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Director Emeritus, Professional Liability Department

Portrait of Craig S. Hudson

Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 29, No. 2, June 2023

June 1, 2023

by Craig S. Hudson

Beginning in April 2021 and extending through the end of this April, Marshall Dennehey added 14 lateral shareholders. While public pronouncements were issued at the time each joined our firm, I want to introduce them again as a group, to show how the addition of these shareholders reaffirms our continuing commitment to be the go-to civil defense firm in every jurisdiction where we practice. 

This influx of new, experienced attorneys took place in nine out of our 19 offices, in six states, and in all four of our practice departments. These shareholders augment our already deep roster of talented and experienced litigation specialists. They have an average of over 28 years of legal experience, representing clients in federal and state court. Together, they have handled over 375 jury trials and countless non-jury trials, arbitrations, mediations, and administrative hearings. Collectively, they have handled every imaginable type of civil litigation, and each of their practices and experiences add depth to our existing practices. Many of them are active in national, state, and local bar associations and industry groups, are frequent lecturers to attorneys and claims professionals, and are contributors to several legal publications. 

Seven of the shareholders who joined Marshall Dennehey over this period are in our Casualty Department. The most high-profile of these occurred this past October, when Jack Delany, a prominent, international, catastrophic damage trial attorney, decided to join our firm. Joining Jack as shareholders from his previous firm are Kristen Worley and Andrew Campbell. Jack and his team have been counsel in some of the most significant national and international civil litigation in recent memory, including lawsuits stemming from the Grenfell Tower fire in London, the Surfside condominium collapse in Florida, a recent factory explosion in Pennsylvania, and many other high-profile catastrophic events. Within weeks of joining Marshall Dennehey, Jack, Kristen, and Andrew began a large construction defect case in which the plaintiffs sought over $24 million in damages. After a three-week trial in federal court, the jury returned with a unanimous defense verdict. 

In February 2021, Melissa Devich Cochran was the first of the 14 shareholders to join Marshall Dennehey. Melissa was already familiar with Marshall Dennehey, having previously been a 12-year Marshall Dennehey attorney, who decided to return after several years at another firm. She rejoined our Pittsburgh office in our Asbestos and Mass Tort Litigation Practice Group. Melissa quickly settled back into familiar surroundings, bringing with her deep client relations and extensive knowledge and experience in defending national equipment manufacturers, outside contractors, and suppliers in asbestos litigation throughout Western Pennsylvania. 

Later in 2021, Vince Cononico joined our Cleveland office from a major insurance company’s staff counsel office where, for over 25 years, he handled a variety of significant automobile, premises liability, uninsured/underinsured motorist, and other personal injury matters throughout Ohio. Vince has first-chaired over 50 jury trials and several times was acknowledged by the insurance company as having the highest winning percentage of the staff counsel in his region. 

In 2022, John Yaninek, a 33-year trial attorney, joined our Harrisburg office. John, who is admitted in both Pennsylvania and Maryland, handles a variety of complex casualty matters in both states. John’s experience extends beyond his injury cases, as he has also defended clients in white-collar criminal cases and clients in real estate E&O matters. John is a decorated U.S. Army veteran of the Gulf War, where he managed legal issues for the Army in occupied Iraqi territory during the ground conflict. John retired from the Army Reserve as a Lieutenant Colonel.

Just a few months ago, Keith McCabe joined our New Haven office, which we opened in February of 2022. Keith brings to this rapidly-growing office over 30 years of litigation experience, defending personal and commercial clients in the Connecticut federal and state courts. Keith has tried over 75 jury cases to verdict in a broad range of cases, including those that involve catastrophic injuries and deaths. 

Four of the 14 lateral shareholders joined our Health Care Department. The first is Bill Gianaris, who joined our Westchester office where he represents hospitals and medical providers in the five boroughs of New York City and upstate New York. A 34-year attorney, Bill spent the first 14 years of his career as an Assistant District Attorney in Queens County where he tried numerous criminal cases. Since leaving the District Attorney’s office, Bill has been primarily defending medical liability and general liability matters. He has tried numerous high-exposure cases involving medical professional liability across New York.

