Wade Clark Mulcahy LLP

News Product Recalls on the Rise? May 23, 2011 < Back Share to: We have spilled much ink over the past six months commenting on the potential implications of the FSMA. However, it appears that not only food recalls are on the rise. According to recent reports, new regulations (like the FSMA) and ease of access to product complaints, are driving the increase. Brand protection recalls are also trending upwards. Food for thought for Underwriters when assessing their appetite for risk in product recall coverage. For more information about this post, or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Balancing the Scales: The Role of Res Ipsa Loquitur in Pennsylvania Negligence Cases September 20, 2024 < Back Share to: Res Ipsa Loquitur is defined in Pennsylvania as a discrete category of circumstantial evidence that may suffice to establish negligence where more specific evidence of the events surrounding the injury eludes even diligent investigation. Essentially, the doctrine permits a jury to exercise common sense and conclude that the alleged accident could not occur absent negligence. Pennsylvania has historically taken this a step further and allowed the doctrine to be applied to cases involving complex facts and theories, including in medical malpractice cases. In Lageman by and through Lageman v. Zepp , the Pennsylvania Supreme Court analyzed the doctrine in a medical malpractice action and clarified the scope of when the doctrine can be given as a jury instruction. Lageman by & through Lageman v. Zepp , 266 A.3d 572 (Pa. 2021). In Lageman , the trial court originally returned a defense verdict and did not permit Lageman to instruct the jury on finding negligence under Res Ipsa Loquitur since Lageman also presented direct evidence of Zepp’s negligence. Lageman argued that “accepting Zepp's version of how he performed the procedure... arterial cannulation[] would not ordinarily occur in the absence of negligence”; and Pepple's further testimony that no other plausible causes were present, Lageman contended that she made out a prima facie case under Section 328D and was entitled to the instruction. The trial court disagreed and only instructed the jury on negligence since Lageman introduced direct evidence in support of her malpractice claim. Lageman by & through Lageman v. Zepp , 266 A.3d 572, 586 (Pa. 2021). Following the defense verdict, Lageman appealed to the Pennsylvania Superior Court, and the verdict was reversed. The Superior Court found that a plaintiff has no obligation to choose one theory of liability to the exclusion of the other. If the evidence satisfies the bare minimum requirements to support a jury instruction, the instruction should be given. Therefore, presentation of Res Ipsa Loquitur theory to support a medical malpractice claim was not precluded when the plaintiff also introduced direct evidence sufficient to support a malpractice claim, so Res Ipsa Loquitur was not the only avenue to a finding of liability; the two approaches to satisfying the plaintiff's evidentiary burden were not mutually exclusive. Zepp appealed the Pennsylvania Superior Court’s finding, but the Pennsylvania Supreme Court affirmed and found that Lageman was entitled to have the jury instructed on both theories of liability. The Pennsylvania Supreme Court affirmed that in these “gray zone” cases, where the plaintiff presents direct evidence of negligence and circumstantial evidence of negligence under the doctrine of Res Ipsa Loquitur, the jury may be instructed on both theories of liability. Lageman by and through Lageman v. Zepp .pdf Download PDF • 502KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News Serial Class Action Filer Suffers Set Back January 13, 2009 < Back Share to: A serial class action filing attorney had his case for Consumer Fraud thrown out of court in Hoffman v. ASSEENONTV.com, -- N.J.Super. – (App.Div. 2009). After ordering a product on-line to take advantage of a “free bonus” offer, Hoffman was hit with a $7.95 handling charge. He filed a Consumer Fraud class action lawsuit claiming that despite the fact that the order was cancelled prior to any payment and he was never charged for the product ordered, he nonetheless sustained a diminution to his available credit meriting his representation of a class against the internet marketer. The court disagreed finding that he did not sustain an actual loss as required by the Consumer Fraud Act and upheld dismissal of his case. On the other hand, the court likewise rejected the defendant’s claim for abuse of process against the plaintiff. The defendant had argued that the plaintiff, who had filed over 40 nearly identical lawsuits, had used the process to “extort” settlements prior to class certification. The Court found that it was not in the position to assess the bona fides of settlements in these other actions and upheld dismissal of the defendant’s counterclaim. Thanks to Denise Ricci for her contribution Previous Next Contact

