John Donovan (Partner-Philadelphia, PA) and Joseph Gallo (Associate-Philadelphia, PA) obtained a favorable defense verdict in a product liability case following a six-day federal jury trial in the U.S. District Court, Middle District of Pennsylvania (Williamsport Division) on behalf of Wilson Elser’s client, a net and rope manufacturer. The plaintiffs, an assistant high school baseball coach and his wife, alleged that the coach permanently lost the use of his right eye and suffered psychological injuries after being struck by a batted ball during a baseball practice. The plaintiff claimed the L-screen batting net failed, allowing the ball to pass through it. John and Joe argued that the plaintiff knowingly used the net despite prior visible damage.

While the jury found our client’s product defective under strict liability, it also assigned the plaintiff 40% comparative negligence on the negligence claims. The damages ultimately awarded to the plaintiff were just $242,634, an amount significantly less than prior offers made during negotiations and less than 10 percent of the plaintiff’s lowest demand during litigation. The damages award was also significantly less than the outstanding workers’ compensation lien and outstanding and future medical bills. The plaintiff’s counsel filed post-trial motions on a variety of issues, including the low damage award. However, by Order, the court denied all the post-trial motions and ordered a hearing on the plaintiff’s counsel’s use of citations generated by “AI” in his post-trial brief.

Joshua Bachrach (Partner-Philadelphia, PA) obtained summary judgment in the U.S. District Court, District of Montana, for a national insurer client providing group long-term disability insurance to employers and unions. The plaintiff became disabled, and her claim for benefits was approved. The dispute centered on whether those benefits were correctly calculated. The policy our client delivered reduces the monthly benefit by the amount of certain other income benefits a claimant receives. One such category is retirement benefits, except for those in an IRA. Here, the claimant argued that no offset applied because she directed the employer to deposit the retirement benefit directly into an IRA. Therefore, she argued it was not an offset.  Siding with our client, the court held that the offset applied because the policy referred to retirement benefits that a claimant “is eligible to receive.” The court also rejected the claimant’s argument that the offset did not apply because the policyholder was the union, not the employer. 

Michael S. Takacs (Partner-Philadelphia, PA) and Andrew Rossi (Associate-Philadelphia, PA) prevailed on a motion for summary judgment in the Court of Common Pleas, Philadelphia County, Pennsylvania, on behalf of Wilson Elser’s client, a property owner/landlord. The plaintiff, a tenant at the client’s apartment complex, allegedly sustained a forehead laceration, concussion, post-concussion syndrome, and injuries to her neck after striking her forehead on a dumpster’s trunnion bar while taking out her trash. She claimed the trunnion bar, which a truck uses to lift the dumpster during emptying, was a dangerous condition because it “sticks out inconspicuously” and lacked warnings or contrasting paint to make it more visible. The codefendant waste management company supplied and serviced the dumpster under a customer service agreement with our client, retained ownership, and specifically prohibited the client from altering it. The plaintiff, who had lived at the property for more than a year, admitted to using the dumpster at least weekly to dispose of her trash. Michael and Andrew moved for summary judgment, asserting that the client neither owed nor breached a legal duty of care to protect the plaintiff where the alleged condition of the trunnion bar was open, obvious, and readily visible on equipment the client did not own or control. The court entered summary judgment on behalf of the client, dismissing all claims and crossclaims.

Michael S. Takacs (Partner-Philadelphia) secured a complete dismissal of a commercial property owner client on a contested Motion for Summary Judgment. The ruling proves once again that while difficult, obtaining summary judgment in plaintiff-friendly Philadelphia County, Pennsylvania, is not impossible. Under the facts presented, the plaintiff, a schoolteacher who often frequented a delicatessen in the client’s building, parked her vehicle in a “no parking zone” outside the building on the day in question. When she left the delicatessen, rather than walking on the sidewalk to reach her vehicle, she took a shortcut across a “wooden landscape box” comprised of four railroad ties formed into a square and enclosing a street sign. When she stepped on one of the wood ties, her foot slipped and she suffered a ruptured quadriceps tendon requiring surgery.

Takacs moved for summary judgment asserting that the client neither owed nor breached a legal duty of care to protect the plaintiff from the alleged dangerous condition and therefore could not set forth a prima facie case of negligence. Relying on existing case law involving slip and falls on snow and ice emanating from the Pennsylvania Superior Court and other lower court cases that followed it, Takacs crafted a persuasive argument that the underlying basis for the courts’ decisions in those cases – that no duty was owed where a plaintiff voluntarily chose a path of travel not meant to be traversed out of convenience rather than taking the safer alternative route available to her – should apply to the facts of the case. While plaintiff attempted to assert that numerous genuine issues of material fact existed, the court disagreed, entering summary judgment on behalf of the client, dismissing all claims and crossclaims.

