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Defense Verdict for Radiologist
On August 22, 2022, Jacqueline Schneiders and Jack Shusted obtained a defense verdict on behalf of their client, a radiologist, after a four-day trial in the Court of Common Pleas of Montgomery County in Norristown, Pennsylvania.
Plaintiff claimed that the radiologist failed to identify a fibula fracture on an x-ray and to recommend further imaging studies. Several weeks later, Plaintiff was found to have a displaced, comminuted fibula fracture. Post-surgery healing was delayed for several years due to nonunion.
Mrs. Schneiders and Mr. Shusted showed the jury how the radiologist met the standard of care in reading and reporting on the x-ray, and that there was no causal connection to the subsequent displaced fracture.
GGM Attorneys Recognized by The Best Lawyers in America for 2023
GGM is proud to announce that Yana N. Shapiro has been selected to The Best Lawyers in America, and Andre J. Webb has been named to The Best Lawyers in America: Ones to Watch.
The Best Lawyers in America recognizes the top four percent of practicing attorneys in the nation and is based on confidential client and peer evaluations, as well as extensive editorial research. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. For more information, please visit https://www.bestlawyers.com.
NJ Appellate Division Determines that Employment Separation Agreement does not Constitute Payment for Disputed Workers’ Compensation Claim filed Outside Two Year Statute of Limitations
In the case of Donald Servais v. Ocean Wholesale Nursery, LLC., A-2988-20, (App. Div. July 14, 2022), the legal question presented was whether a Separation Agreement constituted a payment for a contested workers’ compensation case. In this matter, Petitioner alleged that he suffered an amputation of three fingers on his right hand while at work on January 26, 2016. Petitioner failed to file a workers’ compensation claim within the two-year statutory limitations period. Additionally, Respondent never paid Petitioner any temporary disability benefits as Respondent believed the injury happened while Petitioner was at home. Further, Respondent disputed the employee relationship with Petitioner as he was hired as a consultant rather than an employee. On October 26, 2018, Petitioner filed a formal claim petition. The claim was denied, and Respondent filed a motion to dismiss the claim petition. Petitioner argued that under a January 31, 2017 Employment Separation Agreement, Respondent paid Petitioner $5,000.00 to resolve their business relationship. Petitioner argued that at least part of this payment was for the loss of his fingers; therefore, the claim petition was timely filed from the date of separation agreement.
The issue was litigated and the Compensation Judge determined that Petitioner was in fact an employee and that Section 7 of the Separation Agreement was ambiguous. Despite there being no mention in the Agreement of Petitioner’s injury to his fingers, the Judge found that the Separation Agreement included any and all claims, including the loss of fingers, and apportioned $1,000.00 of the $5,000.00 paid under the separation agreement to the injury to the fingers. Therefore, a judgment was entered in favor of Petitioner. Respondent then appealed the decision. The Appellate Division ultimately reversed in favor of the Respondent. The Appellate Division determined that the language of the Agreement expressly excluded Petitioner’s workers’ compensation claim, stating:
“Paragraphs five and six of the Agreement would not reasonably lead a person to believe that the $5,000 payment under the Agreement was also a partial payment for his work-related injury because paragraph seven of the Agreement, clearly entitled in bold ‘Exceptions,’ expressly stated that the release in the Agreement did not ‘affect or limit’ his right to receive benefits for occupational injury under the Workers’ Compensation Law.”
The Appellate Division therefore held that Petitioner failed to file his claim petition in timely manner. It reversed the Order denying Respondent’s motion to dismiss and vacated the final judgment.
Unanimous Defense Verdict for Radiologist and Radiology Practice
On July 20, 2022, Jack Shusted and Garrett Field obtained a unanimous defense verdict on behalf of their clients, a radiologist and radiology practice, after an eight-day trial in the Lackawanna County Court of Common Pleas in Scranton, Pennsylvania.
The trial centered on Plaintiff’s allegations that the radiologist failed to identify a pancreatic head mass on a MRI. The defense maintained that the radiologist interpreted the MRI and reported the findings in accordance with radiological standards of care. Mr. Shusted and Mr. Field were able to demonstrate that the radiologist’s MRI report met all standards of care and that no action or inaction on the radiologist’s part caused the Plaintiff’s injury.
Big Changes Coming to the Pennsylvania Workers’ Compensation Appeal Board
The Workers’ Compensation Appeal Board recently amended its rules in a way that will significantly change appellate practice before the Board. The new rules take effect July 11, 2022 and should significantly expedite the resolution of appeals to the Board. However, because the changes to the rules are so significant, workers’ compensation practitioners should be wary regarding certain pitfalls regarding the new deadlines contained in the updated rules. There are two significant changes: expansion of virtual hearings and changes to the timing for submission of parties’ briefs.
Currently, a party appealing a decision from a Workers’ Compensation Judge has 20 days to file an appeal. Once the appeal is received, a hearing is scheduled for a hearing at which the appellant’s brief will be due. The Board schedules hearing dates at a number of locations throughout the Commonwealth and travels as a body to each location to hear cases, once per month at each site. After the hearing his held, the appellee then has 30 days after the hearing date. Under this current system, it takes an average of 72 days after the appeal to hold a hearing and 102 days to have the appeal submitted for decision. Appeals are taking over 180 days after a Judge’s decision to resolve.
Cosmetically, the new rules change the designation of the parties to Petitioner and Respondent from Appellant and Appellee.
The new rules change this in several important ways. First, the Board now has explicit authority to conduct hearings via teleconference and is changing its schedule and practice to take advantage. Traditional in-person hearings will now be held only every other month in each location. Virtual hearings will be held much more frequently and will be accessible regardless of the parties’ location. The Board’s previous practice of “riding circuit” around the Commonwealth and hearing only cases from a specific area on each day will be curtailed. Virtual hearings will allow the Board to hear cases from anywhere, on a first come, first served basis. The Board expects this will result in significant savings of both time and money in holding hearings.
