of the constructioncompany; and (3) any evidence to the contrary is inadmissiblehearsay, insufficient to overcome summary judgment. JudgeMoss of the Philadelphia Court of Common Pleas granted theconstruction company’s Motion for Summary judgment, dis-missing it from the case in its entirety.

Timothy Rau (Philadelphia, PA) received a defense verdict incase tried in reverse bifurcated format before Judge Ackermanin Philadelphia. After the first phase of the trial, the juryfound that the decedent-plaintiff ’s lung cancer was not causedby exposure to asbestos.






Michael Turner (Philadelphia, PA) and Walter Kawalec(Cherry Hill, NJ) obtained a defense verdict in the secondphase of a reverse bifurcated trial in front of Judge Jelin inPhiladelphia. The jury found during the first phase of thetrial that the plaintiff ’s lung cancer was caused by his expo-sure to asbestos and awarded damages in the amount of $1million. In the second phase of the trial, the jury found thatthe plaintiff ’s lung cancer was not caused by his exposure toasbestos from the defendant’s asbestos-containing weldingrods but that it was related to his exposure to Johns Manvilleasbestos insulation.

Christopher Dougherty, Jane Kane, John Hare and CarolVanderWoude (Philadelphia, PA) obtained summary judg-ment for a university in a wrongful death action brought bythe estate of a student murdered on the campus perimeterby three Chester City youths. The plaintiff ’s case centeredon inadequate security—more security personnel, moresophisticated security operations, more cameras, bikepatrols and more—allegedly needed in light of the highcrime rate in Chester. We successfully persuaded the trialcourt to rule that the university did not owe a duty of careto this student from the random and unforeseeable crimi-nal acts of third parties. The trial court initially denied themotion for summary judgment, but after the SuperiorCourt denied our Petition for Review, it granted our Motionfor Reconsideration. Judge Pagano vacated his earlier orderand then granted the motion for summary judgment.

Steven Polansky, Michael Gorokhovich and DavidBlake (Cherry Hill, NJ) obtained summary judgment infavor of an insurance company in a case where the insuredcontested application of a co-insurance penalty. The insur-ance policy required that the auto dealer report vehicles ona monthly basis to determine those vehicles falling withinthe coverage. The insured had selected “non-reporting”coverage for purposes of the amount of physical damagecoverage. Following a hail storm loss causing damages inexcess of $1 million, the insured objected when the insur-ance carrier applied the co-insurance penalty because thevalue of the reported vehicles was significantly higher thanthe insured value. The court upheld application of the co-insurance penalty, finding the insurance policy clear andunambiguous, and rejecting an argument that enforce-ment of the co-insurance penalty was against the reason-able expectations of the insured.

WORKERS’ COMPENSATION DEPARTMENT

Dario Badalamenti (Roseland, NJ) obtained a dismissal withprejudice in a matter tried to conclusion in a case in which thepetitioner was injured when the van in which she was a pas-senger was involved in a motor vehicle accident. At the timeof the accident, the petitioner was traveling from her home tothe employer’s premises. Although N.J.S.A. 34:15-36excludes from the scope of compensability injuries sustainedby an employee during her travels to and from her place ofemployment, the petitioner claimed a travel-time exception tothis so-called “going & coming rule.” The travel-time excep-tion allows home-to-place of employment coverage where anemployee is either paid for time spent traveling to and from adistant job site, or where an employee utilizes an employer-authorized vehicle for travel to and from work. The courtfound that the petitioner was not compensated or reimbursedfor her travel time to and from the respondent’s premises andthat the respondent neither authorized nor exercised any con-trol whatsoever over the vehicle in which the petitioner wastraveling at the time of her accident. Accordingly, the courtdismissed the petitioner’s claim with prejudice for failure tosustain the burden of proof.

Tony Natale (Philadelphia, PA) received an important win ina case where subterfuge resulted in a suspension of theclaimant’s benefits. The claimant sustained a work injury toher upper extremities while cleaning animal cages for theemployer. The claim was ultimately accepted, and benefitswere paid. Clandestine surveillance efforts seemed to indicatethat the claimant was working with an alternate employer. ASuspension Petition was filed. During the litigation, theclaimant failed to cooperate with supplying wages from heralternate employment. The alleged alternate employer alsofailed to comply with efforts to procure the wage information.The Judge accepted Tony’s argument that benefits must besuspended due to the claimant’s failure to cooperate withefforts to reveal her alternate earnings. The Judge also award-ed a credit against any overpayment that may have accruedbased on the claimant’s alternate earnings. This is a radicaldeparture from the old standard which required proof of earn-ings, even if the claimant was being uncooperative. This caseshould ease the burden on employers who are dealing withthose claimants who cleverly try to hide alternate earnings.The carrier was relieved of paying any benefits on an ongoingbasis based on the claimant’s illegal subterfuge. The case willmove to the carrier’s fraud unit, and Tony will be workingwith the District Attorney’s Office to perhaps prosecute theclaimant for fraud. ★



The Pennsylvania Supreme Courtkicked off the holiday season forUM/UIM carriers early with its deci-sion in Tannenbaum v. NationwideInsurance Company, 992 A.2d 859(2010), reversing an order from theSuperior Court in the process. At issuewas whether a UIM carrier could offsetthe benefits that its insured had receivedunder his group plan and personal dis-

ability policies. A majority of the Supreme Court said it could.

Alan Tannenbaum had been permanently disabled follow-ing a motor vehicle accident. A doctor by profession, he wasreceiving Social Security disability payments, income loss ben-efits under his hospital-employer’s group plan, and benefitsfrom two personal disability policies when he applied forincome loss benefits under the UIM provisions of his motorvehicle policy with Nationwide. (He had also filed and settleda suit against the tortfeasor.)