Nigel Greene (Of Counsel-Philadelphia) and Angela Heim (Of Counsel-Philadelphia) prevailed in the Superior Court of Pennsylvania on the plaintiff's appeal of the dismissal of Wilson Elser’s client, a Philadelphia bus tour company, based on a motion for judgment on the pleadings. The plaintiff alleged that our client allowed her to exit a tour vehicle at a location where a depressed roadway grate created a tripping hazard. At the trial court level, Nigel successfully argued that the company had no legal responsibility for the condition of the roadway and owed no duty to the plaintiff regarding that condition.  The court concurred, granting Nigel’s motion for judgment on the pleadings and denying the plaintiff’s motion for reconsideration. On appeal, Angela wrote the client’s brief, and the Superior Court affirmed the trial court's decision, holding that the complaint failed to allege a legally cognizable breach of duty –even if all allegations were taken as true.

Michael S. Takacs (Partner-Philadelphia) secured the dismissal of a building owner client on a contested motion for summary judgment in the Court of Common Pleas, Philadelphia County, Pennsylvania, a particularly plaintiff-friendly jurisdiction where even uncontested summary judgment motions are often denied. The client retained the codefendant general contractor to perform a build-out of office space, who, in turn, retained numerous subcontractors to perform the work. The plaintiff, an employee of a sub-subcontractor, was injured while descending a ladder when he stepped on a sheet rock cart allegedly placed at its base by an unknown, never identified individual only moments before the incident. The plaintiff sued our client, the general contractor, and several subcontractors on-site on the date of the accident. Following fact and expert discovery, Mike argued that summary judgment was warranted because: 1) the plaintiff failed to establish that the client created, knew, or should have known and/or had actual or constructive notice about the cart’s placement; and 2) the client owed no legal duty to the plaintiff, a sub-subcontractor of the client’s independent general contractor, under long-established Pennsylvania law holding that a hirer of an independent contractor is not responsible for injuries sustained by the contractor’s employees or subcontractors where the hirer neither controls the work, nor does it present a peculiar risk. Rejecting the plaintiff’s claims asserting the existence of numerous genuine issues of material fact, the court granted summary judgment dismissing all claims and crossclaims against Wilson Elser’s client. 

Ben Greenfield (Partner-Philadelphia, PA) and Nicholas Noto (Associate-Philadelphia, PA) secured a victory in Philadelphia County for Wilson Elser’s clients, a property management group and a commercial/residential apartment owner after motion practice that lasted an entire calendar year. The plaintiff in this matter alleged injuries she sustained while on a residential property owned and managed by Wilson Elser’s clients. Plaintiff’s counsel filed a vaguely pled and legally impossible complaint in response to which Ben and Nicholas filed preliminary objections that the court sustained. The plaintiff subsequently filed four amended complaints, purported to be more specifically pled each time – but they were not. After the court dismissed each of the four complaints, Ben and Nicholas team filed a Motion to Prevent Further Amended Complaints, which was sustained by the court, and a final order was entered in favor of dismissing our clients with prejudice. The court’s ruling thwarted a demand in the high six figures and affirmed the precedent that pleadings in Philadelphia County must be legally plausible and pled with specificity.

Wendy Testa (Partner-Philadelphia, PA) and Casie Salvadore (Associate-Philadelphia, PA) secured dismissal for a title agent client by prevailing on preliminary objections to the complaint based on lack of personal jurisdiction. The action, pending in the Court of Common Pleas, Allegheny County, Pennsylvania, involved a dispute arising from the sale of a Florida condominium and subsequent wire fraud of the condominium sale proceeds by a third party. Plaintiff / condominium owner was a trust formed in Pennsylvania. The only connection to Pennsylvania was the formation of the trust in this state. All other aspects were in Florida. Wendy and Casie successfully argued to the court that our client had no reasonable expectation to be sued in Pennsylvania due to a complete lack of contacts with the Commonwealth. The firm client, a Florida licensed title agent located and doing business in Florida only, was merely involved in the closing of a property located in Florida and had no relationship with or duty to the Pennsylvania trust / condominium owner. The court’s decision to grant preliminary objections for lack of personal jurisdiction and dismissing our Florida-based client underscores the importance of challenging jurisdictional overreach. 