Near the end of 2022, Suzanne Utke joined our Health Care Department in Philadelphia. Suzanne, who was a critical care nurse before going to law school, has over 20 years of experience defending physicians, nurses, and health care providers against medical and psychiatric malpractice claims. She also represents professionals in peer and credential reviews before various State Boards. 

This year, two additional shareholders joined our Health Care Department. In March, David G. Tomeo, a litigation leader with more than 30 years of experience across New Jersey, Pennsylvania, and New York, joined our Roseland office. In addition to his medical professional liability practice, Dave handles commercial and business litigation and insurance coverage matters. Dave is also frequently called upon to defend urgent care center franchisors in medical malpractice suits and handles other matters at the intersection of franchise and medical malpractice law. 

A few weeks later, experienced medical malpractice litigator Tracey S. McGurk joined Marshall Dennehey as a shareholder in the firm’s Cleveland office. A member of the Health Care Department, she focuses on the defense of medical professionals and providers, including physicians, hospitals, and nursing home/extended care facilities. In addition to her medical liability experience, Tracey also represents non-medical professionals, primarily real estate agents and agencies, in a variety of E&O and commercial matters. 

Two of the 14 shareholders who joined Marshall Dennehey over the last 24 months are in our Workers’ Compensation Department. The first is Michael Sebastian, who joined our Scranton office and has represented employers in workers’ compensation matters for over 30 years. Mike came to us with a loyal client following and vast experience at all levels of the workers’ compensation system. 

Next, Kristopher Starr joined our Wilmington office. Kris started his legal career as a Deputy Attorney General, prosecuting criminal cases. The Delaware Secretary of Labor appointed Kris as a Workers’ Compensation Hearing Officer, where he spent three years issuing opinions and orders, before leaving the bench to represent public and private employers, which he continues to do. 

Finally, Josh J.T. Byrne joined our Professional Liability Department in 2021 as a shareholder in the Philadelphia office. A well-known attorney in the Pennsylvania legal community, Josh has over 24 years of experience representing and defending clients in a variety of professional liability matters, as well as assisting those clients with professional disciplinary and licensing matters. Josh is a frequent commentator on legal malpractice, disciplinary matters, and attorney ethics. He also serves as chair of the Pennsylvania Bar Association’s Professional Liability Committee, co-chair of the Pennsylvania Bar’s Amicus Curiae Brief Committee, and co-chair of the Philadelphia Bar Association’s Professional Responsibility Committee.

The successful integration of these 14 attorneys is the result of a disciplined process we employ at Marshall Dennehey. More than ten years ago, we created the role of Lateral Integration Coordinator to assist new shareholders in their transition to the firm. Since that time, Sandy Caiazzo, who is also Director of Administrative Services, has held this position. Sandy is the key internal point of contact for all lateral attorneys joining our firm. She works closely with these laterals before, during, and after their arrival to ensure a timely start and seamless transition. Many of these lateral shareholders brought with them other associates or special counsel, paralegals, and administrative staff, and Sandy oversees their onboarding as well. 

Among her responsibilities, Sandy liaises with the firm’s administrative departments to ensure that conflict searches are performed, client guidelines and rates are obtained, and press releases and marketing materials are prepared. From day one, she ensures that lateral shareholders who join Marshall Dennehey have the technological and administrative resources and training tools necessary to enable them to hit the ground running. Each of the 15 new shareholders was uniformly impressed with our lateral integration process and marveled at how quickly they were assimilated into Marshall Dennehey.

