Mark Merlini of the Philadelphia office presented a lecture to a group of attorneys and claims professionals regarding the impact of Pennsylvania’s MCARE Act on medical malpractice litigation and the role of the Commonwealth’s MCARE Fund which provides statutory excess coverage to physicians in Pennsylvania. The Act, passed in 2002, changed the landscape of medical malpractice litigation in Pennsylvania and along with changes to the Rules of Civil Procedure requiring claims to be filed in the venue where the alleged negligence occurred and requiring Certificates of Merit, has led to a nearly 50% decrease in medical malpractice claims filed annually.

In Melett v Aquasid LLC, plaintiffs alleged that defendants health club agreements violated several New Jersey statutes including the Truth in Consumer Contract and Warranty and Notice Act (TCCWNA), New Jersey Consumer Fraud Act (CFA), Retail Installment Sales Act (RISA) and Health Club Services Act (HCSA.) On the basis of these claims, plaintiffs sought to certify a class of over 18,000 members.

Sean X. Kelly successfully defeated plaintiffs motion for class certification and also prevailed on a cross motion to dismiss the case. The ruling has drawn attention given the recent increase in class action filings under the TCCWNA and the relatively sparse precedent on the scope of the Act.

In a watershed ruling by the Supreme Court of Delaware, Dawn Courtney Doherty and Brett Norton successfully established new Delaware law that limits the amount of medical special damages that a plaintiff may recover to the actual amount paid by Medicare, rather than the much higher amount billed. In a unanimous, en banc decision, the Supreme Court of Delaware affirmed the trial judge’s grant of our client’s motion for judgment on the pleadings holding that the collateral source rule does not allow plaintiffs to admit into evidence or recover the amount billed, but only the amount paid. This victory establishes a significant limitation of potentially recoverable damages in Delaware. In the instant case, the ruling reduced plaintiff’s boardable medical specials from $3,683,797.11 to $262,550.17 – a reduction of more than 13 times the amount billed.

Sean X. Kelly in the firm’s New Jersey office recently prevailed in the Appellate Division resulting in a the reversal of the trial court and complete dismissal of all claims against our client, a New Jersey municipality. The underlying suit was a wrongful termination claim arising under the New Jersey Law Against Discrimination. Plaintiff claimed that his termination was in retaliation for the filing of a workers compensation action. The defense case presented evidence that the termination was fully in compliance with mandated Civil Service regulations.

The trial court twice refused to enter summary judgment on behalf of our client. Given the far reaching legal implications for our client and other municipalities, we successfully sought interlocutory appeal to the Appellate Division. The Appellate Division granted the appeal, wholly adopted the defense arguments and reversed the trial court on every issue, ordering that the matter be dismissed with prejudice.

Under the LAD, the burden of persuasion shifts to the defense to establish a legitimate non- discriminatory motive for any adverse employment actions. Too often, trial courts are apt to find that such evidence put forth by the defense merely establishes “issues of fact” which prevent the entry of summary judgment. Such was the case here with two different trial judges. However, we were successful in this case in persuading the Appellate Division that municipalities who are following State Civil Service regulations as a matter of law can not and should not be subject to discrimination claims under the LAD. The Appellate Division recognized that such evidence does, in fact, present a legal defense, not a factual dispute.

If you would like a copy of the opinion, or if you have any questions, do not hesitate to contact us.