News Threshold Motions: Not Just A Threat For Leverage (NY) March 15, 2019 < Back Share to: Even though New York’s Insurance Law § 5102(d) was supposed to help weed out law suits for non-serious injuries in motor vehicle accidents, every defense attorney has handled a case arising out of a fender bender with minor injuries. Plaintiffs will often bet that defendants’ cost of litigation and motion practice weighed against the risk of failing on that motion will make a weak damages case more worthwhile. Indeed, many assume that any expert-versus-expert motion is doomed to failure. But the Bronx Supreme Court recently demonstrated that showed it is still possible to have these cases dismissed on summary judgment. In Bogle-v.-Paredes, the plaintiff claimed she suffered minor soft tissue injury to the cervical and lumbar spine as well as the wrists and right knee. She underwent three-to-six months of treatment and then stopped. Defendant, with supporting affidavits from an orthopedist, a radiologist, and a neurologist, cited plaintiff’s prior car accident and voluntary cessation of treatment and argued that he met his prima facie burden of demonstrating plaintiff’s injuries were not “serious” as a matter of law. Plaintiff’s opposition relied on a physician who did not evaluate plaintiff until four years after the accident which was insufficient to rebut the defense’s arguments. The First Department unanimously affirmed granting summary judgment to the defendant. This decision highlights some of the issues with making such motions—it required a tenacious defense and the retention of three expert witnesses, which is costly. Clearly, each case will turn on its own merits and require a decision to be made as to the specific value of defending or settling each case. However, it is important to remember some plaintiffs will not be reasonable, and, in some cases, even when the defendant is otherwise dead to rights on liability, threshold motions are not simply idle threats for leverage during settlement negotiations. They are a tool that can, in fact, win outright. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News WCM Victorious on Statute of Repose in PA Construction Defect Lawsuit. July 17, 2020 < Back Share to: WCM Partner Bob Cosgrove and Philadelphia associate Zhanna Dubinsky won a motion for judgment on the pleadings in the Pennsylvania Court of Common Pleas, Chester County. In John Adams, et al. v. Wilkinson Enterprises, Inc., et al., the plaintiffs were the owners of luxury homes in the Chester County, Pennsylvania area who had purchased their new homes in 2003 and 2004. The plaintiffs alleged that after they assumed residency, their homes began to suffer from a myriad of construction defect problems. Our client was one of the contractors that had helped build the houses. Notwithstanding their claimed knowledge of the defects, plaintiffs did not commence their actions until December of 2016. We moved for judgment on the pleadings and argued that the lawsuit was untimely and a violation of the statute of repose. Pennsylvania’s statute of repose abolishes and eliminates causes of action that occur twelve years after completion of construction of an improvement to real property. The Honorable Edward Griffith agreed and entered judgment on the pleadings dismissing all claims against our client. For more information about this post, please contact rcosgrove@wcmlaw.com . Previous Next Contact

News Dope December 12, 2007 < Back Share to: Mr. Maharaj was in court for resolution of a recent marijuana possession charge. The prosecutor agreed to an "adjournment in contemplation of dismissal," which meant the charge would be dropped if Maharaj stayed out of trouble for six months. Moments later, and while still in the courthouse, Maharaj was asked to produce his driver license for court personnel. He pulled out his folded-up license and in the folds was more marijuana. The plea deal fell through. Previous Next Contact

News Say Cheese! Photo Taken with Mobster not Actionable (NY) August 27, 2009 < Back Share to: Plaintiff attended the trial of the notorious mafia boss, John Gotti, and after court broke for the day, plaintiff decided to help Gotti maneuver through the throng of photographers and into Gotti’s car. A freelance photographer then took a picture of plaintiff holding Gotti’s arm. The photo was ultimately used in an advertisement for the television program, Inside the Mafia, and the ad appeared in posters throughout New York City. Plaintiff filed suit in Alfano v. NGHT, et al, alleging that the unauthorized use of his image violated his privacy. The Court held, however, that the New York statute prohibiting the “commercial appropriation” of a living person’s image did not apply because of the “newsworthy” nature of the trial that was being photographed. The Court also held the advertisement was an “incidental use” of the image to illustrate the newsworthy content of the television program. The plaintiff’s other claims were also rejected and the court dismissed the complaint. Previous Next Contact

News WCM Is Pleased To Announce That Effective July 1, 2013, Brian Gibbons Has Been Promoted To Counsel July 12, 2013 < Back Share to: A former prosecutor in the Bronx and WCM attorney since 2009, Mr. Gibbons defends individuals and businesses from a variety of general liability claims. He also handles first party property matters during the claim investigation and in litigation. A New York native, Mr. Gibbons is a graduate of Boston College and St. John’s University School of Law. He is an active member of the Regis Bar Association and a new member of the Nassau County Bar Association. Previous Next Contact

