Appellate Trailblazing At Anapol Schwartz
Lawyers Raise the Bar in Tri-State Area Appeals: Pennsylvania, Delaware, and New Jersey
Alan Schwartz and Stephen Pokiniewski Prepare to Argue Matter of First Impression in Pennsylvania Supreme Court
Following the alleged rape and sexual assault of an 11 year-old girl, Alan Schwartz and Stephen Pokiniewski brought a claim in the Philadelphia County Court of Common Pleas in 2005, attempting to recover compensatory damages for the Minor-Plaintiff. Throughout the trial, the judge permitted Defendants to argue that Minor-Plaintiff consented to the sexual contact, prejudicing the jury against the young victim.
After a jury verdict for the Defendants and an unsuccessful appeal before the Pennsylvania Superior Court, Plaintiffs petitioned for review in the Pennsylvania Supreme Court in fall 2006. That petition was recently granted and Plaintiffs have filed their brief and are currently waiting for oral argument to be scheduled.
This case presents a significant matter of first impression in Pennsylvania: Whether the defense of consent can be used in a civil trial for damages stemming from a criminal rape/sexual assault. Because of the importance of this issue, Plaintiffs’ brief has received formal support from 30 amicus curiae including Women’s Law Project and the Pennsylvania Coalition against Rape.
If Plaintiffs are successful, the protections the Legislature has extended to children under the age of 13, making it impossible for them to consent to sexual contact, will extend to civil actions. This will prevent children from being re-victimized in any subsequent civil proceeding and assist them in pursuing the resources necessary to aid in their recovery.
Mark J. LeWinter Will Argue in Delaware Supreme Court to Allow Previously Omitted Evidence Which Could Result in New Trial
On June 16, 2006, a Wilmington Delaware jury deliberated for 90 minutes before returning a $14 million verdict in favor or Mr. Pablo Urena. The verdict was against a roofing subcontractor for the failure to enforce job site safety which resulted in a 30-foot fall and catastrophic injury.
Just prior to the trial, the trial court entered Summary Judgment dismissing Capano Homes, the General Contractor. There was evidence of OSHA citations as well as two prior lawsuits against the subcontractor for a serious injury and fatality. The theory that was going to be advanced at trial was that the General Contractor, Capano Homes, should have investigated the subcontractor’s safety record.
The trial court relied on the reasoning of a recent asbestos opinion and held that the theory of negligent selection of a subcontractor should no longer be followed in Delaware notwithstanding precedent in both the Delaware Federal and State courts where the negligent selection theory had been successfully advanced for over 15 years.
A case advancing a theory of negligent selection seeks to hold the General Contractor accountable for its failure to exercise reasonable care for hiring an unsafe contractor with a checkered accident history, safety record, and sometimes a litigation history.
If Capano Homes had done their homework, the subcontractor would never have been hired.
At the trial, the only remaining defendant was the subcontractor since Capano Homes was dismissed by Summary Judgment. The jury never heard any evidence relative to negligent hire or negligent supervision. If the Supreme Court reverses the decision to hear the previously omitted evidence, there will be a new trial where a jury will hear all the evidence.
On May 9, Mark J. LeWinter, trial counsel for Mr. Urena will be arguing in the Delaware Supreme Court urging the Court to reverse the trial court’s summary judgment thereby preserving negligent selection of subcontractors as a theory of recovery under the Restatement of Torts 2nd Sec. 411.
Lawrence R. Cohan Prepares to Argue Issues that Could Have Lasting Impacts on Medical Malpractice Cases
This medical malpractice case was tried to a verdict before a Cumberland County New Jersey jury, and the Plaintiffs (Elliot and Sandra Terris) were awarded $8.4 million in damages. The lead Defendant, Alan B. Cohen, D.O., was insured by Miix Insurance Company and refused to tender his $1 million coverage limits prior to trial. Dr. Cohen was held responsible for $6.6 million of the total verdict. The remaining defendant found liable by the jury has since settled. Defendant Dr. Cohen has appealed the case to the New Jersey Superior Court, Appellate Division.
Briefs have been filed before the Appellate Division Court, and oral argument is scheduled in the very near future. The Court will be deciding critical issues which may have a lasting impact in the context of medical malpractice cases for the state of New Jersey.
Specifically, the Court will be addressing the Medical Judgment Rule, along with the Scafidi rule which deals with apportionment of damages where other causes have contributed to the Plaintiff’s injuries.
Additionally, this case will ultimately raise issues of first impression with regard to bad faith of an insurance carrier when they failed to tender their policy limits. The case will present unique issues as Miix is in receivership and winding down its operations.
The appeal will be argued on behalf of the Plaintiffs by Lawrence R. Cohan, Esq., Anapol Schwartz.