Nationwide argued that it was entitled to offset the bene-fits that he had received under his group plan and personal dis-ability policies, citing Section 1722 of Pennsylvania’s MotorVehicle Financial Responsibility Law (“Preclusion of recover-ing required benefits”). Tannenbaum disagreed, saying thatrecovery of benefits for which he had paid (or to which he hadcontributed via premiums) did not represent a double recov-ery. He cited Panichelli v. Liberty Mut. Ins. Group, 543 Pa. 114,669 A.2d 930 (1996), a first-party benefits case which hadheld that an insurer could not deduct sick pay and Social Secu-rity disability benefits when calculating “actual loss of grossincome” under Section 1712 of the MVRFL.

Panichelli had been rendered unable to work as a result ofinjuries sustained in the accident and had filed a claim with hisinsurer, Liberty Mutual, for loss of income benefits. For part of

the income loss period, however, Panichelli had received sickpay benefits from his employer in an amount equal to his grossincome. Liberty Mutual took the position that it was entitledto a set-off for the sick pay benefits that Panichelli had receivedand did not pay any income loss benefits for that time period.Panichelli challenged the decision, and, ultimately, theSupreme Court agreed with him that the sick pay was in thenature of an excess benefit and was not a duplication of bene-fits available under Section 1712.

Tannenbaum argued that the Panichelli rationale wouldapply to his claim as well. And although the Superior Courtagreed with Tannenbaum, the Supreme Court did not. It agreedwith Nationwide’s argument that the “plain language” of §1722distinguished this matter from the issue in Panichelli. The Court—somewhat reluctantly and in a split decision—found “no ten-able basis” to support limiting §1722’s scope to health benefits:

Once it is accepted that the relevant income-loss ben-efits received by [Tannenbaum] fall within thegroup/program/arrangement classification, itbecomes apparent that they are subject to the speci-fied statutory offset. . . .

We are sensitive to the perspective that the above-straightforward reading of Section 1722 reveals thatthe Legislature has attacked the highly complex andnuanced problem of rising automobile insurancecosts with a peculiarly blunt mallet. . .

Ultimately, it is not our task to address or reconcilethe very difficult policy questions posed by the above,since the Legislature has been clear in it approach. . .

In summary, under Section 1722’s plain terms, aninsured’s recovery under UM/UIM policies may beoffset by group/program/arrangement benefits,including disability benefits purchased, in whole orin part, by the insured, at least so long as those ben-efits are not subject to subrogation.


Pennsylvania—Auto

OH TANNENBAUM, OH TANNENBAUM! EARLY CHRISTMASGIFT TO UM/UIM CARRIERS FROM PENNSYLVANIA

SUPREME COURTBy Brigid Q. Alford, Esq.*

● Statutory offset in Pennsylvania’s Motor Vehicle Financial Responsibility Law applied to disabilitybenefits.

● Court refuses to limit scope of offset to health benefits.● UIM carrier entitled to credit for tortfeasor’s umbrella policy limits.

KEY POINTS:

* Brigid is an associate in the Harrisburg ,Pennsylvania, office. She can be reachedat (717)-651-3710 or [email protected].

Brigid Q. Alford

Thus, the disability benefits received by Tannenbaum wouldfall within §1722’s proscription against double recovery. The Courtdistinguished Panichelli by noting that it was “not a UM/UIMcase,” and thus, §1722 never came into play in that case.

Two days after the Tannenbaum decision was announced, theSuperior Court issued its own insurer-friendly ruling in a significantUIM/credit-offset case. With its April 30, 2010, decision inD’Adamo v. Erie Insurance Exchange, 2010 Pa. Super. 77 (2010), theSuperior Court held that a UIM carrier can take a credit for a tort-feasor’s automobile liability insurance coverage limits as well as thetortfeasor’s separate personal umbrella policy limits.

The amount of allowable credit due to the UIM carrier was theissue in D’Adamo. The D’Adamo claimants had received $250,000under the tortfeasor’s motor vehicle policy, but they had alsoreceived $500,000 limits from the tortfeasor’s personal umbrella

policy. The Erie policy had an exhaustion clause that provided:“When the accident involves underinsured motor vehicle, we willnot pay until all other forms of insurance under all bodily injury lia-bility bonds and insurance policies and self-insurance plans applicableat the time of the accident have been exhausted by payment of theirlimits or have been resolved by settlement or by final resolution ofthe court.” (Emphasis supplied.)

Erie wanted to take a credit (against the $850,000 UIM arbi-tration award) in the total amount of $750,000. The claimantsargued that it was only entitled to a credit of $250,000. The Supe-rior Court agreed with Erie, finding that the exhaustion clause wasnot ambiguous and that applying it to the umbrella policy limitswould not violate public policy. Thus, Erie was allowed the full$750,000 credit. ★



FEDERAL MARITIME LAW PREEMPTS STATE LAW REMEDIES(continued from page 10)

The court found that 33 U.S.C.S. §905(b) expressly preemptedthe New York labor laws because the LHWCA explicitly states thatany remedy derived from an action brought against a vessel underthe LHWCA “shall be exclusiveof all other remedies.” The courtconsequently held that becausethe LCWCA was applicable fed-eral maritime law, the plaintiff ’sstate law claims were preemptedand the order of the trial courtwas to be reinstated. This deci-sion holds great importancebecause New York Labor Law§240(1) (so called “scaffold law”)imposes strict liability on con-tractors and property owners forelevation-related injuries at con-struction sites.

The court distinguished itsholding in this case from Cam-mon v. City of New York, 95 NY2d 583 (2000), which involvedan injured worker receiving ben-efits under the LHWCA againsta defendant landowner (City ofNew York). The distinction wasbased on the fact that Cammondid not involve §905(b)’s “Negli-gence of Vessel” as set forth in theLHWCA. The court stated, “While it is true that Federal maritimelaw does not generally supersede state law, in this case, where Congress explicitly limited claims against the vessel owner to thatFederal Act, state law claims are preempted.”

