Defense. Digest. On The Pulse. 20 th Year in Publication! Marshall Dennehey EXPANDING OUR PRESENCE IN OHIO

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1 Marsha Dennehey Warner COeman & Goggin Voume 20 No. 1 March 2014 Defense Digest 20 th Year in Pubication! On The Puse EXPANDING OUR PRESENCE IN OHIO By Samue G. Casoari, Jr., Esq.* From historic Pubic Square in Ceveand to Fountain Square in Cincinnati, Marsha Dennehey Warner Coeman & Goggin is expanding and strengthening its statewide presence in Ohio. On March 10, 2014, Marsha Dennehey opens its newest office in Cincinnati. Located downtown, right aong the Ohio River bordering Kentucky, the office wi serve the needs of Samue G. Casoari, Jr. cients in the greater Cincinnati region and throughout a of southwestern Ohio. Ray Freudiger and I are the founding sharehoders of the new office, where I wi aso serve as the office s managing attorney. Both Ray and I have statewide practices and represent cients in a the major state and federa courts. My practice incudes casuaty, retai and restaurant iabiity, product iabiity defense, trucking and other civi itigation. A seasoned attorney with decades of ega practice in Ohio, Ray is joining the firm as a sharehoder in the new office. Born and raised in Cincinnati, Ray has over 22 years of itigation experience in a aspects of insurance defense matters, incuding persona injury, premises iabiity, reators errors and omissions, business itigation, poitica subdivision and education aw. Ray s practice encompasses not ony casuaty, but aso professiona iabiity, schoo aw and other compex itigation. Before entering aw schoo, Ray earned a property and casuaty insurance agent icense, deveoping an expertise in insurance contract interpretation that has served him we in his career as an insurance defense attorney. He has successfuy tried numerous jury and bench trias in state and federa courts throughout southwestern, centra, eastern and northeastern Ohio, and he aso represents cients before administrative agencies such as the Ohio Division of Rea Estate and the Ohio Civi Rights Commission. His education aw practice incudes representation of schoo districts and charter schoos on a myriad of matters, incuding specia education, empoyment termination and persona injury. (continued on page 4) OUR CONSUMER FINANCIAL SERVICES LITIGATION AND COMPLIANCE PRACTICE GROUP By Lauren M. Burnette and Andrew M. Schwartz, Esq.* Marsha Dennehey s Consumer Financia Services Litigation and Compiance Practice Group is devoted to handing a itigation and compiance-reated issues facing creditors, financia institutions and the accounts receivabes industry as a whoe. This group services a broad cient base, representing the interests of debt coectors, finance companies, Lauren M. Burnette enders and servicers, teecommunication providers, coection attorneys, creditors, credit reporting agencies and third-party debt buyers. Our cients range from soo practitioner coection attorneys to arge institutiona cients with nationa and internationa operations. As the increasingy sophisticated consumer paintiffs bar continues to push the boundaries of consumer financia services itigation, we Andrew M. Schwartz vigorousy defend our cients interests in state and federa courts, guide them through reguatory investigations and enforcement actions, and give them the toos they need to minimize risk, mitigate oss and avoid unnecessary exposure. Few industries face the rapid change to which our cients have necessariy become accustomed. As the andscape of aws and reguations affecting our industry shift, we are dedicated to keeping abreast of important deveopments and assisting our cients in navigating an environment in which federa and state consumer aws undergo near-daiy change. Our group members make it a priority to keep current with new ega ruings, ongoing enforcement actions, itigation trends and reguatory findings so that we can consistenty provide our cients with the up-to-the-minute representation and guidance they need. Our group has a demonstrated track record of successfuy representing our cients in individua caims and cass actions in (continued on page 4) * Sam is the managing attorney for our Cincinnati, OH office. He can be reached at or * Lauren can be reached at or Andrew can be reached at or Vo. 20, No. 1 March 2014

2 Page 2 Defense Digest On The Puse Expanding Our Presence In Ohio Our Consumer Financia Services Litigation and Compiance Practice Group A Message From the Executive Committee On The Puse IN THIS ISSUE Important and Interesting Litigation Achievements Our Office Locations and Contact Information Our Recent Appeate Victories Other Notabe Achievements Firm Background and Statement of Purpose About Our Pubication FEDERAL Maritime Litigation Brief Overview of Shipowner s Limitation of Liabiity Act History, Procedure and Recent Trends Workers Compensation/Back Lung That 70s Show: ObamaCare Takes Federa Back Lung Caims Back In Time FLORIDA Professiona Liabiity The Rise of Lega Mapractice Lawsuits Pubic Entity/Civi Rights Patienty Waiting For the Forida Supreme Court To Decide Whether Pregnant Women Are Protected Under the Forida Civi Rights Act White Coar Crime How Giving Lega Advice Can Lead To a Crimina Indictment NEW JERSEY Asbestos Forum Non-Conveniens and Choice of Law In New Jersey Asbestos Litigation Heath Care Liabiity Prescribing High Potency Medication To a Known Drug Abuser: Is the Doctor Liabe for Resuting Injuries? NEW JERSEY (cont.) Workers Compensation Merey Dictum or Controing Decision? Recent Appeate Decision Addresses Right To Section 40 Recovery Against UIM Poicy PENNSYLVANIA Automobie Liabiity The Phantom Vehice: Prejudice In Deayed UM Caim Not Presumed, But Certainy Demonstrabe Genera Liabiity Defining the Boundaries of Enforceabe Indemnity Provisions Under Pennsyvania Law Genera Liabiity Discovering, Authenticating & Utiizing Socia Media In Litigation: Strategy Considerations Genera Liabiity Forum Non Conveniens: Where Your Convenience Does Not Matter Product Liabiity Wi Pennsyvania Repace the Current Standard of Strict Liabiity For Design Defects With the Negigence Incusive Anaysis of Section 2 of the Third Restatement of Torts? Pubic Entity & Civi Rights Occupant In a Feeing Vehice Is Not An Innocent Bystander Or Is He? Vo. 20, No. 1 March 2014

3 Defense Digest Page 3 Yes, the rumor is true. I wi be retiring on June 30, Since this is the ast time I wi be writing this message from the Executive Committee, I have been granted the indugence of my feow Executive Committee members, Tom Brophy and Chris Dougherty, to make this message a bit more persona. I wish to extend my thanks to a number of peope who have made my career with the firm so fufiing. I sti have a vivid memory of the day that I got off the eevator at 1515 Locust Street to be interviewed by Bob Coeman. I was not from the Phiadephia area and knew no one in the ega community. I had just finished my tour of duty with the First Infantry Division where I served as a JAG officer. Having tried over 300 miitary justice trias, I knew that I wanted to be a tria awyer and that the ony pace to be a tria awyer in Pennsyvania was Phiadephia. As I was getting off the eevator, Jack Penders was getting onto the eevator with two tria bags in hand. He was off to a tria. I thought this was a sign that I had found the firm of tria awyers that I was ooking for. I aso vividy remember that after Bob Coeman finished interrogating me, he waked me to Bob Goggin s office. Since Bob Goggin had previousy been a JAG officer himsef, I figured Bob Coeman wanted Bob Goggin to see if I was for rea. We, ong story made short, I was hired to work for Frank Marsha. I wi never forget the years that I worked as Frank s bag man. What an experience! Frank was the consummate tria awyer. If Frank were sti with us, I woud extend to him my heartfet thanks for, among other things, teaching me the subteties and nuances of advocacy. As I grew in the firm, Bob Coeman gave me the opportunity to become invoved in the management of the firm. I wi not bore you with the various roes that I payed in midde management within the firm; but, suffice it to say, Bob entrusted me with greater and greater responsibiities as time passed. I wi forever be indebted to Bob for seeing something in me that I never knew existed. Finay, as Bob neared his retirement, he enabed me, aong with Tom Brophy and Phi Toran, the opportunity to assume the roe as the next generation of eadership within the firm. Noteworthy is the fact that none of us was schooed in how to run a business. However, the combination of ski sets and personaities unique to each of us reveaed an effective eadership and management team that ed the firm to its present heights. I iken our union to that of * Pete works in our Phiadephia, Pennsyvania, office and can be reached at or A MESSAGE from the EXECUTIVE COMMITTEE Vo. 20, No. 1 March 2014 stee cabe. The strength of each strand of wire, standing on its own, paes in comparison to the many strands woven together to make the cabe. Again, I wi forever be indebted to Bob Coeman for weaving the three of us together. Aso, I wi forever be gratefu for the priviege of serving on the firm s Executive Committee with Tom and Phi. What excites me the most is what I envision for the firm. The integrity of Chris Dougherty, the newest member of our Executive Committee and Chairman of the Board of Directors, is unparaeed. Doc s upbringing and previous career in the Marine Corps have moded him into the true genteman that he is. My repacement on the Executive Committee, Mark Thompson, is aso a person of impeccabe character. What aso distinguishes Mark is the fact that he came to us from another firm and that he has spent the ast severa years overseeing the growth of a of our Forida offices. The integrity, character, humiity and ife experiences of Chris and Mark wi transate into an even stronger Executive Committee for the firm. I am equay excited at the prospect of Niki Ingram repacing me as the Director of our Workers Compensation Department. Circumstances warranted my assumption of the Workers Compensation Department, not my ega expertise in this fied. I am pretty sure everyone both our attorneys as we as our cients wi wecome a director who actuay has an expertise in workers compensation aw. On top of that, Niki is aso one of the most genuine and honest peope I have ever known. Speaking of honesty and integrity, I am peased that Buter Buck Buchanan wi be assuming the roe of Managing Attorney of our Phiadephia office upon my departure. Buck has become the face of the firm in the Phiadephia ega community. It is ony fitting that he shoud continue in that roe as our Phiadephia Managing Attorney. And ast, but not east, is the assumption of the responsibiities of the firm s Chief Operating Officer by Liz Brown. Liz has served as the firm s Director of Information Technoogy for the past 23 years. In that capacity, she has proven to be a tireess eader as our firm has traversed the daunting word of information technoogy. Liz is probaby the hardest worker I have ever encountered, and she aso has an immense amount of integrity and character. By Peter S. Mier, Esq. Chief Operating Officer (continued on page 9)

