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Burns White Garners Four First-Tier Rankings in the U.S. News "Best Law Firms" Survey

PITTSBURGH, November 1, 2012 — Burns White earned a national first-tier ranking in railroad law for the third year running and three metropolitan first-tier rankings in Pittsburgh for mass tort litigation/class actions defense, personal injury litigation defense and railroad law in the 2013 U.S.News Media Group and Best Lawyers® “Best Law Firms” survey.

The firm also received a national tier two ranking in mass tort litigation/class actions defense, a tier two ranking in Pittsburgh for labor and employment litigation and a tier three ranking in Pittsburgh for commercial litigation.

Rankings are based on a rigorous evaluation process that includes a collection of client and lawyer evaluations and peer review from leading attorneys in their fields nationwide. Those surveyed provided feedback on the individual practice group’s expertise, responsiveness, understanding of business needs, cost-effectiveness, civility, integrity and likelihood of referral.

“This distinction reflects our attorneys’ dedication to their work and continued efforts to maximize the return that our clients invest in us every day,” said Dave White, a founding Member of the firm. “We’re pleased to hear from them, as well as our colleagues, of our continued successes.”

For the third consecutive year, the “Best Law Firms” report showcases 10,000 law firms ranked nationally in one or more of 80 legal practice areas, or by metropolitan region or state in 118 practice areas. A complete listing of rankings is available online: http://bestlawfirms.usnews.com/, while the national first-tier rankings will be featured in U.S. News & World Report’s Money issue, on newsstands November 20, 2012.

For more information on Burns White and its 18 practice areas, including Banking and Financial Services Litigation, Business Practices, Healthcare and Long-Term Care, Medicare Compliance, Transportation, Litigation and White Collar and Government Enforcement, visit the firm’s website at www.burnswhite.com.

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Philadelphia County court ruled favorably in negligence suit for hospital client

A Philadelphia County court ruled favorably in a case where a hospital client, along with an affiliated physician and a nonprofit organization, were facing allegations of pneumonia diagnosis and treatment failure that ultimately caused a patient’s death. Represented by Member Stuart T. O’Neal and Associate Anne P. Schmidt, the hospital and its corporate entity were being sued by the deceased’s descendent under theories of vicarious liability and corporate liability. In two separate counts, plaintiff alleged a host of failures, including failure to: obtain appropriate consultations, appropriately supervise nurses and residents, hire competent physicians and staff, and ensure quality medical care.

In the first order, the court sustained Mr. O’Neal’s and Ms. Schmidt’s preliminary objections, striking plaintiff’s claims of corporate negligence, vague allegations of agency and over 50 vague allegations of negligence from plaintiff’s amended complaint.

In the second order, the court granted a motion to enter a judgment of non pros on plaintiff’s claims of corporate negligence, where plaintiff failed to file timely certificates of merit for claims of corporate negligence. As a result, plaintiff’s claims of corporate negligence were dismissed with prejudice.

Note: The results obtained in a particular case are, of course, always heavily dependent on the facts and the law specific to that case.

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ATTORNEY BLOG: The Third Circuit weighs in on the battle of the Restatements

By: Stephanie Solomon, Esq.

The U.S. Court of Appeals for the Third Circuit recently declined a request to accept an interlocutory appeal on a question of law “specifically limited to the issue of whether the Pennsylvania Supreme Court would adopt the Restatements (Third) of Torts or continue its application of the Restatement (Second) of Torts.” The court’s Order in Sikkelee v. Precision Airmotive, 12-8081, 2012 WL 5077571 (3d Cir. Oct. 17, 2012) unmistakably moves towards resolving the conflict, at least among Pennsylvania district courts, regarding whether the Restatement (Second) or Restatement (Third) governs Pennsylvania products liability cases.

In Sikkelee v. Precision Airmotive, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania issued a July 3, 2012 Order concluding that the Restatement (Second) of Torts would be the governing law with respect to Plaintiff Sikkelle’s strict liability claims against Textron Lycoming Reciprocating Engine Division (“Lycoming”). Sikkelee, 4:07-CV-00886, 2012 WL 2552243, at *9 (M.D. Pa. July 3, 2012). Judge Jones acknowledged that the Third Circuit “has twice predicted that the Pennsylvania Supreme Court, when presented with the opportunity to do so, will adopt the Restatement (Third) of Torts … to supplant the Restatement Second of Torts.” Id.at *8 (citing Covell v. Bell Sports, 651 F.3d 357, 360 (3d Cir. 2011); Berrier v. Simplicity Mfg., Inc.,563 F.3d 38, 46 (2009)). The District Court nevertheless concluded that when the Pennsylvania Supreme Court declined to replace the Restatement (Second) with the Restatement (Third) in Beard v. Johnson and Johnson, 41 A.3d 823 (Pa. 2012), its action was an “affirmative indication” of the Pennsylvania Supreme Court’s intent to retain the Restatement (Second) as the law in Pennsylvania. Id. at *9.

