Archived News
K/M Prevails on Appeal in NJ Premises Liability Action
Denis McBride of K/M's Cherry Hill, NJ office; successfully fended off an appeal by Plaintiff taken with the New Jersey, Superior Court, Appellate Division, in a premises liability case originating in Cumberland County, New Jersey after having prevailed on Summary Judgement at the trial level. In this case, the Plaintiff slipped and fell on cottage cheese which had been spilled in close proximity to the checkout aisle. Based upon video evidence, the spillage occurred approximately 33 seconds prior to the fall. Store employees were advised of the spillage and were in fact heading to the area when the incident occurred. On behalf of its client, Save-A-Lot, K/M filed a motion for summary judgment arguing that there was not significant enough evidence of constructive notice of the a dangerous condition and therefore no liability could attach to the Defendant. Plaintiff's counsel argued that the dangerous mode of operation charge should apply to the case thereby negating the need to prove notice. In addition, Plaintiff argued that the Defendant had actual notice of the hazardous condition and should have acted quicker to ameliorate the problem. K/M prevailed at the trial level, winning the Motion for Summary Judgement.
The Appellate Division, in a per curium decision, held that the reasons articulated by Judge Fisher at the trial court level were appropriate to support his finding of summary judgment in favor of Save-A-Lot. Even though store employees were advised of the spillage, it was appropriately held that 33 seconds was not sufficient notice to afford people reaction time to situations and that no jury could possibly find there was any negligence. The Appellate Division went on to quote from Defendant's brief in support of the motion for summary judgment in stating "It is not presumed that every injurious mishap that one encounters is necessarily attributable to the negligence of another. The actual pedestal stabilizing the logical inference of negligence must be established by some competent proof."
The Appellate Division also held that the motion judge correctly concluded that the matter did not involve a dangerous mode of operation under the seminal cases of Wollerman v. Grand Union, 47 N.J.426 (1996) and Nisivoccia v. Glass Gardens, 175 N.J. 559 (2003). In the case before the court, the plaintiff's fall did not occur in the produce section or checkout line as found to be relevant in Wollerman and Nisivoccia. While the area in the front of the store where the fall occurred could be broadly construed to be within the area of the checkout aisle as defined in Nisivoccia, an inference of negligence was not warranted. The plaintiff did not fall on loose produce, rather it was cottage cheese packaged by a manufacturer, in a sealed container. Thus, the dangerous condition caused by the cottage cheese spillage was not a foreseeable risk posed by the supermarket's mode of operation.
Assisting Denis McBride in the motion for summary judgment was associate Bernadette Dronson.
Defense Verdict in Medical Malpractice Case
Jeffrey McDonnell of Kent/McBride's Philadelphia office recently obtained a defense verdict on behalf of a radiologist, an ER physician and a hospital in a wrongful death and survival action.
After having undergone an uneventful outpatient procedure to biopsy his liver, the decedent, a 73 year old male was taken to emergency department of the hospital because of persistent symptoms. He eventually developed unstable vital signs, confusion and diaphoresis. After having undergone CT scan testing, embolization, and successful surgery to evacuate an abdominal hematoma that had developed, the patient sustained multi-system failure and ultimately died thirty days later.
Plaintiff's theory at trial was that both the radiologist and the emergency room physician failed to recognize the patient's intra-abdominal bleed, which delayed the embolization. In fact, Plaintiff claimed that the ER physician saw the patient at 1:15 p.m at which time he was in shock, yet failed to treat him until 2:40 p.m. Further, plaintiff claimed that the embolization was unsuccessful and that surgery was indicated sooner. Damages were claimed for wrongful death and survival, including pain, suffering and loss of earnings.
The Defense position was that the patient did not have signs of intra-abdominal bleeding while in the radiology suite and that he quickly decompensated at 2:40 p.m. in the emergency department due to a delayed bleed from the biopsy. The Defense contended that the ER physician did not see the patient until 2:40 p.m at which point she appropriately administered care. Finally, the Defense demonstrated that the embolization was successful using the actual radiologic films from the procedure. After seven days of trial, the jury deliberated for one hour before returning a unanimous verdict in favor of all Defendants.
