.

Defense Digest

On the Pulse…Recent Appellate Victories*

Defense Digest, Vol. 32, No. 2, June 2026

June 30, 2026

by Audrey L. Copeland

Shane Haselbarth (Philadelphia) succeeded in obtaining summary judgment in a federal district court and an affirmance on appeal to the Third Circuit in a police shooting case resulting in a fatality. Dispatch relayed news of a 911 call for a stabbing, and two police officers approached the scene. Multiple bystanders informed them that the suspect had a gun, and the officers converged toward him. With the benefit of a body-mounted camera recording, the officers ordered the suspect to drop his gun. He did so, and the officers ordered him to step away from the gun, but the suspect inexplicably reached down and picked up the gun again. The officers held their fire and ordered him again to drop his gun—until the suspect raised his gun and aimed it in the direction of one officer and the suspect’s mother, whom the suspect had brutally stabbed (leading to the 911 call from the suspect’s terrorized sister). Since the suspect aimed his gun at his mother and/or the police officer, the officers used deadly force against him, and only did so when the suspect repeatedly raised his gun as though to shoot it.  The district court held that the police officers’ conduct violated no clearly established right under the Fourth Amendment despite the suspect’s death from gunshot wounds. On appeal, the Third Circuit went further and held that the police officers’ conduct did not violate any right at all under the Fourth Amendment. Their use of deadly force, while tragic, was wholly reasonable given the facts and circumstances which they encountered on the night in question. 

Carol VanderWoude (Philadelphia) succeeded in obtaining reversal of a trial court’s order overruling preliminary objections as to venue. The plaintiff filed suit in the Philadelphia County Court of Common Pleas alleging negligence for injuries sustained in a car accident. The accident occurred in Lebanon County between the plaintiff’s vehicle and a school bus driven by an employee of the defendant transportation company. The corporate defendant provided transportation services to school districts in Lebanon and Lancaster Counties, and had no clients in Philadelphia County. The trial court overruled the preliminary objections to venue, reasoning the act of transporting students into Philadelphia for approximately two-dozen field trips during the pertinent school-year satisfied the quality-quantity venue analysis. The Superior Court agreed with the arguments raised on appeal and held that the field trips simply aided in the corporate defendant’s main purpose of providing transportation services as directed by its clients located outside Philadelphia County and that those field trips were not conducted regularly enough to satisfy the quantity portion of the venue analysis.

Kimberly Berman (Fort Lauderdale) and Jonathan Kanov (Fort Lauderdale) succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a final judgment entered in favor of Marshall Dennehey’s clients, a law firm and managing lawyer. The law firm and lawyer issued an opinion letter on behalf of his clients as part of a commercial loan transaction for $7.5 million. After the client defaulted on the loan, the plaintiffs, sophisticated lenders, sued 20 different named defendants involved in the transaction. They sued the law firm and lawyer for negligent misrepresentation and breach of fiduciary duty for its role in issuing the third-party opinion letter. The trial court granted summary judgment in the law firm and lawyer’s favor, finding in an arm’s length transaction, there was no duty owed to nonclients. The lender appealed, phrasing the issue as a pure legal question of an attorney’s professional responsibility: “When an attorney issues an opinion letter – (i) knowing that the letter is attendant to a transaction in which a non-client party to that transaction will necessarily rely on the letter (as a condition precedent to the transaction); and (ii) invites reliance on the letter without qualification—does that attorney owe any duty of care to the intended non-client recipient?” After oral argument, the Fourth District rejected the lender’s arguments attempting to extend a duty in these circumstances and affirmed the final judgment.

Kimberly Berman (Fort Lauderdale) and Dante Rohr (Orlando) succeeded in obtaining an affirmance by the Second District Court of Appeal of a final judgment on a cross-claim for defense and indemnity in a construction defect matter for Marshall Dennehey’s client, a window and door subcontractor. The plaintiffs were residential homeowners who sued the general contractor for construction defects following the construction of their luxury home. They also sued the window and door subcontractor for negligent misrepresentation in its recommendation to install windows and doors manufactured by a German manufacturer. The general contractor filed a cross claim against the window and door subcontractor and third-party claims against the other subcontractors involved in the construction for defense and indemnification. During litigation, the case was referred to nonbinding arbitration, where the arbitrator found that the general contractor was not negligent, but that it breached the contract and warranties. The arbitrator also found there was no negligent misrepresentation on behalf of the window and door subcontractor. The arbitrator awarded the plaintiffs $3.1 million in damages. The general contractor moved for trial de novo on the cross claim and third-party claims only, accepting the $3.1 million award entered against it. Thereafter, the window and door subcontractor moved for summary judgment on the cross claim, asserting there was no obligation to defend or indemnify based on the express terms of the indemnification clause in the subcontract. The court granted summary judgment in the window and door subcontractor’s favor. After oral argument, the Second District Court of Appeal affirmed the final judgment in the window and door subcontractor’s favor.

Patricia McDonagh (Roseland) succeeded in obtaining an affirmance by the Appellate Division of the Supreme Court of New York, First Department, of an order granting summary judgment to Marshall Dennehey’s client, a building owner. Plaintiffs brought suit against the building owner after allegedly sustaining injuries when ceiling tiles fell onto them. The First Department held that defendant established that it was an out-of-possession landlord with no course of conduct of making repairs after the tenant assumed possession and control of the premises. The court further held that plaintiffs failed to raise a triable issue of fact in opposition and improperly made arguments for the first time on appeal.

Walter Kawalec (Mt. Laurel) succeeded in obtaining an affirmance from the New Jersey Appellate Division of a directed verdict in a medical malpractice action. The plaintiff’s decedent was a patient in our client’s nursing home and suffered from dysphagia, or difficulty swallowing. As a result, he was on a mechanically soft diet along with moderate supervision by the nursing staff. Plaintiff’s nursing expert opined that this level of supervision required the nurse to be in the room or at least the doorway when the decedent ate. The decedent was fed an appropriate meal of eggs for his breakfast, but choked on the meal while the nurse was outside the room, and eventually died as a result. The Appellate Division agreed with our argument that because the plaintiff’s experts only established a breach of the standard of care, and the cause of death, but did not establish proximate causation between the breach and the decedent’s death, a directed verdict was warranted, and the case was properly dismissed.

*Results do not guarantee a similar result.

Firm Highlights

Thought Leadership

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Thought Leadership

Vendor Cyber Attack Compromises PII of More Than 3 Million Hunting and Fishing License Holders in Texas

The Texas Parks & Wildlife Department (TPWD) announced earlier this month that one of its vendors which handles the sale of state hunting and fishing licenses was the victim of a cybersecurity attack. The threat actor appears to have exfiltrated personal driver’s license information, passport numbers, email addresses, phone numbers and addresses of over 3 million hunting and fishing license holders.  The State Parks Department advised that the attack did not compromise social security numbers, dates of birth or financial information. Texas Cyber Command, the state’s new cybersecurity authority formed to protect critical infrastructure and coordinate threat responses across state and local government, reportedly assisted in detecting and containing the attack. TPWD has already set up free credit monitoring for those impacted through Kroll.  According to press reports, no specific group has yet been identified as the perpetrator of the theft. TPWD also advised that business has not been interrupted and license sales were continuing. This incident once again demonstrates that cybersecurity is only as strong as the weakest link in the supply chain. Businesses must prioritize security across their own environments and those of their vendors and contractors as well.