Pisciotti Malsch

Counselors & Litigators

Cases of Note

The following are some representative cases in Pisciotti Malsch's core practice areas. For more information on any of these cases and how our experiences will benefit you or your client, please contact us. Click on the practice area title to open the cases.

Alternative Dispute Resolution

Pisciotti Malsch Obtains Victory and Attorney's Fees Before the American Arbitration Association

Pisciotti Malsch represented an ammunition manufacturer accused of breaching a consulting fee agreement related to the sale of the company. Pursuant to the contractual terms, the parties participated in binding arbitration before the American Arbitration Association. At the arbitration, Pisciotti Malsch argued that the consulting firm failed to perform its duties under the contract and was not entitled to any fee. The arbitrator not only ruled in favor of the manufacturer, but ordered the consulting firm to pay the attorney's fees and costs associated with the arbitration.

Appellate Practice

Michigan Court of Appeals Affirms Dismissal of Product Liability Claims Against a Crossbow Manufacturer

In a unanimous decision, the Michigan Court of Appeals affirmed the trial court's order granting summary disposition for a manufacturer of a crossbow. Plaintiff had alleged that the manufacturer failed to adequately warn about the dangers associated with a crossbow and failed to provide additional safety devices to prevent foreseeable injuries to hands and fingers. The Court of Appeals found that the applicable case law and statutes did not support such claims as a matter of law.

Michigan Court of Appeals Affirms Dismissal of Consumer Fraud Claims Against Firearm Manufacturer

On June 16, 2016, the Michigan Court of Appeals affirmed dismissal of a plaintiff's lawsuit against a firearm manufacturer under the Michigan Consumer Protection Act. The Court of Appeals agreed with the arguments set forth by Pisciotti Malsch regarding the lack of specificity in the pleadings. Specifically, the Court of Appeals found that the plaintiff failed to plead sufficient factual allegations to support any of the alleged violations of the Michigan Consumer Fraud Act that were set forth in the complaint.

New Mexico Court of Appeals Reverses Trial Court and Dismisses Lawsuit Against Firearm Manufacturer Based Upon Application of the PLCAA

Pisciotti Malsch successfully argued that the scope of the PLCAA cannot be limited based upon the artful pleading of a plaintiff. In a recent case in New Mexico, an intruder broke into the decedent's house, was able to bypass the cable lock that had been provided with the rifle, and utilized a rifle to shoot and kill the homeowner. The plaintiff argued that the cable lock had been defective and that the defendant firearm manufacturer should be liable for negligently providing a defective lock. Pisciotti Malsch argued that (1) the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901, et seq., precluded the lawsuit and (2) a duty is not imposed on a product manufacturer when an allegedly defective product furnishes the opportunity for an intentional criminal act. Plaintiffs' argument that his claims fell outside the scope of the Act was rejected because the allegations in the lawsuit had met the express elements of the PLCAA and the plaintiffs' claimed damages resulted from a third-party's criminal misuse of the rifle.

The Court of Appeals rejected the plaintiffs' attempt to recast the scope of their complaint: “Although Plaintiffs have framed their complaint to focus upon the lock as opposed to the rifle, [he] nonetheless used a qualified product, the rifle, as the instrument to commit the crime that resulted in the harm to Plaintiffs. As a result, the congressional intent embraced Plaintiffs' action.” Therefore, the trial court's decision denying the motion to dismiss was reversed and the plaintiffs' lawsuit was dismissed with prejudice.

The District of Columbia Circuit Affirms Dismissal for Foreign Manufacturer Due to Lack of Personal Jurisdiction

The United States Court of Appeals affirmed the dismissal of a lawsuit against a foreign manufacturer based upon lack of personal jurisdiction and application of the Foreign Sovereign Immunity Act. The Court of appeals agreed with Pisciotti Malsch's interpretation and application of the applicable case law to find that the trial court lacked personal jurisdiction over the foreign defendant.

Michigan Court of Appeals Affirms Dismissal of Firearm Component Manufacturer

In a product liability action involving severe personal injuries allegedly caused by the catastrophic failure of a rifle, summary judgment was granted in favor of the manufacturer of a component part to the rifle. On appeal, Pisciotti Malsch successfully argued that dismissal was warranted based on the plaintiffs' inability to prove proximate cause and the spoliation of evidence.