Judge Ciparick was the sole dissent in this opinion. In thedissent, Judge Ciparick focused on whether the plaintiff couldassert a maritime tort under the LHWCA by using the second

prong of the maritimesitus/status test, “Whether thewrong bore a significant rela-tionship to traditional maritimeactivity,” (See, Executive Jet Avia-tion, Inc. v. City of Cleveland, 93S. Ct. 493). Judge Ciparick rea-soned that while the barge couldbe classified as a vessel, the workthe plaintiff conducted had noconnection with maritime activ-ity but rather with land-basedactivity because the gas turbineswere part of a power-generatingoperation that includes land-based structures. Further,because the plaintiff, therefore,appeared to have no cause ofaction for vessel negligenceunder maritime law based onthe above reasoning, the LHW-CA, as discussed in Cammon,preserves state law causes ofaction against third parties,including vessel owners who arenot also employers.

Plaintiff ’s counsel recently filed a Petition for Writ of Cer-tiorari in the U.S. Supreme Court. He has requested the Mar-itime Law Association to submit an amicus brief, which ispresently under consideration. ★

OH TANNENBAUM, OH TANNENBAUM!(continued from page 18)

www.marshalldennehey.com1-800-220-3308

Since July of 2009, Michele R. Punturi,Esquire, a shareholder in our Philadelphia

office, has been part of the team that is developing the UTBMS Workers’ Compensa-

tion Code, an adaptation of the Uniform Task Based Management System Litigation

Code that more accurately captures Workers’Compensation (WC) litigation.

Michele R. Punturi can be contacted at:Phone: (215) 575-2724 Fax: (215) 575-0856

Email: [email protected]



On March 25, 2010, the Pennsylva-nia Supreme Court issued a long-antici-pated opinion that addressed the Pennsyl-vania MCARE statute and its require-ments for qualifying an expert in a profes-sional liability claim brought against aphysician. The Pennsylvania MCAREstatute, among other requirements relatedto medical practice issues, sets forth crite-ria for medical experts. Specifically, in

Vicari v. Spiegel, 989 A.2d 1277 (Pa. 2010), the Court grantedallowance of appeal on the issue of qualifying an expert on stan-dard of care. See e.g. 40 P.S. §1303.512. In an opinion for themajority by Justice McCaffrey, and separate concurring opinionsby Justice Saylor and Chief Justice Castille, the Court analyzedMCARE’s “same board certification” requirement and the excep-tion to the general rule. In upholding the appellate court’s deci-sion, the Court reversed the order of the lower court striking thetestimony of the plaintiff ’s oncology expert against the otolaryn-gology and radiation oncology defendants. The Court agreedthat, under section 512(e), despite being certified by a differentboard, a medical oncologist can qualify as a standard of careexpert against a physician if the oncologist is deemed (by thecourt) to be competent on the “specific care at issue.” Other rel-evant highlights to the Court’s opinion are discussed below.

First, the Court ruled that interpreting the “limitations andexceptions” of section 512 is a question of law. Next, the Courtoutlined the following requirements for an expert testifying onstandard of care under the MCARE Act:

1. Must be a licensed and active or recently retiredphysician; and

2. Must be substantially familiar with the standard ofcare for the specific area in question; and

3. Must practice in the same subspecialty as thedefendant-physician; or

4. Must practice in a subspecialty with a substan-tially similar standard of care for the specific careat issue; and

5. Must be board certified by the same or similarboard as the defendant physician. (Emphasisadded.)

Generally, an expert should meet each of the enumeratedrequirements. However, an exception to the general rule exists.Specifically, courts have discretion under section 512(e) in quali-fying an expert and may grant exception to the “same special-ty/board certification requirements” if the expert has “sufficienttraining, experience and knowledge to testify as to the applicablestandard of care, as a result of active involvement in the defendantphysician subspecialty or in a related field of medicine.”

In Vicari, the plaintiff ’s medical oncology expert’s credentialswere not challenged on cross-examination, nor were objectionsraised to his experience and/or training. The Court ruled that hewas well qualified to opine as an expert on the sole liability ques-tion presented in the underlying malpractice claim: whether thetwo defendant physicians breached the applicable standard of carein failing to refer the patient to a medical oncologist for follow-upchemotherapy. With regard to this narrow issue, the Court deter-mined that medical oncology is a “related field of medicine” tootolaryngology and radiation oncology and, therefore, the oncol-ogist qualified as a standard of care expert. ★

Pennsylvania—Health Care Liability

MCARE EXCEPTION PROVIDES COURTS WITH BROAD DISCRETION FOR QUALIFYING AN EXPERT ON STANDARD

OF CAREBy Kimberly A. McCarthy, Esq.*

* Kim is an associate who works in our King of Prussia, Pennsylvania, office. She can be reached at (610) 354-8481 or [email protected].

● MCARE establishes strict criteria for qualifying experts testifying against a physician in a profes-sional liability claim.

● An expert proposed to offer standard of care opinions must meet a higher standard of qualificationthan an expert offered on damages or causation.

● MCARE provides exceptions to the strict requirements for qualifying on standard of care in subsec-tions (d) and (e) and permits the courts to waive the same board and specialty requirements. Anexpert’s qualifications will be determined on a case-by-case basis and will be considered in conjunc-tion with the specific issue in the case. Therefore, physicians with specialties and board certificationsthat vary from those of the defendant may qualify as an expert under MCARE.

KEY POINTS:

Kimberly A. McCarthy



I recently saw a map that someonehad prepared of the United States whereeach state was colored either blue or redto distinguish whether the courts pro-vide coverage for claims of faulty work-manship. It looked like something fromCNN’s coverage of the elections, withroughly half of the states in each color.Pennsylvania, of course, fell into the cat-egory of states where faulty workman-

ship claims are not covered. Pennsylvania has stood out in thiscategory for several years, ever since the State Supreme Courtissued its landmark ruling in Kvaerner v. Commercial Union.The decision was so definitive that the term “Kvaerner State”emerged within the industry to refer to whether an individualstate’s law would cover claims for defective workmanship.