I am very pleased to highlight the addition of our remarkable new lateral shareholders, who further enhance our firm’s extraordinary litigation talent across our many jurisdictions, offices, and practice areas. To a person, these new attorneys saw Marshall Dennehey as the perfect firm in which to further develop their careers and build meaningful professional and personal relationships. I am humbled by their confidence in us, and I firmly believe that they made the right decision in joining us. With their transitions eased by the efficiency of Sandy Caiazzo’s team and our firm’s many other administrative and technological resources, our new lateral shareholders position Marshall Dennehey very well for continued success in the service of our clients. I am also confident that, over the coming months, Marshall Dennehey will have the opportunity to welcome other lateral shareholders who will continue our tradition of finding the right attorneys to serve our clients. 

Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Legal Update for Special Education Law: Recent Positive Outcomes From the Group

Hearing Officer Confirms District Acted Appropriately Under IDEA and Section 504 Atty. William J. McPartland (Scranton) obtained a finding in favor of our client, a school district, on all issues following a due process hearing. The parent had filed a due process complaint alleging that the school district had breached its child find duty under the IDEA and Section 504, that the school district had discriminated against the student on the basis of disability in violation of Section 504, and that the school district had denied a free and appropriate public education to the student both by developing inadequate IEPs and via an actionable procedural violation.  Specifically, the student had received a Section 504 evaluation in October 2023, after a number of behavioral infractions culminating in a fight in September 2023, was identified as having anxiety and a sleep disorder, and received appropriate Section 504 accommodations. The student had never previously demonstrated signs of a learning disability, and the parent denied the school district permission to evaluate the student for special education needs in November 2023, and January 2024. The parent granted the district permission to evaluate the student in October 2024, after a private psychologist diagnosed the student with Attention Deficit Hyperactivity Disorder, possible Oppositional Defiance Disorder, a learning disorder, and anxiety. The school district issued a special education evaluation report in December 2024, finding that the student had an emotional disturbance and other health impairment, and an IEP providing an itinerant level of emotional support, as well as instruction in academics and social skills, was issued in January 2025, and amended in February, March, and April 2025. The student withdrew from the school district in April 2025, to attend a cyber charter school. The hearing officer determined that the school district had not violated its child find duty to the student in violation of either the IDEA or Section 504 where the district developed a Section 504 plan for the student within a month and a half of the parent’s first request for a Section 504 evaluation and where the parent repeatedly denied consent to conduct an IDEA evaluation of the student. The hearing officer noted that the student’s sporadic record of behavioral infractions prior to September 2023, did not suggest that the student had a disability prior to the parent’s initial request for an evaluation. The hearing officer further determined that no evidence had been produced to suggest that the student was discriminated against on the basis of disability in violation of Section 504. Additionally, the hearing officer determined that the IEP offered to the student was substantively adequate and that, to the extent the social and emotional programming offered by the school district was not received by the student, this resulted from the parent’s refusal to accept the same. The hearing officer finally determined that the school district did not commit an actionable procedural violation by delaying development of an IEP for the student where the parent repeatedly denied consent to evaluate the student. Court Dismisses Three of Four Claims Against School District Attys. Christopher J. Conrad and Daniel P. McGannon (Harrisburg) achieved a significant early victory on behalf of a school district client in. The team successfully obtained dismissal of three of the four claims asserted in the plaintiff’s amended complaint. The former district superintendent brought multiple claims arising out of his alleged “forced resignation,” including age discrimination under the ADEA, a Section 1983 Equal Protection claim, a Pennsylvania Whistleblower claim, and breach of contract. On behalf of the district, the defense team moved to dismiss the complaint in part, arguing: The plaintiff failed to plead sufficient facts to support a prima facie case of age discrimination. The equal protection claim was barred because the ADEA provides the exclusive federal remedy for age-based employment claims. The breach of contract claim could not stand because the underlying employment agreement had expired prior to the alleged breach. The court agreed, dismissing the ADEA, equal protection, and breach of contract claims in their entirety. As a result, only a single claim under the Pennsylvania Whistleblower Law remains pending. This outcome substantially narrows the scope of the litigation and positions the client for a more efficient defense moving forward.

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

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.