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Railroad clients obtain reversal from Superior Court of PA in a decision changing court venue

Last week, two railroad clients facing occupational injury allegations under the Federal Employers’ Liability Act (FELA) from two former employees were granted a reversal by the Superior Court of Pennsylvania to transfer court venues from the Court of Common Pleas of Philadelphia County to Blair County.

Represented by Burns White Members T.H. Lyda and Ira L. Podheiser, the trial court initially granted the change in venue on Feb. 19, 2013 and entered it on Feb. 20 based on the fact that both appellees lived and worked in Blair County during the course of their employment. The appellees filed a motion to transfer a day later but failed to file a direct appeal. On April 10, the trial court granted the reconsideration motion, which led to the Superior Court appeal. Burns White attorneys argued that the trial court had no jurisdiction to reconsider the change in venue as more than 30 days had lapsed since the entry of order. In a published opinion, the Superior Court agreed, holding that the trial court lost jurisdiction after March 22. As a result, the Superior Court ordered that the cases be transferred to Blair County.

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

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Supreme Court of Ohio grants reversal for railroad client in asbestos exposure lawsuit

On Sept. 4, 2014, the Supreme Court of Ohio granted a reversal for a railroad client, represented by Burns White Members David A. Damico and Ira L. Podheiser, in a tort action involving asbestos exposure. The initial motion requested administrative dismissal due to the plaintiff’s failure to demonstrate through medical evidence that the decedent’s lung cancer was caused by asbestos exposure, as required by Ohio’s asbestos statute. It was initially denied by the trial court and the Ohio Court of Appeals subsequently affirmed this decision. Our client then sought discretionary review with the Supreme Court of Ohio, which was granted earlier this year.

In instances where the claimant is a “smoker” as defined by the Ohio Asbestos Statute, the statute requires that a demonstrated diagnosis be made from a competent medical authority treating the person exposed to asbestos to establish a prima facie case that asbestos exposure caused the claimant’s lung cancer. The statute further requires that only a treating physician can qualify as a “competent medical authority.”

The plaintiff in the case, the administrator of her late husband’s estate, alleged under the Federal Employers’ Liability Act (FELA) that her husband’s lung cancer was caused by asbestos exposure as a result of his railroad employment. The decedent, who was also a heavy smoker for 50 years, received treatment for his lung cancer through the Veterans Administration (VA) health-care system. The plaintiff claimed that she was prohibited from utilizing the opinions of the physicians who treated her husband at the VA facility by operation of VA regulations. Instead, the plaintiff submitted a medical report from a doctor who was board certified in internal and pulmonary medicine but hadn’t treated the decedent. Both the trial court and the Court of Appeals held that, due to the fact that the VA doctor’s opinion was unavailable, the plaintiff was free to use the opinion of a non-treating physician. In addition, both lower courts rejected arguments by the railroad that the non-treating physician’s opinion was itself defective in that it did not demonstrate that asbestos exposure was the “but for” cause of the decedent’s lung cancer.

The Supreme Court of Ohio unanimously reversed both lower courts, holding that: (1) that the use of the non-treating physician’s opinion violated the express provisions of the statute; and (2) even if the doctor had treated the decedent, his opinion was defective since it did not state that decedent’s lung cancer was a “but for” cause of his illness. In addition, the Supreme Court held that the plaintiff effectively abandoned her claim that the VA doctor who treated the decedent was actually unavailable since she did not subpoena him or attempt to appeal the VA’s initial determination that the doctor would not be permitted to provide evidence in this matter.

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

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New site for David White’s ADR practice is now available

Burns White recently launched a new website with details on Member David White’s alternative dispute resolution practice. The first attorney-focused website of its kind for the firm, it contains details on Dave’s experience, services offered, rates, availability, mediation procedures and agreements, useful links and more. Visit http://adr.davewhite.burnswhite.com for more information.

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Construction litigator obtains defense jury verdict after 10 minutes in alleged floor defect trial

Construction litigator Andrew Fylypovych obtained a defense verdict for a higher education client in a premises liability action tried to a jury in Philadelphia County. Plaintiffs, husband and wife, claimed that husband fell on an expansion joint in a medical office building and that the accident caused a major downward spiral in his already tenuous health status. Plaintiff spent two weeks in ICU from complications related to a massive hematoma, requiring emergency hemodialysis. The defense was able to show that the accident could not have occurred on the client’s level terrazzo floor. The eight jurors returned their verdict after deliberating for only ten minutes after a four-day trial.