Assisting Jeff in the pretrial preparation, as has been the case in numerous successful prior matters, was Kent/McBride's nurse-paralegal, Marie Daly. For more information, contact Jeff at jmcdonnell@kentmcbride.com.
FMLA Presentation
Jay Branderbit and Tim Dronson of K+M's Philadelphia, PA office recently presented a seminar on the Family and Medical Leave Act (FMLA) to Johnson, Kendall & Johnson (JKJ) in Newtown, PA. The presentation dealt with various core concepts of the FMLA, including calculation of leave periods, what constitutes a serious health condition under the FMLA, employee responsibilities under the Act and job restoration issues related to equivalent positions. The presentation was attended by JKJ's Management, Benefits and Risk Management personnel.
Pharmaceutical Class Action Settlement & Suit Dismissal
William J. Markwardt of Kent/McBride's Cherry Hill, New Jersey office recently secured a dismissal with prejudice in favor of Pathmark in a New Jersey Superior Court, Bergen County, lawsuit case - managed by Presiding Civil Division Judge Brian R. Martinotti. The Bergen County lawsuit was brought under both New Jersey's Product Liability Act and New Jersey's medical-malpractice / wrongful death common law against various defendants who had manufactured, tested, prescribed, advertised or sold the pharmaceutical/medication commonly known as Digitek. A Pathmark pharmacy had regularly filled prescriptions and sold Digitek to plaintiff's decedent who took the medication for several years prior to his death in October, 2007. The Bergen County plaintiff ultimately and only recently opted to partake in a settlement agreement consummated in a related Federal Court class-action lawsuit venued in the Southern District of West Virginia, in a matter entitled In Re: Digitek Products Liability Litigation, MDL No. 1968 The plaintiff was obligated to dismiss the Bergen County action against Pathmark, with prejudice, as a direct result and as a required condition of plaintiff's decision to partake in the Federal Court class action settlement agreement.
Defense Verdict In Property Damage Bench Trial
Kristen Sarnocinski of Kent/McBride's Cherry Hill Office obtained a defense verdict on 11.4.2010 in a bench trial in a property damage case in Atlantic County, NJ. After consideration of the testimony and evidence, the Judge found that Plaintiff failed to meet her burden of proof as to the value and condition of her vehicle at the time of the accident and temporary loss of use. Kent/McBride Attorney is Featured Speaker at Life Sciences Seminar
From 10.26.2010 – 10.29.2010 Ernie Koschineg of Kent/McBride’s Philadelphia, PA office was a featured lecturer at the Life Sciences Seminar presented by the Chubb Group of Insurance Companies. Over the course of the four day conference, Ernie presented to the national and international groups of Chubb underwriters on the topics of FDA Regulation and Medical and Drug Litigation. Ernie will also be presenting at the Chubb Life Sciences Claim Seminar at the end of November in a two day conference to commence on November 24, 2010.
Defense Verdict in Employment Discrimination Case
Following a trial lasting four weeks in Middlesex County, NJ, Kevin E. Hoffman and David A. Semple of Kent/McBride’s Iselin office secured a defense verdict in a case filed pursuant to New Jersey’s Law Against Discrimination. Plaintiff alleged that K&M’s client had knowledge of his recent cancer diagnosis and fired him for that reason - an allegation the employer vehemently denied. Rather, the employer maintained that it did not know of plaintiff’s medical condition and terminated him due to unprofessional behavior directed toward a client, his refusal to acknowledge any wrongdoing, and subsequent insubordination.
