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Pennsylvania's Legal Journal

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    A Montgomery County man who says he was diagnosed with a specific form of lung

    Benjamin Shein

    Benjamin Shein

    cancer earlier this year that is connected to asbestos exposure has filed a civil suit against various companies engaged in the manufacture and distribution of products containing the fiber.

    Attorney Benjamin Shein, of the Philadelphia-based Shein Law Center, filed a short-form mass tort complaint May 29 at state court in Philadelphia on behalf of Lansdale, Pa. resident Michael A. Hrycko, and Hrycko’s wife, Joyce.

    The lawsuit, filed in the master asbestos litigation at Common Pleas Court, says that Michael Hrycko was advised by doctors at Grandview Hospital back in February that he has malignant mesothelioma, a type of cancer usually associated with asbestos exposure that attacks the cells that line the lungs.

    The disease, the suit states, is causing the plaintiff to experience “physical symptoms, impairment and disability.”

    Hrycko’s work history, which is contained within the short-form complaint shows that he worked as a machinist at various companies between 1960 and 2007.

    Those companies are Hatfield, Pa.-based Rudo Associates, Sellersville, Pa.-based Pennfield Precision, and Davro Instrument Corp. and Palco Precision, both of which are based in Lansdale, Montgomery County.

    The complaint alleges that it was Hrycko’s exposure to asbestos dust and fibers during his working years that led to his eventual mesothelioma diagnosis.

    Hrycko turned 72 years old on May 18, the record shows.

    The defendants named in the suit are as follows: CBS Corp., Industrial Holdings Corp., Metropolitan Life Insurance Co., Plastics Engineering Co., Saint-Gobain Abrasives Inc., and Union Carbide Corp.

    The plaintiffs seek damages as set forth in the master asbestos litigation at Philadelphia’s Common Pleas Court.

    The case ID number is 130503008.


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    A professional carpet installer who needed medical treatment after his leg fell through a

    Wayne A. Schaible

    Wayne A. Schaible

    floorboard at a housing development he was working on in the winter of 2011 will receive $3.5 million to compensate him for his injuries.

    Bernhardt Wilson, of Long Pond, Pa., was awarded the multi-million-dollar verdict following a weeklong civil trial at Philadelphia’s Common Pleas Court.

    Court records show that Wilson and his wife, Patricia, filed suit in September 2011 against Jameson Road Associates and Scotchbrook Townhouses over allegations that the husband sustained serious injuries after a defective floor board at the townhouse development at which he was working on the 9200 block of Greg Street in Philadelphia gave way, causing Wilson’s leg to completely go through the floor.

    Wilson was employed by Keystone Flooring Company at the time. The company, which is also known as Keystone Flooring Products, had earlier been dismissed from the litigation, the court record shows.

    A May 22 order by Common Pleas Court Judge Annette M. Rizzo, who oversaw the case, shows that Keystone was dismissed with prejudice before the case went to a jury.

    At the time of the incident, Wilson was a subcontractor working to remove and replace carpets in the recently vacated townhouse owned by Jamison Road Associates.

    Following trial, Rizzo granted a motion by defendant Scotchbrook Townhomes to mold the verdict to $3.5 million.

    The jury initially voted to award Wilson $8.4 million for his injuries. It also awarded $500,000 to Patricia Wilson for loss of consortium, records show.

    The molded verdict followed a high-low agreement reached by the parties.

    In his complaint, Bernhardt Wilson alleged that he sustained numerous cuts, lacerations and abrasions to his right leg, and claimed he had also incurred injuries to his back, including strain, herniated discs, and associated neurological damage in his lower back requiring surgery and other medical care.

    Wilson asserted that his injuries would cause permanent damage and affect his ability to carry out any future manual labor.

    The plaintiff also maintains he continues to suffer from pain, mental anguish and emotional distress arising from the workplace incident.

    The plaintiffs were represented by lawyer Wayne A. Schaible, of the Philadelphia firm McCann, Schaible & Wall LLC.

    Defendant Jameson Road Associates, which does business as Scotchbrook Townhouses, is located Northeast Philadelphia, while Jameson Road Associates LP, also known as Susan-Jameson Partnership, is based in Norristown, Montgomery County.

    The defendants were presented by Philadelphia attorney Joseph F. Van Horn, Jr., of the firm Fallon Van Horn.


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    A Delaware County man is suing a commercial contracting company and its affiliates over

    Lee D. Rosenfeld

    Lee D. Rosenfeld

    injuries he claims to have sustained as a result of a motor vehicle accident allegedly caused by the defendants’ combined negligence.

    Robert Conneen, who lives in Secane, Pa., claims in his May 30 complaint that he sustained serious and permanent hip and back injuries after a driver working for the defendants plowed into the rear of his vehicle, which was disabled and sitting along the shoulder of Interstate 476.

    The accident, which took place at about 6:30 on the morning of June 24, 2011, occurred after the driver of the commercial vehicle, identified as Ridley Park, Pa. resident John Matthews, who is named as a defendant in the suit, collided with the rear and driver’s side of the Conneen vehicle.

    The lawsuit doesn’t specify whether or not Robert Conneen had been driving the car he was in at the time, only to state that he was an “occupant” of that vehicle on the day of crash.

    Conneen claims in his suit that he sustained physical injuries, experienced pain and suffering, and has been deprived of life’s enjoyment and pleasures as a result of the accident, and that he had to expend large sums of money on medical care required to treat his injuries.

    The plaintiff also alleges he has suffered earnings losses due to his inability to work during the period in which he was dealing with his injuries in the aftermath of the motor vehicle collision.

    The other defendants named in the complaint are United Tectonics Corporation, United Tectonics Corporation Inc., Unitex, and Skelp Realty LLC, all of which appear to be based out of the same South Chestnut Street address in Downingtown, Chester County.

    Matthews is accused of operating a vehicle in a negligent and careless manner, driving at an excessive rate of speed under the circumstances, failing to have his vehicle under proper and adequate control, and failing to give significant notice of the approach of his vehicle.

    The other defendants are accused of allowing Matthews to operate his vehicle despite knowledge of mechanical problems existing in the vehicle at the time, hiring Matthews despite knowledge of his alleged lack of experience and requisite skills necessary to operate the defendants’ vehicles, failing to properly train Matthews in the safe and proper operation of commercial vehicles, and failing to properly warn Matthews of known mechanical problems with the vehicle he was driving on that day.

    Conneen seeks compensatory damages in excess of $50,000.

    Conneen’s wife, Kimberly Conneen, who is listed as a co-plaintiff in the complaint, also seeks $50,000 for lack of consortium, claiming her relationship has been negatively affected because of her husband’s injuries.

    The plaintiffs are being represented by Philadelphia lawyers Lee D. Rosenfeld and Matthew Y. Rong, of Messa & Associates, P.C.

     

    The case ID number is 130503282.


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    The state House Judiciary Committee this week advanced a measure designed to partially shield farmers engaged in so-called “agritainment” from civil liability.

    The House Republican Caucus announced the June 4 committee passage of House Bill 397, which provides for limited immunity from civil litigation for those who sponsor agritainment activities, which can range from corn mazes and hay rides to farm tours and pick-your-own produce events.

    Keller

    Keller

    Farmers have recently been finding alternative uses for their land in the growing industry known as agritainment, which refers to tourism-related, recreational or educational activities taking place on farmland across the commonwealth, State Rep. Mark Keller wrote back on Jan. 14 in a memo to his fellow House members announcing his proposal.

    The legislator, a Republican who represents Perry and Franklin counties in south-central Pennsylvania, said that because many activities involved in the agritainment business are not typically covered under traditional farm liability policies, farmers often find themselves facing challenges in securing adequate insurance coverage.

    “Under current Pennsylvania law, these entrepreneurial farmers face enormous liability risks when opening up their land to the public,” Keller had written in his January memorandum.  “Agritainment activities involve inherent risk that are impossible to eliminate. It is only reasonable that those who choose to participate in these activities should voluntarily assume part of that risk.”