4 Page 4 Defense Digest EXPANDING OUR PRESENCE IN OHIO (continued from page 1) Ray is an active member of the Ohio State Bar Association, serving on the Civi Tria Practice Committee, and is a former member of the Aternative Dispute Resoution Committee. He is aso a member of the Ohio Association of Civi Tria Attorneys (OACTA) and the Cincinnati and Dayton Bar Associations. Community invovement is important to Ray. He participates in the pubic teevision fundraiser, Great TV Auction of Think TV, and he has served as a youth mentor for the Goodwi Easter Seas of Miami Vaey. He has aso vounteered for the Montgomery County START Program. Whie the Cincinnati office grows, the Ceveand office strengthens. Lesie Jenny, the new managing attorney of the Ceveand office, eads a dedicated team of professionas in heath care iabiity and other compex defense itigation. Representing medica professionas and providers, incuding physicians, hospitas and nursing home/extended care faciities, Lesie is an experienced itigator who has tried more than 40 cases to verdict. A Certified Professiona in Heathcare Risk Management (CPHRM), she aso counses cients on the prevention, reduction and contro of oss within their organizations. Ceveand sharehoder Andy Wargo heads a casuaty team invoving auto, premises, trucking, product and construction defense. Recenty, both Lesie and Andy successfuy defended their cients in compex jury trias. Our work in Ohio incudes a growing specia investigations/ insurance fraud practice. Beau Hoowe eads this effort and works cosey with Jeff Rapattoni (Cherry Hi, New Jersey) and Jim Coe (Doyestown, Pennsyvania) in that capacity. Recenty, he and Jeff Rapattoni were featured speakers at the annua conference of the Nationa Society of Professiona Insurance Investigators (NSPII), and Beau is activey invoved in NSPII s Ohio Chapter. Aso in Ceveand, Jason Ferrante is an integra part of our Heath Care Liabiity Practice Group and represents hospitas, physicians and other medica practice professionas in a manner of heath care iabiity defense. Jason is admitted to practice in both Ohio and Kentucky. Community service and professiona affiiations and activities are important to a of our Ohio awyers. I am active in education, serving on the Board of Advisers of a aw schoo in Virginia and on the Executive Committee, Governance Committee, and Finance and Audit Committees of the Board of Trustees of Grove City Coege, my ama mater. I previousy served as an adjunct facuty member at the Coege of Mount St. Joseph in Cincinnati and as secretary to the Board of an inner city schoo in Cincinnati. Beau Hoowe is active in his oca community and serves on the Aumni Counci of Westminster Coege, his ama mater. Recenty, Beau became the chair of the Counci s aumni reations and donor reations committee. Beau has aso devoted time to a non-profit organization serving those with specia communication needs. Jason Ferrante is a member of the Ceveand Metropoitan Bar Association s Civiity and Professionaism task force, and his active community invovement incudes serving as secretary of the Charter Commission for the City of University Heights, Ohio. The Ohio awyers, coectivey, beong to such professiona associations as The Defense Research Institute (DRI), the Internationa Amusement & Leisure Defense Association (IALDA), the Nationa Retai & Restaurant Defense Association (NRRDA), the University Risk Management & Insurance Association (URMIA), the Caims & Litigation Management Aiance (CLM) and the American Society for Heathcare Risk Management (ASHRM), among others. Marsha Dennehey is confident that its strengthened presence in Ohio with the addition of Ray Freudiger and a new Cincinnati ocation wi enhance its abiity to deiver exceence in ega representation to cients across the Buckeye state and beyond. Our attorneys in Cincinnati and Ceveand are aready coaborating and sharing resources to service cients in the most efficient and costeffective manner possibe. Whether coser to Pubic Square, or Fountain Square, the firm s attorneys ook forward to working with you and providing soutions to your most compicated ega chaenges for many years to come. n OUR CONSUMER FINANCIAL SERVICES LITIGATION AND COMPLIANCE PRACTICE GROUP (continued from page 1) Pennsyvania, New Jersey, New York, Deaware, Maryand, Forida and the District of Coumbia. We reguary defend credit and coection industry cients in caims under the Fair Debt Coection Practices Act, the Fair Credit Reporting Act, the Teephone Consumer Protection Act, The Eectronic Fund Transfer Act, The Credit Repair Organization Act, and reated federa and state aws. We pride ourseves on providing skied and practica representation of our cients, understanding that the most critica components of our practice are maintaining an open ine of communication with our cients and staying cognizant of their itigation and business needs. Our itigation practice aso encompasses nationwide itigation management, which many cients have found to be a cost-effective and strategic means of ensuring their itigation needs are fufied. In addition to our extensive itigation program, we provide compiance and consuting services to cients nationwide. Rather than empoying a one compiance program fits a mentaity, our group instead crafts its services to meet the needs of each individua cient based upon their industry footprint and areas of risk. We strive to assist our cients in identifying potentia issues and areas of risk, and crafting a pragmatic and appropriate remedy. Our group aso provides readiness assessment services geared toward evauating our cients preparedness for reguatory investigation. (continued on page 9) Vo. 20, No. 1 March 2014

5 Defense Digest Page 5 Federa Maritime Litigation BRIEF OVERVIEW OF SHIPOWNER S LIMITATION OF LIABILITY ACT HISTORY, PROCEDURE AND RECENT TRENDS By Christopher J. DiCicco, Esq.* KEY POINTS: Limitation Act aows vesse owners to imit iabiity to the vaue of the vesse. A Limitation proceeding consoidates caims into a singe federa forum. Despite recent criticism, the Limitation Act remains in force. GENERAL OVERVIEW The Shipowner s Limitation of Liabiity Act (Limitation Act), 46 U.S.C et seq., is one of the distinctive features of United States maritime aw. It gives a vesse owner the right to imit its iabiity in a maritime casuaty (whether it be a caim for cargo damage, coision, persona Christopher J. DiCicco injury or death) to the post-casuaty vaue of the vesse, pus pending freight, so ong as the casuaty was done, occasioned, or incurred without the privity or knowedge of the owner. 46 U.S.C HISTORICAL CONTEXT The Limitation Act was enacted in 1851 to promote and protect the American shipping industry and American shipowners. The rationae for the enactment of the Limitation Act made perfect sense at the time. Seagoing vesses faced the daunting task of traveing around the word with imited communication capabiities. If the vesse was invoved in a significant maritime casuaty, the vesse owner coud have faced iabiity far exceeding the vaue of the vesse. The protections afforded under the Act have been greaty expanded, and owners of recreationa boats have now frequenty initiated imitation proceedings. WHO IS ENTITLED TO LIMIT AND WHAT TYPES OF VESSELS ARE ENTITLED TO LIMIT? In addition to the vesse s actua owner, bareboat charterers have the right to seek the protections of the Limitation Act as we. A bareboat charterer, essentiay a easehoder that obtains possession and fu contro and command of a vesse, is deemed to be an owner pro hac vice and entited to seek imitation of iabiity. See, 46 U.S.C In order to be entited to protection under the Limitation Act, however, the vesse must be operating on navigabe water. Courts have broady construed the term vesse to incude peasure craft such as jet skis. * Chris is an associate in our New York, NY, office who can be reached at or PROCEDURE A vesse owner may assert the Limitation Act offensivey, by commencing a imitation proceeding in a federa district court, or defensivey, by raising imitation as an affirmative defense in either a state or federa court proceeding. Notwithstanding, ony a federa court has jurisdiction to decide the issue of imitation. Therefore, in order to preserve its imitation protections, it woud behoove a vesse owner who has asserted the Limitation Act as a defense in a state court proceeding to simutaneousy fie a petition for imitation in federa court. A vesse owner must fie a imitation petition in a federa district court in the proper venue within six months after the owner received written notice of a caim which may exceed the vaue of the vesse. 46 U.S.C ; See aso, Fed. R. Civ. Supp. Rues F(1) and F(9). Once the imitation proceeding has been commenced, the court (sitting non-jury) must determine whether there was faut on the part of the vesse owner giving rise to iabiity for the caims of each caimant. If such faut is found, the court must then determine whether the vesse owner had the requisite privity or knowedge of such faut. The caimant bears the initia burden of proof with respect to the vesse owner s faut. If the caimant is successfu, the burden shifts to the vesse owner to estabish its ack of privity or knowedge. If the vesse owner is unabe to estabish its ack of privity or knowedge, then the vesse owner wi be unabe to imit its iabiity, and the issue of damages wi be decided in the court where the origina caim was fied. ADVANTAGES OF LIMITATION ACT TO VESSEL OWNERS The benefit to vesse owners of commencing a imitation proceeding in federa district court is the consoidation of caims in a singe federa forum. Such a consoidation of caims is known as concursus. Once such a proceeding is commenced, any and a prior state or federa court proceedings against the vesse owner invoving the same incident are stayed pending the outcome of the imitation proceeding. The court prescribes a monition period during which a caimants must fie caims in the singe imitation proceeding. Where a prior state court proceeding was commenced against the vesse owner, the issue of iabiity wi generay be decided by a judge in the federa court, and the issue of damages woud revert to state court to be itigated and utimatey decided by a jury. (continued on page 9) Vo. 20, No. 1 March 2014

6 Page 6 Defense Digest Federa Workers Compensation/Back Lung THAT 70S SHOW: OBAMACARE TAKES FEDERAL BLACK LUNG CLAIMS BACK IN TIME By A. Judd Woytek, Esq.* Reprinted with permission from by Wes Media Group, Inc. KEY POINTS: The new heath care aw has taken casuaty insurance carriers back to the past. The new heath care aw has removed some of the 1981 restrictions to Back Lung Act benefits and reopened caims that workers compensation carriers thought were finaized ong ago. Two unexpected provisions are tucked into amendments to the Patient Protection and Affordabe Care Act (PPACA). These provisions put casuaty insurance carriers on the hook to pay Back Lung benefits on caims that were cosed many years ago. The Back Lung Benefits Act (BLBA) is Tite IV of the Federa Coa Mine Heath A. Judd Woytek and Safety Act of 1969 that was passed by Congress to address unsafe and oftentimes deady working conditions in the nation s coa mines. The stated purpose of the BLBA is to provide specified benefits to coa miners who are totay disabed due to pneumoconiosis, aso known as Back Lung a chronic ung disease caused by the accumuation of coa dust in the ungs. The BLBA aso provides benefits to surviving spouses or dependents of coa miners whose death was caused or hastened by pneumoconiosis. The BLBA has been amended severa times since its enactment: Amendments in the 1970s made it easier for caimants to be awarded benefits. Amendments in 1981 restricted eigibiity by changing severa provisions of the act. Then, on March 23, 2010, the PPACA was signed by President Obama. The amendments to the PPACA were proposed by now deceased Senator Robert Byrd of West Virginia. The amendments are appicabe to caims for Federa Back Lung benefits fied after January 1, 2005, that were pending on or after March 23, The PPACA revived two provisions of the BLBA that had been eiminated in the 1981 amendments to the act. The first provision resuscitated by the PPACA was the provision known as the 15- year presumption. * Judd is a sharehoder in our Bethehem, Pennsyvania, office who can be reached at or Under the 15-year presumption provision, a coa miner who has estabished 15 years of quaifying underground coa mine empoyment and is abe to prove that he suffers from a totay disabing respiratory condition is entited to a rebuttabe presumption that his tota disabiity was caused by coa workers pneumoconiosis. The miner is entited to this rebuttabe presumption even if the X- ray evidence submitted by the parties is negative for the presence of coa workers pneumoconiosis. The burden of proof then shifts to the empoyer to rebut this presumption by showing that the miner s respiratory disabiity is not caused by pneumoconiosis. (Section 411(c)(4) of the act, 30 U.S.C. Section 921(c)(4).) The other provision of the BLBA that was revived by the PPACA pertains to survivors or widows caims. Prior to the 1981 amendments to the act, a coa miner s surviving spouse or other dependent ony had to provide evidence that the deceased miner was coecting Federa Back Lung benefits prior to his death in order to receive an automatic continuation of his benefits. The 1981 amendments changed a that, and from 1981 unti 2010, a surviving spouse or dependent had to fie his or her own caim for survivor s benefits in which he or she woud have to prove that coa workers pneumoconiosis caused, contributed to or hastened the deceased coa miner s death. In other words, the automatic award to the surviving spouse or dependent was eiminated in Hop in your DeLorean, turn on the fux capacitor and time trave forward to The PPACA has reinstituted the automatic award provisions of the act for survivors of deceased coa miners who were coecting Federa Back Lung benefits at the time of their death. (30 U.S.C. Section 932().) This reinstatement of the award provisions is not good news for insurance carriers. Since the 2010 PPACA amendments appy retroactivey to caims fied after January 1, 2005, that are pending on or after March 23, 2010, it has caused the proverbia foodgates to open. The change has brought about a deuge of new caims fied on behaf of surviving spouses and dependents and has burdened insurance companies with huge benefit payments for caims they thought were cosed and finaized years and years ago. (continued on page 13) Vo. 20, No. 1 March 2014