In Pennsylvania, Kvaerner was only the beginning. Subse-quent decisions from the intermediate and federal courts sit-ting in Pennsylvania surprisingly extended the holding inKvaerner to restrict coverage not only for claims relating to theinsured’s own defective workmanship, but also to damage toany other property which the insured’s defective workmanshipaffected. This extension of Kvaerner was first made by thePennsylvania Superior Court in a case alleging defective stuc-co work, Millers Capital Ins. Co. v. Gambone. In Gambone, theSuperior Court followed Kvaerner in holding that the costs ofreplacing the stucco were not covered, but it went a step fur-ther in holding that damages to the interior of the home dueto water intrusion were also not covered because they were a“reasonably foreseeable consequence” of the insured’s defectiveworkmanship. This is where Pennsylvania started to reallystand out on the national map. No other state had made sucha broad extension of the Kvaerner doctrine, and many in theindustry expected that the Pennsylvania Supreme Court wouldreverse Gambone with respect to this extension.

The Supreme Court declined to review Gambone, and sub-sequent decisions continued to enforce the “consequential dam-ages are not covered” aspect of the holding. Then, the EasternDistrict of Pennsylvania applied Kvaerner to a product incorpo-ration case in Nationwide v. CPB Intl. Now this was trulygroundbreaking. No other court in the country (save a littleknown Middle District of Pennsylvania decision from severalyears prior, Keystone Mining) had held that there was no “occur-rence” when a defective product is incorporated into anotherproduct, thus, rendering the whole product defective. Again, weexpected the Third Circuit would reverse, and we were surprisedwhen the court affirmed CPB with a strongly worded memo-randum decision. Following CPB, the Pennsylvania SuperiorCourt also found no occurrence in a product incorporation casein Erie Insurance Co. v. Abbott Furnace.

In June, the Third Circuit laid to rest any question as to thereach of Kvaerner in Pennsylvania. In Specialty Surfaces Internation-al, Inc. v. Continental Casualty Co., the court held that the insured’sdefective work product’s damage to other property in an athleticfield construction was not an “occurrence.” The court discussed theconsequential damage issue as raised by Gambone and other deci-sions and stated that the law of Pennsylvania was unquestionablythat Kvaerner extends to property other than the insured’s owndefective workmanship so long as it is a reasonably foreseeable con-sequence of the insured’s defective work.

This is not to say that all is now quiet on the defective work-manship front. Kvaerner and Gambone also articulated a positionadopted in several states, that because defective workmanship isnot an “occurrence,” the language in the ISO CGL policy express-ly covering defective workmanship caused by “your subcontrac-tors” is rendered a nullity. As such, the assurance made by manyunderwriters and agents that a contractor would be covered “forhis subs” is negated by these courts.

In response to the uproar from agents and underwriters,many insurers have drafted manuscript “Kvaerner endorse-ments.” These endorsements re-write the policy to expressly


Pennsylvania—Insurance Coverage

PENNSYLVANIA STANDS OUT NATIONWIDE IN COVERAGEDISPUTES REGARDING FAULTY WORKMANSHIP

By Eric A. Fitzgerald, Esq.*

* Eric, a shareholder who works in the Philadelphia, Pennsylvania, office, can bereached at (215) 575-2688 or [email protected].

● Pennsylvania provides the broadest grounds for an insurer to disclaim coverage for claims of defec-tive workmanship of any state in the country.

● Coverage defenses include “reasonably foreseeable” consequential damage to other property.● “Product incorporation” cases are not an “occurrence” in Pennsylvania.● Many insurers are manuscripting endorsements for their Commercial General Liability Policies, which pro-

vide coverage for work done by subcontractors.

KEY POINTS:

Eric A. Fitzgerald



In Ross v. Foremost Insurance Com-pany, 2010 Pa. Super. 107; 2010 Pa.Super. LEXIS 421 (June 11, 2010), thePennsylvania Superior Court addressedthe issue of whether, under principles ofagency law, a plaintiff ’s release of vicari-ous liability claims against an insurer,while expressly preserving its claimsagainst the insurer’s agent, would effec-tively release the agent of liability,

despite the reservation of rights clause. For the reasons setforth herein, the Superior Court found that a reservation ofrights provision would be upheld and the release of the vicari-ously liable principal would not operate to release the agent, solong as there is a basis for the underlying claims.

The underlying facts of Ross reveal that in April 2001,the plaintiff Daniel Ross purchased a 1984 Travel Trailer, a35-foot by 8-foot, licensed trailer that can be pulled by hitchfor travel on a highway. After the purchase, Ross sought toobtain insurance coverage for the trailer from ForemostInsurance Company (“Foremost”) by contacting Sentry Ser-vices, Inc. (“Sentry”), which was listed in the phone book asan insurance agent that dealt with Foremost. In the tele-phone conversation with Sentry, Ross provided the agentwith a description of the trailer, the location of the lot wherethe trailer would be parked – some 1,500 feet from the Con-noquenessing Creek in Harmony, Pennsylvania – andexplained that the trailer would be used for seasonal living.Sentry then sent Ross copies of an insurance worksheet,wherein he disclosed the proximity of the trailer to the creek.A footnote to the inquiry explained that, because of the trail-

er’s proximity to the creek, coverage would only be providedif flood insurance was excluded. Ross completed, signed, andreturned the worksheet with a check for coverage of the trail-er. A few weeks later, Ross received a copy of the ForemostMobile Home Policy, which specifically excluded coveragefor losses caused by flooding and other water damage, as wellas a declarations page that included information regardingwhere Ross could obtain flood insurance if he so desired.Ross admitted that he did not read the policy or the declara-tions page at this time, or at time upon renewing the policyeach year.

In 2004, the Connoquenessing Creek flooded and dam-aged Ross’s trailer and its contents. Three days later, Ross sub-mitted a claim to Foremost for damage, which Foremost deniedon the grounds that flood loss was not covered by the policy.