Thereafter, in response to Lycoming’s Motion for Reconsideration of the Court’s Order denying summary judgment, the District Court issued an Order amending the July 3, 2012 Order to include the language required by 28 U.S.C. §1292(b) for immediate appeal, thereby certifying the question of the governing Restatement for immediate appeal. Sikkelee, 4:07-CV-00886 (M.D. Pa. July 26, 2012). Lycoming filed its Petition for Permission to Appeal with the Third Circuit and the Motion Panel entered a Denial Order. Sikkelee, 12-8081, 2012 WL 4953074 (3d Cir. Sept. 14, 2012). The Denial Order cited to both the Covell and Berrier decisions, as well as to the Beard decision, without further explanation. Id. Lycoming argued that the citation to Beard could indicate a willingness to continue to apply the Restatement (Second) at the state level, or could also be interpreted to indicate a willingness to supplant the Restatement (Second) with the Restatement (Third), based upon Justice Saylor’s acknowledgement of the “continuing state of disrepair in Pennsylvania strict-liability design defect law.” Petition for Panel Clarification or Rehearing En Banc of Denial of Petition for Permission to Appeal, October 3, 2012, ECF No. 321 (citing Beard, 41 A.3d at 836). This time, the Third Circuit Court of Appeals succinctly explained:

As stated in Covell, a federal court applying Pennsylvania substantive law must predict how the Commonwealth’s highest court would decide the case. We concluded in Berrier that “[if] the Pennsylvania Supreme Court were confronted with [the] issue, it would adopt the Restatement (Third) of Torts.” Id. at 40. Thus, we held that federal courts sitting in diversity and applying Pennsylvania law to products liability cases should look to sections 1 and 2 of the Restatement (Third) of Torts.

Sikkelee, 12-8081, 2012 WL 5077571, at *1 (3d Cir. Oct. 17, 2012). Because the Pennsylvania Supreme Court has not yet definitively held which Restatement applies to strict liability and product defect cases, the Third Circuit Court of Appeals concluded that it would adhere to its Covell and Berrier precedent and apply the Restatement (Third). Id.

The Third Circuit Court of Appeals’ October 17, 2012 Order in Sikkelee should do away with the conflict among the district courts as to which Restatement is applicable to products liability cases – not only moving toward resolving the “continuing state of disrepair in Pennsylvania strict-liability design defect law,” but also toward saving a party’s expense of time and money spent filing motions and briefs arguing over what the law is and should be. Finally, the Third Circuit Court of Appeals’ Order can also be viewed as the court’s attempt to finally force the hand of the Pennsylvania Supreme Court into deciding “the Battle of the Restatements” once and for all.

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Stuart T. O’Neal obtains dismissals for hospitals of health system client facing liability-related allegations

Member Stuart T. O’Neal received dismissals recently in two liability-related matters for hospitals belonging to the same health system client.

In the first case, the estate of a 54-year-old man alleged that a hospital emergency room (ER) was responsible for not diagnosing a cerebral vascular incident that caused his death three months after being admitted there with symptoms of increasing dizziness over a three-week period, nearly fainting at work, unilateral numbness and a history of hypertension. The plaintiff declared counts of wrongful death—vicarious liability, wrongful death—corporate liability and a Survival Act claim. On the eve of trial, the hospital was released from the case due in part to several summary judgments that mitigated many of the claims against the hospital itself, including corporate liability. The matter was eventually settled by the remaining parties.

The second case dealt with a professional liability/medical malpractice action. The plaintiffs, the parents of a little boy, alleged that their son suffered serious injuries over the course of delivery due to a hospital’s negligence. The firm’s health system client was included in the matter by virtue of a successor liability theory that was dismissed early in the litigation. The case continues to this day with the remaining defendants.

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John Cromer secures directed verdict for an environmental services client in alleged breach of contract and professional liability case

Earlier this month, Member John B. Cromer secured a directed verdict ruling for an environmental services client who, along with a subconsulting entity, was facing breach of contract and professional negligence allegations in the design of a water treatment plant that did not meet West Virginia Department of Environmental Protection (WVDEP) effluent discharge standards. This caused the agency to reject the work that was done on the facility.

After being awarded a contract by the WVDEP, the plaintiff, an engineering company, entered into a subconsulting agreement with an environmental services firm, the co-defendant, to develop a reclamation plan for a water treatment facility to remedy the problem caused from abandoned mine site drainage. Mr. Cromer’s client was the design professional in charge of the water treatment process and plant design.

Throughout the week-long trial, it was established that different design parameters and water quality specifications were given to the defendants in the subconsulting agreement. It was also determined that the agency’s self-imposed standard in this instance was higher than the expected goal. Later testing after the treatment facility was operational showed consistent levels meeting that standard or less.

Despite the plaintiff introducing testimony from seven witnesses, 30 pieces of evidence and arguing for almost $1 million in damages, the court concluded that the plaintiff had failed to prove that the defendants breached the standard of care in performing the duties outlined in the contract and that there was ‘no legally sufficient evidentiary basis for a reasonable jury to find for the plaintiff.’

Note: The results obtained in a particular case are, of course, always heavily dependent on the facts and the law specific to that case.