The Second Circuit Holds that a Motion to Remand is a Dispositive Motion

Pisciotti Malsch represented one of four defendants in a case involving the negligent distribution of a firearm. In a case of first impression, the Second Circuit agreed with the defendants and held that a motion to remand is to be considered a dispositive motion since it had the effect of taking away a defendant's access to the federal courts.

Class Action

Pisciotti Malsch is currently defending class actions for product liability and firearms matters.

Commercial Litigation

Trial Victory in Breach of Contract Case Against Truck Manufacturer

Pisciotti Malsch represented an International Class 8 Truck Manufacturer in a commercial dispute pending in the United States District Court for the Eastern District of New York. At trial, Pisciotti Malsch secured a directed verdict at the close of Plaintiff's case.

Western District of Texas Dismisses Deceptive Trade Practices Act Claim Against Firearm Manufacturer

Plaintiff brought a personal injury lawsuit based upon the alleged unintentional discharge of a handgun, and brought claims for punitive damages under the Texas Deceptive Trade Practices Act. Defendant argued that the DTPA does not recognize claims for personal injury or infliction of emotional distress, and the exceptions to this rule did not apply. The plaintiff argued that a DTPA claim can proceed when it is brought pursuant to a “tie-in” statute and that Chapter 82 of the Texas Civil Practice and Remedies Code, which defines product liability actions, was sufficient to be considered a tie-in statute. This argument was rejected by the Court, which dismissed the DTPA claims with prejudice.

West Virginia Case Dismissed Based on the Communication Decency Act

A West Virginia trial court dismissed a plaintiff's claims against Pisciotti Malsch's client, an auction-style website for firearms and firearm products, on a motion to dismiss based on the Communication Decency Act (CDA) shortly after the case was filed. Pisciotti Malsch successfully argued to the court that the CDA barred the plaintiff's claims against the website because the Act specifically prohibited causes of actions against an internet service provider based on content published by third-parties on a website and that the Act was not limited solely to claims of defamation.

Firearms Defense

International Manufacturer of Firearms Dismissed from Lawsuit Based on Lack of Personal Jurisdiction and the Application of the Foreign Sovereign Immunity Act

Pisciotti Malsch represented an international manufacturer of firearms in a highly publicized lawsuit in the District of Vermont. Pisciotti Malsch successfully argued for the Court to dismiss the matter based on a lack of personal jurisdiction and lack of subject matter jurisdiction under the Foreign Sovereign Immunity Act.

International Manufacturer of Firearms Dismissed From Lawsuit Based on Lack of Personal Jurisdiction and the Application of the Foreign Sovereign Immunity Act

Pisciotti Malsch represented an international manufacturer of firearms in a widely publicized wrongful death lawsuit in federal court in Washington, D.C., which arose from the shooting deaths of two teenagers. The plaintiffs alleged that the manufacturer negligently distributed and marketed its products in the District. After filing a motion to dismiss based on lack of personal jurisdiction and lack of subject matter jurisdiction under the Foreign Sovereign Immunity Act, the trial court dismissed the case in its entirety.

Michigan Court Dismisses Consumer Protection Act Case Against Firearms Manufacturer

The plaintiff brought suit against a firearms manufacturer based on claimed violations of Michigan's Consumer Protection Act. The trial court agreed with Pisciotti Malsch's arguments that the plaintiff failed to allege sufficient facts to establish the requisite elements for a violation of the Act. Plaintiff has filed a notice of appeal.

Missouri Court Applies PLCAA to Dismiss Wrongful Death Action Against Retailer

In a high profile wrongful death case involving a claim of negligent distribution, Pisciotti Malsch successfully filed a pre-answer motion to dismiss based on the application of the Protection of Lawful Commerce in Arms Act (PLCAA). Pisciotti Malsch argued that the PLCAA prohibits lawsuits against a seller of firearms for claims of liability arising from the criminal misuse of the product and that the plaintiffs had failed to allege facts sufficient to establish proximate cause as a matter of law. The trial court granted the motion and dismissed the case with prejudice. This matter is currently on appeal.

Firearms Retailer Dismissed From Lawsuit Based on Lack of Jurisdiction

In a high profile wrongful death lawsuit arising from the shooting death of a minor at a gun show filed in the District of Massachusetts, Pisciotti Malsch successfully filed a motion to dismiss for lack of personal jurisdiction and subject matter jurisdiction on behalf of its client, a Virginia firearms retailer.