    Keller said his bill is designed to shield landowners from lawsuits in situations where no party is at fault when it comes to injuries or damages.

    While the proposed legislation provides immunity from suit in some instances, it still preserves the right for people to sue an agricultural property owner in cases involving gross negligence, displays of willful or reckless disregard for the safety of the participant, or in cases where the activity taking place intentionally causes a potential plaintiff’s injury.

    On Jan. 29 the measure was referred to the judiciary committee, of which Keller is a member, according to online legislative records.

    Records further show that the bill has 26 co-sponsors.

    In a statement, Keller hailed the bill’s advancement to the full House as a step in the right direction.

    “Many traditional family farmers in Pennsylvania are finding it difficult to keep up with the increasing costs of their business,” the lawmaker stated. “My bill would give them the option of supplementing their income by operating an agritainment activity without the fear of being hit with an expensive and frivolous lawsuit that resulted from opening up their land to the public.”

    The bill has the support of the Pennsylvania Farm Bureau.


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    A Texas woman is suing a suburban Philadelphia car dealership over claims that she became seriously injured after slipping and falling in the defendant’s parking lot.

    Gale Ingram, of Missouri City, TX, alleges in her civil action against Chapman Ford Inc. that the defendant committed negligence when it failed to correct a dangerous condition existing on its 1170 Easton Road property in Horsham, Montgomery County. gavel

    Chapman Ford, which does business as Chapman Nissan, and the owner of the property on which the dealership is situated, identified only as 6925 Essington Ave. LP, are both named as defendants in the premises liability action, which was filed in Philadelphia County on May 30 by Bala Cynwyd lawyer Elizabeth A. Savitt.

    The plaintiff claims that while lawfully on the defendants’ premises on Feb. 3, 2012, at about 9:30 in the morning, she was suddenly caused to slip and fall in the parking lot as a result of coming into contact with a “defective condition,” the specifics of which are not spelled out in the complaint.

    As a result of her fall, Ingram reportedly sustained a number of injuries to her body, including torn ligaments and tendons, bone marrow swelling, herniated and bulging discs in her back, and other ills and injuries that have required costly medical attention.

    The incident also allegedly caused the woman to experience mental anguish, and have made it so Ingram has been rendered physically “sick, sore, lame, prostrate, disabled and disordered,” the complaint reads.

    “As a further result of the aforesaid, plaintiff Gale Ingram has been and will continue in the future to be hindered and prevented from attending to her usual duties, avocations and occupation, all of which have caused and may in the future cause her to sustain a loss of earnings and/or earning power, to her great financial detriment and loss,” the lawsuit states.

    Gale Ingram seeks $50,000 in damages.

    Her husband, Raymond Ingram, listed as a co-plaintiff in the litigation, also seeks $50,000 in damages for loss of consortium.

    An arbitration hearing has been scheduled for mid-February 2014.

     

    The case ID number is 130503308.


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    The first lawsuit has been filed in the wake of last week’s deadly building collapse in

    Robert Mongeluzzi

    Robert Mongeluzzi

    downtown Philadelphia, an incident that claimed the lives of six people who had been inside of a Salvation Army thrift store that was crushed by an adjacent structure in the midst of being demolished.

    Philadelphia personal injury attorney Robert Mongeluzzi, considered one of the preeminent construction accident lawyers in the nation, filed a civil action at the Philadelphia Court of Common Pleas on behalf of Nadine White, a city woman who was found buried beneath the rubble created during the collapse of a building at the corner of 22nd and Market Streets in Center City.

    The negligence suit, which was filed on June 6, the same day of the accident, names as defendants Richard Basciano, the owner of the 2136 Market Street building that collapsed on top of the thrift shop; Basciano’s company, STB Investments Corp.; Griffin T. Campbell, the demolition contractor who had been hired to tear down the vacant structure; and Campbell’s firm, Griffin Campbell Construction.

    White was one of 13 people injured, but not killed, during the early morning building collapse in bustling downtown Philadelphia.

    The construction accident, which made national headlines, claimed the lives of six people.

    The office of Philadelphia Mayor Michael Nutter released the names of the deceased as follows: Kimberly Finnegan, Borbor Davis, Juanita Harmin, Mary Simpson, Anne Bryan and Roseline Conteh.

    News outlets have reported that Bryan, 24, was the daughter of Philadelphia City Treasurer Nancy Winkler, and a student at the Pennsylvania Academy of the Fine Arts at the time of her death.

    White, the plaintiff in the first lawsuit over the construction accident, is a clerk for the Salvation Army who was working in the thrift store at the time the neighboring building collapsed.

    Mongeluzzi, White’s attorney, was quoted in local media as saying the building collapse was the “most egregious construction accident I think I’ve ever been involved in.”

    Mongeluzzi was also involved in litigation stemming from the deadly duck boat incident on the Delaware River in Philadelphia back in the summer of 2010 that took the lives of two young Hungarian tourists.

    The tourist vessel had been struck by a sludge barge when the amphibious vehicle became stranded in the river’s shipping channel.

    The Pennsylvania Record previously reported on the duck boat litigation.

    In addition to filing suit on behalf of White last week, Mongeluzzi filed an emergency petition seeking to have the courts order the accident site preserved so he and his team could examine the area during the early stages of the litigation.

    On June 7, Philadelphia Common Pleas Court Judge Ellen Ceisler granted the plaintiff’s motion, writing that counsel and experts would have the right to “inspect, photograph and video record the demolition of the area of the subject collapse” beginning on June 8, but only from a “safe distance and in a manner that does not impede any ongoing investigation.”

    The deadly incident is currently being investigated by the city’s fire and police departments, the Department of Licenses and Inspections, and the federal Occupational Safety and Health Administration, according to Mayor Nutter’s office.

    In a statement issued by his office late last week, Nutter said the city mourns those who were killed in the incident, saying “our deepest condolences go out to the families and friends of the deceased. I ask all Philadelphians to remember those who perished and their families in their prayers and thoughts.”

    In all, 13 people were injured in the building collapse, including plaintiff Nadine White.

    All of the injured had been either working or shopping in the single-story thrift store at the time it was crushed by the neighboring four-story structure.

    As for the litigation, Ceisler, the judge, ordered the defendants to preserve all documents relating to the demolition project including all permits, engineering surveys, demolition plans, shoring plans, site surveys, deeds, property records, applications and other related documents.

    Ceisler ruled that once the site is deemed safe, the remaining debris should be left at the location to be examined, inspected, photographed, and video recorded by the attorneys and their experts during an agreed upon two-day period.

    White, the plaintiff in the case, who is a 54-year-old mother of three, was reportedly one of the first victims rescued by emergency personnel after the building collapse.

    The complaint accuses the various defendants of negligence and gross recklessness for their alleged respective roles in the deadly construction accident.

    STB Investments, the property owner and a co-defendant in the suit, released a statement to local media late last week that said the following: “Our heartfelt thoughts and prayers go out to the people affected by this tragic event. Please know that we are committed to working with the City of Philadelphia and other authorities to determine what happened …”

    On Saturday, the Philadelphia Inquirer, citing unnamed law enforcement officials, reported that 42-year-old Sean Benschop, who had been operating the excavator machine during the demolition of the building that collapsed, was expected to face charges including risking and causing a catastrophe, both felonies, and involuntary manslaughter, a first-degree misdemeanor.

    The paper also reported that toxicology tests showed Benschop, who also goes by the alias Kary Roberts, had marijuana in his system at the time of the incident.

    The White case ID number is 130600987.


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    A three-judge state appellate court panel has ruled in favor of a widow who sued chemical

    Superior Court President Judge Correale F. Stevens

    Superior Court President Judge Correale F. Stevens

    maker Rohm and Haas over her late husband’s brain cancer, ordering a Philadelphia judge to further explain his rationale for issuing compulsory nonsuit on the plaintiff’s strict liability claim only.