Ross brought suit against both Foremost and Sentry inthe Court of Common Pleas of Allegheny County. Threeyears later, Ross entered into a settlement and release agree-ment (“the Release”) with Foremost, wherein he expresslypreserved his claims against Sentry for negligence and viola-tions of the Uniform Trade Practices and Consumer Protec-tion Law (“UTPCPL”). Because Sentry had been acting asForemost’s agent, the trial court granted summary judgmentin favor of Sentry, holding that the release of Foremost alsooperated as a release of Sentry. In appealing the trial court’sdecision to the Pennsylvania Superior Court, Ross challengedthe trial court’s findings that (1) the release of vicarious lia-bility claims against Foremost operated to release Sentry ofliability as a result of the agent/principal relationship and (2)that the underlying claims against Sentry lacked merit.

The Superior Court upheld the trial court’s grant ofjudgment in favor of Sentry but disagreed with the trial


Pennsylvania—Settlement & Releases

CATCH AND RELEASE: A PLAINTIFF MAY EXPRESSLY PRE-SERVE ACTIONABLE CLAIMS AGAINST INSURANCE AGENT

WHILE RELEASING INSURER OF VICARIOUS LIABILITYBy Angeline C. Panepresso, Esq.*

● The release of an insurance agent will effectively release the insurer, as principal, of vicariousliability.

● Conversely, the release of vicarious liability claims against an insurer will not effectively release theinsurer’s agent of liability where the release expressly reflects the plaintiff ’s reservation of rightsagainst the agent.

● Regardless of whether a plaintiff expressly preserves its claims against an agent, if such claims lack merit,judgment will be granted in the agent’s favor.

KEY POINTS:

Angeline C. Panepresso

* Angeline is an associate in our Philadelphia, Pennsylvania, office. She can bereached at (215) 575-3575 or [email protected].



PENNSYLVANIA STANDS OUT NATIONWIDE(continued from page 21)

state that defective workmanship by a subcontractor whichcauses property damage is an “occurrence.” There are threeproblems with these endorsements. First, the original poli-cy carve-out for subcontractors only applies to propertydamage claims arising from completed operations. In oth-er words, a claim for property damage which is open andobvious to the claimant while the insured is still conduct-ing operations would not, under the original policy word-ing, trigger the carve-out. It is unlikely that agents andunderwriters were making this distinction when assuring acontractor that he would be “covered for his subs.” TheKvaerner endorsements generally only add coverage forsubcontractors into the definition of an “occurrence” forcompleted operations.

Second, the endorsements are generally silent as to theirretroactive effect. Some carriers take the position that onlypolicies with the endorsement added will provide theenhanced coverage. Others are taking the position that theendorsement is a clarification of existing coverage and thatthe claims should be covered on all policies regardless of thetime of issue. This, of course, creates confusion.

Third, and most significantly, all of the Kvaernerendorsements that I have reviewed are different! This sets

the stage for a potential new wave of litigation over theintent of the endorsements. Of course, the Kvaernerendorsements are a reflection of the industry intent to pro-vide enhanced coverage in Pennsylvania, not to restrict it.However, in carrier versus carrier disputes, and in choice oflaw disputes, the issue of what is actually covered is boundto create problems.

Additionally, the full extent of the application ofKvaerner and Gambone in Pennsylvania is not yet complete.I had one very sharp client opine that in the Specialty Sur-faces case, an argument could potentially be made that abodily injury claim arising from the defective playing fieldcould be a “foreseeable consequence” of the defective work-manship. Further, most if not all of the decisions to datehave addressed claims between parties in contractual privitywith one another. Could the foreseeable consequence stan-dard be extended to include anticipated third party benefi-ciaries of a contract, such as a homeowner or a customer?

There are clearly more developments in this area of lawon the way. In the meantime, Pennsylvania enjoys (orregrets) the distinction of being the most conservative statein the nation on the availability of coverage for defectiveworkmanship claims. ★

CATCH AND RELEASE(continued from page 22)

court’s reasoning in reaching its holding. Specifically, the Superior Court found that the trial court was wrong inconcluding that the Release of Foremost also released Sen-try because Ross expressly preserved his claims against Sen-try in the language of the Release. The Superior Court heldthat such an express reservation of rights is valid against anagent—although not against a vicariously liable principal.

The court held that a claim of vicarious liability againsta principal, such as Foremost, is inseparable from a claimagainst the agent acting on its behalf since a vicarious lia-bility claim is based upon the acts of only one party. Absentany showing of an affirmative act or omission on behalf ofthe principal, the termination of a claim against its agentwill extinguish the vicarious liability claim against the prin-cipal. Thus, if Ross had released Sentry of all liability, suchrelease would have effectively released Foremost as well.

Conversely, in such circumstances where a plaintiff sur-renders vicarious liability claims only, while expressly pre-serving claims against an agent, the parties to the Release

will be entitled to effectuate their express intentions, andthe court will generally uphold the provision. Accordingly,the release of Foremost, as the vicariously liable party, didnot operate to relieve Sentry of liability for the underlyingclaims because Ross included an express reservation of therights in the language of the Release.

Nonetheless, where the underlying claims preservedagainst the agent lack merit, like Ross’s claims againstSentry, the court will still grant judgment in favor of theagent. The underlying claims preserved against Sentry,which were premised upon common law fraud, misrep-resentation and negligence, were not actionable becauseSentry disclosed to Ross that flood coverage was exclud-ed from the policy and because Ross was aware of therisk of flood.

Accordingly, although Ross expressly reserved his rightsagainst Sentry in the language of the Release, the SuperiorCourt upheld the judgment in Sentry’s favor because Ross’sclaims against Sentry were not actionable. ★

One of the most significant areasof change targeted by the Legislature inAct 57 was the concept of “earningpower.” Prior to Act 57, the infamousKachinski standard governed theemployer’s burden of proof whenattempting to modify benefits. Underthis standard, the employer was basi-cally obliged to spoon feed open jobsto a claimant and more often than not

would lose petitions if the claimant was not hired. Section306(b)(2) of the Act (which was an integral part of Act 57)decidedly changed the employer’s burden of proof by allow-ing an employer to obtain a modification of benefits basedon evidence of earning power proven through expert testi-mony. Job referrals were replaced by establishing substantialgainful employment opportunities in the geographical areawhere the claimant works—a much more favorable standardfor employers to meet.

