After a six day trial and ten hour jury deliberation, F&P attorneys Imoh Akpan and Renee Bowen helped secure a  defense verdict  in last month’s trial in the case of  Gardner v. Demby.  The case was a complex motor accident  and was tried  before  U.S. District Court, Judge Catherine C. Blake.

The facts of the accident are as follows: on a clear afternoon in April of 2013, 82 year old plaintiff Robert John Glad was driving his vehicle on Route 301 in Maryland.  Plaintiff John Borycens, a male in his 60s, was a passenger.  At the same time, a dump truck, operated by defendant Markeith Doron Demby and owned by Thomas H. Pauls, LLC, was driving in the same direction.  Glad alleged that Demby failed to maintain his lane of travel and struck his vehicle, which was traveling at highway speed of 62 mph. Demby contended that he attempted to make “J” turn in a designed turn around, when plaintiff’s vehicle struck his and that Glad had fallen asleep at the wheel.

Plaintiff Glad was airlifted to a local trauma center for treatment of a fractured hip, neck and back injuries, and traumatic brain injury. Both Plaintiff Borycens and Defendant Demby suffered neck and back injuries.  Glad died of unrelated causes prior to trial.  There was no dispute over injuries suffered by the parties to this accident; the matter went to the jury on the issue of liability and extent of damages.

Plaintiffs filed suit against Demby for failure to maintain his lane of travel, failure to keep a proper lookout, failure to control his vehicle, and failure to avoid this accident. Plaintiffs named owners of the company, Thomas H. Pauls, Julia Pauls, Vernetta E. Sherman, Joan L. Wilmer and Joan Pauls Wilmer.  Plaintiff Borycens settled his claims against defendants for $50,000 prior to trial, and the case proceeded against Demby, Sherman and Thomas H. Pauls, LLC.  The other defendants were dismissed.

Defendants denied Demby was negligent contending that Glad fell asleep at the wheel and drove into his truck, which was attempting a legal “J” turn in a designated turn around. Demby counterclaimed for injuries he sustained in the accident.

Again, after nearly two days of deliberations the jury returned a defense verdict for Demby, Sherman and Thomas H. Pauls, LLC, on the plaintiff’s negligence claim. The jury also returned a defense verdict for Glad on Demby’s counterclaim for damages. No damages were awarded to either party.

On Thursday, April 26, Franklin & Prokopik (F&P) principal Tamara Goorevitz co-presented the second Robert T. Franklin Award to Stephen Winborn of  National Interstate Insurance Company at the  DRI Trucking Conference in Chicago, Il.  The Award is named in honor of Bob Franklin, co-founder of F&P and founder of the DRI Trucking Law Committee, who passed away in November of 2013.  The nominations are judged based on commitment to the trucking industry, education of the industry, and loyalty to the industry, aiming to select an individual who is a true champion of the trucking industry, as was Bob.

The 2018 recipient, Stephen Winborn, is the Senior Vice President of Claims and Risk Management for National Interstate, a nationwide premier provider of traditional insurance and innovative alternative risk transfer products.  Steve has been involved in the defense and operation of insurers and transportation companies for over 25 years, and has assumed roles of increasing responsibility throughout his career.

The first Robert T. Franklin Award was received by Judy Burckhalter of Old Dominion Freight Line in 2016 and will be given by DRI’s Trucking Law Committee at their biannual seminars, which will next occur in 2020.

On April 3, 2018, Franklin & Prokopik attorney Alex Mayfield from the firm’s Herndon, Va. office secured a decision in favor of the Appellee in the case of Debra Levy v. Wegmans Food Markets, Inc.  The case, an appeal from a previously denied workers’ compensation claim, was argued in front of the Court of Appeals of Virginia in Fredericksburg, Va.

Levy, an employee of Wegmans, damaged her knee, which had pre-existing arthritis, in a June 2011 incident where she slipped and fell in the back of the store’s walk-in freezer. This injury required surgery and Levy filed a number of claims related to this injury over a prolonged period of time.  The claim at issue was filed in April 2015, seeking approval of arthroscopic knee surgery, proposed by Levy’s doctor and protective disability claims continuing from January 2015.  In a September 2015 review opinion the full Commission found no indication in her doctor’s records that the claimant’s compensable injury was playing a role in any disability which [Levy] may have had.  Subsequent to this decision, Levy filed a series of new claims predicated on the very same surgical opinion addressed in the full Commission’s September, 2015 decision.  Claimant argued that her new claims were not barred by res judicata because she presented a new theory founded in a compensable consequence claim rather than a direct causal link.

While the claimant styled her filings as “new” claims, a deputy commissioner in May 2016 held that despite how those claims were pleaded, they were indeed barred by res judicata, and the full Commission went on to affirm the ruling.

Levy subsequently appealed the Commission’s decision to the Court of Appeals the following October, bringing forth various arguments as to why her injuries should be fairly categorized as “new”.  The Virginia Court of Appeals rejected her arguments, holding that the right of a party to allege alternative theories was not an invitation to create “new” evidence and “take another swing,” at proving her case.   The Opinion went on to state that Levy had the opportunity to offer evidence of causation for the contemplated surgery at the first hearing, and she chose not to. To reward her with another opportunity to do so would incentivize piecemeal litigation, undermine the finality of judgments, and multiply the number of proceedings – the very evils the doctrine of res judicata was developed to address. Consequently, the Commission’s judgment was affirmed.  This is the first time the Court of Appeals has address res judicata in the workers’ compensation context in several years.

Last Wednesday, February 28, F&P principals Andrew Stephenson and Angela Garcia Kozlowski volunteered at the Second Harvest Food Bank’s Service Project in their Community Kitchen.  Second Harvest Food Bank provides food access, advocacy, education, and disaster response to 700+ community partners and programs across 23 parishes.  Building upon last year’s support, the outing took place in conjunction with the National Retail and Restaurant Defense Association’s annual conference in New Orleans, LA.

The NRRDA Annual Conference is a collaborative event that aims to provide attendees the opportunity to learn and share information in one place. This year’s three-day event covered a variety of subjects that range from workplace investigations, public relations, chronic pain, employment law updates, accessibility, return to work strategies, and cyber threats on the dark web.  Attendees include risk managers, loss prevention specialists, in-house counsel, defense counsel, claims managers, TPAs, underwriters, HR personnel and insurance carriers.

 

Franklin & Prokopik associate Renee L. Bowen is slated to present at the Maryland Motor Coach Association Board of Directors’ retreat next week. She will speaking on the hot button topics of medical marijuana in the work place and the dangers of distracted driving. Renee concentrates much of her practice on liability defense within the trucking and transportation industry as well as premises liability and employment law.

The MMA “Winter Meet & Retreat” will be held February 11-13, 2018 at the Nemacolin Woodland Resort in Farmington, Pa. The MMA is an active trade association representing bus operators as well as the Maryland travel industry in general. For more information about the Maryland Motor Coach Association events, activities or membership please visit www.marylandmotorcoach.org.