by Mark Bauman | Feb 18, 2023 | SUCCESSES
Anthony P. DeMichele obtained a declaratory judgment for an insurance company in a coverage dispute involving its insureds. The insureds, an attorney and his law firm, were sued in two separate state court actions based upon their involvement in gold futures investments. In the underlying litigation, ten plaintiffs filed two separate actions against the insureds claiming that the insureds were professionally negligent, that the insureds misrepresented information, and that the insureds breached their fiduciary duty to the plaintiffs. The plaintiffs’ claims stemmed from the insureds’ solicitation of the plaintiffs to investment money with a third party. Each of the plaintiffs claimed to have been represented by the insureds prior to the solicitation of the investments, and therefore, the plaintiffs alleged that the insureds represented them in the investment transactions that formed the basis of their claims. The plaintiffs invested approximately $9,000,000 through the insureds to a third party. The plaintiffs argued that the money was not used for investments but rather the money was used for loans, which were secured by notes and mortgages prepared by the insureds. The insureds also argued that the money was used for loans. Based upon the allegations of professional negligence, the insureds submitted the claims to their insurance company for coverage.
Mr. DeMichele initiated a declaratory judgment action in the United States District Court for the Middle District of Pennsylvania seeking a declaration from the court as to the parties’ rights under the insurance policy at issue. In the declaratory judgment complaint, Mr. DeMichele asserted that certain exclusions in the insurance policy did not provide coverage for the plaintiffs’ claims, and therefore, the insurance company did not have a duty to defend its insureds or a duty to indemnify its insureds with regard to the claims that were asserted in the underlying state court actions. At the close of the pleadings phase of the litigation, the plaintiffs moved for judgment on the pleadings arguing, among other things, that the exclusions in the insurance policy did not preclude coverage of the claims. Mr. DeMichele responded to the plaintiffs’ motions and argued that the policy exclusions did apply, and based upon the allegations in the plaintiffs’ complaints in the underlying litigation, there was no coverage under the insurance policy. The court agreed with Mr. DeMichele’s position and denied the plaintiffs’ motions for judgment on the pleadings. At the same time, the court declared that the insurance company did not have a duty to defend or a duty to indemnify its insureds in the plaintiffs’ underlying state court actions.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Dan Ryan, Carolyn Bohmueller and Melissa Mazur secured a defense verdict in favor of a hospital following a six day jury trial in Montgomery County, Pennsylvania. The plaintiff, a prominent local celebrity, alleged that a hematologist/oncologist failed to properly diagnose her rare condition called POEMS (polyneuropathy, organomegaly, endocrinopathy, monoclonal gammopathy, and skin lesions) syndrome and failed to offer her appropriate treatment. The hematologist/oncologist was on staff at the hospital, and alleged to be an ostensible agent of the hospital. Plaintiff claimed that the standard of care required that she should have been referred for a second opinion, she should have been diagnosed with POEMS, and high dose chemotherapy with autologous stem cell transplantation should have been recommended. Plaintiff claimed that, as a result of the alleged negligence, she suffered a loss of earning capacity which exceeded $7,000,000, as well as pain and suffering and loss of life’s pleasures. The defense for the hospital rebutted agency and substantive claims, and presented evidence that the use of high dose chemotherapy with stem cell transplantation for POEMS syndrome was experimental at the time, and is still not considered to be the standard of care for treatment of POEMS syndrome. The jury determined that neither the hospital nor the physician were negligent.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Anthony P. DeMichele, along with co-counsel, Domenick Carmagnola of Carmagnola & Ritardi, LLC in Morristown, New Jersey, obtained a defense verdict for a closely held office products company and its chief executive officer in a breach of contract and conversion claim brought by the company’s former president. The lawsuit, initially filed in Philadelphia County but transferred to Bucks County where the company maintains its operations, claimed that the former president was entitled to the value of 10% stock ownership in the company, basing his right to the stock on a handshake deal he claimed he reached with the founder and chief executive officer of the company. As part of his claim, the former president argued that he paid $100,000 for the first 4% of the stock and that the remaining 6% was owed to him because his rights to obtain the remaining stock vested when he was terminated without cause. The former president contended that the acceptance of the payment created a contract for the sale of the 4% stock interest. The company and chief executive officer argued that the payment of the $100,000 was made through misrepresentations and fraud by the former president and that the company and chief executive officer were wrongfully induced into accepting the $100,000 payment. Further, the company and chief executive officer presented evidence that that the former president failed to perform his duties as president of the company, and as a result, his termination was for cause. As part of his claim, the former president presented expert witness testimony that the company was worth in excess of $70 million dollars at the time of his termination, and therefore, he was entitled to damages in excess of $7 million dollars. After a six day trial, the jury returned a unanimous defense verdict on all claims and did not award any damages to the former president.