    In a non-precedential opinion filed May 31, the Superior Court judges remanded to the Philadelphia Court of Common Pleas a case initiated by Joanne Branham, who in the spring of 2006 filed suit on behalf of her deceased husband, Franklin Delano Branham, against the chemical manufacturer and others over the husband’s illness.

    The plaintiff claimed that the defendants were responsible for her late husband’s brain cancer diagnosis, alleging that the groundwater and air contamination coming from the Rohm and Haas plant in Ringwood, Ill., led to Franklin Delano Branham developing brain cancer.

    The husband died at age 63, shortly after being diagnosed with the malignant brain tumor.

    Joanne Branham alleged that the chemical company knowingly and recklessly dumped the toxic chemical vinyl chloride into an unlined pit for decades at the Illinois plant, which is located a mile north of where the couple lived for three decades, and that the vinyl chloride eventually made its way south in a groundwater plume and contaminated drinking water wells serving the housing development where the plaintiffs and others resided.

    The woman also claimed in her suit that the vinyl chloride percolated up through the ground and into the air around the homes.

    The widow’s complaint against Rohm and Haas Co., Rohm and Haas Chemicals LLC and Morton International Inc. asserted claims of strict liability, negligence and fraud.

    In the summer of 2011, as the case was making its way toward trial in Philadelphia, Common Pleas Court Judge Allan Tereshko granted summary judgment in favor of the defendants, in response to their motion seeking to dismiss the strict liability claim before the case came before a jury, the record shows.

    The trial court had found that the chemical company’s disposal of vinyl chloride in the unlined pit at the Illinois plant didn’t constitute an “abnormally dangerous activity.”

    Tereshko ultimately entered a nonsuit in the middle of the case after it had gone to trial on the remaining negligence and fraud claims, according to the appellate court’s opinion.

    The appeals panel wrote in its decision that before it could examine the merits of the plaintiff’s appeal, the judges must first be given an additional opinion from the trial court judge explaining the compulsory nonsuit on the strict liability claim.

    At the heart of Tereshko’s ruling were sections 519 and 520 of the Restatement (Second) of Torts, with the former providing that “one who carries on an abnormally dangerous activity is subject to liability from harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm,” and the latter outlining the six factors that are relevant in determining whether an activity is considered abnormally dangerous.

    Citing case law, the appellate panel wrote that this determination is a question of law for the trial judge, and not the jury.

    In its opinion, the appeals judges wrote that in his order granting summary judgment on the strict liability claim, Tereshko never discussed the six factors set forth in Section 520 of the Restatement (Second) of Torts that are required to make the “abnormally dangerous” determination.

    “Instead, the trial court inferred that Appellant’s claims sounded in negligence and assumed that if the [defendants’] storage facility was properly maintained without negligence, there would have been no release into or infiltration of the surroundings,” the appellate decision reads. “We remind the trial court that in reviewing a motion for summary judgment, courts must view the record in the light most favorable to Appellant as the non-moving party.”

    The panel remanded the case to Philadelphia, ordering Tereshko to prepare an opinion specifically applying the factors set forth in Section 520 of the Restatement of Torts within 30 days of its opinion.

    The plaintiff was also given a month’s time in which to file her own brief if she chooses to do so.

    The decision was written by Superior Court President Judge Correale F. Stevens.

    The other participating jurists were President Judge Emeritus Kate Ford Elliot and Judge Cheryl Lynn Allen.


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    A federal appeals court recently sided with the trial judge overseeing the multidistrict

    Third Circuit U.S. Court of Appeals Judge Anthony J. Scirica

    Third Circuit U.S. Court of Appeals Judge Anthony J. Scirica

    asbestos litigation playing out at U.S. District Court in Philadelphia, determining that the jurist properly dismissed a dozen cases from the MDL for failure to comply with an earlier court order.

    In an opinion filed on May 31, the U.S. Third Circuit Court of Appeals affirmed an earlier ruling by U.S. District Judge Eduardo Robreno, who oversees the asbestos MDL pending in the Eastern District of Pennsylvania, to dismiss the claims of 12 plaintiffs due to non-compliance with pre-trial Administrative Order No. 12.

    Robreno had ruled that the plaintiffs submissions were fatally flawed in that they failed to include specific histories of the plaintiffs’ asbestos exposure.

    Lawyers for the plaintiffs, however, argued that the trial court’s order, which was originally issued in 2007 by the judge who previously presided over the litigation, did not impose this requirement, and even if it did, the omission regarding asbestos exposure history wouldn’t warrant dismissal with prejudice.

    According to the Third Circuit’s opinion, the purpose of Administrative Order No. 12 was to assist the court with managing the large number of cases – the MDL once included more than 150,000 plaintiffs alleging 8 million-plus claims – and complex issues involved in the litigation; to allow meritorious cases to properly move to trial or settlement; and to avoid unnecessary burdens on defendants by requiring plaintiffs to provide certain medical and exposure information at the outset of the case.

    “Judge Robreno, with the assistance of dedicated magistrate judges, has continued to oversee discovery and pretrial proceedings, allowing meritorious claims to advance and weeding out unsupported claims,” the Third Circuit’s opinion states.

    The appeals court noted that soon after the MDL was assigned to him in the fall of 2009, Robreno amended Administrative Order No. 12, requiring plaintiffs alleging claims with regard to asbestos-related malignancies or non-malignant injuries to submit copies of the medical reports diagnosing their respective diseases.

    The judge also amended the order to allow for the dismissal of any case filed by plaintiffs who fail to adhere to the terms of the order.

    In the appeal over the dismissal of the 12 actions, the Third Circuit was charged with ensuring Robreno’s ruling was not “ordered arbitrarily,” and that it was done in compliance with Administrative Order No. 12.

    In the end, the appeals court determined that Robreno ruled appropriately.

    The appeals bench did not agree with the plaintiffs’ assertions that the pre-trial order did not require a complete exposure history; plaintiffs’ lawyers contended that simply indicating the nature and duration of a claimant’s work, as well as general allegations of exposure history, should suffice under the order.

    While admitting that the language of Administrative Order No. 12 is “broad,” the panel wrote that it saw no reason not to defer to Robreno’s interpretation of the order that requires plaintiffs’ submissions to include asbestos exposure history.

    “In this case, the District Court resolved any ambiguity as to the requirements of AO 12 in its November 2011 Order,” the Third Circuit ruling states, referring to the near two-year-old order issued by Robreno in which he dismissed 47 asbestos cases for failure to comply with the previous pre-trial order.

    Of those 47 cases, the record shows, 19 were dismissed for failure to provide sufficient exposure history reports, and 24 were dismissed for failure to show an asbestos-related impairment, the record shows.

    The Third Circuit wrote that as detailed in the November 2011 order, “the District Court believed that ordering plaintiffs to submit a ‘medical diagnosing report or opinion’ that was ‘based upon objective and subjective data which shall be identified and descriptively set out within the report or opinion,’ … meant that plaintiffs must include exposure history so as to comply with ‘generally accepted medical standards [that] call for information regarding duration, intensity, time of onset, and setting of exposure to asbestos.”

    The appeals panel also wrote that while the “broad language” of the pre-trial order could support different interpretations, “it does not strike us as an abuse of discretion – especially given the District Court’s experience in overseeing these proceedings – to require a ‘complete occupational and environmental exposure history when asbestos-related disease is suspected.

    “Presumably, the thousands of other AO 12 submissions for cases pending in the MDL are supported by more detailed, and thus satisfactory, exposure histories,” the ruling continued.

    In the present appeal, the plaintiffs never denied that their submissions lacked exposure history, rather they focused their argument on insisting that Administrative Order No. 12 “did not require what the District Court said it did, advancing an argument … that dismissal was not warranted and that they should be permitted to amend their submissions,” the ruling notes.

    The plaintiffs’ argument fails, however, because they could have supplemented their submissions to comply with the pre-trial order “at any time during the several months before the District Court’s issuance of its March 2012 Order,” the ruling states, referencing Robreno’s order dismissing the 12 actions at the heart of this appeal.

