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The Quarterly Dose

ALL RISE - Notable Litigation Achievements*

The Quarterly Dose – March 2025

March 1, 2025

  • Leslie Jenny and Karen “Missy” Minehan obtained a defense verdict on behalf of a skilled nursing facility in the Cuyahoga County Common Pleas Court in Cleveland, Ohio. The children of an 82-year-old skilled nursing resident brought a lawsuit after their mother developed shingles and associated meningitis and passed away. They claimed the facility had inadequate infection control and failed to identify signs/symptoms of developing change in their mother’s condition. Leslie and Missy proved the facility offered the appropriate vaccinations required by the state of Ohio and that the standard of care did not require the facility offer or administer the Shingrix vaccine to its residents. They also proved the facility properly monitored the resident’s signs and symptoms; she did not exhibit any classic signs or symptoms of shingles at the facility; and the facility timely sent her to the ER for evaluation when her condition changed. In closing arguments after a five-day trial, the plaintiffs asked the jury for $3 million. The jury deliberated for 75 minutes and returned with a defense verdict.
  • In another matter, Missy won preliminary objections, in the nature of a demurrer, to the plaintiff’s claims against the individual defendants (including the administrator and members/owners) and based upon improper venue in a nursing home case filed in Philadelphia County. Missy represents the skilled nursing facility, the nursing home administrator, direct and indirect members/owners of the nursing home, and the registered home office. Although the nursing home is located in Lancaster County, the plaintiff filed the lawsuit in Philadelphia County under the “new” venue rule based. The plaintiff based venue upon the fact that the administrator works for a third-party nursing home that operates in Philadelphia (true) and upon his allegation that several of the other individual defendants have an “office or a usual place of business” in Philadelphia (not true). 
  • Suzanne Utke won a very hard-fought motion for summary judgment based on the plaintiff’s failure to prosecute in a matter that is now 10 years old. Suzanne won oral argument to dismiss the suit, based on the plaintiff’s failure to prosecute his case, by proving both actual prejudice to the client, a psychologist, and an inexcusable seven-year delay in any activity by the plaintiff. This medical malpractice claim was brought in Cumberland County and was related to a psychological evaluation conducted of the plaintiff’s three children, whom he physically and psychologically abused for years.
  • Donna Modestine and Kevin Majernik received a defense verdict for an emergency room physician in a medical malpractice case after a six-day trial. The plaintiffs alleged the physician failed to diagnose a treat a transient ischemic attack in the emergency department and this failure caused the plaintiff’s ischemic stroke 48 hours later. The plaintiff was 44 years old at the time. Following an hour and a half of deliberations, the jury found that the emergency room physician did not violate the standard of care.
  • Ryan Gannon, Maura Brady and paralegal Karen Kankula (all of Roseland) received a unanimous defense verdict for their client in a high-exposure birth injury case. The plaintiff, the mother, alleged the obstetrician defendant was negligent in failing to identify her baby as large for gestational age in the prenatal period, in failing to proceed with a cesarean section during the labor, and in negligently performing a forceps delivery. The plaintiff alleged, as a result of her injuries from the delivery, she suffered pelvic organ prolapse, incontinence, and ongoing pain and suffering. The plaintiff underwent two subsequent gynecologic surgeries and alleged she would never be able to return to work for the remainder of her life as result of her ongoing pain. Through the testimony of our client and experts, we were able to establish that the care provided by the obstetrician was within accepted standards of care and the decision to proceed with the delivery as performed was the safest option for the mother and baby. The jury returned a unanimous verdict in favor of our client. 
  • Gary Samms (Philadelphia/King of Prussia) received a defense verdict on behalf of an anesthesiologist after a six-day trial in Philadelphia. The plaintiffs had contended the anesthesiologist failed to deal with internal bleeding and blood pressure issues and failed to communicate with the surgeon during a Cesarean section and in the Post Anesthesia Care Unit, leading to the plaintiff almost bleeding out and causing the loss of her uterus during an emergency hysterectomy. The matter involved seriously conflicting experts and was a well-tried case by all parties. Fortunately, the jury was receptive to the defense arguments that, in fact, the doctor not only complied with the standard of care, but exceeded it. Instrumental in the victory were shareholder Ray Petruccelli and paralegal Nancy Farnen.
  • In another medical malpractice case that was transferred to him just two weeks before trial, Gary obtained a defense verdict on behalf of a leading surgeon from a world-class orthopaedic institution in Bucks County. The plaintiff alleged failure to diagnose compartment syndrome in a 19-year-old who broke his ankle skateboarding. The jury returned a defense verdict.
  • Nicole Tanana secured a voluntary dismissal of a client in a catastrophic medical malpractice in Philadelphia County based on her preliminary objections as to the failure to serve the complaint in a timely manner. Rather than have the court grant her preliminary objections on lack of good faith effort to serve original process, plaintiff’s counsel chose to voluntarily dismiss the case. Nicole’s client was the last defendant served in a case that was active in Philadelphia for over a year.

*Prior Results Do Not Guarantee a Similar Outcome 


 

The Quarterly Dose – March 2025, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved.

Firm Highlights

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law.