Railroad Group Secures Appellate Victory in Case Interpreting Release

The Burns White Transportation and Appellate Practice Groups recently won a significant victory in the Pennsylvania Superior Court in a case for a railroad client involving the interpretation of a release agreement under the Federal Employers’ Liability Act (“FELA”).

Plaintiff brought an action in the Court of Common Pleas of Philadelphia County pursuant to the FELA alleging that her husband, a former railroad employee, developed lung cancer as a result of exposure to asbestos. Several years previously, the employee had sued the railroad alleging that he had developed asbestosis as a result of his railroad employment. The first lawsuit was settled, and the employee, represented by counsel, signed a release which provided that the employee was also settling future claims, which included language specifically releasing the railroad from liability for development of cancer arising from his alleged exposures to asbestos.

The railroad, represented by Burns White, filed a motion for summary judgment, arguing that the release barred the second lawsuit alleging development of lung cancer. The trial court agreed, granted summary judgment and dismissed the lawsuit. Plaintiff then appealed to the Pennsylvania Superior Court. Her primary argument was that the release was invalid due to the application of the FELA, which, according to the Plaintiff, restricted the ability of railroads to release claims for future injuries that had not yet manifested themselves at the time the release was executed. Following extensive briefing, the Superior Court affirmed the decision in an unpublished non-precedential opinion on March 23, 2018.

Due to a lack precedential appellate rulings from the Pennsylvania courts on the important question concerning the scope of releases in FELA lawsuits, Burns White, led by Transportation Group Chair David Damico and Appellate Practice Chair Ira Podheiser, filed a motion with the Superior Court to have the opinion published. On April 13, 2018, the Superior Court took the rare step of granting the motion to publish. As a result, this important ruling can be cited by the Pennsylvania courts, and by counsel, as binding precedent.

Medical Malpractice: Reginelli Peer Review Case Update

On March 27, 2018, the Pennsylvania Supreme Court issued a ruling significantly impacting Pennsylvania’s peer review protections. The Court in Reginelli v. Boggs held that the privilege provided by the Pennsylvania Peer Review Protection Act did not extend to a physician’s performance review file which was maintained by the physician’s employer, an emergency medicine physician practice group.

In Reginelli, a medical malpractice plaintiff sought the discovery of physician performance reviews. The reviews in question were conducted by a supervising physician employed by the physician-defendant’s practice group. The practice group, not the hospital, maintained the performance review file. The defendants each invoked the peer review privilege to prevent the discovery of this file. Ultimately, the Pennsylvania Supreme Court ruled that the privilege did not extend to the performance review files in question, and that they must be produced.

In reaching its conclusion, the Court maintained a strict interpretation of those entities which could claim the peer review privilege, excluding all others, such as physician practice groups. The Court went on further, effectively limiting a hospital’s exercise of the peer review privilege to only those “proceedings and documents of a review committee.” In doing so, the Court appeared to adopt a very narrow definition of “review committee,” arguably only encompassing formal, hospital-established peer review committees. This section of the opinion also appears to have removed the activities of a credentialing review committee from the protections of the peer review privilege, effectively reversing prior case law to the contrary.

While not directly addressed, the Reginelli opinion highlights another significant issue where hospitals rely upon outside entities, such as physician practice groups, to conduct peer review activities. The Court has long held that these oversight functions are non-delegable. While the Court has also held that a hospital could contract with another entity for the performance of peer review functions, the Reginelli opinion seemingly scrutinized this practice. In Reginelli, the practice group had contractual responsibility with the hospital to evaluate all physicians working in the department. While the Court largely side-stepped this issue, it nonetheless deemed peer review inapplicable to the reviews in question.

The peer review privilege was put in place to allow medical providers the confidentiality necessary to perform candid reviews, and improve the medical services offered. This opinion adds to the series of recent Pennsylvania appellate cases which have continued to limit the peer review privilege, seemingly ignoring this purpose and the current realities of medical oversight. Nonetheless, the Court has not eliminated the peer review privilege, but instead adopted a more formalized application of the privilege than formerly thought to apply. Thus, with appropriate planning, it still appears possible to maintain the peer review privilege for many of the activities currently thought to fall under the umbrella of peer review.