    “Because we cannot conclude that the District Court abused its discretion by interpreting AO 12 to require a complete exposure history, and because Plaintiffs’ AO 12 submissions do not include complete exposure histories, Plaintiffs’ argument fails,” the ruling states.

    The Third Circuit also affirmed Robreno’s decision to dismiss the 12 cases with prejudice, writing that it had “little difficulty concluding that the District Court considered and weighed the factors, viewing the dilatory and prejudicial aspects as outweighing all others.

    “Moreover … the flaw in the submissions went to the very heart of the ‘meritorious’ aspect, making the weighing of that factor impossible,” the appeals court wrote.

    The Third Circuit concluded by writing that Robreno’s ruling was “not the product of a clash of wills in a solitary case. Nor was it precipitous.”

    Instead, the panel wrote, the ruling was typical in the context of managing multidistrict litigation as per Rule 41(b), which allows judges to enforce orders pertaining to the progress of their cases.

    “Nowhere is this more important, in terms of degree of difficulty and the impact, than in multidistrict litigation cases, where the very purpose of the centralization before the transferee judge is the efficient progress of the cases in preparation for trial,” the Third Circuit held.

    The appeals ruling follows oral arguments, which were held on April 3.

    The Third Circuit Judges who heard the case were Anthony J. Scirica, Marjorie O. Rendell and Thomas I. Vanaskie.

    The 12 plaintiffs/appellants in the case were as follows: Barry Wright, Joseph J. Repischak, Nancy Brix, Anthony J. Arendt, Luellen Dellenbach, Ronald J. Michels, Virginia M. Morris, Tracy Burzynski, Russell V. Ostrand, Michael R. Duffey, Roger Zerbel and Kathleen Stafford.

    According to the court record, the plaintiffs were represented on appeal by lawyers Brian A. Schroeder, Michael P. Cascino and Robert G. McCoy, of the Chicago-based Cascino Vaughn Law Offices.


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    To litigate or arbitrate?

    U.S. District Judge Anita Brody

    U.S. District Judge Anita Brody

    That’s the task currently assigned to a federal judge in Philadelphia presiding over the massive concussion injury litigation against the National Football League.

    This week, that jurist, U.S. District Judge Anita Brody, signaled that the parties in the multidistrict litigation should expect a decision in less than two month’s time regarding whether or not the case could move forward, or if it gets booted from the tort system and into the hands of a labor arbitrator.

    In a one-sentence notice docketed on June 10, Brody, who sits in the Eastern District of Pennsylvania, said that she expects to issue her decision on the NFL’s motion to dismiss on July 22.

    Brody said her notice was being issued in response to “inquiries by counsel and other interested parties.”

    The judge overseeing the National Football League Players’ Concussion Injury Litigation heard oral arguments at the federal courthouse back in April on the defendant’s motion to dismiss the case in its entirety.

    The league argues that the former players’ claims are preempted by the collective bargaining agreement while lawyers representing the thousands of ex-players and their spouses deny that the claims are covered by the CBA, and contend the matter belongs in civil court.

    The plaintiffs allege that the NFL has long misrepresented the long-term health dangers associated with on-the-field head injuries.

    The litigation became so voluminous in the nearly two years since the first case was filed that the U.S. Judicial Panel on Multidistrict Litigation ultimately ordered the creation of an MDL docket at the Eastern District of Pennsylvania where the numerous cases would be coordinated and consolidated, and overseen by Brody, a veteran U.S. District judge.

    According to the website NFLConcussionLitigation.com, which keeps a running tally of the suits as they are filed, there were more than 4,800 named player-plaintiffs in the 242 individual concussion-related lawsuits as of June 1.

    Including the former players’ spouses, the individual plaintiffs total more than 5,800, according to the website.

    The first concussion suit against the NFL was filed back in August 2011.


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    A husband and wife from Philadelphia are suing the out-of-state makers of a generator

    Christopher Culleton

    Christopher Culleton

    that the plaintiffs contend ignited a fire that destroyed their property, and caused the woman to sustain severe burns to her face.

    Attorney Christopher J. Culleton, of the firm Swartz Culleton PC, filed a civil action June 19 at the U.S. District Court in Philadelphia on behalf of Eugene and Latinia Dykes.

    The defendants named in the complaint are California-based Champion Power Equipment Inc. and Washington State-based Costco Wholesale Corp.

    In the lawsuit, Eugene Dykes claims that while performing construction repairs and renovations to the couple’s property on the 1700 block of South 19th Street back on Nov. 14, 2011, the gasoline powered device he was using to generate electricity at the premises ignited a blaze that destroyed the home, and led to Latinia Dykes sustaining serious physical injuries including second-degree facial burns, smoke inhalation, contusions and a shock to her nervous system.

    The product was made by Champion Power Equipment and it was purchased by the plaintiffs at a local Costco store.

    The complaint accuses the defendants of manufacturing and selling a defectively designed product that was considered a fire hazard.

    Prior to the plaintiffs’ accident, the complaint alleges, the defendants knew the power generator in question was hazardous and defective and prone to causing fires.

    The suit further alleges that the companies delayed recalling the power generator after learning of its propensity to ignite blazes.

    Champion Power Equipment is accused of negligence for failing to warn the plaintiffs of the risk of fire injury associated with the generator and supplying the device without adequate labeling and warnings.

    The suit contains additional counts of negligence against Costco, in addition to counts of strict liability, breach of warranty and negligence against both named defendants.

    In addition to the property damage, the plaintiffs claim that Latinia Dykes has undergone great physical pain and suffering relating to her injuries, and the couple claims they have been on the hook for medical expenses relating to the woman’s treatment.

    Latinia Dykes also says she experienced earnings losses due to her inability to work during the period where she was recovering from her injuries.

    The female plaintiff claims she has additionally suffered serious and/or permanent loss of use of a bodily function, dismemberment, and/or scarring as a result of the ordeal.

    “As a further result of the aforesaid accident, plaintiff Latinia Dykes has suffered great and unremitting physical pain, suffering and mental anguish all of which may continue in the future,” the complaint reads.

    The couple seeks more than $75,000 in compensatory and punitive damages, as well as additional court relief.

    A jury trial is being sought.

     

    The federal case number is 2:13-cv-03471-JD.


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    A lawyer representing retailer Home Depot in a personal injury case filed this spring by a

    Kenneth Dubrow

    Kenneth Dubrow

    Northeast Philadelphia woman has filed a petition at U.S. District Court to transfer the matter from a Pennsylvania court to the federal venue.

    Attorney Kenneth M. Dubrow, who practices with the Philadelphia-based Chartwell Law Offices, filed a removal notice last week seeking to move a civil action initiated against Home Depot USA Inc. by Philadelphia resident Oksana Kredens from the Philadelphia Common Pleas Court to the Eastern District of Pennsylvania.

    The defense attorney cites the amount of damages sought by the plaintiff and her husband – $100,000 – as the justification for the transfer.

    The jurisdictional limit for civil cases in state court is $50,000.

    Philadelphia lawyer Henry Yampolsky, of the firm Galfand Berger, filed suit on behalf of Oksana and Valeriy Kredens back in April over allegations that the wife sustained severe head and neck injuries after being struck by a falling advertising display that was located outside of the Home Depot store at 11725 Bustleton Avenue in Northeast Philadelphia.

    Oksana Kredens claims she was walking near the outside display on April 5, 2011, when she was struck by the object.

    As a result of the incident, the plaintiff claims she sustained a concussion and traumatic brain injury, extensive nerve damage, cardiac problems, neck and back injuries, anxiety, depression, humiliation and ample pain and suffering.

    Oksana also maintains she and her husband incurred a large amount of medical bills relating to the woman’s treatment of her injuries.

    Home Depot is accused of negligence for failing to properly anchor and secure the advertising display, failing to warn business invitees of the dangerous condition that existed on the premises, and creating a public nuisance, along with other alleged acts of negligence.