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Burns White attorneys selected for PLDF appointments at its annual conference

October 17, 2012 — Burns White Members Stuart T. O’Neal and Sheila M. Burke, and Associate Kara C. White were appointed to serve new board and committee positions of the Professional Liability Defense Federation (PLDF) at its annual conference in Chicago, Sept. 26-27, 2012.

With his term expiring on Dec. 31, 2012, Mr. O’Neal was recognized as Past President of the PLDF by its Managing Director, Chris Jensen and received an award for his service. During this event, Mr. O’Neal was appointed to the association’s 2013 board of directors as Past President.

Ms. Burke was selected to serve as Secretary of its board of directors effective January 2013 for a one-year term.

Ms. White was appointed as Chairwoman of the Medical Claims Committee of PLDF, where she has been a member for the last two years.

Also at the meeting, Ms. White and Mr. O’Neal presented on corporate theories of liability and its extension to various healthcare providers.

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Brian Mancos obtains summary judgment for major railroad clients

Brian M. Mancos, an Associate in the Transportation Group, successfully obtained an order granting a motion for summary judgment in favor of two major railroad clients in the Court of Common Pleas in Philadelphia, Pennsylvania.

The plaintiff, a 59-year-old former railroad machinist, sued the defendants under the Federal Employers Liability Act (FELA), demanding over $600,000 in damages for alleged injuries to his lower back and neck as a result of the tasks he was required to perform during his employment. After substantial trial preparations and with the case scheduled in the December Trial Pool, the court reviewed defendants’ motion for summary judgment and granted that motion on Oct. 5, 2012, based on plaintiff’s failure to present any evidence of negligence by the railroads or any expert opinion concerning defendants’ liability. Judgment has been entered in favor of the defendant railroads in the matter.

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Dean Falavolito obtains summary judgment for Pennsylvania Turnpike Commission in disability discrimination lawsuit

Co-Chair of the Employment Law Group Dean Falavolito obtained a summary judgment earlier this week for the Pennsylvania Turnpike Commission in a case where a former employee claimed that the company discriminated against his alcohol and drug-related disability under the Americans with Disabilities Act Amendments Act (ADAAA) of 2008.

The plaintiff, a former tollbooth supervisor, was subject to a Last Chance Agreement due to prior attendance issues and was terminated for violating the attendance requirements included in that agreement when he missed several consecutive days of work in 2009. His most recent absence was due to his decision to attend a non-medical drug and alcohol treatment center that was not approved under the Turnpike’s sick and accident leave policy that provided for a paid leave of absence. Although the plaintiff had previously been approved to attend numerous treatment centers with paid leave, he believed the Turnpike should have accommodated his request by granting him unpaid leave without proper notification of his intent to do so.

By his extensive and thorough presentation of discovery, Dean made it evident to The U.S. District Court for the Western District of Pennsylvania that the Turnpike acted in full compliance with the ADAAA and that the plaintiff failed to fulfill his obligations. For the first time, the court noted that although the ADAAA made significant changes to the rules governing the rights of workers with disabilities, it “did not materially alter those provisions recognizing that drug- and alcohol-related disability claims are “treat[ed] differently from other disabilities by ensuring that employers do not have to go through the [same] accommodation process.”” On this basis, it concluded that it would be too onerous for employers such as the Turnpike to have to guess what accommodation is being requested without adequate communication from the employee. The court specifically stated that if a “breakdown” in the interactive process occurs by the fault of the plaintiff, it will defeat an individual’s claim for reasonable accommodation.

The court also noted, in accordance with prior precedent, that even though the Turnpike had complied with the reasonable accommodation requirements of the ADAAA, it was not technically required to do so in this case, as the plaintiff had been “accommodated” multiple times in the past while attending treatment facilities and was not required to continue to accommodate leaves of absence for “unsuccessful” treatment.

For more information, click here to view the court’s opinion in full.

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LEGAL UPDATE: New West Virginia business court opened on Oct. 10, 2012

The West Virginia Supreme Court of Appeals voted 5-0 to approve a new trial court rule establishing a Business Court Division in West Virginia. The business court opened its doors on Oct. 10, 2012 handling disputes involving commercial or technology issues, including complex tax appeals. The court is also expected to handle cases that “involve matters of significance to the transactions, operations or governance between business entities.” The goal is for business disputes to be concluded within 10 months from the date the case management order is entered. The court will have seven regions, with each region to encompass 6 to 11 counties.

The Supreme Court has appointed four of seven judges to serve on the business court; each will serve seven-year staggered terms with the ability to do so in succession. Judge Christopher Wilkes (Berkeley, Jefferson and Morgan counties), Judge James Rowe (Greenbrier and Pocahontas counties), and Judge Donald Cookman (Hampshire, Hardy and Pendleton counties) were appointed to start on Oct. 10, 2012; and Wayne County Circuit Judge James Young Jr. was appointed to start on Jan. 1, 2013.

If you would like to discuss the impact of the new West Virginia Business Court, please contact any of the attorneys in the Construction Group at 412-995-3000.

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