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

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Six firm attorneys receive Best Lawyers in America ranking

PITTSBURGH, Aug. 20, 2014 —Michael W. Burns and Members David A. Damico, Daniel B. Donahoe, T.H. Lyda, Patrick L. Mechas and D. Scott Newman were recently selected by their peers for inclusion in The Best Lawyers in America© 2015.

First published in 1983, Best Lawyers® is based on a peer-review survey where more than 52,000 attorneys cast nearly 5.5 million votes on the legal abilities of other lawyers in their practice areas and geographic locations.

A Founding Member of Burns White, Mr. Burns, who currently serves as Of Counsel to the firm, has more than 40 years of litigation experience representing individuals, businesses and governmental agencies in catastrophic loss personal injury, toxic tort and railroad defense, and has been involved in all aspects of media work his entire career.

Mr. Damico, Founding Member and Co-Chair of the Transportation Group, brings more than 29 years of litigation experience coupled with business acumen to his corporate clients. He serves as National Trial Counsel to multiple railroad companies and has tried numerous occupational illness, toxic exposure and catastrophic personal injury cases. Last year, Mr. Damico was named Best Lawyers’ Pittsburgh Railroad Law “Lawyer of the Year.”

Mr. Donahoe concentrates his practice in the defense of occupational illness cases in both federal and state courts throughout the country. With a primary emphasis in FELA litigation, he has also performed defense work in the areas of products liability, automobile insurance and personal injury.

Mr. Lyda, who Co-Chairs the Transportation Group, was named Pittsburgh Railroad Law “Lawyer of the Year” by Best Lawyers in 2013. A litigator with more than 20 years of experience, he is well versed in occupational disease, toxic tort and products liability litigation, as well as entertainment law. Mr. Lyda also handles OSHA citation contests and inspections for clients in several industries and is an invited speaker on the topic at national conferences.

Co-Chair of the firm’s Healthcare and Long-Term Care Practice Group, Mr. Mechas has more than 20 years of legal experience defending professional negligence claims on behalf of medical and healthcare professionals, assisted living facilities, skilled nursing facilities, long-term acute care hospitals and management services companies. In addition to his extensive healthcare practice, he has defended numerous products liability and general liability matters on behalf of businesses from a variety of industries.

Mr. Newman joined the firm in 1990 and is Chair of the Workers’ Compensation Group. He represents both self-insured corporations and insurance companies before workers’ compensation judges, the Workers’ Compensation Appeal Board and the Commonwealth Court of Pennsylvania. Mr. Newman maintains a secondary concentration in the practice of administrative law under the Federal Coal Mine Health and Safety Act and Black Lung Benefits Act.

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Burns White welcomes nine Associates to offices in Pa. and Del.

PITTSBURGH, Aug. 13, 2014 — Burns White LLC welcomes nine associates with practices spanning energy, general litigation, healthcare and long-term care, Medicare compliance and transportation to its offices in Pittsburgh, Pa. and Wilmington, Del.

Pittsburgh

Energy — Oil and Gas
Jennifer L. Beresky brings experience handling due diligence, title curative measures and certified title opinions to the Energy Group at Burns White. With a focus on the oil and gas industry, Ms. Beresky has a particular emphasis on drafting complex certified title opinions involving issues with unreleased leases, producing wells located on researched properties and chain of title irregularities. Previously, she researched chains of title to determine surface, mineral and oil and gas ownership rights as a title abstractor at Purple Land Management, LLC. Ms. Beresky received a J.D. from the University of Pittsburgh School of Law.

Marissa A. Cocciolone assists clients in the oil and gas industry with a wide range of litigation matters, including early lease termination, preliminary injunctions, eminent domain condemnations, contract disputes and personal injury claims. Before joining Burns White, Ms. Cocciolone worked as a Litigation Associate at Rewis & Yoder, PC, where she handled owner property tax appeals, landlord-tenant actions, family law cases and other general litigation matters. Ms. Cocciolone graduated from Duquesne University School of Law.

Jenna R. DiFrancesco’s practice involves a wide range of transactional matters in the oil and gas industry, including due diligence review, title curative measures and certified title opinions for clients operating in the Marcellus and Utica Shale. As the former Title Department Manager at Rice Energy, Jenna was instrumental in developing its title department from a staff of one to more than 20 individuals. In addition, she was a key player in supporting the company’s expanding operations in Pennsylvania and Ohio and has extensive title experience in both states. Ms. DiFrancesco received a J.D. from the Louis D. Brandeis School of Law at the University of Louisville.

Kurt J. Hoffman handles due diligence, title curative and certified title opinions for clients in the oil and gas industry. Before joining the firm, Mr. Hoffman worked as a Title Abstractor for Turner Oil & Gas Properties LLC, performing land title abstracts, due diligence and oil well acquisitions. He graduated from the University of Pittsburgh School of Law.