7 Defense Digest Page 7 Forida Professiona Liabiity THE RISE OF LEGAL MALPRACTICE LAWSUITS By Rocco J. Carbone, III, Esq. and John Viggiani, Esq.* KEY POINTS: Lega mapractice awsuits are on the rise in every area of practice. Those in privity of contract, or third party beneficiaries to the representation in issue, are the ony individuas who may bring a ega mapractice action. Generay, there is a two-year statute of imitations that does not begin to accrue unti the injured party knew, or shoud have known, of the redressabe harm or injury. Recenty, there has been an aarming increase in ega mapractice awsuits in a practice areas. This artice discusses the appicabe standard of proof and the statute of imitations for these actions. Generay, in the context of a ega mapractice action, a paintiff must pead and prove three eements: (1) empoyment of the awyer; (2) the awyer s negect of a Rocco J. Carbone, III reasonabe duty; and (3) oss to the cient proximatey caused by the awyer s negigence. Law Office of David J. Stern, P.A. v. Sec. Nat Servicing Corp., 969 So.2d 962, 966 (Fa. 2007). Regarding the first eement, the paintiff must prove that the awyer was empoyed with respect to the particuar representation at issue. Gutter v. Wunker, 631 So.2d 1117 (Fa. 4th DCA 1994) (affirming dismissa for faiure to John Viggiani aege attorney/cient reationship). In other words, these actions require privity of contract between the paintiff and the attorney. Ange, Cohen and Rogovin v. Oberon Inv., N.V., 512 So.2d 192 (1987). In Ange, this empoyment reationship was apty described by the Forida Supreme Court when it stated: Forida courts have uniformy imited attorneys iabiity for negigence in the performance of their professiona duties to cients with whom they state privity of contract. However, an attorney must aso be aware of potentia third-party beneficiaries to the empoyment agreement with the attorney. Where a party wi ceary benefit as a third party to the attorney/cient reationship of another, this third-party beneficiary may aso bring a caim for ega mapractice. In evauating whether a third party has standing to bring such an action, it must be determined whether it was the apparent intent of the cient to benefit the third party. Greenberg v. Mahoney, Adams & Criser, P.A., 614 So.2d 604, 605 (Fa. 1st DCA 1993). This third-party beneficiary exception typicay * Rocco and John work in the firm s Jacksonvie, Forida, office. Rocco, who is an associate, can be reached at or John, a sharehoder, can be reached at or occurs in cases of adoption and the drafting of wis, where the testamentary intent as expressed in the wi is cear, but frustrated due to the awyer s negigent drafting. See Espinosa v. Sparber, Shevin, Shapo, Rosen and Heibronner, 586 So.2d 1221 (Fa. 3d DCA 1991). Whether representation has been estabished may be a factua determination. See Davis v. Hathaway, 408 So.2d 688 (Fa. 2d DCA 1982) (reversing summary judgment due to dispute regarding the scope of attorney s services in the sae of a business). However, it may aso be a ega issue, where the record is devoid of any evidence of representation by the attorney. See Ginsberg v. Chastain, 501 So.2d 27 (Fa. 3d DCA 1986). Once privity has been pead or proven, the question turns to the second eement. The awyer s negect of a reasonabe duty stems from the fact that [a] awyer owes to the cient a duty to exercise the degree of reasonabe knowedge and ski which awyers of ordinary abiity and ski possess and exercise. Home Furniture Depot, Inc. v. Entevor AB, 753 So.2d 653, 655 (Fa. 4th DCA 2000). To estabish this eement, the paintiff must prove that the awyer s conduct fe beow the requisite standard of care. Daytona Dev. Corp. v. McFarand, 505 So.2d 464 (Fa. 2d DCA 1987). Essentiay, the issue turns on whether the attorney negected to perform the services that he or she expicity, or impiedy, agreed to when accepting empoyment. Home Furniture Depot, Inc. v. Entevor AB, 753 So.2d 653, 655 (Fa. 4th DCA 2000). Fufiment of one s duty does not require an attorney to accuratey predict unsetted areas of the aw, or to inform the cient of conficting aw, uness the conficting aw wi soon be answered by controing authority. Stake v. Haran, 529 So.2d 1183, 1186 (Fa. 2d DCA 1988). Regarding the third eement, the paintiff must prove that the awyer s negigence was the proximate cause of the cient s damages. Goodwin v. Aexatos, 584 So.2d 1007 (Fa. 5th DCA 1991). If the cient cannot show that it woud not have suffered harm but for the attorney s negigence, the cient wi not prevai. KJB Viage Property, LLC v. Craig M. Dorne, P.A., 770 So.3d 727, 730 (Fa. 3d DCA 2011). The paintiff is required to show that the attorney s actions or inaction resuted in an adverse outcome in the underying awsuit that aso resuted in damages. Siverstrone v. Ede, 721 So.2d 1173, 1175 (Fa. 1998). The paintiff must prove (continued on page 13) Vo. 20, No. 1 March 2014

8 Page 8 Defense Digest Forida Pubic Entity/Civi Rights PATIENTLY WAITING FOR THE FLORIDA SUPREME COURT TO DECIDE WHETHER PREGNANT WOMEN ARE PROTECTED UNDER THE FLORIDA CIVIL RIGHTS ACT By Jeannie Liebegott, Esq.* KEY POINTS: Forida Supreme Court is considering whether pregnant women are protected in the workpace. Forida Civi Rights Act is sient as to whether pregnancy is protected in Forida. Jeannie Liebegott There is currenty a confict within the Forida circuits on the issue of whether the Forida Civi Rights Act ( , Forida Statutes) protects against workpace discrimination based on pregnancy. This issue was heard by the Forida Supreme Court in ate May 2013, in the case of Deva v. The Continenta Group, Inc., 96 So.3d 956 (Fa. 3rd DCA 2012), and the ruing is sti pending. The Forida Civi Rights Act of 1992 (FCRA) states in : It is an unawfu empoyment practice for an empoyer: (a) to discharge or to fai or refuse to hire any individua, or otherwise to discriminate against any individua with respect to compensation, terms, conditions, or privieges of empoyment, because of such individua s race, coor, reigion, sex, nationa origin, age, handicap, or marita status. The Pregnancy Discrimination Act of 1978 (the PDA), 42 U.S.C. 2000(e)(k), specificay states that discrimination based on pregnancy is sex discrimination and vioates Tite VII, The PDA directs that [t]the terms because of sex or on the basis of sex incude, but are not imited to, because of or on the basis of pregnancy. Deva, 96 So.3d at 957. In Deva, the Third District Court of Appeas hed that the FCRA does not prohibit pregnancy discrimination based on the Forida egisature s faiure to add anguage simiar to the PDA [Tite VII of the Federa Civi Rights Act as amended by Pregnancy Discrimination Act (PDA)] to the FCRA when it was enacted in Deva hed that the []egisature did not intend to incude a proscription on pregnancy discrimination in the FCRA. The court adopted the rationae by the First District in O Loughin v. Pinchback, 579 So.2d. 788 (Fa. 1st DCA 1991). * Jeannie is an associate in our Fort Lauderdae, Forida, office who can be reached at or Conversey, the Fourth District Court of Appeas reversed the ower court s ruing in Carsio v. City of Lake Worth, 995 So.2d 1118 (Fa. 4th DCA 2008), stating that it is we-estabished that if a Forida statute is patterned after federa aw, the Forida statute wi be given the same construction as the federa courts give the federa act. In Carsio, the empoyee sued her empoyer, aeging pregnancy discrimination and retaiation under the FCRA. The empoyee had requested an accommodation in the fire department because she was pregnant. She was offered a ight-duty assignment, but not with the fire department. The empoyee aeged that other empoyees with physica restrictions had been accommodated within the fire department. In Carsio, the Fourth District Court of Appeas appied Jackson and hed that the FCRA has aways prohibited pregnancy discrimination, except for the brief period whie Gibert (1976 U.S. Supreme Court opinion which resuted in the PDA being passed by Congress) was good aw. The Carsio court concuded by stating that a prohibition on pregnancy discrimination under the FCRA is consistent with the expressed intent of the egisature and shoud iberay be construed for victims of empoyment discrimination. The court focused on the fact that when the egisature enacted the PDA, it ceary expained that it intended to prohibit pregnancy. Because it was the intent of Congress in 1964 to prohibit this discrimination, and under Jackson [State v. Jackson, 650 So.2d 24 (Fa. 1985)] we construe Forida statutes patterned after federa statutes in the same manner that the federa statutes are construed, it foows that the sex discrimination prohibited in Forida since 1972 incuded discrimination based on pregnancy. This is a matter of first impression for the Forida Supreme Court and wi hopefuy answer the question of whether pregnant women are, in fact, protected under the Forida Civi Rights Act. As addressed in Carsio, The ack of such an amendment [to the FCRA, simiar to the PDA] in Forida is what underies the controversy as to whether Forida prohibits pregnancy discrimination. n Vo. 20, No. 1 March 2014