This clear legislative mandate was followed by judicialdeterminations that arguably failed to fully recognize thesenew and much needed employers’ rights. At first, theclaimant bar argued that jobs listed in an earning powerassessment must be “offered” to a claimant to be binding.Next, it was argued that jobs in a labor market survey mustbe proven “available” by intricate webs of evidence that wentfar beyond legislative intent. In a real way, more than tenyears after the implementation of Act 57, the proverbial“earning power evaluations” were nothing more than a toolto settle cases, with no firm foothold in its true origin as atool to modify benefits. The Kachinski standard was not dead

as the tenets of its faith were still being accepted in defense toemployers’ petitions.

In the landmark case of Phoenixville Hospital v. W.C.A.B.(Shoap), the Pennsylvania Commonwealth Court declined toresuscitate the Kachinski standard and apply it to an earningpower evaluation. This case involved an employer modifica-tion petition filed based on an established earning power of theclaimant proven through a labor market survey. The claimantapplied for positions listed in the labor market survey and wasnot hired for any of the jobs. Most of the jobs listed werealready filled by the time the claimant had applied. Thus, theclaimant argued that a “good faith” effort was made to applyfor the jobs and, since she was not hired, the jobs were notavailable within the meaning of the Act. This argument wasobviously resurrected from the bowels of Kachinski. Inresponse, the court held that each individual job listed in alabor market survey is “available” to a claimant as long as thejob is open at the time it is identified by the vocational expertas an employment opportunity. This is so even if a claimantapplies for the job at a later time and is not hired. The courtfurther reasoned that “the jobs contained in any labor marketsurvey are not meant to provide an exact calculation of theinjured worker’s earning power… rather, they are to provide anapproximation of her potential earnings.” At last, the exact lan-guage used in Act 57 formulated a basis for a decision that fol-lows legislative intent.

The immediate affect of the decision is clear—the “goodfaith” standard of Kachinski is inapplicable to earning powerevaluation cases. The claimant bar cannot resurrect this stan-dard any longer in an attempt to undermine employer rights.This decision gives hope to the notion that the full legislativeintent of Act 57 will now control. Speaking from the side ofthe employer, there is nothing more profound than hope. ★



Pennsylvania—Workers’ Compensation

DING DONG KACHINSKI’S DEAD: COMMONWEALTHCOURT DECLINES TO RESUSCITATE

By Anthony Natale, III, Esq.*

* Tony is a shareholder who works in our Philadelphia, Pennsylvania, office andcan be reached directly at (215) 575-2745 or by email at [email protected].

● Commonwealth Court decides that a “good faith” follow through on jobs listed in a labor mar-ket survey is not detrimental to a modification petition.

● A job listed in a labor market survey is available as long as it is open at the time the vocational coun-selor identifies it in the labor market survey as a job opportunity.

● The jobs listed in a labor market survey are not job referrals but a snapshot of the gainful employ-ment opportunities in the area where the claimant works.

KEY POINTS:

Anthony Natale, III



* Prior Results Do Not Guarantee A Similar Outcome (continued on page 26)

Chuck Craven (Philadelphia, PA) succeeded in persuadingthe Pennsylvania Superior Court to affirm the dismissal of atax dissenter’s lawsuit against a bank. In response to a levyimposed by the federal Internal Revenue Service on theplaintiff ’s bank accounts for unpaid income taxes, the bankpaid the tax lien from the accounts, and the plaintiff suedthe bank to recover the payment, additional damages, attor-ney’s fees and costs. In a long and convoluted argument, theplaintiff contended that the bank had no authority underthe state banking law to honor and pay the levy. However,following the lead of several courts in other states, the trialcourt held that the bank was obliged to make the paymentand was immune from discharging that obligation under thefederal Internal Revenue Code, 26 U.S.C. § 6332(e). TheSuperior Court agreed and affirmed the trial court’s dis-missal of the plaintiff ’s lawsuit. McGeady v. QNB, No. 1616EDA 2009 (3/29/09).

Thomas DeLorenzo and Ronda O’Donnell (Philadelphia,PA) successfully obtained the Third Circuit’s affirmance ofthe District Court’s order granting summary judgment in aputative medical monitoring class action arising out of aneighborhood exposure to beryllium dust and fumes fromthe defendants’ plant for multiple decades. The defendantsargued, and the Third Circuit agreed, that the plaintiffs wereunable to satisfy the requirements of a medical monitoringcase set forth in Redland Soccer Club, Inc. v. Dep’t of theArmy, 696 A.2d 137 (Pa. 1997) in that, based upon the fac-tual record and expert opinions, the plaintiffs were unable toestablish that they were at a significant risk of developingdisease because of the alleged exposure. The Third Circuitheld that in looking to Pohl v. NGK Metals Corp., 936 A.2d43 (Pa. Super. 2007), alloc. denied, 952 A.2d 678 (Pa.2008), the District Court correctly predicted how the Penn-sylvania Supreme Court would rule. Sheridan v. NGK Met-als, 2010 U.S. App. LEXIS 11485 (3d. Cir., June 7, 2010).