    The complaint also contains a count of loss of consortium on the part of Valeriy Kredens, who claims the incident has led to him being deprived of his wife’s comfort, companionship, services, assistance and earnings.

    The state case ID number is 130400529.

    The federal case number is 2:13-cv-03501-GP. 


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    The Pennsylvania Superior Court has affirmed a Philadelphia Common Pleas Court

    Pa. Superior Court Judge Judith Ference Olson

    Pa. Superior Court Judge Judith Ference Olson

    judge’s dismissal of a premises liability action that had been filed by a city tenant against his landlord.

    In its June 21 non-precedential decision, the three-judge appellate court panel upheld an April 19, 2012 dismissal with prejudice of a case that had been initiated by George Scaricamazza against June DiNapoli, June DiNapoli Revocable Trust and Lorene Yanuzzi.

    Scaricamazza had filed suit over injuries he allegedly sustained on Christmas Day in 2008 after he slipped and fell on an icy area on the stairway of his Philadelphia apartment complex.

    The man asserted that his injuries were due to the negligence of June DiNapoli, which allegedly consisted of defects in the stairway, such as the lack of a railing, inadequate lighting and varying sized steps, the record shows.

    The defendants had claimed they properly maintained the property, and following arbitration, Scaricamazza was found to be 100 percent negligent for his injuries.

    The plaintiff appealed the arbitrator’s decision to the Philadelphia Court of Common Pleas, which subsequently ruled in the defendants’ favor during the summary judgment phase of the litigation.

    Scaricamazza’s attorney ended up withdrawing from the case, and the plaintiff proceeded on his own behalf, appealing the trial court’s decision to Superior Court, according to the record.

    The appellate body ultimately dismissed the appeal last July because Scaricamazza didn’t file the proper paper work on time, but soon reversed course, and allowed the plaintiff to move forward with his appeal, in which he argued that in granting summary judgment to the defense, the trial court erred in a number of ways.

    One argument was that the trial court erred in its factual determination that June DiNapoli was a landlord out of possession when, in fact, the woman lived at the premises and was away on Christmas vacation at the time Scaricamazza became injured on the steps leading to the basement of his apartment.

    In an opinion filed last September, Philadelphia Common Pleas Court Judge Leon Tucker had determined that Scaricamazza’s concise statement of matters complained of on appeal didn’t conform to Pennsylvania’s Rules of Appellate Procedure.

    “In the instant case, Appellant has submitted a plethora of issues in a format that is anything but concise or clear,” Tucker had written at the time.

    Tucker ruled that Scaricamazza’s was “rife with lengthy and conclusory statements asserted as facts.

    “This Court will not sift through Appellant’s 1925(b) Statement to speculate as to which issues he will appeal, which issues are most meritorious or address only those issues which are properly stated,” the trial court opinion had said.

    Tucker went on to write that as per settled case law, a plaintiff such as Scaricamazza couldn’t raise for the first time on appeal issues that were not addressed by the lower court.

    And Scaricamazza did just that, Tucker ruled.

    Tucker further stated that there was no evidence that the landlord could have discovered the alleged defects along the stairway by the “exercise of reasonable care, nor is there evidence that the woman could have made any alleged defects safe.”

    The trial judge also pointed out that Scaricamazza was still represented by legal counsel at the time the defendants filed their motion for summary judgment.

    And finally, Tucker noted that Scaricamazza never responded to the summary judgment ruling, although he was responsible for raising all defenses or grounds for relief to challenge such a motion in a timely manner.

    “It is not the Court’s responsibility to develop a litigant’s case,” Tucker wrote. “The Court considered the record as it was presented and determined that the [defendants] were entitled to judgment as a matter of law …

    “This Court properly dismissed this matter based on the insufficiency of the evidentiary facts in the record.”

    In its brief, four-page decision, the appellate court panel said that after a thorough review of the record, it found that Tucker “thoroughly and accurately addressed all issues raised in this appeal.

    “Consequently, we affirm based on the trial court’s September 4, 2012 opinion and adopt it as our own,” the decision states.

    The appeal was heard by Superior Court Judges Susan Peikes Gantman, William H. Platt and Judith Ference Olson, with Olson penning the decision.


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    Lawyers for Wal-Mart are once again seeking to transfer a personal injury claim by a

    Patrick J. McDonnell

    Patrick J. McDonnell

    Pennsylvania man from state to federal court, just over two months after a federal judge sent the case back to the Philadelphia Court of Common Pleas.

    The case, previously reported on by the Pennsylvania Record, involves allegations by Stephan Stewart that he badly cut his knuckle in the spring of 2011 while removing debris from the inside of a pallet at the retailer’s distribution center.

    Lawyer James Beasley, of Philadelphia’s Beasley Firm, claims his client was forced to undergo several surgical procedures to treat his injuries, which included necrotizing fasciitis, decreased right arm mobility and function, severe and permanent scarring, multiple skin grafts, chronic pain and other ills.

    The plaintiff even had to be placed in a medically induced coma at one point during the course of his treatment.

    Stewart, who was an employee of Rehrig Penn Logistics, was working at the Wal-Mart distribution Center in Tobyhanna, Pa. at the time of the incident.

    In mid-April, U.S. District Judge Joel H. Slomsky, of the Eastern District of Pennsylvania, granted a plaintiff’s motion to remand the case to state court in Philadelphia in mid-April after Stewart’s legal team contended that two more Wal-Mart managers who may be liable for the plaintiff’s injuries would likely be added to the suit.

    Those two managers were later identified as Chris Cherry and Ed Geisler.

    Cherry was an operations manager and Geisler an asset protection manager at the distribution center.

    Stewart’s lawyers argued that because Cherry and Geisler are Pennsylvania residents, the case should be allowed to proceed in state court, since diversity jurisdiction would be defeated.

    The record shows that earlier this month, however, Philadelphia Common Pleas Court Judge Frederica Massiah-Jackson sustained a defense preliminary objection seeking dismissal of the claims against both Cherry and Geisler with prejudice.

    Wal-Mart’s attorneys now conclude that the matter belongs back in federal court because of diversity in citizenship once again exists, and also because the matter in controversy is believed to exceed $75,000, which triggers U.S. District Court jurisdiction.

    The remaining defendants are Wal-Mart Stores East L.P. and Wal-Mart Stores Inc.

    As for Stewart, the Monroe County resident alleges that in addition to the aforementioned injuries, he also has experienced tremendous pain and suffering, depression and anxiety, nervous shock, sleeping difficulties, weakness, numbness, headaches, and a need for continued physical therapy and rehabilitation.

    The plaintiff also claims he has sustained past wage losses and a loss of future earning capacity, all due to his injuries.

    Lastly, Stewart says he has suffered an increased risk of harm for further medical problems.

    The Wal-Mart defendants are being represented by attorney Patrick J. McDonnell, of the Montgomery County-based firm of McDonnell & Associates.

    The federal case number is 2:13-cv-03466-JHS.


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    A South Philadelphia woman is seeking $150,000 in damages relating to the serious

    Bruce L. Neff

    Bruce L. Neff

    injuries she allegedly sustained after falling inside of an elevator at an Atlantic City casino resort.

    Deanna J. Medley filed suit on June 25 at the U.S. District Court in Philadelphia over allegations that she sustained a concussion and other head trauma on Oct. 22, 2011, when, at about 4 in the afternoon, she fell onto her head and back when the elevator dropped during her exit.

    The plaintiff was in the process of stepping out of the elevator at the Atlantic City Hilton at the time when the device dropped slightly, causing her to catch her foot on the floor edge and take a spill, the suit says.

    Medley claims that the hotel and the company hired to maintain the elevator knew the device had leveling problems at the time of the incident, but didn’t properly address them.

    The defendants listed in the lawsuit are RIH Acquisitions NJ LLC, which does business as The Atlantic Club Casino Hotel and the Atlantic City Hilton; RIH Propco NJ LLC; and the Otis Elevator Company.