General Litigation
Benjamin W. Schweers’ practice primarily consists of commercial litigation impacting a wide range of industries, including banking and financial services. He also handles personal injury and professional liability litigation, as well as white collar and government enforcement-related matters. Before joining Burns White, he was employed as an Associate at Goldberg, Persky, & White, P.C., where he dealt with medical malpractice, personal injury and occupational disease cases. Mr. Schweers received a J.D. from Lewis & Clark Law School.

Healthcare and Long-Term Care
Tara B. Rodrigues focuses her practice in the area of healthcare law and long-term care litigation, representing healthcare institutions and medical professionals in state and federal courts throughout Pennsylvania. She also handles cases involving licensure issues, contract negotiation and products liability. Ms. Rodrigues joins Burns White from Mintzer, Sarowitz, Zeris, Ledva & Meyers, where her practice included professional, products and premises liability claims, and employment and construction matters. Ms. Rodrigues graduated from Duquesne University School of Law.

Medicare Compliance
Melanie S. Schafer’s practice focuses on the resolution of Medicare compliance issues that arise in the settlement of workers’ compensation and general liability claims. Prior to joining Burns White, she worked as an Associate at Murphy Taylor, L.L.C., handling liability claims for insurance company clients and as a Consulting Attorney concentrating on Medicare compliance issues in institutional settings. Ms. Schafer received a J.D. from the University of Pittsburgh School of Law.

Transportation
Molly L. Fletcher practices railroad defense litigation with an emphasis in occupational disease claims and toxic tort litigation. With a rich background in litigation spanning private and public work, her previous experience includes representing multinational Fortune 500 companies in complex toxic and mass tort product liability actions, and physicians and other medical professionals in professional liability matters. She also served as a Deputy Criminal Prosecutor in the Trial Unit of the City Attorney’s Office in San Diego, California prosecuting infraction and misdemeanor cases. Ms. Fletcher received a J.D. from Golden Gate University School of Law.

Wilmington

Workers’ Compensation/Long-Term Care
Luciana M.E. Gorum defends a wide range of clients in workers’ compensation matters throughout Delaware, Pennsylvania, Maryland and New Jersey. She also handles nursing home litigation. Before joining Burns White, she worked as Field Counsel for Liberty Mutual, representing clients in a broad range of workers’ compensation, personal injury, asbestos and construction claims in court, mediation and arbitration proceedings. Ms. Gorum graduated from Widener University School of Law.

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Healthcare litigators secure a defense verdict for a hospital client in a premises liability suit

Healthcare and Long-Term Care Group Member Stuart T. O’Neal, III and Associate Harry P. McGrath, Jr., obtained a defense verdict for a hospital client in a premises liability action in Philadelphia County. Following a detailed background investigation, Messrs. O’Neal and McGrath introduced key witness testimony of the alleged accident which undermined all allegations of negligence against the hospital. At the time of arbitration, the panel attributed no liability to the facility and entered a defense verdict.

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

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Healthcare Group secures dismissal of RICO claim for a healthcare system client

Member Stuart T. O’Neal, III and Associate Sasha E. Miller of the Healthcare and Long-Term Care Group obtained a dismissal for a healthcare system client in a claim brought under the Racketeer Influenced and Corrupt Organizations Act (RICO). The plaintiff, a former patient, filed amended complaints of conspiracy and later RICO against our client and four other defendants after not entering a settlement from an initial claim made several years prior. In the initial complaint, the plaintiff alleged causes of action for wrongful death, a survival claim, a bodily injury claim and negligent infliction of emotional distress after she gave birth to a stillborn baby.

In August 2013, the plaintiff filed her first amended complaint in the Court of Common Pleas in Philadelphia County, alleging that a conspiracy between the named defendants in her first amended complaint led to a reduction in the amount of her 2009 settlement and a delay in receiving that settlement. The plaintiff further alleged that in 2004, two of the named defendants had formed a partnership with the hospital where she had given birth, with the intent of maximizing profits by allegedly minimizing expenses and evading claims for medical malpractice. The plaintiff also alleged that the named defendants had then conspired to devalue her settlement, altered documents, tampered with witnesses, and arranged for a specific judge to take over the case. The case was later moved to the U.S. District Court for the Eastern District of Pennsylvania.

In June 2014, Judge Petrese B. Tucker, C.J. of the U.S. District Court for the Eastern District of Pennsylvania dismissed all claims with prejudice, stating the plaintiff lacked standing, and her allegations of conspiracy were little more than an attempt to improperly re-litigate her medical malpractice claim.

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

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