At trial, plaintiff attempted to show that the employer had knowledge of his condition by calling several employees of the firm’s client, including the CEO, President, Vice-President, plaintiff’s direct supervisor and a coworker. During examination of these witnesses, plaintiff’s attorney showed a previously unproduced photograph of plaintiff, purportedly taken the very day of the altercation with the customer. According to the testimony of plaintiff’s family members, this photograph showed an obvious bandage on plaintiff’s neck, covering the incision area where his biopsy was performed. Although denied by each company witness, plaintiff argued that the employer must known he had a serious medical condition prior to his termination after its employees saw the bandage. However, the defense team was able to prove that the photograph was not taken when alleged by the family, but rather, was taken one year after plaintiff’s termination.
Plaintiff also argued that the employer’s reason for terminating him was unfounded, and therefore, must be a pretext for the “real” reason, being that he had cancer. In support of this position, plaintiff called as a witness the client who was involved in the altercation. During testimony, the employer’s client initially attempted to down play the incident with plaintiff. Nevertheless, under cross-examination by the defense, he ultimately acknowledged that plaintiff’s conduct toward him was not only highly unprofessional, but also would not be tolerated by his own company and would be against their code of conduct.
After closing arguments, the jury deliberated for one hour and fifteen minutes before returning a verdict that the employer had no knowledge plaintiff had a serious medical condition at the time of his termination, thus, dismissing plaintiff’s case.
Courtney E. Dowd was also a member of the defense team and was instrumental in conducting research, preparing pre-trial motions, and drafting jury charges.
Defense Verdict for Pathmark in Premises Liability Trial
Steve Purcell of Kent/McBride obtained a defense verdict for Pathmark in a recent Middlesex County (NJ) case. The jury found negligence on the part of Pathmark, but no "proximate cause" against the store where Plaintiff claimed she tripped and fell over a protruding piece of metal from a broken handicap sign in the defendant's parking lot. Based on the statements initially made by plaintiff to the store manager, police officer and initial ER nurse, Purcell was in a position where he had to admit the existence of the broken sign prior to the date of plaintiff's accident, but Steve was able to effectively present evidence that the broken sign was not the cause of the fall. The case was bifurcated, and the liability phase lasted five days, with plaintiff producing five witnesses, including a liability expert and a medical doctor concerning statements made by plaintiff after the accident. Plaintiff also produced three family members who testified to seeing blood in the area of the handicap sign on the day of the accident. K&M produced the store manager, responding police officer and initial ER nurse. Defense witnesses testified consistent with their reports that plaintiff initially made no mention of the broken sign being the cause of the fall, and it was this testimony that secured the victory for Pathmark. Based on the jury’s finding of no liability, the Plaintiff was not permitted to proceed to the damages phase of the case.
Jury Returns Defense Verdict in "Zero Threshold" Automobile Negligence
David A. Semple of Kent/McBride's Iselin, NJ office was recently successful in obtaining a defense verdict in a personal injury lawsuit filed as a result of a motor vehicle accident. At trial, plaintiff alleged that the accident occurred when Mr. Semple's client went through a stop sign, and struck his vehicle on the passenger side. Plaintiff maintained that he suffered multilevel spinal disc injury as a result of the accident. However, despite a liability finding against K&M’s client, Mr. Semple successfully convinced the jury not to award damages in the case. Specifically, Mr. Semple showed that medical records revealed inconsistent complaints by plaintiff, as well contradictory diagnoses by his treating physicians. Moreover, on cross-examination, Mr. Semple also had plaintiff's medical expert admit that the type of disc disease alleged could have been caused by such physical activities as martial arts, which plaintiff had previously been involved in on a competitive level. Semple’s defense medical expert also persuasively explained to the jury that his review of plaintiff's MRI films showed no signs of acute injury, but rather, degenerative/pre-existing conditions. After three days of trial, the jury deliberated for only 40 minutes, and found that plaintiff's alleged injuries were not compensable despite the fact that there was neither any limitation on suit for Plaintiff nor any burden on Plaintiff to prove a permanent injury. The matter was venued in Middlesex County, NJ.
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