Sean X. Kelly of the firm’s New Jersey office, recently appeared before the New Jersey Supreme Court on a novel issue regarding the scope of the New Jersey Civil Rights Act.   The case stems from several years of litigation involving the balance between first amendment rights at public hearings and claims for defamation.   The Supreme Court heard argument on whether the New Jersey Civil Rights Act should be interpreted so as to permit claims by private individuals against defendants who are not acting under color of state law. This issue has been the subject of conflicting holdings in the State and Federal courts.   The resolution of the issue could have a significant impact on public and private constitutional claims in the years to come.

Congratulations to several members of the firm who have been recognized as preeminent attorneys amongst their peers. Joseph O’Neill and Kevin O’Brien were all named as Super Lawyers. Benjamin Tursi, Mark Merlini, Jr. and Daniel Bentz were names as Rising Stars.   For many of those selected they have received this designation several years running.

The Pennsylvania Supreme Court in Howard (Est. of John C. Ravert) v. Pecora Corporation, et al, 2013 Pa. LEXIS 2199, has issued a ruling reaffirming several core principles of causation in Pennsylvania asbestos cases, avoiding the creation of bad law that would allow plaintiffs to defeat summary judgment with underdeveloped and unreliable evidence.   

Jennifer Stern, Esquire argued this appeal for Marks, O’Neill, O’Brien, Doherty & Kelly, P.C., before the Pennsylvania Supreme Court on behalf of Pecora Corporation.  Ms. Stern drafted the appellate briefs. Co-Appellants were Ace Hardware and Monsey Products.  Plaintiff/Appellee was represented by Paul, Reich & Myers.

The appeal originated from the Court of Common Pleas grant of defendants’ Motions for Summary Judgment.  Upon appeal, the Superior Court in Howard initially held that the defendants’ motion for summary judgment could be defeated by the submission of expert affidavits establishing the presence of “invisible dust,” without concern for the particular facts of the plaintiff’s case, despite the plaintiff’s own testimony that no dust was created when he used the products in question.  The Superior Court also held that a plaintiff bears a diminished burden of meeting a frequency, regularity, and proximity threshold of exposure in cases of mesothelioma, since the disease may be caused by limited exposure to asbestos. Defendants/Appellants petitioned for, and were granted allocatur.

In a unique sequence of events, at oral argument the plaintiff conceded the factual insufficiency of the case in a transparent effort to preserve the Superior Court’s incorrect interpretation of the law. Recognizing that the Superior Court’s decision could have created confusion in the trial courts, and per the request of the defense, the Supreme Court reversed the Superior Court’s ruling and issued a ruling reaffirming several key principles of causation in asbestos matters.

After a five day jury trial in the United States District Court of Connecticut, on August 29, 2013, a jury returned a full defense verdict finding for defendant, a manufacturer of corrugated stainless steel, on all counts and against plaintiff, as subrogee of the homeowners.  Dawn Courtney Doherty, Esquire of Marks, O’Neill, O’Brien, Doherty & Kelly, P.C., serving as national counsel, successfully defended against claims arising under the Connecticut Product Liability Act. The jury rejected Plaintiff’s arguments that the design of the corrugated stainless steel tubing was unreasonably dangerous and that they did not provide adequate warnings and instructions of the risks associated with the product.  Defendant was able to show that its product was improperly installed in the residence in contravention of its installation instructions. The jury awarded the plaintiff nothing in damages notwithstanding Plaintiff’s claim of approximately $1,500,000 in damages.  Currently pending before the Court is defendant’s application to tax costs.