Attorney Griffin Recognized for Civic Service by City & State PA

Attorney Ashley Griffin was selected by City & State PA as one of its inaugural Above & Beyond award recipients. Ms. Griffin, who serves on the Green Tree Borough Zoning Hearing Board, was among 25 women in the state of Pennsylvania recognized for their public and civic service. The award ceremony was held on March 22nd at Constitution Place in Philadelphia.

 

The Revised Uniform Law on Notarial Acts CLE Program

Marc L. Aronson, President and CEO of Pennsylvania Association of Notaries, will highlight the most important and interesting changes that replace the 1953 law. He will touch upon the changes that lawyers and their notary staff need to know to continue to be an effective and compliant notary public.

When:  Tuesday, March 27 at 12:00 p.m.
Where: Burns White Center, 48 26th Street, Pittsburgh, PA 15222
Registration Cost: $100
Registration Contact: Jessica L. Gangjee

CLE Credit Pending

 

Burns White Attorney, Gilda M. Arroyo, Named Leadership Council on Legal Diversity (LCLD) Fellow

Burns White attorney, Gilda M. Arroyo, has been selected as a 2018 Fellow by the Leadership Council on Legal Diversity (LCLD). As a participant in this nationally recognized program, Ms. Arroyo will be trained to help identify, educate, and advance the next generation of leaders in the legal profession.

Ms. Arroyo joins a select group of talented attorneys, from diverse backgrounds, recognized for their potential as leaders at their organizations, and within their communities. According to LCLD President, Robert J. Grey, Jr., the Fellows Program offers high-potential attorneys “an extraordinarily rich year of relationship-building, in-person training, peer-group projects, and extensive contact with LCLD’s top leadership.” The goal of the year-long, professional development program is to produce a generation of attorneys with strong leadership and relationship skills who are committed to fostering diversity within their institutions and the legal profession at large.

“We are so pleased that Ms. Arroyo has been selected among her peers to participate in this year’s LCLD fellowship program. She is extremely deserving of this honor, and we are confident that she will have a positive impact in helping to shape the legal profession with her insights and experiences with diversity,” said David B. White, Executive Committee Member of Burns White.

Ms. Arroyo focuses her practice in the areas of products liability, premises liability and toxic tort litigation. She is also the co-chairperson of Burns White’s Immigration Practice Group where she counsels businesses and individuals to insure they comply with all applicable immigration laws. Ms. Arroyo also serves as the chair for the firm’s Diversity and Inclusion Committee.

An active member of the legal community, she is currently vice-chair of the Allegheny County Bar Association’s Hispanic Attorneys Committee. She served as a Delegate in the Pennsylvania Bar Association’s House of Delegates from 2011-2014, and authored an article in La Jornada Latina titled, “Custodia,” addressing child custody in relation to the relocation statute.

Founded in 2009, LCLD is a growing organization of more than 260 corporate chief legal officers and law firm managing partners who are personally committed to creating a more diverse and inclusive legal profession. The LCLD Fellows program, which has trained more than a thousand mid-career attorneys since 2011, is one of LCLD’s most important initiatives. For more information, visit: www.lcldnet.org.

Respected Employment and Business Attorney, Mary-Jo Rebelo, Joins Burns White

Seasoned litigator, Mary-Jo Rebelo, has joined Burns White LLC as an equity member in the firm’s Pittsburgh office. Rebelo will focus her efforts on continued growth in the Employment and Business Practice areas at the firm.

“Burns White is a leader in the City’s legal market, and is known for offering clients creative solutions in and out of the courtroom,” notes Rebelo. “I’m excited to join this growing firm—working with the excellent attorneys in the Employment and Business Practice areas.”

Rebelo has 30 years of experience successfully representing manufacturers, distributors, retailers, property owners, business owners, physicians, physician practices, health systems, and other medical service providers in a broad range of legal matters. From violations of federal and state securities laws and business fraud to misappropriation of trade secrets, employment discrimination, sexual harassment, and wrongful discharge, she has delivered positive outcomes in the most difficult cases.

