PHILADELPHIA – A lawsuit brought against both ESPN and the National Football League that alleged safety violations were committed during the construction of a temporary stage has been remanded to a Philadelphia court.
On Monday, a federal judge’s order sent litigation filed by plaintiff Brian Crowthers against Mountain Productions, Inc., Mountain Production Services, Inc., ESPN and the NFL back to its forum of origin, the Philadelphia County Court of Common Pleas.
Crowthers is a New Jersey man who allegedly suffered head trauma, broken ribs and a ruptured spleen after a 30-foot fall, while working on the temporary amphitheater set up for the 2017 NFL Draft in Philadelphia.
At the time, Crowthers was employed by Tri-State Staging as a stagehand, and claims the fall he suffered while building the temporary amphitheater in front of the Philadelphia Museum of Art was caused by Mountain Production Services’ “improper fall protection and prevention” measures.
The amphitheater was built in front of the famed “Rocky” steps at the museum.
The lawsuit alleged negligence from both the NFL and ESPN, saying they failed to hire a competent outfit to build the stage, and that fall safety precautions for the project were not implemented or largely ignored in an effort to make sure that construction of the amphitheater was complete.
Following the April 22, 2017 accident, the lawsuit stated the Occupational Safety and Health Administration cited Mountain Production Services for several violations of scaffold safety and fall protection.
Mountain Productions has been cited on previous occasions by OSHA for fall protection and injury recording and reporting violations, the lawsuit added.
“Prior to the date of the accident, defendant, ESPN, knew or should have known of the hazardous and unsafe work practices that existed. Defendant ESPN breached the duties that it owed to plaintiff,” suit said.
Citing diversity of jurisdiction, lawyers for the NFL removed the case to federal court on Feb. 13 – but Crowthers asked that it be sent back to Philadelphia state court two days later on Feb. 15, arguing the removal was “procedurally defective.”
“The NFL’s, Notice of Removal did not indicate that ESPN consented, which makes the removal procedurally defective pursuant to the “Rule of Unanimity,” the motion to remand stated.
“Moreover, the ‘Forum Defendant Rule’ makes removal improper because defendants, Mountain Productions, Inc. and Mountain Production Services, Inc., are citizens of Pennsylvania, the state where the action was brought.”
Therefore, Crowthers argued the “Forum Defendant Rule” precluded federal diversity jurisdiction in this matter.
U.S. District Court Judge Mitchell S. Goldberg concurred with Crowthers’ view on the Rule of Unanimity, and thus, did not need to rule on the jurisdictional question.
“There is no indication anywhere in defendant NFL’s notice of removal that defendant ESPN consented to or joined the petition. The only time defendant ESPN is even mentioned in the removal notice is in the “Certificate of Service,” where defendant NFL communicated that defendant ESPN had been provided with a copy of the notice,” Goldberg said.
“But providing notice is not consent. And it is clear from the face of the removal notice that defendant ESPN, even though properly served, had neither joined nor consented to removal.”
Goldberg continued that the email correspondence that supposedly communicated ESPN’s consent, shared with the Court on Feb. 27, was untimely.
“Even though the email was time-stamped Feb. 13, 2019, this purported ‘written consent was not provided to the Court until NFL filed its response to the Motion to Remand – two weeks after defendants’ 30-day removal window,” Goldberg stated.
Goldberg added even if the email were included with the original Notice of Removal or had been submitted within the proper 30-day removal window, that message alone would not be enough to communicate consent to remove the litigation.
“Most courts require all defendants to independently “voice their consent directly to the court.” Courts have found that oral consents and email exchanges among counsel ‘do not constitute sufficient consent.’ Courts have also held that a defendant’s mere entry of appearance does not manifest consent. Under the persuasive reasoning of these courts, the email exchange would likely be insufficient to constitute independent consent even if it had been timely filed,” Goldberg concluded, in remanding the case.
With the case now back in Philadelphia state court, ESPN and the NFL will be litigating in a jurisdiction known for high-dollar verdicts. Crowthers is seeking punitive damages and a jury might comply, considering one awarded $25 million in punitives in a $41 million pelvic mesh verdict.
The court has long been labeled a “Judicial Hellhole” by a national legal reform group that publishes an annual report of jurisdictions it says are unfair to corporate defendants. On the day the 2018 report was issued, a Philadelphia jury reached a $28 million verdict in a lawsuit over the blood-thinner Xarelto.
A judge later struck down the verdict.
Crowthers is seeking sums in excess of $50,000 from each defendant as well as punitive damages due to alleged negligence that led to his injuries, some of which are permanent, the lawsuit states.
The plaintiff is represented by Brian E. Fritz and Kevin M. Durkan of Fritz & Bianculli, in Philadelphia.
The defendants are represented by Drew L. Mallick and Patrick C. Lamb of Post & Schell, along with Stephen Bruderle of Margolis Edelstein, also all in Philadelphia.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com