9 Defense Digest Page 9 A MESSAGE FROM THE EXECUTIVE COMMITTEE (continued from page 3) I hope that you are getting the picture. My retirement on June 30 th wi open the door for a number of individuas who have epitomized what our firm is a about: peope with true character, tireess workers, brimming with integrity, honesty and humiity. I coud not be more proud to have such honorabe peope foowing in my footsteps. But I am not finished. There are a few other peope that I woud ike thank. First, I wish to thank every empoyee of the firm who entrusted me with their financia we-being. I have been deepy honored to have served as a steward of your trust. Second, I wish to thank the firm s cients. I have had the good fortune of knowing and working with many of you over the past 36 years. For the many more whom I have not had the peasure of knowing personay, I am sti thankfu that you have ent your support to our firm, which, as one of the firm s eaders, I have greaty appreciated. And finay, I wish to thank my wife Bonnie and my chidren, Scott, Wendy and Jeff. They have offered me unending support and encouragement, for which I wi forever be gratefu. I pedge to a who read this message that I wi do everything within my power to enabe a who foow me to continue to accompish the mission of our firm, to consistenty provide the highest eve of defense representation and service to our cients whie providing a work cuture where equa opportunity and advancement is avaiabe to a. Thank you for your support and your trust. n OUR CONSUMER FINANCIAL SERVICES LITIGATION AND COMPLIANCE PRACTICE GROUP (continued from page 4) The Consumer Financia Services Litigation and Compiance Practice Group has grown rapidy in the years since its chair, Andrew M. Schwartz, first came to Marsha Dennehey in What started as a sma practice graduay grew in both scope and breadth, cuminating in the current team of eight dedicated fu-time attorneys who devote their practice to serving the needs of our cients. Andrew is icensed to practice in Pennsyvania and New Jersey, and works in our Phiadephia, Pennsyvania office with the assistance of Ronad M. Metcho, LaTi W. Spence, and Samantha L. Kane, a of whom bring a wide array of experience to our group. Daniee M. Vugrinovich of our Pittsburgh, Pennsyvania office, represents our cients in western Pennsyvania, whie David Lane offers services to cients throughout New York. Lauren M. Burnette represents cients in itigation throughout Pennsyvania, Maryand and the District of Coumbia, and provides compiance management services across the country. Patrick DeLong of our Fort Lauderdae, Forida office, coordinates representation of our cients throughout Forida and the southeast. Our group aso utiizes the skis of many taented attorneys throughout the firm to meet the needs of our cients. Our group members maintain active memberships in industry-eading organizations and are frequenty asked to provide seminars and presentations addressing the atest industry changes and trends. Marsha Dennehey is proud to offer the Consumer Financia Services Litigation and Compiance Practice Group as a means of providing the strategic and skied representation to our cients across the wide spectrum of the consumer financia services industry. Whether defending an FDCPA caim or evauating a compiance management system, the attorneys in the Consumer Financia Services Litigation and Compiance Practice Group are uniquey quaified to hep our cients succeed. n BRIEF OVERVIEW OF SHIPOWNER S LIMITATION OF LIABILITY ACT (continued from page 5) RECENT TRENDS Nowadays, in the age of technoogy, critics of the Limitation Act, incuding injured passengers, cargo caimants and their counse, argue that the Act s origina purpose is no onger necessary. In recent years there has been a strong push against the Limitation Act. Courts have become more resistant in uphoding a vesse owner s petition for imitation. In addition, Congress has attempted to extinguish the Limitation Act entirey with the passing of House Bi HR 5503, athough the bi has not yet been enacted into aw. Despite such criticism, the Limitation Act continues to be appied by federa courts throughout the country and provides a powerfu too for maritime counse in the defense of vesse owners, incuding recreationa boaters and passenger-carrying vesses. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN EXPERIENCE WITH LIMITATION ACT The New York office of Marsha Dennehey handes Limitation Act proceedings on both sides of the equation in the prosecution of imitation proceedings on behaf of vesse owners in persona injury/wrongfu death caims and in the defense of imitation proceedings on behaf of cargo caimants. Cients on both sides need to be aware of the Limitation Act s unique procedura aspects, most importanty for vesse owners, the onerous time constraints within which to initiate a imitation proceeding. n Vo. 20, No. 1 March 2014

10 Page 10 Defense Digest Forida White Coar Crime HOW GIVING LEGAL ADVICE CAN LEAD TO A CRIMINAL INDICTMENT By Rocco J. Carbone, III, Esq.* KEY POINTS: Key Mathis, a prominent Jacksonvie attorney, has recenty been convited on 103 of 104 crimina counts pertaining to his ega representation of a non-profit charity. Mr. Mathis fet he was merey convicted for giving ega advice. The ABA Mode Rues, and the Forida Rues of Professiona Conduct, aide attorneys in deciding when, and how, to give ega advice. On October 12, 2013, the Office of the Forida Attorney Genera convicted Key Mathis, a prominent Jacksonvie attorney, of 103 out of 104 crimina counts, incuding feony racketeering. The Attorney Genera s Statewide Prosecutor indicted Mr. Mathis and 57 other co-defendants on various charges stemming from the aegation that Rocco J. Carbone, III the defendants were aundering money through Mr. Mathis s former cient, Aied Veterans of the Word, a non-profit charity. The prosecutors aeged that members of the pubic woud enter internet cafes of the organization and buy internet time to pay computerized games, which were actuay iega sot machines. Mr. Mathis was the attorney who gave the advice on how to set up the organization. At the time he gave this advice, the aw was unsetted. In the course of the investigation, the Attorney Genera s Office discovered that ess than three percent of the $300 miion went towards the intended purpose of the charity. The resuting indictments and investigation set off a firestorm in Forida. In Jacksonvie aone, severa members of the oca sheriff s office were indicted, incuding the president of the Fraterna Order of the Poice the sheriff s office oca union. The Lieutenant Governor of Forida, Jennifer Carro, resigned after she was questioned about her invovement in obbying for the organization. The Forida egisature did not pass a aw prohibiting the use of these gaming devices unti after Mr. Mathis was indicted. In describing Mr. Mathis, Statewide Prosecutor Nick Cox described him as the mastermind behind the entire enterprise, whie Mr. Mathis argued he was merey an attorney giving ega advice to the organization. After the verdict, the Associated Press reported Mr. Mathis as saying, I gave ega advice as an attorney, that s a I did Attorneys a over the nation need to be very afraid when six years after you give ega advice, somebody disagrees with that ega advice and they convict you of a crime. * Rocco is an associate in our Jacksonvie, Forida, office who can be reached at or At the time of writing this artice, Mr. Mathis is awaiting sentencing and has fied a motion for a new tria. His argument for a new tria is based on the fact that severa of his witnesses were excuded from testifying regarding the unsetted state of the aw at the time he rendered his advice. Regardess of the outcome of this motion and eventua appea, this case stands as a warning. Attorneys must be knowedgeabe about how one s advice might be construed as crimina. No matter what practice area in which an attorney focuses, attorneys must aways be aware of the threat of a ega mapractice caim, or in some contexts, aegations that one is somehow invoved in a crimina activity. Whie the advice an attorney gives varies, the guiding ight for each attorney shoud aways be the Rues of Professiona Conduct. The American Bar Association and the Forida Rues of Professiona Conduct simiary outine the scope of an attorney s responsibiities when giving ega advice. Specificay, when an attorney s ega advice may dea with potentia crimina actions by a cient, ABA Mode Rue 1.2(d) states: A awyer sha not counse a cient to engage, or assist a cient, in conduct that the awyer knows is crimina or frauduent, but a awyer may discuss the ega consequences of any proposed course of conduct with a cient and may counse or assist a cient to make a good faith effort to determine the vaidity, scope, meaning or appication of the aw. (Emphasis added). In viewing Forida s version of Rue 1.2, there is ony one significant difference. In Forida an attorney may not counse a cient to engage, or assist a cient, in conduct that the awyer knows or reasonaby shoud know is crimina or frauduent. See 4-1.2(d), Fa. Bar. Reg. R. (emphasis added). In the context of these rues, knows is defined as actua knowedge of the fact in question, and reasonaby shoud know means that a awyer of reasonabe prudence and competence woud ascertain the matter in question. At the time Mr. Mathis provided ega advice, the question for Mr. Mathis, as the attorney for Aied Veterans, was whether he knew, or reasonaby shoud have known, that he was counseing (continued on page 25) Vo. 20, No. 1 March 2014

11 Defense Digest Page 11 New Jersey Asbestos FORUM NON-CONVENIENS AND CHOICE OF LAW IN NEW JERSEY ASBESTOS LITIGATION By Lisa M. Ony, Esq.* KEY POINTS: The paintiff s choice of forum is entited to preferentia consideration by the court. Asbestos exposure arises where the conduct causing the injury occurred. Fiing a choice of aw motion and/or motion to dismiss for forum non-conveniens beyond the discovery end date is unfair to the parties. For years, many individuas beieved that asbestos itigation in New Jersey woud soon end. To the contrary, asbestos cases have continued to congest the court docket. According to the Specia Master, Middesex County had approximatey 328 asbestos caims pending as of March 2013, a majority of which are compex maignancy cases that are being aggressivey itigated. This Lisa M. Ony was a sight decrease from the 339 asbestos caims pending in March In addition, the Honorabe Ann G. McCormick recognized that the nature of asbestos cases had substantiay changed in which 20 to 30 cases were no onger grouped and tried at the same time. There has aso been an increase in non-industria-exposed asbestos victims who had no direct exposure to asbestos through their empoyment, as we as ung cancer cases. Judge McCormick opined that with more cases being tried, the cases that have nothing to do with New Jersey create probems and precude the court from trying cases that invove New Jersey residents. On October 6, 2011, during a motion hearing in Payne v. American Bitrates, Inc., Judge McCormick addressed the issue of whether a bystander exposure case shoud be dismissed for forum non-conveniens when the paintiff resided in the Commonweath of Virginia, the paintiff s spouse resided in the Commonweath of Virginia and the paintiff s spouse never worked in the state of New Jersey. Transcript of Ora Argument, Payne v. American Bitrates, Inc., (MID-L ). In granting the defendant s motion to dismiss, Judge McCormick discussed the Yousef v. Genera Dynamics Corp. case, 16 A.3d 1040, (N.J. 2011), where the paintiffs resided and worked in New Jersey, the corporate defendant conducted business in New Jersey with the paintiffs empoyer and the automobie accident occurred in the Repubic of South Africa. The tria court propery weighed the pubic interest and private interest factors in finding that New Jersey was not a demonstraby inappropriate forum and, therefore, did not abuse its discretion in denying the forum non-conveniens motion. * Lisa is an associate in our Cherry Hi, New Jersey, office who can be reached at or In weighing the pubic interest factors in Payne v. American Bitrate, Inc., Judge McCormick opined that Virginia aw differed from New Jersey aw and that Virginia provided an adequate forum for the parties. Transcript of Ora Argument, Payne v. American Bitrates, Inc., (MID-L ). Judge McCormick reasoned that, regardess of whether Virginia was a strict iabiity or negigence ony state, Virginia was an adequate forum. Judge McCormick found that the paintiff had no ties to New Jersey and there were many defendants in the case who were not based in New Jersey. Judge McCormick was interested in the pubic interest factors due to: (1) administrative difficuties, which foow from having itigation pie up in congested centers, rather than being handed at its origin; (2) the imposition of jury duties on members of the community having no reation to the itigation; (3) the oca interest in the subject matter, such that affected members of the community may wish to view the tria; and (4) the oca interest in having ocaized controversies decided at home. In addressing the private interest factors in Payne, Judge McCormick noted the reative ease of access to the sources of proof. Transcript of Ora Argument, Payne v. American Bitrates, Inc., (MID- L ). The depositions were compete; however, there was no compusory process to compe fact witnesses, treating doctors or coworkers to appear in person in New Jersey. The costs associated with the itigation woud increase, and it woud be more time consuming due to videotaped testimony. In addition, the court woud have to expain Virginia aw to a New Jersey jury regarding a case with a paintiff who never set foot in New Jersey. In September 2012, the Honorabe Vincent LeBon inherited the asbestos docket from the Honorabe Ann G. McCormick in Middesex County. To date, Judge LeBon has not been presented with the issue of forum non-conveniens. Overa, asbestos itigation remains a busy area of aw, and based on recent court ruings, asbestos cases shoud be anayzed to ensure that these cases have been brought forth in the proper jurisdiction and that proper state aw is appied. If a paintiff acks a connection to New Jersey, a motion shoud be fied prior to the competion of discovery. If a motion to dismiss for forum non-conveniens is fied on the eve of tria, the court wi ikey be ess incined to grant the motion. n Vo. 20, No. 1 March 2014