“Mary-Jo is an excellent litigator—respected among her peers, and known for her legal acumen,” says David B. White, member of Burns White’s Executive Committee. “We are extremely happy she has joined the firm, and look forward to her leadership as we continue to grow our Employment and Business Practice client base.”

The Honorable Ronald W. Folino Joins Burns White, Focuses on Alternative Resolution Dispute Practice

Burns White welcomes The Honorable Ronald W. Folino to its Alternative Dispute Resolution (ADR) Practice effective March 1, 2018. Judge Folino joins Burns White’s team of court-qualified mediators, early neutral evaluators, and arbitrators who have extensive experience conducting broad-based litigation throughout the United States.

“Judge Folino brings a high-level of depth, knowledge, and understanding to our growing Alternative Dispute Resolution Practice,” said David White, Burns White Executive Committee Member. “For more than two decades, he has worked tirelessly in our judicial system with honesty and integrity, and we are extremely pleased to welcome him to Burns White.”

Judge Folino served as a trial judge for more than 24 years on the Court of Common Pleas of Allegheny County. In his years on the bench, Judge Folino presided over hundreds of trials and settlement conferences in a wide array of categories, including: medical malpractice, employment discrimination, personal injury, products liability, intellectual property, commercial construction, breach of contract, fraud, defamation, and many more. Most recently, Judge Folino served as Administrative Judge of the civil division where he oversaw all aspects of the court, including the Commerce and Complex Court, the Arbitration Court, the Trial Court, and the Board of Viewers. In addition, Judge Folino presided as the Calendar Control judge, hearing motions for every case listed on a published trial list.

“After 24 years on the bench, I am excited to be moving into private practice—continuing to provide sound legal counsel, and to use the knowledge I have gained from my years of service to make a positive impact,” noted Judge Folino. “Burns White has an excellent reputation, and the firm’s ADR practice is widely recognized among the best in the region. I am very happy to contribute to its ongoing success.”

 

Attorneys Lyda and Palmer Obtain Defense Verdict for Railroad Clients

Following a jury trial in the Court of Common Pleas for Philadelphia County, Pennsylvania, T.H. Lyda, Esquire and Edwin B. Palmer, Esquire obtained a defense verdict in favor of two railroad clients. Plaintiff had filed suit under the Federal Employers’ Liability Act (“FELA”) against his former railroad employers alleging that he developed non-Hodgkin’s lymphoma as a result of occupational exposures to diesel exhaust, asbestos, benzene, and creosote. After a one week trial, the Jury returned a defense verdict for both railroad employer clients, finding that the railroads were not negligent, and that they had provided the plaintiff with a reasonably safe place to work.

Delaware Supreme Court Affirms Motion to Dismiss

Burns White attorneys, Maria Granaudo Gesty and Randall Teti, recently received a favorable outcome for their visiting nurse association client. A medical negligence Complaint was filed against the visiting nurse association in the Superior Court of Delaware. The Superior Court granted a motion to dismiss the Complaint, and Plaintiff appealed to the Delaware Supreme Court. After considering Ms. Granaudo Gesty and Mr. Teti’s briefing on appeal, the Delaware Supreme Court affirmed the lower court’s dismissal of the visiting nurse association in a one page order.

Risk Insights Offered at Workers’ Compensation Seminar

On January 25th, Burns White hosted a Workers’ Compensation Seminar entitled Staying Ahead in 2018. The event, co-sponsored by Marsh & McLennan Companies, brought together a host of risk experts to discuss key insurance market developments and innovations. Topics ranged from the current opioid crisis, medical marijuana, and Medicare Set Asides, to pre-employment testing, Senate Bill 936, and wearable workplace technology.

“The seminar was a chance to bring together a variety of professionals to address some of the most pressing issues in Workers’ Compensation today,” said Scott Newman, chairman of Burns White’s Workers’ Compensation Practice Group. “The program was a great opportunity for area executives to share ideas, ask questions, and prepare for the workplace challenges that they’re facing.”

(Image: Dr. Stephen M. Thomas shares insights on the impact of opioids and guidelines for their prescription.)