Philadelphia of counsel Nigel Greene and Jason Rojas obtained a favorable verdict in a trial in Philadelphia County Court of Common Pleas of a motor vehicle accident involving the plaintiff, who was operating a commercial patient transport shuttle, and our insured driver, who was operating a commercial flatbed truck. As our driver passed the plaintiff’s shuttle, fencing on our client’s truck contacted the shuttle. The plaintiff claimed injuries and pursued a workers’ compensation claim. As a result, the plaintiff had a workers’ compensation lien totaling $96,729.81when she filed a civil suit against our client. Initially, the plaintiff filed her case at the arbitration division in the Philadelphia Court of Common Pleas. However, after the plaintiff received a $5,000 award, she appealed and transferred the case to the major jury division for a jury trial. At the pre-trial conference, the plaintiff made a $2 million demand. The plaintiff’s expert opined that the 30-year-old plaintiff would need a lumbar spinal fusion costing $60,000 to $100,000 and would experience pain and suffering for the rest of her life. Nigel and Jason retained a spinal surgeon who rebutted the report and stated that the plaintiff only sustained strains and sprains and did not require surgery. During trial, the judge ordered the full workers’ compensation lien be placed on the verdict sheet as required damages and directed the jury to enter a finding of negligence against our driver. Despite the adverse rulings of the court, the jury awarded the amount of the lien plus $5,000 for pain and suffering. They jury awarded nothing for future medical treatment.

Joshua Bachrach (Partner-Philadelphia, PA) and Angela Heim (Of Counsel-Philadelphia, PA) represented a group long-term disability insurer in an appeal related to the denial of benefits. As a result of the plaintiff’s administrative appeal and before the lawsuit was filed, the client reversed the claim denial. The plaintiff still filed a lawsuit in the U.S. District Court, Western District of Oklahoma seeking attorney’s fees for the appeal. The plaintiff also challenged the client’s reduction of benefits under the policy based on her receipt of social security benefits, claiming financial hardship. The district court granted the defendant’s motion to dismiss the complaint for failure to state a claim, which was appealed to the Tenth Circuit. In a published decision, the Court of Appeals affirmed the judgment in our client’s favor. The Tenth Circuit joined seven other circuits in concluding that fees under ERISA’s fee-shifting statute are unavailable for pre-litigation proceedings. The court also rejected the plaintiff’s “backdoor route” seeking fees as equitable relief. As for the plaintiff’s claim related to the social security offset, the Tenth Circuit held that there was no need to consider the merits of it because she failed to exhaust her administrative remedies as courts have required under ERISA, the claim was time-barred, and the argument was waived because it was not pursued in the district court. Finally, the Court of Appeals rejected the claim that the plaintiff was entitled to equitable relief because our client failed to provide documents to her. Because she did not allege any separate harm related to this conduct, the court agreed with the district court that she was not entitled to any relief. The Tenth Circuit concluded its decision affirming the judgment of the district court by stating that “Plaintiff is receiving all the benefits to which her policy entitles her.”

​Sean Monks (Partner-San Diego, CA), Richard Bortnick (Of Counsel-Philadelphia, PA), and Natalie Lakosil (Associate-San Diego, CA) represented a corporation diluted in violation of a Stock Purchase and Subscription Agreement in Arbitration. Though not usually on the plaintiff’s side of the “v.” the team got an outstanding result. Through its former CEO, our client enjoyed a long business relationship with the company in which he was a shareholder (the Respondent). Throughout the relationship, our client contributed to the Respondent’s ongoing business in the form of various short-term loans as needed, each of which were promptly repaid. This relationship stemmed from the original share ownership of our client in the Respondent. However, when the former CEO left, the Respondent embarked on a campaign to dilute our client’s percentage of ownership, which was protected in the Stock Purchase and Subscription Agreement. Unfortunately, under the leadership of the new CEO, the stock was reduced in value to fractions of a penny. Getting the shares “trued up” was going to provide no relief for our client. Through creative argument, Sean, Rick, and Natalie persuaded the arbitrator to rescind the contract to our client, leaving the contract intact for the other signatories. Including costs of the arbitration, our client was received nearly $700,000 in the form of an award.

Benjamin Greenfield (Partner-Philadelphia, PA) obtained a unanimous decision from the First Department Appellate Division, upholding denial of the plaintiff’s motion to certify its action as a class action on behalf of the largest casino operator in New York City. The plaintiff was banned from the casino for smashing a gaming machine and his refusal to pay for the damage. The plaintiff attempted to certify his claims as a class action, arguing that the casino improperly demands restitution and threatens arrest if patrons refuse to pay for the costs of repairs to the property they damaged. The trial court, in denying plaintiff’s Motion to Certify, ruled that NYS Gaming Bulletin #22, which requires casinos to detain individuals suspected of damaging casino property and to conduct an individualized investigation into the actions of each patron, is “a valid directive issued by the Gaming Commission that is legally binding on [the casino] and governs and authorizes certain actions by [the casino].” The Appellate Division affirmed this decision and specifically rejected the plaintiff’s contention that in publishing Bulletin 22, the Gaming Commission did not follow the rulemaking procedures set forth in the State Administrative Procedure Act, and agreed with the arguments set forth by Ben that the plaintiff’s claims involved unique circumstances that do not mirror those underlying the claims of the class proposed. Accordingly, the Court agreed that typicality is lacking and certification would not be proper. This is a notable decision that thwarts an attempted significant class action. At the very early stages of this matter, the plaintiff’s attorneys attempted to force our client into an early settlement by having an article published in the New York Post.