Burns White Attorneys Preserve Nominal Jury Award for Railroad in Derailment Litigation

Attorneys Dave Damico, Dan Donahoe and Nina Gusmar successfully preserved favorable trial court rulings and a minimal federal jury award for a plaintiff who sued the railroad following a train derailment and subsequent release of vinyl chloride in New Jersey. The plaintiff claimed that as a result of the derailment, he experienced physical ailments, as well as emotional distress from the fear he would develop cancer. Following a week-long trial led by Dave Damico, the jury awarded plaintiff $500 for pain and suffering and emotional distress. Plaintiff appealed the award arguing that the trial court erred in excluding his medical expert and granting summary judgment to the railroad on his medical-monitoring and fear-of-cancer claims. The Third Circuit rejected plaintiff’s contentions and upheld the verdict, holding that the lower court properly found that his expert witness did not proffer reliable evidence that his cancer risk increased.

Burns White Attorneys Granted Judgment as a Matter of Law in Legal Professional Liability Action after Negotiating for and Winning a Three-Day Summary Trial of Underlying Civil Rights Action

Attorneys James R. Schadel and Kenneth N. Schott, III earned a defense verdict after successfully trying an underlying civil rights action that formed the factual and legal basis for a legal malpractice action filed by a large insurance company against the firm’s clients, a lawyer and his law firm.  Burns White attorneys negotiated for and reached an agreement with opposing counsel to try the underlying civil rights action in summary fashion over three days and before a retired judge sitting as special master.  By way of contrast, a traditional jury trial would have lasted at least two weeks.  The efforts of the Burns White attorneys in negotiating for this summary trial format resulted in a significant cost savings to the firm’s clients.

The underlying plaintiffs asserted deliberate indifference to the serious medical needs of an inmate at a county jail in purported violation of the inmate’s Eighth Amendment right against cruel and unusual punishment.  The insurance company alleged that the lawyer, hired to defend the company’s insured, mishandled the underlying civil rights action thereby causing the case to settle for more money than it was worth.  The insurance company filed a complaint against the firm’s clients praying for $1,700,000.00 in damages and asserting three causes of action: (1) negligence, (2) breach of contract and (3) vicarious liability against the law firm.

A legal malpractice plaintiff in Pennsylvania must prove – by a preponderance of the evidence – that a judgment would have been recovered in the underlying case “but for” the attorney’s alleged conduct before any evidence of legal malpractice may be introduced.  With a victory in the underlying civil rights action in hand, Burns White attorneys filed a Motion to Enter Judgment as a Matter of Law in the instant legal malpractice action on behalf of the firm’s clients arguing that Plaintiff could not introduce sufficient evidence of causation and damages.  The United States District Court for the Western District of Pennsylvania agreed and entered judgment in favor of the firm’s clients as a matter of law.

Another Defense Verdict for Railroad Team, 5th in 5 Months

T.H. Lyda and Edwin Palmer received another defense verdict on behalf of a Fortune 100 railroad client after a two-week long jury trial in Erie County, Ohio. Plaintiff was a 51-year old machinist claiming that exposure to noise from retarders in a large classification yard led to his development of hearing loss and unbearable tinnitus, or ringing in his ears. The defense team asserted that:

  • the railroad provided plaintiff with a reasonably safe place to work
  • noise level monitoring at the yard complied with all federal health and safety requirements
  • the plaintiff was included in defendant’s hearing conservation program and provided adequate hearing protection, and
  • the plaintiff’s hearing problems and tinnitus were the result of unprotected exposure to gunfire

The jury agreed and returned a verdict in favor of the railroad, finding that it was not negligent.

This result is the latest in a series of five straight defense verdicts obtained by the Burns White railroad team since the first of the year.

