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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

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

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.

News

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

John J. Hare Featured in Pennsylvania & Delaware Super Lawyers Magazine

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. 

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.