Fall/Winter Issue 2003



Heffernan v. Biddle - Karen Heffernan had stopped her vehicle preparing to make a left turn into her place of employment when her car was struck in the rear by a car driven by Mr. Biddle. Photographs showed little visible damage to the rear of the Heffernan car, although when the bumper was removed, additional damage was discovered which resulted in a repair bill of $1,300. There was minor damage to the front of the Biddle vehicle and a repair estimate of $2,200.

As a result of the accident, Ms. Heffernan, then 25 years of age and a single mother of a 5 year-old son, claimed that she suffered a brachial plexus injury which rendered her unable to work again as an administrative assistant. She claimed she was unable to type, write with her right hand, grasp objects or lift anything of weight with that arm and hand. She further contended that she had difficulties with her usual activities, was forced to drive using her left hand, could not open bottle caps with the right hand and had difficulty moving her arm above her shoulder. She also claimed numbness, tingling and a burning sensation in the right arm.

Her vocational expert, Dr. Ronald Kaiser, testified that even if she were to return to a more sedentary position which did not involve repetitive use of the right upper extremity, her past and future lost earnings would total $353,150. Her orthopedic surgeon, Dr. Scott Fried of the Upper Extremity Institute in Blue Bell, Pennsylvania, testified as to her disability and the fact that she would continue to suffer from permanent pain and limitation of motion. Testimony was also presented that four other doctors, including orthopedists Drs. Mark Avart and Steven Valentino and neurologist Steven Mandel, concurred in the diagnosis of a brachial plexus injury, which injury was substantiated by EMG testing performed by Dr. Ernest Baran.

The defense expert, neurologist Dr. Steven Kiel, originally opined that he found "inconsistencies" when he examined Ms. Heffernan, but felt that her obvious manifestation of pain two years following the accident entitled her to a "poor prognosis."

Following the examination by Dr. Kiel in April, 2003, surveillance videotape was obtained showing Ms. Heffernan waving with her right arm, driving her car in apparently normal fashion, removing the gas cap and pumping gas with the right hand and arm, and carrying grocery bags from the supermarket to her car and then from the car into her home. In addition, she was shown at a school fair lifting her 5 year-old son with her right arm and talking on a cell phone which she pulled from her right rear pocket with her right hand. The activities shown on the surveillance tape were contrary to the testimony of Dr. Kaiser and Dr. Fried as to what plaintiff could do and told them she could do. Dr. Fried remained of the opinion that whatever was done would have been painful and was simply an attempt by the plaintiff to perform some activities of everyday living. Dr. Kiel, however, could no longer ascribe legitimate complaints of pain to the plaintiff after seeing the videotape.

The case was tried before Judge Charles W. Burr, II and an eight member jury in Media. Plaintiff's settlement demand prior to trial was $500,000, while the settlement offer was $17,000. Judge Burr felt that the potential exposure could exceed $750,000 if the jury were to reject the surveillance videotape and accept the testimony of plaintiff and her experts. Accordingly, he recommended that a settlement offer of $75,000 be made. Plaintiff rejected that offer and elected to have a jury decide the case. The jury verdict was $10,250 after Judge Burr directed a verdict in favor of the plaintiff and instructed the jury to determine the amount of damages sustained.

Plaintiff's attorney--David Brian Rodden, Esquire
Defense attorney– David J. Otis, Esquire
Plaintiff's experts– Dr. Ronald Kaiser and Dr. Scott Fried
Defense expert – Dr. Steven Kiel

For further information, please contact David J. Otis, Esquire.
Telephone: (610) 344-3990.
E-Mail: otis@bbs-law.com





Bourne Ruthrauff and Moira Clare Duggan successfully resolved a complex commercial dispute between our client, a Canadian manufacturer of industrial processing equipment, and plaintiff, an American competitor. The dispute raised trademark, copyright and other intellectual property issues with respect to internet-based business to business sales.

Several years ago, our client had been the exclusive distributor for one of plaintiff's product lines within a specified geographic area. Our client then began making its own competing line of products. The relationship between the two companies changed to a non-exclusive re-seller arrangement with a discount still offered to our client on all purchases. Thus, by the time suit was started in the United States District Court for the Eastern District of Pennsylvania, the two corporations were competitors.