Burns White Attorneys Healthcare and Long Term Care

Burns White Attorneys Granted Motion for Summary Judgment for Medical Center

Attorneys, Stuart O’Neal, Sean Maravich, Katherine Senior, and Amy Riley obtained a dismissal of the firm’s client, a large regional medical center, pursuant to a Motion for Summary Judgment. Plaintiff claimed vicarious liability and corporate negligence against the medical center related to the prescription, oversight, and monitoring of blood thinning medication that allegedly resulted in the Plaintiff requiring an emergency craniotomy due to a brain hemorrhage.

Burns White attorneys filed a Motion for Summary Judgment on behalf of the medical center arguing that Plaintiff’s proffered expert reports lacked the required expert opinions to establish professional negligence in a malpractice action in Pennsylvania on either Plaintiff’s vicarious or corporate theories. This motion was opposed by Plaintiff. After oral argument, the Court ruled to grant summary judgment, dismissing Plaintiff’s case against the medical center entirely.



Burns White Attorneys Railroad Law

Lyda, Railroad Team Secure Defense Verdict

T.H. Lyda, Dan Hampton, and Burns White’s Railroad Practice Group recently received a defense verdict in a multi-million dollar ride-quality case on behalf of a Class 1 railroad client. Plaintiff was a 54-year old locomotive engineer claiming injuries under the Federal Employer Liability Act (FELA), and violations of the Locomotive Inspection Act due to whole-body vibration exposure, and loose, wobbly and poorly designed and maintained locomotive seats during his 24 year career at the railroad. He underwent two back surgeries, including a multi-level lumbar spinal fusion, and had lost wages and incurred medical expenses greater than $1 million dollars. Plaintiff’s counsel asked for $2.5 million during closing argument. After three hours of deliberation, the jury returned a verdict in favor of the railroad on all claims. Local counsel for the case, which was tried in Clay County, Missouri, was Dan Church of Morrow Willnauer Church.

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.

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.

OSHA Temporarily Delays the Effective Date of the Beryllium Rule

The Occupational Safety and Health Administration has temporarily delayed the effective date of its final rule on occupational exposure to Beryllium from March 10, 2017 to March 27, 2017. This 11-day extension will not impact the compliance dates of the Beryllium rule.

The Beryllium rule reduces the permissible exposure limit (PEL) for Beryllium to 0.2 micrograms per cubic meter of air, averaged over 8-hours, and sets a new short-term exposure limit for Beryllium of 2.0 micrograms per cubic meter of air, over a 15-minute sampling period. Upon taking effect, employers will be required to use engineering and work practice controls to:

  • limit worker exposure to Beryllium
  • provide respirators
  • limit worker access to high-exposure areas
  • develop a written exposure control plan, and
  • train workers on Beryllium hazards

The general industry, shipyard, and construction sectors have one year from the original effective date, or until March 12, 2018, to comply with most of the requirements. All sectors have two years, or until March 11, 2019, from the original effective date to provide any required change rooms and showers, and three years, or until March 10, 2020, from the original effective date to implement engineering controls.

This delay in implementation is in accordance with White House Chief of Staff, Reince Priebus’s, memorandum entitled “Regulatory Freeze Pending Review,” issued on January 20, 2017. The memorandum instructs executive agencies to withdraw regulations that have been sent to the Office of the Federal Register but not yet published, and to stop submitting regulations for publication. The Presidential directive requires heads of executive agencies temporarily to postpone the effective dates of pending unpublished regulations for 60 days from the date of the memorandum. Executive agencies are also directed to review any pending regulations that have already been finalized but have not yet taken effect.

It should also be noted that regulatory freezes during a change in administration are not unusual. The former administration issued a similar memorandum upon taking office in 2009. This most recent directive, however, appears to be the first step in President Trump’s effort to eliminate two regulations for each one proposed. Meanwhile, as the nation awaits the confirmation of President Trump’s Cabinet nominees, it is unclear how long the temporary freeze will last. These measures, nevertheless, suggest that President Trump seeks to provide some relief to employers concerned about the burden and expense of complying with, what he has characterized as, overly-burdensome regulations.

If you have any questions about the temporary delay, please contact any attorney in Burns White’s Occupational Safety and Health Group.


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