Parties can still choose an in-person hearing, and in the event of a conflict between the parties over holding a hearing in person or virtually, an in-person hearing will be the default. In addition, disfigurement cases will always be held in-person.
More significantly, there will be changes to how the Board accepts the Parties briefs and the deadline for submission of those briefs. As it stands now, a Petitioner/Appellant has until the date of the hearing to submit its brief, currently running to an average of 72 days. Under the new rules, the brief will be due before the hearing, 30 days after the appeal is accepted by the Board. Thus, the Petitioner must be ready with its brief well in advance of the hearing and about 40 days earlier than current practice.
The Respondent must also submit its brief prior to the hearing date, now 30 days after the Petitioner’s brief is submitted. Note that this is a floating deadline – the Respondent’s due date will depend on submission of the Petitioner’s brief. Once Petitioner submits, Respondent’s clock to submit its brief starts ticking. This shifting deadline may prove a trap for unwary or inattentive counsel who calculate the deadline from the due date of their opponent’s brief.
The Board is shifting to hard deadlines through WCAIS as well. Parties will not be able to submit a brief past the due date and will be locked out of submitting briefs in WCAIS. Extensions can be requested, but only prior to the due date. Parties will be unable to request a last-minute extension via WCAIS on the due date of the brief.
Cases with cross appeals will generate duplicate briefing schedules. With each party having the briefing schedule of both a Petitioner and Respondent, with the deadlines appropriate to each. Parties may submit separate briefs on the cross appeals or waive briefs on one and submit a consolidated brief for both.
These changes should speed up the resolution of appeals before the Board. Instead of having 70 to 100 days before an appeal is fully submitted, briefs should now be submitted no more than 60 days from when the appeal is filed. Increased virtual hearings should also result in more efficiency and earlier hearing dates, meaning appeals to the Board should be resolved much earlier than they are now. How much remains to be seen, but the judicial economy of the new practice seems obvious.
The new rules also require submission of a one page summary of argument separate from the brief itself. This summary can be either uploaded by itself or copied into a provided box in WCAIS when the brief is submitted. In addition, when the brief is submitted via WCAIS, the party must choose its hearing preference, either virtual or in-person. Waiving oral argument is also an option.
These changes are effective July 11, 2022 and are some of the most extensive in the Workers’ Compensation Appeal Board’s 50 year history. While there will be undoubtedly be some issues and growing pains with the new practice, they should work to shorten appellate decision times and provide parties with additional certainty and review of Judges’ decisions.
Jacob C. Lehman Co-Chairs at the ALFA International 2022 Insurance & Professional Liability Seminar
Jacob Lehman served as Co-Chair of ALFA International’s 2022 Insurance and Professional Liability Seminar held at the Logan Hotel in Philadelphia June 22-24th. Entitled “In the Eye of the Beholder: Viewing Professional Liability and Insurance Issues from Modern Perspectives” the conference featured ALFA International member firm attorneys and clients from a wide range of insurance companies and corporations speaking on a variety of timely topics in the insurance and professional liability fields. For more information please reach out to Mr. Lehman at lehmanj@ggmfirm.com.
Jacob Lehman Presents at ALFA International’s Product Liability and Complex Torts Seminar
GGM Partner Jacob Lehman served as the moderator of the opening session at ALFA’s Bi-Annual Product Liability and Complex Torts Seminar held at the Fairmont Grand Del Mar Resort in San Diego, CA, June 1-3, 2022. Mr. Lehman’s panel, entitled Dissecting the Frankenstein, a Product Liability Play in Three Acts, focused on key behind the scenes strategies and tactics in the defense of product liability litigation. Through a fictional and entertaining fact pattern, including a pre-produced product informercial, Mr. Lehman, along with fellow ALFA attorneys and client speakers explored important issues including early case management, emails, e-discovery and corporate witness issues. For more information, reach Mr. Lehman at lehmanj@ggmfirm.com.
Andre J. Webb presents at the ALFA International 2022 Insurance & Professional Liability Seminar
Andre J. Webb will present at the ALFA International 2022 Insurance & Professional Liability Seminar on Friday, June 24, 2022. The presentation is entitled “Jury Verdict Trends in the Midst of a Pandemic”.
GGM is pleased to announce its newest Litigation Associate Elana D. Schnall
GGM is pleased to announce the addition of a new litigation associate, Elana Schnall. At GGM Elana will focus her practice on the defense of medical professional liability, product liability and general litigation matters. Before joining GGM, Elana practiced in Central Pennsylvania concentrating on municipal law and general litigation, including representing municipal entities in a broad range of civil, appellate, and administrative matters. She also has prior experience defending healthcare and long-term care providers in malpractice actions.
Elana graduated cum laude from the University of Pittsburgh School of Law. While in law school she served as Senior Management Editor of the Journal of Environmental and Public Health Law and as a judicial intern for the Honorable Jill Rangos in the Allegheny County Court of Common Pleas.
Jury Verdict Trends In The Midst of a Pandemic
Before the pandemic, jury verdicts were already trending upwards, often surpassing traditional expectations. These upward-trending jury verdicts sometimes reach dollar amounts so high and unexpected, that they become colloquially referred to as “nuclear verdicts.” Although often cited through the lens of personal injury cases, the trend of increased jury verdicts and occurrences of nuclear verdicts are not exclusive to any one industry or jurisdiction.[1]
[1] Top Verdict’s 2020 Edition of Top 50 Plaintiff’s Jury Verdicts Obtained in the United States in year 2020