Plaintiff complained that defendant had lured potential customers to its website by using plaintiff's company name, but had then sold its own products to those customers. Plaintiff accused defendant of using metatags in such a way as to ensure that when a potential customer typed plaintiff's company name and product into an internet search engine, defendant's company would always be in the top hits. Further, plaintiff alleged that some of the photographs on defendant's website were photographs of plaintiff's own products.

Our client denied all allegations of impropriety and offered concrete evidence that the internet had not been a successful marketing tool and that its sales were not generated from the internet but rather through trade contacts and repeat business. Further, North American sales of these products were depressed in recent years due to world economic factors following 9/11 which would explain any downturn in plaintiff's sales. Finally, defendant was able to show that customers were frequently given price quotes for both plaintiff's and defendant's products but that customers usually selected defendant's due to immediate availability and better prices.

The dispute also involved the determination of damages claimed from "lost" internet sales. After extensive discovery, and just as a new wave of discovery was to commence, BB&S suggested non-binding mediation in an attempt to resolve the dispute in a cost-effective manner. The all-day mediation resulted in the settlement of the litigation on a basis satisfactory to our client and less than the projected cost of litigating the case to verdict.

For further information, please contact Bourne Ruthrauff, Esquire. 
Telephone: (215) 567-2883.
E-Mail: ruthrauff@bbs-law.com





Doe v. State Farm Mutual Automobile Insurance Company - Doe was injured in an automobile accident on October 30, 1996. He made a claim for uninsured motorist benefits against State Farm, which finally proceeded to arbitration in March, 2001. Doe claimed debilitating neck and back injuries had affected both his ability to work as a professional "Putt Putt" player, (he had been national champion on several occasions and appeared on ESPN) and his ambition to become a professional golfer.

State Farm's investigation of the claim revealed an extensive pre-existing history of neck and back problems. As a result, the company did not credit much of Doe's claim, and offered only $20,000 to settle the claim. When an arbitration panel awarded Doe $112,500, he sued State Farm under 42 Pa. C.S.A. section 8371 contending that the company had acted in bad faith.

Discovery in the bad faith action included a review of the files of the experts who had submitted reports on Doe's behalf in the original uninsured motorist action. The review confirmed that the experts had not been advised of Doe's prior medical history or that he had already been certified as disabled as a result of a prior accident. Discovery of Doe's medication records also suggested that he was less than candid in testifying that the 1996 accident had markedly increased the amount of pain medication he had to take in order to control his pain.

The bad faith claim was tried without a jury before the Honorable James Murray Lynn of the Philadelphia Court of Common Pleas. State Farm's contention that it possessed a reasonable basis for the settlement position it had taken, despite the adverse arbitration award, was accepted by the judge who returned a verdict in favor of State Farm on the bad faith claim.

For further information, please contact Louis E. Bricklin, Esquire.
Telephone: (215) 665-3400
E-Mail: bricklin@bbs-law.com





State Farm Fire & Casualty Company v. Richardson, et al. – While working as a roofer, Richardson fell from a roof and sustained injuries. He filed a personal injury action against Smith, who hired him, and Dallastown, who contracted with the homeowner to perform roofing repairs. Neither Dallastown nor Smith carried workers' compensation coverage. Richardson sued both Smith and Dallastown, alleging that he was an employee of one or both of them, and that both were in control of the job site. State Farm was the issuer of a CGL policy to Smith. The policy contained exclusions under the liability and medical payments coverages for injuries to an employee of the insured arising out of the course of employment, or for workers' compensation or similar benefits.

On State Farm's behalf, a Motion for Summary Judgment was filed which was granted by Judge Brillhart of the York County Court of Common Pleas. Although the parties characterized their relationships with one another in conflicting ways (e.g., Richardson argued that he was an employee of Smith or Dallastown, or both, or that Smith was an employee of Dallastown; Smith argued that Richardson was an independent contractor but that he (Smith) was not an independent contractor of Dallastown; and Dallastown argued that both Smith and Richardson were independent contractors), the court focused on the evidence relating to control over the work actually performed by Richardson. Following the Pennsylvania Supreme Court's leading case which addresses the elements of an employer-employee relationship, Hammermill Paper Company v. Rust Engineering Company, Judge Brillhart found that under the facts, Smith was in control of the job, and had the right to control and in fact did control Richardson's activities at the work site. Accordingly, an employer-employee relationship existed between Smith and Richardson.