12 Page 12 Defense Digest New Jersey Heath Care Liabiity PRESCRIBING HIGH POTENCY MEDICATION TO A KNOWN DRUG ABUSER: IS THE DOCTOR LIABLE FOR RESULTING INJURIES? By Juia A. Kubenspies, Esq.* KEY POINTS: Can a physician be hed iabe when a patient with a known drug and acoho history overdoses on a highpotency skin patch medication by using it in an off-abe manner? Were the paintiff s actions reasonaby foreseeabe by the physician? Was the but for proximate cause charge appropriate when mutipe causes of the injury were possibe, and was such a charge pain error by the tria judge? The New Jersey Supreme Court recenty heard ora argument on a case invoving a patient with a known drug abuse history who swaowed medication from a prescription, high-potency skin patch, which utimatey ead to anoxic brain injury. The question before the Supreme Court is whether the tria court erred in instructing the jury to consider whether the patient s drug addiction Juia A. Kubenspies and acoho abuse were pre-existing conditions that proximatey caused her injuries. The issue at tria was whether the prescribing physician was iabe for the resuting injuries. In Komodi v. Picciano, A T3, Dr. Picciano prescribed Fentany skin patches to hep aeviate ower back pain suffered by the (incapacitated) paintiff, Michee Komodi, age 31. Dr. Picciano had treated the paintiff for many years as a primary care physician and was aware of her ong-term history of substance acoho and drug abuse. The paintiff aso had a history of depression. Dr. Picciano had discussed the importance of undergoing treatment for her addiction and menta iness. Athough x-rays were norma, her cinica examination was norma and the defendant was unabe to have the patient reproduce the pain in her office, Dr. Picciano testified that she beieved her patient reay had back pain and was not merey seeking drugs. The patient tod Dr. Picciano that she had obtained a friend s Fentany patches and had been using those to obtain reief of her back pain, which she stated was chronic. The paintiff further advised Dr. Picciano that her use of narcotics and acoho was to que her back pain, and she assured the defendant that she woud not engage in such behavior if she had a prescription pain kier. Dr. Picciano decided to treat the paintiff patient s back pain temporariy, knowing that she had an appointment at a behaviora heath cinic shorty thereafter. Dr. Picciano advised her patient that she coud not consume any acoho whie using the Fentany patches. The patches sowy reease medication through the skin over a period of 72 hours. However, on * Juia, an associate in our Roseand, New Jersey, office, can be reached at or August 2, 2004, whie drinking heaviy, the paintiff ripped open a patch with her teeth and swaowed the medication. This resuted in suppressed respiratory function and anoxic brain injury. The paintiff s primary iabiity theory was that Dr. Picciano was negigent in prescribing the patch since, in view of the paintiff s history of acoho and drug abuse, it was foreseeabe that she woud misuse the patch by deiberatey appying the ge to her mouth or gums, or use the patch whie consuming acoho. At tria, the jury was given a Scafidi charge to consider prior acoho abuse as a preexisting medica condition, as we as an intervening cause charge. The jury determined that the paintiff had proven that Dr. Picciano deviated from accepted standards of famiy practice during her treatment and that Dr. Picciano s deviation increased the risk of harm posed by her patient s pre-existing condition. However, the jury aso found that the paintiff faied to prove that the increased risk was a substantia factor in producing the utimate harm or injury suffered by the patient. Thus, the jury returned with a verdict in favor of Dr. Picciano. The Appeate Division reversed and remanded for a new tria. On appea, the paintiff contended that the Scafidi charge was inappropriate because the defendant did not prove that a pre-existing disease or condition contributed to the paintiff s injury. The paintiff further contended that the judge impropery gave the but for proximate cause charge. The court stated: Here, the evidence did not ceary estabish a Scafidi case, the jury charge incuded both but for and preexisting condition/increased risk instructions, and the charge barey mentioned the facts and theories of the parties. Those errors require that the case be remanded for a new tria.defendants did not identify the pre-existing disease and its norma consequences. Fosgate v. Corona, 66 N.J. 268, 272 (1974). Having faied to do so, defendants were not entited to a Scafidi charge. The Appeate Division aso found that the tria judge did not propery identify the caimed pre-existing condition to guide the jury. (continued on page 25) Vo. 20, No. 1 March 2014

13 Defense Digest Page 13 THAT 70S (continued from page 6) SHOW: OBAMACARE What has changed? The BLBA aows a caimant (miner or survivor) to fie mutipe caims over the years because pneumoconiosis is a progressive disease. So under the BLBA, if a caim is denied today, the miner coud re-fie in a few months and aege a worsening of his condition. However, BLBA s provisions pertaining to survivors caims indicate that a subsequent survivor s caim sha be denied on the basis of the prior denia because the survivor cannot prove a change in condition since the prior denia. Stated differenty, the miner cannot be more dead than he was before. Therefore, since 1981, when a widow or other survivor fied a caim and was denied benefits due to an inabiity to prove that pneumoconiosis caused, contributed to or hastened the miner s death, the insurance carrier coud rest assured that the matter was fina and that the widow or survivor coud never come back to re-fie and be awarded benefits. The subsequent caim woud be summariy denied based upon the prior denia. A that changed under the PPACA. Recent case aw from the United States Court of Appeas for the Third Circuit (Marmon Coa Co. v. Director, OWCP, 726 F.3d 387) has indicated that a survivor/widow whose prior caim had been denied can now pursue a new caim for benefits under the PPACA and be entited to an automatic award if her husband was coecting Federa Back Lung benefits at the time of his death. The court rejected the empoyer s argument that res judicata (caim precusion) woud appy. The court hed that the PPACA created a new cause of action by resurrecting the automatic award provisions of the act. So, we are back in the 1970s. Widows or other survivors of coa miners who had previousy fied caims for survivor benefits under the act that were denied can now re-fie for benefits and receive an automatic award of benefits provided that the deceased coa miner was coecting Federa Back Lung benefits at the time of his death. This automatic award of benefits is retroactive to the month after the effective date of the prior denied caim and can resut in tens of thousands of doars in back-due benefits being paid to the survivor of the coa miner even though his death was not in any way caused by pneumoconiosis. For exampe, Coa Miner Joe is receiving federa Back Lung benefits. He dies in a car accident in 2002 (death ceary not due to pneumoconiosis). His widow fies a survivor s caim. Her caim is denied in Juy 2003 because she cannot prove that her husband s death was due to pneumoconiosis. Under the PPACA, the widow can now re-fie for benefits in 2013 and be entited to an automatic award of benefits going a the way back to the month after the denia of her prior caim became fina. In other words, she is entited to an automatic award of benefits going back to August The United States Courts of Appeas have spoken, and both the Third Circuit and Fourth Circuit have uphed this change to the act. The food of widows and survivors caims wi continue. Any surviving spouse or dependent of a coa miner who was coecting benefits at the time of his death is now entited to an automatic award of benefits. The PPACA has not taken us back to the future, but back to the past. Coa miners and their surviving widows and dependents have been given an unexpected gift under the new heath care aw. Empoyers and insurance carriers are the ones paying the price into the future. n THE RISE OF LEGAL MALPRACTICE LAWSUITS (continued from page 7) that it is more ikey than not that the defendant s conduct was a substantia factor in bringing about the aeged resut. Tareton v. Arnstein & Lehr, 719 So.2d 325, 330 (Fa. 4th DCA 1998). This is often referred to as the tria within a tria standard. Specuation or showing that the defendant s actions possiby caused harm is insufficient. The cient must successfuy estabish that it woud have prevaied in the underying action before it can prevai in the mapractice case. Generay, the statute of imitations in a ega mapractice action is two years. See, 95.11(4)(a), Fa. Stat. (2013). The statute begins to run from the time the cause of action is discovered or shoud have been discovered with the exercise of due diigence. In Peat, Marwick, Mitchee & Co. v. Lane, 565 So.2d 1323, 1325 (Fa. 1990), the Forida Supreme Court hed the cause of action does not accrue unti the injured party knew, or shoud have known, of the redressabe harm or injury. The paintiff s attorneys sometimes try to avoid the two-year imitation by bringing a breach of contract action, which has a fiveyear statute of imitations. See, 95.11(2)(a), Fa. Stat. (2013). I hope this primer on Forida ega mapractice awsuits proves usefu. As these awsuits increase in number, knowedge of the appicabe standard of proof and the statute of imitations for these actions becomes more important. n Vo. 20, No. 1 March 2014