    Medley’s lawyers wrote in the personal injury suit that jurisdiction at the federal court in Philadelphia is proper because the defendants regularly conduct business in Pennsylvania.

    As for her injuries, Medley claims the incident caused her to sustain a concussion with traumatic brain injury, post-concussion syndrome, cerebral blood clot, recurring headaches, light headedness, memory loss, sleep loss, loss of consciousness, ear ringing, fatigue, and a variety of injuries to her spine, tissues, muscles, cells, and bones.

    The plaintiff also claims to have suffered from mental anguish, humiliation, embarrassment and a loss of life’s pleasures, and she maintains that the injuries have caused her to expend various amounts of money on medical treatment.

    The suit faults the defendants for failing to make timely repairs to the elevator in question, and failing to remove the elevator from service when it was discovered that it had been experiencing leveling problems.

    The hotel and elevator repair company are also accused of negligence for failing to warn casino patrons of the dangerous condition that existed on the premises.

    In addition to the $150,000 in compensatory damages, Medley also seeks interest, costs and a jury trial.

    Medley is being represented by Philadelphia attorney Bruce L. Neff.

     

    The federal case number is 2:13-cv-03626-JHS. 


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    A state judge has agreed to dismiss the rental car company Enterprise from a lawsuit

    Philadelphia Common Pleas Court Judge Frederica Massiah-Jackson

    Philadelphia Common Pleas Court Judge Frederica Massiah-Jackson

    initiated by a husband and wife who say they sustained serious injuries after their vehicle was struck by a car operated by an intoxicated driver.

    Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson, in a July 12 memorandum and order, agreed to dismiss Enterprise Rent-A-Car, Enterprise Holdings Inc. and Enterprise Leasing Co. of Norfolk/Richmond LLC from a civil action that had been initiated by Freddie Maisonet and Lourdes Chaparro.

    Court records show that the Reading, Berks County couple filed suit in February 2012 against the Enterprise defendants, along with Peggy Jo Law, Cassaundra Page, Troichai Wilson, Jessica Hudson and Christina Mierzejewski, over a September 2011 motor vehicle accident.

    The couple claims they were seriously hurt after their car was struck by a Kia Soul driven by an intoxicated Troichai Wilson about a week after Wilson’s mother, Cassaundra Page, gave the man permission to drive the vehicle.

    On Sept. 2, 2011, Peggy Jo Law rented the Kia from an Enterprise location in Chester, Va. Page had accompanied Law to the Enterprise facility, at which time Page was listed as an additional authorized driver in the rental agreement, according to court records.

    A week later, Wilson obtained his mother’s permission to drive the rental car to a party in Reading.

    At about 5:30 a.m. on Sept. 11, Troichai was driving under the influence of alcohol when he crashed the Kia into the rear of the plaintiffs’ Chevy Blazer.

    In their lawsuit, the plaintiffs set forth a variety of claims of direct and vicarious liability against the Enterprise defendants, including negligence, negligent hiring, negligent training, negligent retention and negligent supervision, the record shows.

    In her memorandum and order, Massiah-Jackson wrote that none of the aforementioned theories could proceed unless Enterprise owed a duty to protect the plaintiffs from acts committed by a “third party stranger.”

    And in the end, the judge, citing case law, determined that the rental agency didn’t owe a duty to protect the couple.

    Massiah-Jackson cited a state Superior Court case in which the appellate judges affirmed a trial judge’s granting of summary judgment to the defense in litigation involving thieves who stole a vehicle from a car dealership and went on to injure a plaintiff during an accident.

    In that case, titled Roche v. Ugly Duckling Car Sales Inc., the appeals panel determined that the dealership owed no duty of care to the injured party.

    As in Roche, Massiah-Jackson determined that the plaintiffs and the Enterprise defendants were strangers to each other, and that Wilson, the drunk driver, had never signed the rental agreement nor was he designated as an additional authorized driver on the agreement.

    “Where the parties are strangers to each other the scope of a general duty of care is limited to those risks which are reasonably foreseeable in the circumstances of the case,” Massiah-Jackson wrote. “Plaintiffs Maisonet and Chaparro have been unable to present anything in these facts which would have put the Enterprise Defendants on notice that Ms. Page would let an unauthorized driver use the car, or, that the unauthorized driver would be intoxicated and drive in a negligent manner.”

    The plaintiffs had also suggested that Enterprise was negligent in renting the Kia to Law and permitting Page to be an additional authorized driver by failing to recognize false identification at the time the parties signed the rental agreement.

    The judge, however, stated that the actions of Wilson, the drunk driver, were “so remote in the causal chain that Enterprise can not be held legally responsible as a matter of law.

    “Even assuming that the Enterprise Defendants should have foreseen the likelihood that the Additional Authorized Driver would let her son drive the vehicle, nothing existed which put Enterprise on notice that the son would be an incompetent and intoxicated driver,” Massiah-Jackson wrote.

    In addition to granting summary judgment to Enterprise, the judge also dismissed with prejudice all related claims and cross-claims in the litigation.

    The docket sheet in the case shows that on July 10, two days prior to Massiah-Jackson’s order, fellow Philadelphia Common Pleas Court Judge Jacqueline Allen remanded the case to arbitration.

    The record shows that the plaintiffs are being represented by Philadelphia attorney Robert F. Englert.


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    A federal judge in Philadelphia has agreed to send back to state court a personal injury

    U.S. District Judge Jan DuBois

    U.S. District Judge Jan DuBois

    lawsuit initiated by a Pennsylvania man who claims he sustained serious injuries when a heavy mounted crane fell onto his shoulder and back while he was working.

    The complaint asserts negligence claims against AMERCO, U-Haul International Inc., U-Haul Co. of Pennsylvania and Falls Manufacturing Co.

    The record shows that plaintiff Eldridge Salley filed a motion with the U.S. District Court for the Eastern District of Pennsylvania to remand the case to Philadelphia’s Common Pleas Court on the grounds that complete diversity was not present between the parties.

    AMERCO simultaneously moved to dismiss the claims against it for lack of personal jurisdiction while U-Haul Co. of Pennsylvania and Falls Manufacturing Co. sought to dismiss the entire complaint for failure to state a claim upon which relief can be granted, or alternatively for a more definite statement.

    In his July 15 ruling, U.S. District Judge Jan E. DuBois granted the plaintiff’s motion to remand the case to Philadelphia County, although the jurist denied Salley’s petition seeking litigation fees and expenses.

    Because the judge remanded the civil action, he refused to rule on the defendants’ motions to dismiss.

    The lawsuit involves claims that Salley suffered spinal fractures, bone fragments, and a permanent deformity of the spine after the piece of heavy equipment fell on top of him at a location owned and operated by the defendants in Fairless Hills, Bucks County.

    The plaintiff initially filed his suit in Philadelphia’s Common Pleas Court on Feb. 1, but U-Haul International subsequently filed a removal notice seeking to transfer the litigation to U.S. District Court, with U-Haul’s lawyers arguing that the matter belongs in a federal jurisdiction due to diversity in citizenship among the parties.

    AMERCO and U-Haul International are based in Nevada and Arizona respectively.

    U-Haul Co. of Pennsylvania, however, has its principal place of business in the Keystone State, as does Falls Manufacturing Co., a division of that company.

    The two defendants argued that removal to federal court was proper because they claim they were fraudulently joined to the litigation, the record shows.

    In court papers, U-Haul argued that the Pennsylvania defendants were Salley’s statutory employers under the Pennsylvania Workmen’s Compensation Act, and because of this they are liable only as outlined in the PWCA.

    Therefore, U-Haul argued, the Pennsylvania defendants are immune from suit in the negligence action because Salley lacks a colorable claim against them, hence the fraudulent joinder contention.

    U-Haul conceded that Salley was on paper an employee of Centrix Staffing, a temporary staffing agency, but nevertheless argued that pursuant to the “borrowed servant” doctrine that the Pennsylvania defendants were Salley’s statutory employers, the judicial memorandum shows.