The court then went on to hold that the policy exclusions were clear and unambiguous in precluding coverage and entered summary judgment in favor of State Farm.

For further information, please contact Paul F. Lantieri, Esquire.
Telephone: (717) 393-4400
E-Mail: lantieri@bbs-law.com





Jane Doe v. John and Mary Homeowners – Plaintiff, age 50, lived her entire life two houses away from defendants' home in Northeast Philadelphia. After tripping and falling over a cracked area on defendants' sidewalk measuring ½ to 1 inch in height, she dislocated her left middle finger. Plaintiff admitted familiarity with the elevated area as she had walked over it every day for several months on her way home from work. Defendants argued that the elevated area of the sidewalk was not unreasonably dangerous; that there was no liability under the doctrine of trivial defect; and that plaintiff was greater than 50% at fault for the accident.

Plaintiff, who was right handed, lost two weeks from work. She claimed that her left middle finger was permanently bent at about a 40 degree angle despite two surgeries to treat the dislocation. Her lost wages were approximately $850 and her admissible medical bills were approximately $10,000.

The parties agreed to arbitrate the case before Edward Edelstein, Esquire of ADR Options, Inc. who was not told that the parties had entered into a binding high/low agreement with parameters of $27,500 and $150,000, plaintiff's lowest demand. After hearing all of the evidence, Mr. Edelstein entered an award of $36,000.

For further information, please contact Victoria Komarnicki, Esquire.
Telephone: (215) 665-3303
E-Mail: komarnicki@bbs-law.com






Still v. Value City Department Store, et al. - Plaintiff, a customer , was injured when a shelving unit fell over after it was struck by a ladder pushed by workers, employed by a subcontractor, who were changing light bulbs in a department store in Vineland, New Jersey. Five Star Lighting had been hired by Value City to provide lightbulb changing services. Five Star did not operate at the location where the accident occurred and therefore hired a subcontractor to perform the work.

The New Jersey Supreme Court has held that general negligence principles govern the determination of whether a legal duty should be imposed on a contractor for injuries sustained by a subcontractor's employees. Several factors are to be relied upon in determining the existence of a duty including the foreseeability of the risk of injury, the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in holding the contractor responsible.

Five Star never set foot inside the Value City Store where the accident occurred, had no agreement with the subcontractor to supervise the work or provide any safety oversight of the work, had no involvement with the means and methods used by the workers in performing the lightbulb changes, and was unaware of any potential problem with the way the workers used the ladder or of the creation of any risk of harm to the plaintiff.

Five Star filed a motion for summary judgement seeking the dismissal of all claim and crossclaims. Five Star argued that if it could not be liable for injuries to the subcontractor's employees, it should also be absolved from liability for injuries to customers within the store. This motion was granted by the Honorable Georgia M. Curio of the Superior Court of New Jersey, Law Division, Cumberland County.

For further information, please contact Daniel C. Moraglia, Esquire
Telephone: (856) 547-5756
E-Mail: moraglia@bbs-law.com





Bennett, Bricklin & Saltzburg LLP is pleased to announce that Rebecca Thomas, Louis F. D'Onofrio and William Sylianteng have joined the firm. Becky graduated from Temple University School of Law in 2002 and served as a law clerk to the Honorable Judge New in the Court of Common Pleas of Philadelphia County for one year. Will and Louis graduated from Temple University in 2003 and were recently advised that hey have passed the Pennsylvania bar examination.

Louis Bricklin has been asked to participate in a program concerning first party bad faith cases to be presented to the Pennsylvania Conference of State Trial Judges mid-annual meeting on February 20, 2004, in Philadelphia. Louis will present the defense position on various bad faith issues. Other panel members will include the Honorable Mark Bernstein of the Philadelphia Court of Common Pleas and Joseph Roda of Roda and Nast in Lancaster.


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