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Bart C. Tuttle and Brook Hastings obtained a defense verdict in favor of a pulmonology/critical care specialist in Montgomery County. Plaintiff claimed that the defendant-physician, who was on-call at the time of decedent’s presentation to the hospital, failed to immediately come into the hospital and evaluate the patient. As a result, plaintiff alleged that the decedent was not intubated and ventilated in a timely fashion, which resulted in the decedent’s untimely death. The defense maintained that upon presentation to the hospital, the patient was critically ill with a number of co-morbidities including pneumonia, renal failure, dehydration and starvation, respiratory failure, and sepsis. The patient was seen by a board certified house physician who was in constant contact with the defendant-physician. More importantly, the defense maintained that intubation upon arrival to the hospital, prior to any trial of supplemental oxygen, would have been inappropriate and in fact, likely would have hastened the patient’s death. When the decedent’s respiratory condition worsened, the defendant-physician was again called and he presented to the hospital. At that time, the patient was intubated and ventilated. Unfortunately, the patient’s other organs failed and he passed away several hours later.
After a six day trial and a brief deliberation, the jury rendered a verdict in favor of the defendants.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Heather Hansen secured a defense verdict in favor of an emergency medicine physician following an eight day jury trial in Philadelphia County, Pennsylvania.
The patient was 18 years of age and the lawsuit was brought by his father. The patient had a history of passing out with exertion which was previously worked up by pediatric cardiologists and no further treatment was recommended. In 2007, the patient was playing football when he experienced chest pain and shortness of breath. He was taken to a local emergency room, and the emergency medicine physician consulted trauma and cardiology within minutes of his arrival. EKG’s were obtained and were abnormal. He was seen by cardiology and was in the process of being admitted to the CCU when he passed away from a rare cardiac defect. Specifically, the cause of death was an anomalous origin of the left coronary artery.
The plaintiff’s expert witnesses alleged that the emergency medicine physician was responsible for all of the care since he was still in the emergency room, despite being in the process of being admitted to the CCU. Plaintiff’s experts also alleged that other medications should have been given, the attending cardiologist should have been called, and the patient should have been taken to the catheterization lab. The documentation and medical care provided by the cardiology staff was also criticized. Plaintiff had claims for wrongful death and survival, including a claim for lost earnings.
The defense was that the emergency medicine physician obtained the appropriate consultations in an extremely timely and appropriate manner, and provided treatment that was appropriate. It was not the standard of care for an emergency medicine physician to take such patients to the catheterization lab, and evidence was presented that his death could not have been prevented due to his rare cardiac defect. The jury determined that the emergency medicine physician was not negligent.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Marshall L. Schwartz and Melissa L. Mazur obtained a defense verdict in favor of a hospital following a four day jury trial in Bucks County, Pennsylvania.
Plaintiff alleged that the decedent suffered a retroperitoneal bleed as a result of a cardiac catheterization procedure and that defendants were negligent in the post-procedure management of the bleed. Plaintiff’s expert witnesses alleged that defendant physicians failed to obtain appropriate consultations and failed to order appropriate diagnostic studies to determine the extent of the retroperitoneal bleed.
The defense argued that the care provided to the patient was appropriate as the patient did not exhibit signs of an ongoing bleed; therefore, surgical intervention was not warranted. Plaintiff further claimed that the cardiologists on staff at the hospital were ostensible agents of the hospital. The defense for the hospital rebutted plaintiff’s allegations of negligence and further asserted that there was insufficient evidence to establish a claim for vicarious liability through ostensible agency. Plaintiff had claims for wrongful death and survival, including a claim for lost earnings.
The jury determined that neither the physicians nor the hospital were negligent.