14 Page 14 Defense Digest On The Puse IMPORTANT & INTERESTING LITIGATION ACHIEVEMENTS*... We Are Proud Of Our Attorneys For Their Recent Victories Casuaty Department adam Herman and amanda poducky (Orando, FL) obtained a defense verdict in a premises iabiity case foowing a four-day tria. The paintiff caimed that, when the hee of her sneaker got caught in a gap between the concrete and meta edge of a step, she tripped and fe at her apartment compex. Athough the paintiff was carrying a fu aundry basket and not using the handrai, she caimed that the apartment compex and management company were negigent in faiing to maintain the stairs. An inspection and photographs of the stairs taken on the date of the fa showed no apparent defect or other condition consistent with the paintiff s account of the fa. Further, we were was abe to obtain severa favorabe ruings on various motions in imine that prevented the paintiff from offering iabiity testimony from any other witnesses, as there was no one ese with persona knowedge as to the cause of the fa. The paintiff sought medica expenses and ost wages, past and future, totaing more than $230,000, pus pain and suffering. The defendants had offered $15,000 prior to the start of tria. The jury returned a defense verdict, finding that there was no negigence on the part of the apartment compex or management company that was a ega cause of injury to the paintiff. ed tuite and nick Bowers (Phiadephia, PA) obtained the dismissa of a Bucks County matter pertaining to the paintiff s caim that the defendant (his andord) stoe approximatey $100,000 worth of persona property from the paintiff s storage ocker whie he was traveing in Europe. At his deposition, the paintiff testified that he fied for federa bankruptcy protection after the initiation of his civi caim. An investigation reveaed, however, that the paintiff did not discose his caim against the defendant in his bankruptcy petition but did obtain a discharge of his debts. Ed and Nick fied a motion for summary judgment on behaf of the defendant, arguing that the paintiff was barred by operation of aw from pursuing his civi caim based on his faiure to discose the caim as an asset during his bankruptcy action. Rather than oppose the motion, paintiff s counse admitted defeat and agreed to vountariy dismiss the suit with prejudice. pamea ynde (Jacksonvie, FL) obtained a defense verdict in a case tried in Pensacoa. A minister based in Emira, New York, who aegedy was an independent contractor of a reigious and charitabe organization for which he served, was seriousy injured in an auto accident whie performing disaster reief work in Forida. He ost his eg and caimed to suffer from PTSD and depression. The reigious and charitabe organization is organized into separate territories, incuding a New York corporation and a Georgia corporation. After the accident, the minister received indemnity and medica workers compensation benefits from the workers compensation carrier for the New York corporation, but he asserted that, because he never petitioned for those benefits, he was not estopped from bringing a negigence awsuit in Forida against the Georgia corporation (our cient), which owned the vehice in which he was riding at the time of the accident. The case invoved issues of whether the minister was an empoyee or independent contractor of the New York corporation; whether he was an * Prior Resuts Do Not Guarantee A Simiar Outcome independent contractor or borrowed servant of the Georgia corporation; whether the driver of the vehice in which the minister was riding was a borrowed servant of the Georgia corporation; and whether the minister was a vounteer of the Georgia corporation for purposes of Forida s Workers Compensation Act. Prior to tria, the judge had denied mutipe motions for summary judgment fied by the parties. Hafway through the tria, the parties agreed to waive their right to a jury tria, and the remainder of the case was tried before the judge aone. The judge rued that the Georgia corporation enjoyed workers compensation immunity. Jim Coe and Jennie phiip (Doyestown, PA) obtained summary judgment dismissing the paintiff s compaint against our cient in the Court of Common Peas, Phiadephia County. The paintiff initiated a breach of contract action against our cient arising out of an aeged ora agreement to perform construction work on the paintiff s commercia property. The paintiff hired various contractors to overhau the roof structure of his property. Our cient was hired by a co-defendant to insta a roof truss system on the paintiff s property. The paintiff specificay aeged that portions of the roofing system were removed by our cient and the co-defendants and not repaced in a timey manner, which caused rain water to enter the property, causing damages. Additionay, the paintiff aeged that our cient deayed in the instaation of a parapet wa in connection with the roof and, as a consequence, deayed competion of the new roofing membrane, which was a substantia factor to the damages suffered by the paintiff. During extensive discovery, the parties earned that the paintiff s property was decrepit, negected and in a state of disrepair for severa years. In granting the motion for summary judgment, the judge s written opinion noted that the paintiff faied to provide expert testimony to prove the causa ink between any aeged water infitration into the interior of the property with the corresponding damage and dismissed our cient from the action. Jay Hamad and ori Quinn (New York, NY) obtained a dismissa of our cient from itigation in a maritime/inand marine case. The cient, a subcontracted trucking company, was sued by a goba fashion house for a ost shipment of product. The pre-itigation caim sought a recovery exceeding $400,000. The cient offered to pay the shipper of record the entire amount of the contractua imitation on ost/damaged goods, but the offer was rejected, and the paintiff initiated suit in federa district court naming the shipper of record and other parties, incuding our cient. In response to our attempt to obtain a swift prediscovery dismissa of the caims against our cient for amounts beyond the contractua imitation, the shipper of record amended its cross caims to incude a negigent seection caim in order to avoid being subject to the contractua imitation on damages. After unsuccessfuy petitioning the court to dismiss a caims and cross caims, mutipe depositions were conducted. During this time, Jay and Lori crafted and executed a strategy that cuminated in the testimony of the shipper of record s CEO, who indicated that his company with over 1,000 empoyees not ony does not require/perform the aegedy (continued on page 15) Vo. 20, No. 1 March 2014

15 Defense Digest Page 15 On The Puse (continued from page 14) required steps to avoid negigent seection (as indicated in the cross caim by the shipper of record against our cient), but that he informed counse of same (despite counse s faiure to ask). Armed with this testimony, Jay and Lori refused to produce any witnesses from our cient and withdrew the ongstanding offer to pay the contractuay mandated amount for ost goods. Jay and Lori aso sought and were granted a court conference to obtain permission to move for a dismissa and sanctions where the judge granted our cient dismissa from itigation. tony michetti and michee Frisbie (Doyestown, PA) obtained a non-suit in Bucks County. The paintiff was injured on the defendants property when a 1946 Farma Tractor owned by defendants suddeny jumped into gear, running over the paintiff. The paintiff sustained serious injuries, incuding burst fractures at six eves of his spine. The tractor had a history of getting stuck in gear, but there was no evidence that the tractor had ever jumped into gear prior to the subject incident. At the concusion of the paintiff s case, the defense moved for a non-suit, which the judge granted. tony michetti (Doyestown, PA) and tom song (King of Prussia, PA) obtained a non-suit in Northampton County. Whie the defendant was deivering home heating oi to the paintiff s residence, 80 gaons of fue oi spied onto the paintiff s property. The defendant performed a ceanup of the spi, and Act II Certification of the cean up process was obtained. Nevertheess, the paintiff brought a caim for diminution in property vaue. The paintiff caimed that the oi spi created a stigma that reduced the property vaue. The defense argued that the diminution in vaue caim shoud be dismissed because the paintiff s experts did not opine that the stigma was permanent. The judge agreed and granted a non suit. ed radzik, Jim ruddy and ori Quinn (New York, NY) successfuy resoved a case invoving the capsizing and sinking of the container ship off the coast of St. Lucia in February After extensive itigation in the U.S. District Court, Southern District of New York, Ed, Jim and Lori were successfu in overcoming the vesse owners petition for imitation and exoneration of iabiity by estabishing faut and privity on the part of the owners and charterers. Our marine subrogation group represented neary 100 cargo caimants, incuding subrogated insurers. Ed, Jim and Lori were successfu in negotiating a settement in excess of $2 miion for this casuaty, cose to the fu vaue of the caims caims, subject to package imitations. sarah Brown (Phiadephia, PA) obtained a defense verdict foowing a one-day bench tria before the Phiadephia Court of Common Peas. Sarah represented a homeowners insurance company in a breach of contract caim by a paintiff/poicyhoder who caimed the insurance company shoud have paid for repacement of undamaged parts of the renta property so that there woud be a matching of the entire roof a wind storm had damaged five shinges. The insurance company paid for emergency repair and the damaged shinges but decined to pay to repace undamaged shinges. The paintiff sought to have the entire roof repaced. The paintiff aeged that he was entited to repacement of the entire roof because prior to the oss he did not have any mismatched shinges. Sarah argued that the poicy ony provided coverage for direct physica oss to insured property and did not incude a contractua duty to match missing shinges. The defense s expert testified at the tria that the roof was ikey repaced two years ago and that the shinges were sti readiy avaiabe on the market. The court rued in favor of the defendants, finding that the insurance carrier had paid the paintiff for the direct physica oss to the property and that its ony obigation was to provide payment for ike kind and quaity materias. HeatH Care Department Bob evers and Juia Kubenspies (Roseand, NJ) obtained a defense verdict after a six-week tria. The paintiffs contended that their son, who was born with cerebra pasy in 2002, sustained in utero injuries as a resut of pacenta insufficiency and meconium aspiration. On the day of deivery, the mother (who was 39 weeks gestation) reported to her obstetrician (co-defendant) that she had not fet feta movement a day. She emergenty saw the co-defendant ate in the afternoon, who sent the paintiff to our cient, a materna feta speciaist, for a non-stress test (NST) at a oca university medica center with the pan to deiver the infant that same day. The resuts of the NST were reported back to the obstetrician as non reactive, which does not necessariy indicate feta distress, but does indicate that further workup is needed. The obstetrician advised that he was coming to the hospita to deiver the chid. The mother underwent further work-up whie the obstetrician was traveing to the hospita to deiver the infant. Deivery occurred approximatey 90 minutes after the NST resuts were reported. A tota of 13 experts testified at tria. Through the use of experts in pacenta pathoogy, pediatric neuroogy and neuroradioogy, we estabished that the infant s injuries had occurred prior to the invovement of our cient and that the infant had suffered a partia proonged hypoxic event due to pacenta insufficiency. The jury deiberated for approximatey six hours. Whie the jury deiberated, it was paced on the record that the paintiffs rejected a combined settement offer of $3.25 miion and countered with a demand of $3.8 miion. Shorty thereafter, the jury returned a verdict in favor of our cient, but found against the co-defendant obstetrician. The jury awarded damages totaing $9.5 miion, which was reduced by 35 percent by the jury for the pre-existing pacenta condition. Candy Barr Heimbach, michee Wison and Wendy O Connor (Bethehem, PA) obtained a defense verdict in a two-week tria. The paintiff, whose decedent suffered a stroke and ater died from pumonary emboism, sued the primary care physician, the sma community hospita where her decedent was treated, three internists at the hospita who directed his care during his hospita course and our cient, a neuroogist whose care was imited to a singe consutation. The paintiff caimed that, had the primary care physician immediatey directed her decedent to go to the hospita, he woud have been a candidate for tpa, despite his many co-morbidities (hypertension, uncontroed diabetes, obesity) and woud have had a favorabe outcome. She aso caimed that our cient shoud have ordered DVT/PE prophyaxis. Our neuroogy and neuroradioogy experts were abe to estabish that there was no way to time the onset of the decedent s stroke such that he woud not have been a candidate for tpa. Those experts aso testified that the decision to order DVT/PE prophyaxis is generay made by attending physicians who, in this case, were aware of the decedent s risk for DVT/PE, directed his care throughout his hospita course, and were highy trained and experienced in caring for stroke patients. Athough the paintiff setted her caims with the hospita and the internists prior to tria, the court permitted the non-setting defendants to * Prior Resuts Do Not Guarantee A Simiar Outcome (continued on page 18) Vo. 20, No. 1 March 2014