Victory For California Retailer in Negligent Entrustment Case

Pisciotti Malsch represented a firearms retailer in Orange County, California that legally sold a pump action shotgun to a nineteen year-old who, several days after the purchase, used the shotgun to murder two of his neighbors. The Court originally denied the retailer's motion to dismiss on the pleadings based on the plaintiffs' argument that discovery could reveal that the retailer missed signs of the shooter's mental instability and dangerous nature at the time of the sale. After discovery, however, the Court granted summary judgment to the retailer based on application of the PLCAA, among other grounds.

General Liability

New Jersey Court Dismisses Case Based Upon the Joint Employer Doctrine

In a recent case in Hudson County, New Jersey, Pisciotti Malsch successfully argued that a plaintiff's civil lawsuit against its client was barred by the New Jersey's Workers' Compensation Act. Pisciotti Malsch argued for a flexible approach to the “joint employer” doctrine for purposes of assessing the workers' compensation bar. The trial court ruled that a “joint employment situation can arise simply because of the joint character of the business arrangement between the two entities” and that the analysis “should not be subjected to mechanical or automatic application.” Applying this flexible standard, the trial court granted summary judgment for the defendant.

New York Court Dismisses Lawsuit Based Upon the Doctrine of Estoppel Against Inconsistent Positions

In a New York County lawsuit, Pisciotti Malsch obtained summary judgment for its client, a construction company, based upon the doctrine of estoppel against inconsistent positions. Relying on C.P.L.R. 105(u), Pisciotti Malsch argued that a verified pleading is the equivalent of an affidavit and the sworn statement in prior lawsuit conclusively refuted the allegations in the pending lawsuit against. The plaintiff argued that since the original lawsuit did not result in a “final judgment” due to settlement, the doctrine should not apply. Pisciotti Malsch advocated for a more liberal interpretation of the rule, arguing that the doctrine should not be limited to “judgments” but should be applied based on consideration of the policies and principles the doctrine is designed to promote. The trial court ultimately ruled in the defendant's favor.

Summary Judgment Granted in New York Lawsuit Due to Plaintiff's Failure to Identify Defect Based Upon Personal Knowledge

The plaintiff allegedly fell while crossing a street that had been milled and was in the process of being repaved. Relying on New York case law, Pisciotti Malsch argued that a street in such a condition was an open and obvious condition as a matter of law. Thus, it was incumbent upon the plaintiff to identify the specific defective condition that caused her fall, but Plaintiff could only identify the general area where she fell, which was insufficient under the law. Therefore, summary judgment was granted for the defendant construction company.

Summary Judgment Granted for Milling Contractor in New York County

Immediately after receiving the plaintiff's bill of particulars, and relying upon work records and the contract, Pisciotti Malsch moved for early dismissal of a lawsuit against a milling contractor. Pisciotti Malsch argued that the Standard Highway Specifications only required the contractor to maintain the location for fifteen days after the work was performed and that the Rules of the City of New York mandated that the duty to maintain the location became the responsibility of others. The Court granted summary judgment and dismissed the lawsuit.

Pisciotti Malsch Obtains Summary Judgment for New York City Contractor

Pisciotti Malsch filed a successful motion for summary judgment in Bronx County Supreme Court on behalf of its client, a city contractor, in a personal injury case. Through deposition testimony, it was established that the contractor was not responsible for the alleged dangerous conditions and defects at the jobsite.

Summary Judgment for Security Contractor Affirmed on Appeal

The plaintiff claimed that he was injured during a concert due to negligent security. Pisciotti Malsch successfully filed a motion for summary judgment, arguing that the plaintiff assumed the risk of injury by attending the concert and that the defendant owed no duty to the plaintiff. The First Department affirmed the decision on appeal.

Insurance Coverage

Pisciotti Malsch Secures Victory Before the New Jersey Supreme Court

In a unanimous decision, the New Jersey Supreme Court found in favor of Pisciotti Malsch's argument for Evanston Insurance Company. The other parties argued that Evanston should be responsible for part of the settlement in the underlying matter because Evanston did not send a non-renewal notice of its excess policy, even though Evanston offered a renewal quote. In its decision, the Supreme Court noted that neither the New Jersey surplus lines insurance regulations nor the subject policy language supported the opposing parties' position.

At the trial level, the Honorable Joseph Riva granted Evanston's motion for summary judgment. The Appellate Division reversed the trial court which provoked the appeal to the Supreme Court. This case is reported at: Piermount Iron Works, Inc. v. Evanston Ins. Co., 197 N.J. 432 (2009).