    In support of this claim, U-Haul submitted an affidavit by William Hawthorne, the president of Falls Manufacturing Co., which is owned by U-Haul Co. of Pennsylvania, and which stated that the company provided Salley with daily job assignments, and that U-Haul, not Centrix Staffing, controlled the welding work that was performed by Salley.

    Salley, however, in his own affidavit, contended that during his employment, “nobody on the job controlled the manner in which I performed mig welding as an independent contractor.”

    Salley also claims he was never given U-Haul attire and had to use his own tools at his job site.

    The judge ultimately determined that given the facts of the case, it appears that the Pennsylvania defendants were not Salley’s statutory employers, and therefore could be held potentially liable in the civil action.

    “Salley’s claims against the Pennsylvania defendants are not ‘wholly insubstantial and frivolous,’ and ‘there is a possibility that a state court would find that the complaint states a cause of action’ against the Pennsylvania defendants,” DuBois wrote in his memorandum. “Thus, the Court concludes that joinder of the Pennsylvania defendants was proper and that subject matter jurisdiction is lacking due to the absence of complete diversity of citizenship.”

    At the same time, DuBois denied Salley’s motion for fees and expenses, writing that while the court rejected the defense’s fraudulent joinder argument, the court cannot say that U-Haul lacked an “objectively reasonable basis for removal” due to the disputed nature of the facts as alleged in the case.

    Court records show that Salley is being represented by Philadelphia lawyer Justin Bieber.

    Richard B. Wickersham, Jr., of the Philadelphia firm Post & Schell, P.C., appears to be representing the U-Haul defendants and Falls Manufacturing Co. in the case, while fellow Post & Schell lawyer Karyn Dobroskey Rienzi seems to be representing AMERCO, the court docket shows.


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    A personal injury claim against the National Railroad Passenger Corp., more commonly

    U.S. District Judge Gene E.K. Pratter

    U.S. District Judge Gene E.K. Pratter

    known as Amtrak, must play out in federal court because the defendant is a quasi-governmental entity, a U.S. District Judge in Philadelphia has ruled.

    Judge Gene E.K. Pratter, who sits in the Eastern District of Pennsylvania, denied this week a motion by plaintiff Patricia Seabron to remand her civil action to the Philadelphia Court of Common Pleas, where the woman had originally filed the first of two complaints.

    The April 11 lawsuit, which alleged that Seabron sustained injuries after tripping over a broken metal pole protruding from a sidewalk back on Dec. 22, 2010, was preceded by a separate state court action last July that named the City of Philadelphia and others as defendants.

    During the course of discovery relating to the July 24, 2012, suit, Seabron claims she learned that Amtrak could also be a defendant in the matter, and thus she argued that the two separate state court actions could be consolidated.

    But she never attempted to join Amtrak as a defendant, the record shows.

    In mid-April, lawyers for Amtrak removed the second Seabron action to the federal venue, after which Seabron filed her motion to remand.

    In her July 15 memorandum and order, Pratter wrote that “even being mindful that all doubts concerning the propriety of removal are to be resolved in favor of remand, the Court concludes that it must deny Ms. Seabron’s motion for remand because federal jurisdiction is present.”

    In her petition, the plaintiff had argued that Amtrak failed to establish a proper basis for federal subject matter jurisdiction, while the railroad agency counter-argued that federal question jurisdiction exists because Amtrak was established by an act of the United States Congress, thus making it a litigant appropriate for federal court oversight.

    The judge’s memorandum notes that Seabron never disputed that Amtrak is a federally-chartered corporation, and therefore federal question jurisdiction would exist even if Seabron had joined Amtrak as a defendant in the original lawsuit.

    “The Court has original jurisdiction over this case pursuant to [federal law] and Amtrak is permitted to remove the case to this court,” Pratter wrote.

    As for the allegations in her complaint, Seabron claims to have sustained fractures to her extremities, cubital tunnel syndrome, scarring, arthritis and other injuries as a result of tripping over a broken metal pole protruding from a walkway in Paoli, Chester County in late December 2010.

    The plaintiff claims that Amtrak had, or should have had, reasonable knowledge of the hazardous condition and that it committed an act of negligence when it failed to correct the dangerous condition.

    Seabron says she had to spend a great deal of money on medical care to treat her injuries, which rendered her unable to carry out her regular duties and activities.

    The record shows that Seabron, who resides in Philadelphia, is being represented by Philadelphia lawyer William M. Carlitz.


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    Hess Corp. has been ordered to turn over a recorded statement by a Philadelphia gas

    U.S. District Judge R. Barclay Surrick

    U.S. District Judge R. Barclay Surrick

    station employee to a plaintiff in a slip-and-fall case against the petroleum company.

    On July 12, U.S. District Court Judge R. Barclay Surrick of the Eastern District of Pennsylvania granted a motion by Mary Mieloch seeking to compel Hess to produce a recorded interview statement by Austin Williams, who was operating the transaction booth at a Philadelphia Hess station on Dec. 8, 2010, when the woman allegedly injured herself after tripping and falling at the premises.

    Court records show that Williams had been interviewed by a field investigator for the defendant’s insurance company about five weeks after the incident.

    More than a year-and-a-half later, Mieloch filed a complaint against Hess at Philadelphia’s Common Pleas Court, a civil action that was later removed by the defense to the federal venue.

    An attorney for Hess subsequently disclosed that he was in possession of Williams’s recorded statement, a piece of evidence that the plaintiff wanted to obtain, but one that was never turned over, the record shows.

    Mieloch’s lawyers filed their motion to compel on May 26 of this year.

    In her motion, Mieloch argued that the employee’s recorded statement does not qualify as work product because Hess had not yet retained legal counsel at the time that the statement was taken by the insurance company’s representative.

    The defense counter-argued that the statement is not discoverable because it was taken in anticipation of litigation.

    Surrick stated that he was not persuaded by the defense’s argument that Williams’s statement to the insurance investigator qualifies as material obtained in anticipation of litigation because lawyers for Hess were not present during the interview, and there is no indication that Hess had retained legal counsel at the time of the interview.

    The judge wrote that Hess offered only “conclusory assertions that the interview was conducted by the investigator in anticipation of litigation; however, Defendant offers no factual support for this assertion. Defendant invites us to conclude that simply because an insurance investigator interviewed a witness after Plaintiff put Defendant on notice of the accident, the statement of that witness should be protected by Rule 26(b).”

    The judge was referencing the federal Rule of Civil Procedure that permits broad discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense …”

    Citing case law, Surrick noted that in assessing whether the privilege applies, the fact that the witness statement was obtained by an insurance carrier as opposed to a lawyer is not determinative.

    Whether Hess had retained a lawyer at the time the gas station employee’s recorded statement was prepared is, in fact, relevant to the court’s determination, the judge wrote in his memorandum.

    “There has been no representation that an attorney for Defendant was present during Mr. Williams’s interview, nor that the interview was conducted at the request of an attorney,” Surrick wrote. “Plaintiff asserts that Defendant had not even retained legal counsel in this matter until December 2012, almost two years after the interview of Mr. Williams. Defendant does not dispute this fact in its Response to Plaintiff’s Motion.”

    In the end, the judge determined that because he found that the employee’s statement was not taken by the insurance investigator in anticipation of litigation, the court needn’t reach the question of whether Mieloch, the plaintiff, has shown a substantial need for the statement because that is irrelevant.

    “The witness statement is not protected by the work product privilege and is discoverable,” Surrick wrote. “Defendant must produce the statement to Plaintiff.”

    In her lawsuit, Mieloch claims she was injured after tripping and falling while walking across the lot of the Hess station toward the kiosk in order to pre-pay for her gasoline.

    The station is located on the 6300 block of Oxford Avenue in Philadelphia, the same city where the plaintiff resides.

    The woman claims she sustained injuries to her teeth and jaw, in addition to joint pain, a meniscus disclocation, contusions and other injuries.

