Author Archives: BurnsWhite

Pittsburgh, July 22, 2011 – Burns White LLC Transportation Practice Group Co-Chair David Damico and colleague Nina Gusmar were successful in excluding plaintiffs’ sole expert witness and obtaining summary judgment on behalf of Norfolk Southern Railway in three deleterious substances cases arising out of Elkhart, Ind.

Plaintiffs Aurand, Gilliland and Lipp each brought suit against defendant Norfolk Southern Railway Company under the Federal Employers’ Liability Act (FELA), alleging that their exposure to dangerous chemicals in the railyard caused each of them to develop a form of cancer. The defense filed a motion to exclude plaintiff’s toxicology expert, Dr. Richard Lipsey, challenging the scientific reliability of his methodology pursuant to Fed. R. Evid. 402, 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Concurrent with the challenge to plaintiff’s expert, the defense also filed a motion for summary judgment arguing that the plaintiffs lacked the necessary expert evidence to support both general and specific causation, because Dr. Lipsey’s opinion is inadmissible, and because the plaintiffs failed to provide written expert reports for their treating physicians as required by Rule 26(a)(2)(B).

In a persuasive opinion, Judge Philip Simon, Chief Judge of the United States District Court for the Northern District of Indiana found in favor of all of the defense’s major arguments. Notably, the Court found that that Dr. Richard Lipsey was not qualified to give an opinion under Rule 702 and Daubert, and that his opinions as to general and specific causation were unreliable. In particular, Judge Simon faulted Dr. Lipsey for lack of detail in the factual connection between the claimed exposures and the diseases in question.

Judge Simon also agreed with the defense’s position that because none of the plaintiffs’ treating physicians was shown to have developed an opinion on causation in the course of their treatment of plaintiffs, plaintiffs were required to disclose a written report from each such “expert” under Rule 26(a)(2)(B). Having concluded that Dr. Lipsey may not testify as an expert, and that the treating physicians were precluded from giving expert causation testimony for failure to submit reports, the court granted summary judgment, stating that there simply is no evidence demonstrating that the plaintiffs’ various cancers were caused by toxic exposures at Norfolk Southern’s railyard.

Click here to read the complete judgment.

Click here to learn more about David Damico.

Click here to learn more about Nina Gusmar.

Pittsburgh, June 24, 2011 – Attorneys at Burns White LLC have successfully defended an insurance company in a class action suit against allegations that it breached its contract to policyholders and violated the Consumer Protection Law.

Six similar class action suits of this nature had been filed in Pennsylvania in recent years. This was the first instance in which a suit had been dismissed at Summary Judgment.

The plaintiff, Allan LaCaffinie, and his counsel argued that all owners of a single vehicle who selected a “stacking” option in their policy from the defendant – Standard Fire Insurance Co. – did not receive a benefit. Attempting to expand the view of a 2008 Pennsylvania Supreme Court decision, the plaintiff sought to certify this group as a class of thousands across the state who were harmed by the alleged lack of differentiation between “stacked” and “non-stacked” in the policies.

In defense of Standard Fire Insurance Co., Burns White attorneys David B. White and Dean F. Falavolito successfully convinced the court that the policy did indeed contain a clear benefit for policy holders who selected the “stacked” option.

Specifically, Judge Steve P. Leskinen of the Court of Common Pleas of Fayette County, Pennsylvania, wrote the following: “The Court must grant Defendant’s Motion for Summary Judgment as the insurance contract at issue provides a distinct ‘stacking’ benefit that is absent in an insurance coverage where the insured executes a valid waiver of stacking coverage.”

To read the complete order of the Court, please click here.

Click here to learn more about David White.

Pictured: Tom Donahue with Woman of the Year Kathy Hays

Pittsburgh, May 24, 2011 – The Western Pennsylvania and West Virginia Chapter of The Leukemia & Lymphoma Society (LLS) named Burns White attorney Tom Donahue as its 2011 Man of the Year at the Grand Finale Gala held May 20, 2011, at the Rahal Automotive Group – Jaguar, Land Rover, Volvo Dealership in Wexford, Pa.

As one of 12 overall Man, Woman and Teen of the Year candidates who were finalists for the award, Tom raised funds for cancer research and patient services. His efforts resulted in more than $20,000 in donations. Overall, the campaign raised $200,000 to benefit The Leukemia & Lymphoma Society’s research and patient financial aid campaigns.

The drive is held throughout North America and hopes to raise $12 million nationally from the various Man and Woman of the Year competitions.

Tom practices in the areas of entertainment law, transportation law, occupational illness defense and general litigation, focusing on the railroad industry. He is a 2002 graduate of Pittsburgh Central Catholic High School, a 2006 graduate of Boston College and a 2009 graduate of Duquesne University Law School, where he received the Cali Award for Excellence in Trial Advocacy.

To learn more about Man, Woman and Teen of the Year, please visit click here.

May 19, 2011 – Eight Burns White attorneys have been selected as either Super Lawyers® or Super Lawyers® Rising Stars by the publishers of Super Lawyers Magazine.

From the firm’s Pittsburgh office, Founding Member David B. White was named a Pennsylvania Super Lawyer® for the eighth consecutive year. Construction Law Practice Group Co-Chair Chad A. Wissinger and Medicare Compliance Practice Group Chair Travis W. Smith were picked as Super Lawyers® “Rising Stars” for the third time, while Transportation Group attorney Stephen A. Hall was selected as a “Rising Star” for the second time and Workers’ Compensation Practice Group attorney Melissa S. Danko was honored as a “Rising Star” for the first time. Mr. Wissinger also chairs the firm’s Environmental Practice Group.

In the firm’s West Conshocken, Pa., office, Healthcare and Long-Term Care Practice Group Co-Chair William J. Mundy earned Pennsylvania Super Lawyer® status for the seventh consecutive year and Litigation Practice Group Attorney Angela A. Cronk was named a Super Lawyers® “Rising Star” for the first time.

Patrick S. Casey, head of the firm’s Wheeling, W. Va., office, attained West Virginia Super Lawyer® accolades for the first time.

Super Lawyers® selects attorneys using a rigorous, multiphase rating process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The Super Lawyers® selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area. Candidates are grouped into four firm-size categories. Five percent of the total lawyers in the state are selected for inclusion in Super Lawyers® .

The selection process for “Rising Stars” is the same as the Super Lawyers® selection process except that: 1) to be eligible for inclusion in “Rising Stars,” a candidate must be either 40 years old or younger or in practice for ten years or less; 2) Candidates for “Rising Stars” do not go through step three above—peer evaluation by practice area. While up to five percent of the lawyers in the state are named to Super Lawyers®, no more than 2.5 percent are named to the “Rising Stars” list.

For more information, visit www.superlawyers.com.