Summary Judgment in Mold Case – Superior Court of New Jersey

Pisciotti Malsch represented a major insurer in a declaratory judgment action seeking coverage for alleged personal injuries due to mold exposure. The litigation involved multiple insurance policy years, including several policies which did not have mold exclusions. Pisciotti Malsch was able to successfully argue that, as a matter of law, all of plaintiffs' objective injuries occurred in policy periods that included mold exclusions. While opposing counsel sought to invoke the continuous trigger doctrine relating to the prior policy periods which did not include mold exclusions, we convincingly argued that New Jersey case law bases coverage solely on manifestation in matters of this type.

Product Liability

Summary Judgment Granted for Bow Manufacturer in Michigan

On July 6, 2016, Pisciotti Malsch obtained summary judgment on behalf of its client in a products liability lawsuit involving a crossbow. The plaintiff argued that the crossbow was defectively designed and that the defendant failed to warn of the severity of the potential injuries associated with using a crossbow. The trial court rejected the failure to warn claim, finding that the warnings were sufficient to establish the entitlement to summary judgment. The plaintiff argued that the crossbow should have incorporated an additional guard to protect against injuries. However, the court found that the product can be used safely when the instructions are read and followed and the fact that other crossbows incorporate different designs is irrelevant to whether the product at issue was defective.

New Jersey Court Dismisses Breach of Warranty Claims Against Truck Manufacturer

Relying on the express language of a limited warranty agreement and New Jersey law, Pisciotti Malsch argued that the third-party plaintiff's breach of warranty claims against a truck manufacturer were untimely as a matter of law. In opposition, the third-party plaintiff argued that it never received a copy of a recall notice and that the time to file a lawsuit should have been tolled until the third-party plaintiff became aware of the recall. This equitable tolling argument was rejected, as the Court held that the third-party complaint failed to sufficiently allege facts demonstrating that the truck at issue was part of the recall and/or that there was any other basis for equitable tolling.

Defense Verdict Obtained at Trial in Southern District of Texas

Anthony Pisciotti and Jeffrey Malsch obtained a defense verdict in a product liability lawsuit against a manufacturer of a rifle in the Southern District of Texas. The plaintiff alleged that a defect within the rifle's safety resulted in an unintended discharge that resulted in personal injuries. Relying on expert testimony and vigorous cross examination of the plaintiff, the defense argued that only way the rifle could discharge was with a trigger pull and that the rifle was state of the art. After a three day trial, the jury returned a verdict for the defense.

Federal Court Grants Summary Judgment for Firearm Manufacturer After Plaintiffs' Liability Experts Are Precluded

In a personal injury case in the Western District of Michigan, Pisciotti Malsch successfully challenged the credentials and opinions of Plaintiffs' metallurgy and engineering experts through Daubert motions. The trial court found that the experts' opinions and methodologies failed to meet the federal admissibility standards. The court then agreed with Pisciotti Malsch and found that without qualified experts, the plaintiffs could not support a legally cognizable claim under Michigan's product liability law and dismissed the case with prejudice. This matter is on appeal before the Sixth Circuit.

Connecticut Court Grants Summary Judgment for Derringer Manufacturer

After discovery was completed, Pisciotti Malsch filed a motion for summary judgment on behalf of the manufacturer of the allegedly defective product. Pisciotti Malsch argued that the product was not inherently dangerous, was not defectively designed, and that the manual contained adequate warnings. The trial judge dismissed the case with prejudice before trial.

Orange County Court Dismisses Product Liaiblity and Breach of Warranty Claims

Prior to answering the complaint, Pisciotti Malsch filed a motion to dismiss arguing that the plaintiff's product liability and breach of warranty allegations against a manufacturer of heavy-duty trucks failed to state a cause of action. The trial court agreed with the arguments and dismissed the case with prejudice.

Pisciotti Malsch Convinces Alabama Supreme Court to Adopt User Responsibility Defense

Pisciotti Malsch secured a landmark decision from the Alabama Supreme Court relating to the defense of defendants in firearms cases. Pisciotti Malsch represented the distributor of a single action revolver in Alabama. Decedent was a male in his mid-fifties who allegedly dropped his single action revolver while attempting to install a gun rack. Testimony in the case established that the decedent knew not to keep the hammer of such a revolver on a loaded chamber and knew how to safely handle the product. Likewise, plaintiff's expert conceded that the revolver could be used safely and incorporated an adequate manual safety.