    The lawsuit was filed by Bala Cynwyd, Pa. attorney Bernard Edelson.


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    A federal judge in Philadelphia has granted summary judgment to Wyeth

    U.S. District Judge Ronald L. Buckwalter

    U.S. District Judge Ronald L. Buckwalter

    Pharmaceuticals and other drug companies named in a products liability complaint by a Nevada woman who alleged her breast cancer was caused by hormone replacement therapy products manufactured by the defendants.

    U.S. District Judge Ronald L. Buckwalter, who sits in the Eastern District of Pennsylvania, ruled in a July 18 order that the plaintiff, Sharon Williams, failed to demonstrate that the hormone therapy treatment specifically caused her breast cancer, a necessary requirement under both Pennsylvania and Nevada law.

    (Under Pennsylvania and Nevada law, causation is a necessary requirement for each claim brought by a plaintiff in cases such as these).

    Williams, who was diagnosed with breast cancer in the late 1990s, had taken a variety of hormone replacement therapy drugs manufactured and marketed by the defendants from 1983 until she was diagnosed with hormone receptor positive breast cancer in October 1998, the record shows.

    The woman initially brought suit against Wyeth as part of a multi-plaintiff complaint in a federal court in California in the summer of 2004, but the case was eventually consolidated as part of a multidistrict litigation in eastern Arkansas.

    Three years ago, the then-presiding judge began remanding cases back to the transferor courts for case-specific discovery and trial, notes a memorandum accompanying Buckwalter’s order.

    The MDL judge had also ordered that the cases be re-filed in an appropriate federal district.

    Williams chose to re-file her lawsuit in the Eastern District of Pennsylvania in late February 2010, the record shows.

    The plaintiff’s complaint contained claims of negligence, fraud, products liability and breach of warranty.

    Attorneys for Wyeth and the other pharmaceutical manufacturers named as defendants in the case argued that Williams could not prevail on any of the counts because of her apparent inability to prove causation, specifically through medical expert witness testimony.

    “In summary, in order to prevail on cases like that currently before the Court, Plaintiff must provide expert medical testimony demonstrating that, to a reasonable degree of medical certainty, Defendants’ products were a substantial factor in causing Plaintiff’s cancer,” Buckwalter wrote. “The crux of Defendants’ argument is that Plaintiff has simply failed to provide such testimony.”

    Buckwalter ended up disagreeing with Williams’s contention that the deposition testimony of her physician, James Waisman, provided the necessary evidence of causation.

    The judge wrote that it had been made clear on numerous prior occasions that the doctor was not operating as an expert witness during his deposition testimony.

    Upon questioning by the plaintiff’s lawyer, Buckwalter wrote in his memorandum, Waisman clarified that he was never asked to be an expert witness and had not agreed to give an expert opinion or testimony in the case beyond his treatment and care of Williams.

    Even if the court had accepted Waisman as an expert witness, the doctor’s testimony would have still failed to meet the necessary “substantial factor” requirement necessary to prove legal causation, the judge wrote.

    “Dr. Waisman’s testimony that the hormone therapy treatment ‘played a role’ in causing Plaintiff’s breast cancer is contravened by his later testimony …,” Buckwalter wrote. “Simply put, ‘playing a role’ is not the same as being a ‘substantial factor.’ As such, summary judgment must be granted in favor of Defendants.”

    The court docket shows that the Wyeth defendants were represented by attorneys from the firm Shook Hardy & Bacon as well as lawyers from Dechert LLP.

    The plaintiff was represented by attorneys from Philadelphia’s Williams Cuker & Berezofsky and counsel from the Montgomery County firm Pogust & Braslow LLC, as well as other attorneys from the out-of-state firms of Kabateck Brown Kellner LLP and Khorrami Boucher Sumner Sanguinetti LLP.


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    Lawyers representing survivors of the deadly June building collapse in

    Robert Mongeluzzi

    Robert Mongeluzzi

    downtown Philadelphia, as well as the estates of those who perished in the tragic construction accident, issued a statement last week in response to the public release of the only known video taken of the disaster.

    Attorneys from the Philadelphia firm Saltz, Mongeluzzi, Barrett & Bendesky stated that the newly released video of the collapse, caught by cameras mounted inside a passing city bus, proves that the excavator operator who has been the only person criminally charged in the case was not the sole individual responsible for the incident.

    “Using the video to correlate a photo from across Market Street, it can be proven that the photo was taken 10 seconds after the collapse and it is clear that the excavator arm is pointed away from the wall that collapsed,” the statement reads. “This means it is highly unlikely that the excavator operator did strike the wall that collapsed.”

    Six people died and 13 were injured in the June 6 incident, which occurred after an un-braced wall from a building that was in the midst of being demolished toppled over an adjoining Salvation Army thrift store.

    Blame was initially placed on Sean Benschop, the 42-year-old excavator operator who was found to have marijuana in his system at the time of the collapse.

    Benschop has been charged by the Philadelphia District Attorney’s Office with six counts of involuntary manslaughter as well as 13 counts of recklessly endangering another person and causing and risking a catastrophe.

    Philadelphia District Attorney Seth Williams announced last month that a grand jury would be impaneled to investigate the incident.

    Grand juries conduct their business in secret.

    Meanwhile, the Saltz Mongeluzzi statement said that the video released by the Southeastern Pennsylvania Transportation Authority last week supports the conclusion that the collapse was “not caused by an alleged drug crazed operator who knocked down the wall that collapsed with a battering ram, but because of the actions and inactions of the owner, Salvation Army and City who knew about a looming disaster and didn’t prevent it.”

    Lawyer Mongeluzzi, a firm partner who along with fellow attorneys Larry Bendesky, Andrew Duffy and Jeffrey Goodman are representing a handful of victims in the case, stated that after viewing the SEPTA bus video and attending a special demolition process hearing before Philadelphia City Council last week, he has come to the conclusion that there needs to be a “full and open disclosure of the events leading up to the building collapse including the testimony of the owners, Salvation Army representatives and City officials all of whom were on notice of a tragedy waiting to happen and did not stop it from occurring.

    “Out of respect for the victims and their families, that cannot happen soon enough.”

    The statement goes on to say that the video of the incident further proves that the failure to properly plan an engineered demolition was the “responsibility – and the fault – of corporate owners and managers and not lower level functionaries who are being blamed by those who were in control from the outset of the project.”

    Mongeluzzi also noted that there is no excavator arm shown in the SEPTA bus video depicting the collapse.

    Recent news reports had stated that the city was initially opposed to having the SEPTA video released, citing the grand jury investigation, but that its lawyers soon changed course after the District Attorney’s Office determined the video would not hamper the investigation.

    Those named as defendants in civil litigation stemming from the building collapse include Richard Basciano, the owner of the collapsed Market Street building; Basciano’s company, STB Investments Corp.; Griffin Campbell Construction, the company that was contracted to do the demolition work; and that company’s proprietor, Griffin T. Campbell.

    In another twist, there appears to be conflicting testimony regarding the presence of asbestos at the site.

    Earlier this month, the Philadelphia Inquirer reported that contractors sifting through the rubble of the collapse located remnants of asbestos at the site, a discovery that raised questions about paperwork that had been filed by STB Investments in preparation for the demolition work.

    In an inspection report submitted to city officials back in January, STB stated that there was no known asbestos in the buildings that were slated for demolition, while it was later discovered that a company hired by STB to clear the debris after the collapse had brought in a certified asbestos removal firm to do some work at the location.

    The newspaper quoted Edward Nass, a Philadelphia lawyer who specializes in mass tort asbestos litigation, as saying that there likely wasn’t much to worry about, since it usually takes years of asbestos exposure to lead to someone developing an asbestos related disease such as mesothelioma.

    Benjamin Shein, another Philadelphia-based plaintiffs’ attorney who focuses on asbestos civil litigation, was also quoted in the Inquirer as saying, “I would not have cause for concern.”


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