16 Page 16 Defense Digest OFFICE LOCATIONS & CONTACT INFORMATION PENNSYLVANIA Phiadephia 2000 Market Street, Suite 2300 Phiadephia, PA Fax Thomas A. Brophy, Esq., President and CEO Bethehem 1495 Vaey Center Parkway, Suite 350 Bethehem, PA Fax Wiiam Z. Scott, Esq., Managing Attorney Doyestown 10 N. Main Street, 2 nd Foor Doyestown, PA Fax R. Anthony Michetti, Esq., Managing Attorney Erie 717 State Street, Suite 701 Erie, PA Fax G. Jay Habas, Esq., Managing Attorney Harrisburg 100 Corporate Center Drive, Suite 201 Camp Hi, PA Fax Timothy J. McMahon, Esq., Managing Attorney King of Prussia 620 Freedom Business Center, Suite 300 King of Prussia, PA Fax Wendy J. Bracagia, Esq., Managing Attorney Pittsburgh U.S. Stee Tower, Suite Grant Street, Pittsburgh, PA Fax Scott G. Dunop, Esq., Managing Attorney Scranton P.O. Box 3118 Scranton, PA Fax Robin B. Snyder, Esq., Managing Attorney NEW JERSEY Cherry Hi Woodand Fas Corporate Park 200 Lake Drive East, Suite 300 Cherry Hi, NJ Fax Richard L. Godstein, Esq., Managing Attorney Roseand 425 Eage Rock Avenue, Suite 302 Roseand, NJ Fax Joseph A. Manning, Esq., Managing Attorney Vo. 20, No. 1 March 2014

17 Defense Digest Page 17 DELAWARE Wimington 1220 N. Market Street, 5 th Foor Wimington, DE Fax Kevin J. Connors, Esq., Managing Attorney OHIO Ceveand 127 Pubic Square, Suite 3510 Ceveand, OH Fax Lesie M. Jenny, Esq., Managing Attorney We are happy to announce the opening of our Cincinnati, OH, office on March 10, Our Cincinnati address: 312 ELM STREET, SUITE 1850 CINCINNATI, OH Our main phone number: Our fax number: On Monday, March 3, 2014, our Long Isand office moved to a new ocation: 105 MAXESS ROAD, SUITE 303, MELVILLE, NY Our phone and fax numbers wi remain the same. Our attorneys wi have direct dia numbers. FLORIDA Ft. Lauderdae 100 Northeast 3 rd Avenue, Suite 1100 Ft. Lauderdae, FL Fax Craig S. Hudson, Esq., Managing Attorney Orando Landmark Center One 315 E. Robinson Street, Suite 550 Orando, FL Fax Cynthia Kohn, Esq., Managing Attorney Jacksonvie 200 W. Forsyth Street, Suite 1400 Jacksonvie, FL Fax Martin Siter, Esq., Managing Attorney Tampa 201 E. Kennedy Bouevard, Suite 1100 Tampa, FL Fax Russe S. Buhite, Esq., Managing Attorney NEW YORK New York Wa Street Paza, 88 Pine Street, 21 st Foor New York, NY Fax Jeffrey J. Imeri, Esq., Managing Attorney Long Isand Mevie 105 Maxess Road, Suite 303 Mevie, NY Fax Anna M. DiLonardo, Esq., Managing Attorney Vo. 20, No. 1 March 2014

18 Page 18 Defense Digest On The Puse (continued from page 15) cross-examine the paintiff s experts as to their criticisms of the setting internists. Finding that the paintiff s expert had estabished a prima facie case of negigence as to those doctors, the court ordered that they shoud remain on the verdict sip for the purpose of apportioning iabiity as among a defendants. After severa hours of deiberation, the jury returned a verdict against the paintiff and in favor of a defendant physicians. tony michetti (Doyestown, PA) and Joe Hoynoski (King of Prussia, PA) obtained a defense verdict foowing a two-week tria. The paintiff brought a medica mapractice case against her gynecoogist, a radioogist and a oca hospita. The paintiff caimed that the defendants faied to diagnose her ovarian cancer unti it had deveoped to a Stage III. Eeven months prior, an utrasound performed at the hospita was interpreted by the radioogist as depicting two sma cysts (one with a singe septation) in the right ovary. The radioogist did not make any recommendation for foow-up surveiance. The gynecoogist reviewed the radioogist s impression and interpreted the two sma cysts as benign and not concerning. Three months ater, the paintiff had genetic testing and was found BRCA1 positive. The defendant gynecoogist did not order a foow-up utrasound or CA-125 testing. Utimatey, the paintiff underwent a prophyactic hysterectomy, and during that procedure, Stage III ovarian cancer was unexpectedy found. The paintiff s experts testified that the standard of care required a foow-up utrasound within three months after the initia utrasound. The paintiff s experts further testified that, had a foow-up utrasound been done, the cancer woud have been discovered at an earier stage, thereby increasing the paintiff s chance of surviva. The defendants experts testified that the utrasound was correcty interpreted as benign and the standard of care did not require a foow-up utrasound or CA-125 testing. After deiberating ony 35 minutes, the jury returned a verdict in favor of the defendants. Kate Kramer and Jennifer reno (Phiadephia, PA) obtained a defense verdict in a birth injury case on behaf of our cient, a hospita. The case invoved aegations that our cient faied to timey diagnose and treat preecampsia in the paintiff s mother, eading to a pacenta abruption which caused catastrophic injuries to the chid, incuding cerebra pasy. The paintiff s demand was $100 miion, and paintiff s counse refused a request to mediate the case prior to tria. Further, during the course of the tria, paintiff s counse boarded $430 miion in future damages. A two-week tria was hed, and the 12-member jury deiberated for approximatey six hours before returning a verdict for the defense. Candy Barr Heimbach, michee Wison and Wendy O Connor (Bethehem, PA) obtained a defense verdict in a medica mapractice action against our cient, a famiy practitioner, foowing a seven-day tria. The paintiff s decedent presented to our doctor compaining of stress and fatigue. Whie taking the paintiff decedent s history and conducting a physica examination, our doctor eicited a compaint of chest pain, for which he conducted an EKG, which was norma. As the paintiff s decedent had no risk factors for cardiac invovement other than his age, our doctor concuded that his compaints where most ikey stress-reated, and after an extensive discussion with the patient, it was agreed that he woud get ab work, begin taking an anti-depressant, seek counseing for his stress and return in four weeks for foowup. The patient did none of these things and died six months ater. The paintiff then fied suit, caiming that her decedent s death was attributabe to an percent occusion of the eft anterior descending artery or from ventricuar fibriation caused by a prior myocardia infarction. At tria, we were abe to estabish that there was no evidence of the risk factors caimed by the paintiff s standard of care expert, who was decimated on cross-examination when confronted with the extent of his earnings for medica ega consuting work. The paintiff s cardioogy expert further conceded that there was no evidence of any such risk factors in the medica records, whie the forensic pathoogist who performed the autopsy and who testified on behaf of the paintiff was contradicted in a compeing presentation by the defendant s forensic pathoogist, who was abe to rebut many of the coroner s findings. The jury returned a verdict in which they found no negigence on the part of our doctor. professiona iabiity Department Christopher Gonnea (Roseand, NJ) obtained summary judgment dismissing the paintiff s compaint and caims of professiona negigence and breach of contract against our cient, an architectura firm, in the Superior Court of New Jersey, Morris County. In the compaint, the paintiff asserted that our cient deviated from accepted standards of architectura practice in connection with its preparation of pans and specifications for the construction of a 20,000+ square foot uxury home. After extensive motion practice and ora argument, the court granted our motion for summary judgment and dismissed the compaint with prejudice after finding that the paintiff coud not demonstrate a prima facie case of negigence or breach of contract against our cient, based upon the evidence presented and testimony offered during discovery in this matter. terry efco and aaron moore (Phiadephia, PA) won the Pennsyvania Superior Court s affirmation of the Deaware County Court of Common Peas dismissa of a paintiff s wrongfu use of civi proceedings caim that had been asserted against our cient. The paintiff aeged that the defendant attorney was iabe to him for prosecuting a civi action for unpaid ega fees against him, even though the ega fees were incurred soey by the paintiff s wife. The Superior Court affirmed the tria court s determination that the paintiff was unabe to demonstrate a ack of probabe cause or an improper purpose in prosecuting the fee caim. Jack simm and Dante rohr (Cherry Hi, NJ) obtained dismissa of a caims after a four-week tria in the Superior Court of New Jersey, Chancery Division, Burington County. The paintiffs aeged fraud, deceit, misrepresentation and iega kickbacks arising from a compex probate itigation in which our attorney cients were retained to represent the administrator in protracted itigation. The attorneys reached a settement agreement in the underying matter, but a disagreement with the estate occurred, and a compaint was fied against the attorneys. After dismissing the caims against our cients, the court then awarded attorney s fees in pursuing the underying probate itigation. The fees were awarded on a quantum meruit basis because our cients forgot to enter into a retainer agreement with the estate. sarah argo (Scranton, PA) obtained a defense verdict in a premises iabiity case. The paintiff aeged that during a softba game, he sustained a isfranc fracture, which required two surgeries, when his foot was trapped under a fence owned by the borough, our cient. The case invoved issues of negigence and municipa iabiity under the Poitica * Prior Resuts Do Not Guarantee A Simiar Outcome (continued on page 19) Vo. 20, No. 1 March 2014