News Absence of Work Logs Overturns Dismissal of Third-Party Claim November 17, 2023 < Back Share to: The plaintiff in Guiles v Vassar Bros. Hosp. , 2023 NY Slip Op 05593 (Nov. 8, 2023) was on her way to the emergency room at Vassar Brothers Hospital when she was caused to slip and fall on ice in the entry way of the ER. After she sued the Hospital, the Hospital brought a third-party action against their landscaper, who had agreed to provide snow and ice removal services. The landscapers moved for summary judgment dismissing this third-party complaint specifically against claims of contractual and common law indemnification. Although it was granted by the lower court, the 2nd Department overturned on appeal. The 2nd Department pointed out that claims of contractual indemnification are wholly founded on the language in the relevant contract. The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. Id. Here, the contract provided that the landscaper would indemnify the Hospital if an accident occurred because of nonperformance of duties, which included ice checking and application of salt. The landscaper being unable to establish that they did perform their services on the date of the accident, made the indemnity claims stand regardless of the opposition. If the landscaper had documentation, such as a log that shows when each ice/snow check was done, it would have gone directly to the heart of the claims against them. Now, instead, regardless of whether the landscaper adequately did their job, the claims stand against them, and they face liability. Guiles v. Vassar Bros. Hosp. .pdf Download PDF • 603KB Previous Next Contact

News A Tree Falls in Orange County, Does it Make a Sound (of Liability) (NY) December 11, 2020 < Back Share to: In Pozzani v. Village of S. Blooming, the plaintiff was driving through the Village when a tree fell on her car. Plaintiff sustained injuries, and sued the Village. There was no evidence that the Village knew that the tree was in an unsafe condition before the accident. The Village moved for summary judgment, arguing that it had no actual or constructive notice that the tree was in a dangerous condition. The Second Department agreed that the Village did not have actual or constructive notice of the alleged dangerous condition of the subject tree (see Ivancic v Olmstead, 66 NY2d 349 (Ct. of Appeals 1985); Harris v Village of E. Hills, 41 NY2d 446 (Ct. of Appeals 1977); Figueroa-Corser v Town of Cortlandt, 107 AD3d 755 (2d Dept. 2013). Plaintiff failed to put forth any evidence raising a triable issue of fact regarding notice. This case highlights the fact that the mere happening of an accident is not sufficient to impose liability on a defendant. Rather, the plaintiff bears the burden of establishing actual or constructive notice of the dangerous condition. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Fore! -- PA Appellate Court Hits One Long and Straight. August 28, 2009 < Back Share to: In a ruling of special interest to WCM Partners, one of whom recently hit another in the side with a golf ball, a PA appellate court has just ruled in favor of a plaintiff who was struck in the face by a golfing partner's tee shot. In the case of Zeidman v. Fischer, the plaintiff was tasked with checking on the location of the group in front of him. While driving back to the tee to advise his partners that they could tee off, defendant Fischer teed off and smashed the ball right into the plaintiff's face. A lawsuit resulted. The trial court ruled for the defendant, but the appellate court reversed. It held that, under the particular facts of this case, it could not rule as a matter of law that the risk was "one inherent or common, frequent and expected” to the game of golf. The case will proceed. This is not good news for the guilty WCM partner as there are still 705 days remaining until the statute of limitations expires. http://www.superior.court.state.pa.us/opin.htm http://www.palawweekly.com/getarticle.aspx?ID=29913 Previous Next Contact

News Threshold" motions still difficult to win in Second Department (NY) February 21, 2013 < Back Share to: The dreaded "90/180 day rule" is a bane of defendants in the context of New York motor vehicle accident suits. The rule, encompassed within Insurance Law Section 5102(d), states that a motor vehicle plaintiff's injury is not "serious" enough to maintain a suit unless that plaintiff is significantly limited in daily activities for 90 of the first 180 days after the accident occurs. Not surprisingly, the entire physical therapy industry owes a debt of gratitude to this rule, because plaintiffs are well-advised to document their treatment for the first six months after the accident. Conversely, since motor vehicle lawsuits need not be commenced for three years, defendants' doctors do not even examine plaintiffs until well after the expiration of 180 days, making it virtually impossible to rebut the contemporaneous reports of plaintiffs' doctors. In Calcano v. Rodriguez, a plaintiff underwent an MRI on her shoulder five weeks after the accident, a significant tear was observed, and the plaintiff underwent surgery months later. Notwithstanding the degenerative pathology observed by the defendant's doctor in reviewing the same MRI film, the Second Department reversed the trial court and found that it was unable to rule, as a matter of law, that the injuries were not proximately caused by the accident. The concurring opinion goes a step further, noting that if a plaintiff develops subjective complaints after an accident, then there is an automatic issue of fact as to causation regardless of whatever degenerative issues are present. Decisions like this one should be kept in mind before pursuing a Threshold motion for summary judgment, absent a blatant pre-existing condition, subsequent lapse in treatment, or intervening injury, which all can serve to disrupt the causal link between the accident and the injury. Special thanks Brian Gibbons for his contributions to this post. For more information, please contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact