James J. McCabe

James J. McCabe

James J. McCabe practices in the areas of insurance, product, patent and securities litigation, professional liability and class actions.

He is a member of the Professional Liability Committee of the Civil Litigation Section of the Pennsylvania Bar Association and a past chair of the Association's Insurance, Negligence and Compensation Law Section. He is a life fellow of the Pennsylvania Bar Foundation and a fellow of the American College of Trial Lawyers. Mr. McCabe is a member of the Medico-Legal, Civil Judicial Procedure and Appellate Rules committees of the Philadelphia Bar Association and past chair of its Judicial Compensation and Retirement Committee. A member of the Philadelphia Bar Foundation, he is past president and founder of the Pennsylvania Chapter of the American Board of Trial Advocates, a past president of the Philadelphia Association of Defense Counsel and a former director of the Defense Research Institute.

Mr. McCabe also belongs to the International Association of Insurance Counsel, the Association of Insurance Attorneys, the American College of Legal Medicine, the American Board of Professional Liability Attorneys and the Temple Inn of the American Inns of Court.

An adjunct professor of family medicine at Thomas Jefferson University School of Medicine, Mr. McCabe is a 1955 graduate of Temple University School of Law and a graduate of LaSalle College.

Representative Matters

· Somportex v. Phila. Chewing Gum Corp., 318 F. Supp. 161 (E.D. Pa. 1970), 453 F.2d 435 (CA3, 1971), cert. denied 405 U.S. 1017 (1972), Vol. 39, Law Week No. 15 (10/27/70). First foreign judgment of default enforced in United States court under the rule of comity. Marvin Comisky of Blank, Rome, Comisky & McCauley for defendant.

· Peluso v. U.S., 474 F.2d 605, cert. denied 414 U.S. 879 (1973), Three Justices dissent. Three Justices of the Supreme Court of the United States would grant certiorari in order to reconsider Feres v. U.S., 340 U.S. 135, which prohibits tort suits against the United States by service personnel on active duty.

· Gillingham v. Patz, 429 Pa. 308 (1968). Reversed trial court's grant of a new trial after obtaining jury verdict for defendant. Joseph Head for appellee.

· Moore v. U.S., 217 F. Supp. 298 (E.D. Pa. 1963), aff'd., 332 F.2d 372, (CA3, 1964). Successful defense of indemnity claim against government contractor in electrocution death of subcontractor's employee on government job. Elwood S. Levy, Jr. of Richter, Lord & Levy for plaintiff.

· Elizabethtown Trust Co. v. Konschak, 267 F. Supp. 46 (1967), E.D.Pa. Obtained dismissal of suit against defendant in wrongful death action on the basis of service deficiencies. John F. Naulty of Naulty, Scaricamazza & McDevitt for plaintiff.

· Bork v. Mills and Crawford, 62 D & C 2d 213 (1972), aff'd. P.C., 224 Super. 741 (1973), aff'd 458 Pa. 228 (1974). Obtained dismissal of suit against defendant-estate on basis that the estate had not been properly raised and sued within the appropriate period of the status of limitations. John Philip Diefenderfer for plaintiff.

· Connor v. Hawk, 387 Pa. 480 (1957). Briefed appeal leading to reversal of lower court which altered significantly burden of proof and circumstantial evidence concepts in tort cases in Pennsylvania. Howard R. Detweiler for defendant.

· Capobianco v. First National Bank of Palmerton, 380 F. Supp. 155 (M.D. Pa. 1974). Successfully challenged improper shareholders election on behalf of directors who were ordered seated by the court in accordance with the regulations of the controller of currency. Edward C. German of LaBrum & Doak for defendant. Honorable Malcolm Muir, J.

· Dennis v. New Amsterdam Casualty Co., 216, Pa. Super. 320 (1970). Reversed the finding of the trial court in an insurance coverage dispute and had a finding entered in favor of the defendant carrier. Gordon W. Gerber of Dechert, Price & Rhoads for plaintiff.

· Mazer v. Security Insurance Group, 507 F.2d 1338 (CA3, 1975). Argued appeal before the Circuit Court which reversed the District Court which had found defendant liable in excess of the policy limits. Circuit Court directed judgment be entered for the insurance company. Marshall M. Berstein of Berstein & Bernstein for plaintiff.

· Fahy v. LeBlanc, 223 Pa. Super. 185 (1972). Reversed the finding of lower court and thereby qualified the doctrine of immunity of out-of-state witnesses to service while in the state to testify. Peter P. Liebert for defendant.

· Day v. State Farm, 396 A.2d 3 (Pa. Super., 1978), Petition for allowance of appeal denied 3/16/79. Reversed the lower court which had erroneously held an insurer liable under uninsured motorist coverage for injuries sustained in post-accident fight. Jerome M. Dubyn for appellee.

· Keystone v. Beattie, 432 F. Supp. 869 (1977), E.D. Pa. Jury verdict for our client, defendant on a counter claim in the amount of $1,500,000, before Honorable John J. Hannum, J., in a commercial dispute. Patrick T. Ryan of Drinker, Biddle & Reath for defendant.

· Murphy v. Harleysville, 282 Pa. Super. 244, 422 A.2d 1079 (1980), cert. denied 454 U.S. 896 (1981). Successful in dismissing class action against insurance industry challenging classification of risks according to age, sex and marital status. Suit sought in excess of $200,000,000 damages. Frank Murphy for plaintiff.

· Midboe v. State Farm, 261 Pa. Super. 447, 395 A.2d 991 (Pa. Super., 1978). Successful dismissal of class action against carrier seeking enlargement of survivor's loss benefits under Pennsylvania No Fault Act. One of the few cases favoring the industry under this Act. Thomas J. Calnan, Jr. for appellant.

· Kelly v. Pocono Recreation, Inc., 2 P.C.R. 297 (1978). Obtained $900,000 verdict for plaintiff in sledding accident in first "high-low" arrangement in context of jury trial in Commonwealth of Pennsylvania. John Tinaglia of Ballard, Spahr, Andrews & Ingersoll for defendant.

· Wake Robin v. Blank, Rome, Slip Opinion, unreported (CA3, 1976). Successfully argued for affirmance of summary judgment for law firm on grounds of lack of privity. Case arose out of a securities matter.

· McLeod v. Texaco, Slip Opinion, unreported (E.D. Pa.). Successfully urged the District Court (Newcomer, J.) to abstain from exercising jurisdiction in severe personal injury action against American Corporation arising in Trindad. Avram Adler for plaintiff. (Foreshadowed Bhopal decision).

· Grot v. Allegheny Airlines, (not published). $65,000 verdict for passenger who suffered $200.00 damages in Williamsport crash. (M.D. of Pa.). Dechert, Price & Rhoads for defendant. Honorable J. Dixon Herman, J. (1967).

· Greenfield v. PIGA, 256 Pa. Super. 136, 389 A.2d 638 (1978). As General Counsel for PIGA, successfully argued that defense counsel's fees incurred before declaration of insolvency are not covered claims or the liability of PIGA.

· Thomas v. State Farm, 78 Pa. Commonwealth 274, 467 A.2d 430 (1983). Reversed referee's finding that agent of State Farm was an "employee" and entitled to workers' compensation benefit for a nervous breakdown following alleged discriminatory underwriting practices.

· Transamerica Insurance Company v. Bellefonte Insurance Company, 548 F. Supp. 1329. Argued in favor of finding that product liability carrier on risk at birth was liable, along with Transamerica Insurance, for prenatal injuries sustained from mother's ingestion of drugs while pregnant, while Transmerica was on risk. Francis B. Marshall for Bellefonte. John B. Hannum, J.

· Smith v. Harleysville Insurance Company, 275 Pa. Super. 246, 418 A.2d 705 (1980), aff'd., 494 Pa. 515, 431 A.2d 974 (1981). Successfully urged Supreme Court to reverse the Superior Court and declare that punitive damages were not available under the Pennsylvania No Fault Act. [Consolidated and argued with D'Ambrosia v. Pennsylvania National, 262 Pa. Super 331, 396 A.2d 780 (1978), affirmed 494 Pa. 501, 431 A.2d 966 (1981).]

· Kemp v. Qualls, 473 A.2d 1369, 326 Pa Super. 319 (1984). Sustained a jury verdict for an orthopedic physician jury found did not negligently fail to detect impending pulmonary embolism. Moton Wapner for plaintiff; Honorable Louis Stefan, J.

· Magen v. Jones, 473 A.2d 1015 (1984 - notice of affirmance only). Supreme Court upheld jury verdict obtained for a neurosurgeon exonerated by jury below and overruled plaintiff's argument that our neurosurgeon's testimony as to clinical experience of medical professors and colleagues was not hearsay. S. Robert Levant for plaintiff. Honorable William Vogel, J.

· Mattes v. Commonwealth of Pennsylvania and the Auto Insurers Industry, Commonwealth Court 503 A.2d 1978; Welsh v. AETNA,et al., 494 A.2d 409 (1985). Represented most auto insurers as defendant. Court dismissed class actions by youthful males seeking to recover alleged overpayment of premiums for alleged gender discrimination.

· Freeze v. Donegal Mutual Insurance Company, 470 A.2d 958. Represented lead insurer in Supreme Court of Pennsylvania in attempts to reverse Supreme Court and overcome, inter alia, retroactive application of Heffner v. Allstate, which upheld post-mortem work loss benefits under the Pennsylvania No-Fault Act. Two Justices dissenting.

· Alexander v. Lipson, Bucks County Court of Common Pleas, 1985. Claim by author Shana Alexander and her daughter against an emergency room physician for alleged negligent failure to diagnose and treat appendicitis allegedly causing sterility. Verdict for defendant. Beasley, Hewson, Casey, Colleran, Erbstein & Thistle for plaintiff; Honorable Paul Bechert, J.

· DeMayo v. Pleasure,Delaware County Court of Common Pleas, 1985. Successful defense of RLF cerebral palsied infant against a neonatologist. Jury verdict for defendant following rejection of $2.2 million offer. Garland D. Cherry of Kassab, Cherry & Archbold for plaintiff; Honorable Frederick Edenharter, J. and a jury.

Professional Activities

· Adjunct Professor Family Medicine, Thomas Jefferson Medical College, Philadelphia, PA

· Pennsylvania Bar Association
- Civil Litigation Section
- Past Chairman, Insurance, Negligence and Compensation Law Section
-- Professional Liability Committee

· Charter Member of the Board of Contributors of Medical Malpractice, Law & Strategy, Leader's Medical Malpractice Newsletter

· Life Fellow, Pennsylvania Bar Foundation

· Lawyers' Committee for Civil Rights, Volunteer in Mississippi, 1968

· Philadelphia Bar Association
- Medico-Legal Committee
- Civil Judicial Procedure Committee (State Courts)
- Past Chairman, Judicial Compensation and Retirement Committee
- Appellate Rules Committee

· Philadelphia Bar Foundation
- Chairman, Lawyers Assistance Committee, 1980-1982

· American Board of Trial Advocates
- President, Founder of Pennsylvania Chapter
- Member, National Executive Committee, 1985-1991

· Past President, Philadelphia Association of Defense Counsel

· Defense Research Institute
- Director, 1980-1983
- Atlantic Region Vice President, 1977-1980
- Pennsylvania Chairman, 1973-1977
- Law Institutes Committee, 1983-1992
- Chairman, Hospital Law Committee, 1989-1992

· Fellow, American College of Trial Lawyers

· Past President, St. Thomas More Society of Philadelphia

· International Association of Insurance Counsel
- Chairman, Advocacy Committee, 1985

· Association of Insurance Attorneys

· Associate-In-Law, American College of Legal Medicine

· Diplomat, American Board of Professional Liability Attorneys - Chairman, Third Circuit

· Temple Inn of the American Inns of Court
- Master of the Bench

· Legatus

· American College of Trial Lawyers
-Fellow

Experience

· Duane Morris LLP
- Chairman, Litigation Department, 1984-1995
- Of Counsel, 1995-present
- Partner, 1964-1994
- Associate, 1955-1964

· Manufacturers Casualty Insurance Company, Philadelphia, PA, Adjuster Investigator, 1951-1955

Honors and Awards

· Listed in The Best Lawyers in America, Personal Injury Litigation Section, 1991-1992, 1993-1994

Selected Publications

· Co-Author, "MD Charged With Fraud For Failing to Disclose Drug Use Before Operating," Medical Malpractice Law & Strategy, December 1998

· Co-Author, "No Duty to Nonpatient Family Members of Therapist's Treatment of Patient," Medical Malpractice Law & Strategy, March 1999

· Co-Author, "Failure to Advise Parent He Carries Sickle Cell Gene Is Cause for Action," Medical Malpractice Law & Strategy, April 1998.

· Co-Author, "Medical-Legal Aspects of Breast Cancer Treatment and Therapy," Breast Cancer Treatment, B. Fowble, R.L. Goodman, E.F. Rosato, J.H. Glick (Mosby Yearbook, St. Louis, 1991)

· Co-Author, "Breast Cancer Suits on the Rise, as Patients Expect More," Medical Malpractice - Law and Strategy, Vol. VIII, No. 2, December 1990

· "Rampant Problems in Medical Area," Leader's Product Liability newsletter, Vol. V, No. 5 (November 1986)

· "Medical Devices Face Legal Operations," Leader's Product Liability newsletter, Vol. V, No. 4 (October 1986)

· "Legal Malpractice - The Lawyer as a Target," Pennsylvania Bar Quarterly, (October 1985)

· reprinted Trial Magazine, July 1986

· "How to Litigate an Infertility Claim," Medical Malpractice, Law & Strategy, August 1985

· "The Lawyer as Target: Today's Client is Tomorrow's Plaintiff," Pennsylvania Bar Quarterly, 48, No. 4 (October 1977)

· "How to Avoid Malpractice Suits," Medical World News, September 22, 1974

· "What To Do If You Are Sued For Malpractice," Journal of Legal Medicine, May/June 1974

· "Investigation and Preparation of Public Liability Cases," PLI Course Handbook, Workshop for Claim Managers, 1970

Selected Speaking Engagements

· Lecturer on Trial Techniques, Insurance Law, Product and Professional Liability for Practicing Law Institute, American Law Institute, American Bar Association, Defense Research Institute, Dickinson Law Forum, Philadelphia Bar Association Luncheon Series, Pennsylvania Bar Institute, Francis C. Wood Institute for the History of Medicine and others.

Fellow, American College of Trial Lawyers. Life Fellow, Pennsylvania Bar Foundation.