19 Defense Digest Page 19 On The Puse (continued from page 18) Subdivision Tort Caims Act. The paintiff aeged that gaps between the borough s fence and the ground and the faiure to use tie downs created a dangerous condition. Prior to tria, the judge denied the borough s motion for summary judgment and subsequenty denied our cient s motion for non-suit. Despite the paintiff s admission that his conduct was dangerous, the court decined to charge the jury on comparative negigence or assumption of the risk. The jury returned a defense verdict, finding no negigence on the part of our cient. Jonathan Kanov (Fort Lauderdae, FL) obtained a defense verdict in a ega mapractice and misrepresentation tria. The paintiff brought suit against the borrower and our cient, an attorney, concerning a promissory note and mortgage associated with the purchase of a $250,000 motor home. The paintiff contended that the note and mortgage, which were prepared by our cient, had deficiencies due to the ack of required discosures under the Truth in Lending Act, 12 CFR 226. The paintiff aso aeged that our cient misrepresented the priority of the mortgage on the borrower s residentia property. We disputed that an attorney-cient reationship existed between the paintiff ender and our cient, arguing that our cient ony represented the borrowers. Furthermore, we disputed the paintiff s aegations as to negigence and misrepresentation. The judge reserved jurisdiction to award the defendant his reasonabe attorneys fees and costs pursuant to a rejected proposa for settement. Jeff Chomko (Phiadephia, PA) obtained a defense verdict in a binding arbitration on behaf of an insurance agent and agency in a procurement case invoving the sae of a commercia package of insurance for a restaurant. The paintiff aeged that the agent faied to se the restaurant adequate imits of coverage, triggering a co-insurance penaty under the poicy foowing the discharge of a sprinker that resuted in water oss. The arbitrator agreed with Jeff that the contributory negigence doctrine (and not the comparative negigence statute) shoud be appied where the restaurant owner faied to suppy the agent with necessary documents, incuding the ease, evidence of prior coverage and notice that his prior insurance coverage had apsed for non-payment. Brigid aford, with assistance from auren Burnette and aison Krupp (Harrisburg, PA), obtained affirmation by the Superior Court of the tria court s decision that had granted summary judgment to the insurer on both breach of contract and bad faith caims in a first party property caim arising from damage to the insured s condominium. The Superior Court s opinion affirming summary judgment for the insurer incuded finding, as a matter of aw, that the poicy was not ambiguous in setting forth the imits of coverage. The court aso noted that the insured had cited no authority to support the caim that the insurer acted in bad faith when it disputed various aspects of coverage, but utimatey paid the poicy imits on the caim. sam Cohen (Phiadephia, PA) obtained a defense verdict in a FINRA arbitration on behaf of his cients, a broker and a broker-deaer. The case invoved aegations that the broker faied to advise the caimant of the tax ramifications of the iquidation of a variabe annuity hed in an IRA account. The caimant sought damages in the amount of the taxes incurred for the iquidation and the eary withdrawa penaties because the caimant was not 59 and one-haf years of age at the time of the iquidation. eric Brown (Cherry Hi, NJ) obtained a verdict in favor of a nationa insurance carrier foowing a bench tria before the Deaware County Court of Common Peas. Our cient had fied a decaratory judgment action seeking to determine whether coatera estoppe prevented its insured from pursuing a second-ayer underinsured motorist (UIM) caim after the insured had previousy arbitrated her UIM caim with another carrier, resuting in an award ess than that carrier s UIM imit. The insured argued that her need for surgery after the first arbitration meant that the issue itigated in the arbitration was not identica (a requirement for coatera estoppe). Despite the issue being primariy one that coud be addressed as a matter of aw, a tria was needed due to the ack of any record as to what issues were actuay itigated in the prior arbitration. Foowing tria, verdict was entered in favor of our cient, decaring there was no obigation to provide UIM benefits. n On The Puse MARSHALL DENNEHEY IS HAPPY TO CELEBRATE OUR RECENT APPELLATE VICTORIES* In Munir v. Pottsvie Area Schoo District, 723 F.3d 423 (3d Cir. 2013), Kim Boyer-Cohen (Phiadephia, PA) obtained an affirmance from the Third Circuit of the summary judgment obtained by Christopher Conrad (Harrisburg, PA) in an action brought under the Individuas with Disabiities Education Act. In Munir a father sought reimbursement for the cost of pacing his chid at a private residentia faciity and a private boarding schoo foowing mutipe suicide attempts. On appea, the Third Circuit hed that the father was not entited to reimbursement for the costs of pacing the chid, who suffered from emotiona disturbance, at a private residentia faciity because the primary purpose of that pacement was the provision of menta heath treatment and any educationa benefit that the student received was incidenta. The Third Circuit aso found that the father was not entited to reimbursement for the costs of pacing the student at a private boarding schoo because, at the time the student went there, the schoo district had proposed an individuaized education pan (IEP) that met a of the student s educationa needs. shane Hasebarth (Phiadephia, PA) wrote the brief, and tria attorney ron punti (Pittsburgh, PA) argued the appea, in this chiropractic mapractice case. Be v. Wiis, et a., 1487 WDA 2012 (Pa.Super. Nov. 8, 2013). The tria court dismissed the paintiff s faiure-to-obtain-informedconsent caim against her treating chiropractors, and the jury returned a * Prior Resuts Do Not Guarantee A Simiar Outcome (continued on page 20) Vo. 20, No. 1 March 2014

20 Page 20 Defense Digest On The Puse (continued from page 19) verdict of no negigence regarding the treatment. On appea, the paintiff sought recognition in the Commonweath of Pennsyvania of an informed consent caim against the chiropractors, but her position was rejected in a unanimous, pubished decision. The paintiff has fied a petition for aowance of appea in the Supreme Court. Bruce morrison and John Hare (Phiadephia, PA) won a unanimous victory in the Pennsyvania Supreme Court in a case invoving the standard for prejudice that an insurer must meet to deny coverage based upon ate notice of a phantom vehice caim. The Supreme Court uphed the Superior Court s reversa of a tria court s finding that an insurer, our cient, was not prejudiced by the insured s faiure to report a phantom vehice within the 30-day time imit set forth in the Motor Vehice Financia Responsibiity Law, 75 Pa.C.S.A The Supreme Court hed that it is reasonabe to require an insured to aert the insurer within a month s time and, whie an insurer woud not be permitted to deny coverage absent prejudice caused by ate notice, showing such prejudice does not require proof of what the insurer woud have found had timey notice been provided. Finay, the Supreme Court expained that an insurer is aways obigated to investigate a caim such as it can, but where the insured s deay resuts in an inabiity to thoroughy investigate and thereby uncover reevant facts, prejudice is estabished. tom Wagner, Caro VanderWoude and John Hare (Phiadephia, PA) obtained a reversa by the Pennsyvania Superior Court of a tria court order granting the paintiff a new tria after the jury had returned a defense verdict for our cient. In Gokey v. Terminix, the jury found no negigence on the part of our cient, but the tria court awarded a new tria on the basis that our cient was negigent as a matter of aw and the jury verdict was, therefore, contrary to the evidence. The Superior Court reversed and reinstated the defense verdict on the basis that the question of our cient s iabiity was propery submitted to and decided by the jury. Cynthia Kohn (Orando, FL) and Jim Gicking (Phiadephia, PA), of our appeate department, persuaded the Fifth District Court of Appeas to affirm that tria court s refusa to grant the paintiff s request for a new tria for caimed errors in jury seection. The court aso affirmed the denia of a directed verdict to the paintiff on the issue of whether he sustained a permanent injury in a car accident, entiting him to a non-economic damage award. n On The Puse OTHER NOTABLE ACHIEVEMENTS* On December 9, 2013, at our annua sharehoders meeting, 15 attorneys, neary haf of them women, were eected sharehoders of the firm. The new sharehoders are: aaron e. moore, David s. Wof, eizabeth a. pope, Jennifer p. reno, eo a. Bohanski, Wiiam J. mcpartand, auren m. Burnette, J. Jeffrey Watson, meissa D. Cochran, aicia. Caaf, Christopher J. Gonnea, rosaind B. Herschtha, Keri. morris, Dougas t. Wash and thomas F. Brown. Additionay, Kimbery Boyer-Cohen, a member of the Professiona Liabiity Department in Phiadephia, and timothy Jaeger, a member of the Casuaty Department in Roseand, were named Specia Counse. ronda O Donne (Phiadephia, PA) has been named Chair of the Empoyment Law Practice Group in the firm s Professiona Liabiity Department. She wi repace Tom DeLorenzo, practice group eader and ongtime firm sharehoder, who retired on December 31. Marsha Dennehey has been named among Corporate Counse magazine s 2014 Go-To Law Firms for America s 500 argest companies. Firms were recognized for providing exceptiona work to Fortune 500 cients. Marsha Dennehey was cited as the #1 firm in the Torts Litigation category. Marsha Dennehey and the other seected 2014 Go-To Law Firms wi be isted in the 2014 edition of Corporate Counse s In-House Law Departments at the Top 500 Companies reference guide, to be pubished eary next year. thom ent (Erie, PA) was appointed to serve as chair of the Civi Litigation section of the Erie County Bar Association. Jay Habas (Erie, PA) was appointed to serve as vice chair of the Workers Compensation section of the Erie County Bar Association. tony natae (Phiadephia, PA) was a featured guest on The American Law Journa, a weeky ega teevision program. On the episode, tited Workers Comp: Modifying & Terminating WCAIS Ros Out, Tony and two other guests (a workers compensation judge and a paintiff s attorney) discussed strategies regarding termination of benefits and earning power evauations, and modification of benefits through job offers. auren Burnette (Harrisburg, PA) was seected as a member of ACA Internationa Members Attorney Program s Sanction Review Pane. ary Zucker (Cherry Hi, NJ) recenty presented two seminars at the Word Waterpark Association Trade Show and Conference in West Pam Beach regarding water park safety signage and ega trends in the water park industry. Christopher Bock (Roseand, NJ) spoke at the Professiona Liabiity Defense Federation s Annua Conference and CLE/CEU Presentation in Chicago, Iinois. He presented on the topic Primer on Caims and Risk Management Issues for Rea Estate Agents and Home Inspectors and discussed the emerging issues in rea estate agent caims and potentia damage exposure faced by rea estate professionas. Jeff rapattoni (Cherry Hi, NJ) and Beau Hoowe (Ceveand, OH) recenty presented Effectivey Managing Contemporary Insurance Fraud Issues at the Nationa Society of Professiona Insurance Investigators 2013 Advanced Insurance Fraud Seminar hed in St. Louis, Missouri. Dan mcdermott (New York, NY) was one of four paneists who spoke on the featured topic of Uniformity of Maritime Law in a Goba Context at a joint conference of the Maritime Law Association (MLA) and Instituto Iberoamericano de Derecho Maritimo hed in Fajardo, Puerto Rico. The paneists incuded attorneys from Panama, Dominican Repubic and a federa appeate judge from Canada. Dan spoke of the roe the MLA has payed in seeking uniformity in the fied of maritime aw and encouraging its efforts in Congress to ratify various treaties and conventions with our internationa trading nations. More than 400 maritime professionas were in attendance. John O Brien (Roseand, NJ) participated at the Newark session of the Nationa Business Institute seminar entited Construction Defect Litigation: From A to Z. His topic was Anatomy of a Defect: What It Is and The Rues That Appy. He aso authored the chapter for the course book on his topic which was distributed at both the Newark and Princeton sessions. n Vo. 20, No. 1 March 2014

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