Chuck Craven (Philadelphia, PA), in a case defended in the trial court by Ed Schwartz (Harrisburg, PA), succeeded in persuading the Superior Court of Pennsylvania to affirm theforum non conveniens dismissal of the case on the basis that itshould have been commenced in Maryland rather than in Penn-sylvania. The case involved claims for compensatory, consumerfraud and bad faith damages under an insurance policy that

covered a building that was damaged by fire. The plaintiffs, residents of New Jersey who had a business office in New York,owned the building, which was located in Maryland and houseda restaurant. The plaintiffs used a Maryland insurance agentto obtain coverage for the building, including the restaurant.The agent engaged the Maryland office of a multi-state bro-ker, which obtained coverage from a Pennsylvania insurer.The insurance policy conditioned its fire insurance coverageon the presence of fire protective safeguards, but the plain-tiffs claimed they never received a copy of the policy withthat provision. An investigation after the fire revealed thatthe required safeguards had not been installed. Coverage wasdenied, and the plaintiffs sued the insurer in Pennsylvania.The insurer in turn joined the agent and moved for dis-missal of the case on forum non conveniens grounds.Although the plaintiffs insisted that their choice of forumcould not be easily trumped, and that the main thrust oftheir case was the bad faith claim against the Pennsylvaniainsurer, the defendants demonstrated that the case had sig-nificant public and private contacts with Maryland thattrumped the plaintiffs choice of Pennsylvania as theirforum, and that plaintiffs could recommence their case inMaryland. Based on those factors, the trial court dismissedthe case without prejudice to plaintiffs’ bring it in Mary-land, and the Superior Court affirmed that decision.Lewittmann v. Mt. Vernon Fire Ins. Co., 2165 EDA 2008(Pa. Super., June 15, 2010).

Audrey Copeland (King of Prussia, PA) persuaded the ThirdCircuit to affirm the District Court’s denial of post trialmotions in an FMLA discrimination case tried by Teresa Siri-anni (Pittsburgh, PA) to a defense verdict. The plaintiff, a cityemployee, was terminated after proceeding through the city’sprogressive discipline system based upon his excessive unex-cused absences (primarily on Fridays) and by reasons of hisviolation of multiple city policies regarding “calling in” suchabsences and reporting work injuries. While the plaintiffmade numerous disparate medical excuses at various meetingsrelating to his misconduct (one of which the jury found to be “serious”), he never notified the city that he suffered froma serious health condition for which he needed leave. One ofthe final episodes involved the plaintiff ’s questionable claimthat while performing his job inspecting contractors’ work,

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he suffered a first-time fainting episode, yet did not reportthis when he called in to work for his next assignment forthe day. Rather, despite having fainted, he drove his person-al (rather than city) vehicle to his home on the way to hisnext assignment, whereupon he allegedly fainted a secondtime at home and was discovered unconscious hours later bya friend whom the plaintiff had pre-arranged to meet at hishouse during his working hours. The plaintiff then demand-ed admission to the hospital the next day, where he wasdiagnosed only with “fainting,” neglected to follow up withany tests, and did not ask for leave at his next due processhearing several days later. The court held that the DistrictCourt erred in disallowing a claim for interference basedupon the recent Erdman v. Nationwide Ins. Co., 582 F.3d500, 509 (3d Cir. 2009) (allowing both theories when a discharge in violation of the FMLA is alleged) and in reversing its own prior ruling on partial summary judgmentthat plaintiff proved notice. However, such error was notreversible. The court reasoned that the plaintiff failed todemonstrate that he was prejudiced as a result of the rulingrequiring submission of the notice issue to the jury and thatthe evidence was adequate to support the jury’s conclusionthat the plaintiff ’s notice was not sufficient under theFMLA. Hayduk v. City of Johnstown, 2010 U.S. App.LEXIS 13630 (3d Cir., July 2, 2010).

Chuck Craven (Philadelphia, PA) succeeded in persuadingthe Superior Court of Pennsylvania to affirm the summaryjudgment that Paul Lees (Bethlehem, PA) won from theNorthampton County Court of Common Pleas in a legalmalpractice case. Although the plaintiff ’s attorney filed acertificate of merit, he never provided an expert’s report onliability, despite numerous requests for the report, ordersand directives from the trial court, and promises fromplaintiff ’s counsel himself over several years. Because thecase had not moved forward and was stalled by the tacticsof the plaintiff ’s attorney, Paul filed a motion for summaryjudgment, detailing the pertinent history of the case andasserting that the defendant was entitled to summary judg-ment because the plaintiff could not prove her case on theexisting record. The plaintiff ’s response yet again promisedthe production of an expert, but that promise was not real-ized even by the time that the trial court held oral argumentand took the matter under advisement. The trial courtgranted the defendant’s motion, and the plaintiff moved forreconsideration, submitting an expert report with themotion, ironically authored by the lawyer who provided thereview for the certificate of merit years earlier. The trialcourt denied reconsideration, and the plaintiff appealed.

On appeal, the Superior Court affirmed the grant of sum-mary judgment in an opinion that castigated the plaintiff ’sappellate brief and argument. Noting that the plaintiff ’s“prolix” statement of the issue on appeal “violated the Rulesof Appellate Procedure” and was “fraught with mischarac-terizations of the record, including the representations thatthe trial court issued only an ‘oral admonition’ and thatappellant had ‘fully complied with the only order againsther,” the Superior Court pointed out that, “[I]n fact, therecord before the trial court was replete with plaintiff ’scounsel’s abuse of the indulgences bestowed upon him byboth the trial court and defense counsel, both of whomwere forced to suffer the consequences of counsel’s dilatorybehavior.” Anderson v. Ceraul, 2180 EDA 2008 (Pa. Super.,July 2, 2010).

Audrey Copeland (King of Prussia, PA) successfullydefended the claimant’s appeal of the Workers’ Compensa-tion Appeal Board’s decision obtained by Jennifer Callahan(Scranton, PA) in the Commonwealth Court of Pennsylva-nia. The court agreed that the Workers’ CompensationJudge on remand had correctly granted benefits for a closedperiod and had properly denied unreasonable contest attor-ney’s fees because the employer had genuinely disputed theissue of the claimant’s disability throughout the proceedings.The court agreed that ongoing benefits during the pendencyof the proceedings had been properly denied, reasoning thatneither the Workers’ Compensation Judge nor the AppealBoard ever found that the claimant suffered any disabilitybeyond the closed period and that, as of that date, theclaimant was fully recovered from her work-related injury.Atwell v. W.C.A.B. (Lake Lehman School District), 1813 C.D.2009 (Pa. Cmwlth. April 21, 2010).