Prior to trial, summary judgment was entered by the trial court in favor of the distributor. The decision was appealed to the Alabama Supreme Court. The Alabama Supreme Court held that the trial court properly granted judgment for the defendant given the fact that the decedent knew how to safely handle the revolver but failed to, and also based on the plaintiff's expert's concession that the revolver could be operated safely. Pisciotti Malsch has invoked this case in other firearms cases in Alabama in which user handling is at issue. This case is reported at: Burleson v. RSR Group Florida, Inc., 981 So.2d 1109 (Ala. 2007).

Defense Verdict in Partial Amputation Firearms Case – Western District of Arkansas

Pisciotti Malsch represented the exclusive distributor of a muzzleloading rifle. The plaintiff, who blew up his rifle, claimed that the firearm failed using a recommended black powder substitute. Plaintiff asserted claims of design defect, manufacturing defect, negligence, and breach of warranty. The plaintiff, in his late fifties, sustained amputation of three fingers and loss of use of his left hand.

The case was tried in the Western District of Arkansas by Anthony Pisciotti and Jeff Malsch. The jury found the rifle non-defective and returned a defense verdict on all claims. Plaintiff asked the jury for $780,000. The defense verdict was returned in one hour. Local counsel in the case stated that Pisciotti Malsch's trial presentation compared to the opposing counsel's presentation was "like hitting a tack with a sledgehammer!"

Defense Verdict in Western District of Texas

Pisciotti Malsch represented the manufacturer of a specialized rifle trigger. The plaintiff claimed that upon bolt closure, the rifle spontaneously discharged causing plaintiff's left leg to be amputated just below the knee. Plaintiff was in his mid-30s with a wife and young child. Plaintiff claimed that he resigned from his place of long-term employment as a result of this injury.

After mediation efforts were unsuccessful, this case was tried before the Honorable Judge Robert A. Junell. The plaintiff asked the jury to deliver a verdict of $3 million in damages. The trial resulted in a defense verdict with judgment being entered dismissing all of the plaintiff's claims. Plaintiff's motion for a new trial was denied, and the jury verdict was affirmed on appeal. This case is reported at: Doran v. Yoho, 213 Fed. Appx. 335 (5th Cir. 2007).

Restaurant Liability

Summary Judgment for Restaurant in New York County

Pisciotti Malsch successfully argued that its client, a Manhattan restaurant, was not liable for the plaintiff's injuries in a premises liability case. In granting the motion for summary judgment, the court held that, as a matter of law, the plaintiff could not establish that the defendant had notice of or created any alleged defective condition.

Bronx County Court Finds That Restaurant Owed No Duty in Sidewalk Accident

Pisciotti Malsch successfully argued that, pursuant to written contract, its client owed no duty under the applicable law to a pedestrian who fell on the sidewalk abutting the restaurant's premises.

Defense Verdict in New York Negligence Case

Pisciotti Malsch represented an upscale Manhattan restaurant in a personal injury matter tried in New York County. The plaintiff, a children's ministry director, alleged that while dining, she slipped and fell on water spilled by a restaurant employee. She claimed to have sustained severe knee injuries in the accident, including a dislocated patella. Plaintiff underwent two arthroscopic knee surgeries following her fall. Alleged future medical treatments included knee reconstruction and possible knee replacement.

Plaintiff sued the restaurant, alleging failure to adequately clean the spilled water and failure to adequately warn customers of the condition. Her attorney asked the jury to return a verdict of at least $860,000. Jeff Malsch successfully argued that the restaurant was not at fault, and that the plaintiff fell for other reasons. The jury returned a defense verdict in this one week trial after approximately two hours of deliberation.

Defense Verdict in New Jersey Premises Liability Case

Plaintiff, a patron at a restaurant in New Castle, Delaware, was injured when struck by a falling sign. It was alleged that the sign was improperly installed and placed in a manner creating a hazard to customers. Plaintiff claimed that he sustained injuries to multiple cervical vertebral discs. This case was tried in Morris County. The jury deliberated for five hours before returning a verdict in favor of the restaurant.

Dismissal on the Pleadings Due to Expiration of the Statute of Limitations

Pisciotti Malsch represented the owner and operator of a family restaurant in Nassau County. Upon receipt of the Complaint, Pisciotti Malsch filed a motion to dismiss based upon the expiration of the applicable statute of limitations. The motion was granted and the case dismissed.