Stephen Poljak (Fort Lauderdale, FL) and AudreyCopeland (King of Prussia, PA) succeeded in obtaining theSuperior Court’s affirmance of the dismissal of an actionbrought by a disgruntled purchaser against an absentee seller and a realtor based upon a real estate transaction. Thecourt affirmed the trial court’s order sustaining the defen-dants’ preliminary objections on the negligence and negli-gent misrepresentation claims on the basis of both the economic loss and gist of the action doctrines where theplaintiff failed to address the former in his appeal. The courtalso affirmed the trial court’s grant of summary judgment onthe fraudulent misrepresentation claim, finding that theplaintiff could not establish that the defendants knowinglymade misrepresentations so as to conceal or deceive him asto the condition of the sewage system on the property.McDonald v. Household Finance Consumer Discount Co., 331WDA 2009 (Pa. Super, April 22, 2010). ★



FIRM BACK GROUND AND STATE MENT OF PUR POSEMarshall, Dennehey, Warner, Coleman & Goggin, a professional corporation, was founded in 1962. Since that time, our

law firm has realized substantial growth in response to our continually expanding client base. We are exclusively a defensefirm, and our pro fes sion al practices encompass a wide spectrum of litigation matters. We apply business discipline to thepractice of law with resulting cost savings to our clients.

We are over 400 attorneys strong and have nineteen offices strategically located in Pennsylvania, New Jersey, Delaware,Ohio, Florida, and New York. Devoted to defense alone, our firm consists of a number of litigation practice groups, including:

CASUALTY DEPARTMENT:Thomas A. Brophy, Esquire—Director1845 Walnut Street, Philadelphia, PA 19103(215) 575-2748 • Fax (215) 575-0856E-Mail: [email protected], Sports & Entertainment Practice GroupAutomobile Liability Practice GroupAviation Practice GroupClass Action Litigation Practice GroupGeneral Liability Practice GroupHospitality Litigation Practice GroupMaritime Litigation Practice GroupMedical Devices & Phar ma ceu ti cal Prac tice GroupProduct Liability Practice GroupProperty Litigation Practice GroupRetail Liability Practice GroupSpecial Investigation Litigation Practice GroupTrucking & Transportation Liability Practice Group

HEALTH CARE LIABILITY DEPARTMENT:Kathleen S. McGrath, Esquire—Director620 Freedom Business Center, Suite 300King of Prussia, PA 19406(610) 354-8255 • Fax (610) 354-8299E-Mail: [email protected] Law Practice GroupHealth Care Liability Practice GroupLong-Term Care Practice Group

PROFESSIONAL LIABILITY DEPARTMENT:Philip B. Toran, Esquire—Director1845 Walnut Street, Philadelphia, PA 19103(215) 575-2813 • Fax (215) 575-0856E-Mail: [email protected] Advocacy & Post-Trial Practice GroupArchitectural, Engineering & Construction Defect Practice GroupConsumer & Credit Law Practice GroupDefective Drywall Practice GroupEnvironmental & Toxic Torts Practice GroupInsurance Coverage & Bad Faith Practice GroupLife, Health & Disability Practice GroupProfessional Li a bil i ty Prac tice GroupPublic Entity & Civil Rights Litigation Prac tice GroupReal Estate E & O Practice GroupSecurities & Investments Professional Liability Practice GroupTechnology, Media & Intellectual Property Practice Group

WORKERS’ COMPENSATION & EMPLOY-MENT PRACTICES DEPARTMENT:Peter S. Miller, Esquire—Director1845 Walnut Street, Philadelphia, PA 19103(215) 575-2610 • Fax (215) 575-0856E-Mail: [email protected]

Surveys of the nation’s largest firms con sis tent ly show our firm to be a leader in mi nor i ty hiring and advancement.Our continued dynamic growth and the ex pan sion of our client base constitute the best evidence that we are

effectively meeting our cli ents’ business needs and ex pec ta tions. We are very proud of our success. We will striveto continue to be part of yours.



ABOUT OUR PUBLICATIONOur experience confirms that effective risk and claims management must be founded upon timely in for ma tion.

Our firm is dedicated to prompt, informative reporting to our clients.

This publication is offered to furnish our views on current court decisions and other matters that may be of in ter est to our clients on a variety of topics not spe cif i cal ly related to any particular claim. This publication is pro vid edfree of charge and with out a pro fes sion al relationship to any particular person, entity, or claim. The views ex pressed arethose of the authors and are not to be construed or used as professional advice.

Our firm welcomes inquiries, comments, and suggestions regarding this publication or other ques tions, whichmay be directed to:

Peter S. Miller, Esquire Thomas A. Brophy, Esquire Philip B. Toran, EsquireChairman & COO President & CEO Chairman, Executive Committee1845 Walnut Street 1845 Walnut Street 1845 Walnut StreetPhiladelphia, PA 19103 Philadelphia, PA 19103 Philadelphia, PA 19103(215) 575-2610 (215) 575-2748 (215) 575-2813email: [email protected] email: [email protected] email: [email protected]

Defense Digest is also available online at www.marshalldennehey.com.

Our other newsletters, Law Alerts and What’s Hot in Workers’ Comp, are also available on the PublicationsPage on our web site.

If you would like to receive your copy of any of our newsletters via e-mail, or if you would like to beremoved from our mailing list, contact [email protected] with your information.

This newsletter is prepared by Marshall, Dennehey, Warner, Coleman & Goggin to provide information on recent legaldevelopments of interest to our readers. This publication is not intended to provide legal advice for a specific situation orto create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on theseand other subjects when called upon.

Defense Digest is published by our firm, which is exclusively a defense litigation law firm with over 400 attorneys working out of 19offices in the states of Pennsylvania, New Jersey, Delaware, Ohio, Florida, and New York. In some jurisdictions this publica-tion may be considered attorney advertising.

Copyright © 2010 Marshall, Dennehey, Warner, Coleman & Goggin, all rights reserved. No part of this publication may bereprinted without the express written permission of our firm. For reprints or inquiries, contact [email protected]. If youwish to be removed from this mailing list, contact [email protected].

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