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Craig S. Hudson

Director Emeritus, Professional Liability Department

CSHudson@mdwcg.com

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

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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. 

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Thought Leadership

First DCA Reverses Excessive Jury Award Unsupported by the Evidence

In December 2019, the plaintiffs filed a claim with Universal for damages caused by a water and sewage back up through the plumbing system and existing through multiple fixtures including the washing machine drain, kitchen sink, dishwasher, bathtub and toilet. Universal investigated the claim, issued payment for resulting water damage totaling $7,000.00 in actual cash value ($12,000.00 in replacement cost value). The plaintiffs sought additional benefits for work needed to access the below-slab cast iron plumbing system due to the failure of the system from rust, deterioration, corrosion and breaks in the line. Universal denied any additional benefits for access. In 2021, the plaintiffs filed suit. During litigation, Universal sent a plumber to inspect the home and the plumber concluded the pipes were clogged but could be cleaned. The plaintiffs’ plumber testified that the plumbing system needed to be replaced due to holes and openings in the pipes. The plaintiffs introduced two estimates prepared by Triad Restoration services totaling $79,680.22 in replacement cost value and $50,219.97 in actual cash value and an executed contract with another company for repairs with the amounts of repair redacted. Since the insurance policy did not provide coverage for repair or replacement of the plumbing system, the jury only had to decide whether the plumbing system needed to be replaced, and if it did, Universal would owe for the access costs; the jury verdict form required the jury to determine both the replacement cost value and actual cash value amounts. The jury asked if it had to rely on the Triad estimates for their amounts. The trial court advised the amount awarded had to be based on the evidence presented at trial and the law given by the trial court. The jury awarded $335,000.00 in replacement cost value or $305,000.00 in actual cash value. Universal motioned for a new trial arguing the amount awarded was unsupported by the evidence and then moved for remittitur. The trial court denied both motions and this appeal followed. The court found that while a jury’s verdict should only be disturbed with caution and discretion, the trial court must give the properly challenged award close scrutiny and determine whether it bears a reasonable relation to the damaged provided, is supported by the evidence, and could have been reached in a logical manner by reasonable means §768.74(3), (5)(d)-(e), Fla. Stat. The court found the trial court did consider the statutory requirements at the hearing on Universal’s remittitur motion and was concerned about a reasonable relation to the amount of damages proved and injury suffered and whether the award was supported by the evidence, but ultimately denied the motion, reasoning that the jury had been properly instructed to fairly and adequately compensate the plaintiffs. The court noted the only evidence providing the basis for the jury verdict was Triad’s estimates and those valued the plaintiffs' claimed loss at $79,680.22 in replacement cost value and $50,219.97 in actual cash value; no valuation evidence reasonably supported the jury verdict. The plaintiffs argued that the jury was entitled to consider more than the estimates, but the court conveyed the evidence provided did not give the jury a way to reach the amounts they awarded. The court was also not swayed by the plaintiffs’ argument regarding inflation and later price increases, but the court noted that no evidence via the contract, nor testimony regarding increase in labor, material, fuel or construction costs were entered into the record.  The court concluded the jury may draw reasonable inferences from the evidence, but it may not supply a damages number by speculation. The court did not find any of the plaintiffs’ remaining argument persuasive either. The court reversed the denial of Universal’s remittitur motion and motion for new trial as to damaged and remanded the case. The court ended its opinion with advising the trial court must determine whether replacement cost value or actual cash value is the property measure of damages under the policy and order remittitur in an amount consistent with that determination and the evidence.

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.

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. 

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

Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

The Fourth District Court of Appeal reversed the trial court’s order awarding appellate fees to People’s Trust Insurance Company based upon a lack of evidence to support the attorney’s fee award in RM & Assocs. Consulting, Inc. v. People's Trust Ins. Co., 2026 Fla. App. LEXIS 4654 (Fla. 4th DCA 2026). People’s Trust was the insurer of a residential property that had sustained water damage. RM & Associates Consulting was hired by the homeowner to perform mitigation services at the property. The homeowner assigned post-loss benefits to RM and RM subsequently filed suit against People’s Trust alleging that it had not been paid the money it was owed for the mitigation services. People’s Trust defended the lawsuit on the ground that the policy required the insured to notify the insurer before authorizing repairs so People's Trust could elect to use its preferred contractor. Because the owner did not comply with that provision, People's Trust asserted its liability was limited to the amount that its preferred contractor would have charged for the work, which People's Trust contended was $2,000. People's Trust paid that amount to RM before RM filed suit. People’s Trust filed a motion for summary judgment which was granted. RM appealed the summary judgment ruling and the ruling was upheld by the Fourth District Court of Appeal. The appellate court also granted People’s Trust’s entitlement to appellate attorney’s fees, subject to the trial court’s determination of the amount of fees, based upon an offer of judgment made by People's Trust. On remand, the trial court held an evidentiary hearing to determine the amount of attorney’s fees People’s Trust was entitled to. At the hearing, People’s Trust presented testimony from it’s fee expert, supervising trial counsel and appellate counsel. People’s Trust sought recovery of $24,866.17 for work performed by appellate counsel. The request primarily consisted of work performed in preparation of the answer brief. The fee expert testified that more than ninety hours spent preparing the answer brief was reasonable given the complexity and significance of the underlying issue. The appellate court found that the fee expert’s testimony fell short of meeting the necessary standard of demonstrating that the hours expended were necessary. The appellate court found that the billing records did not serve to cure the deficient testimony, as the billing records did not contain adequate details regarding the specific tasks performed. Rather the records contained entries such as “answer brief” which the appellate court found to be insufficient. The appellate court noted that neither the fee expert or counsel addressed how the prior research and briefing in the parallel litigation informed the work in the instant matter. The appellate court noted this was significant in that a court's attorney's fees award must exclude excessive, redundant, or otherwise unnecessary hours, citing Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Based upon the record failing to support the finding of the trial court, the 4th DCA remanded the case to the trial court for a reconsideration and redetermination of reasonable appellate attorney’s fees supported by competent substantial evidence. The 4th DCA reiterated that the fee expert’s focus on the quality of the work and the importance of the work to People’s Trust did not make up for the perceived deficiencies in the position that spending over ninety hours on a single answer brief was reasonable. Whether moving for attorney’s fees or challenging the amount of fees being sought by an opposing party, practitioners should be mindful of the evidence being used to support the claims being made. Parties should pay close attention to whether the hours being sought may be impacted by prior litigation either party may have engaged in. A party must be prepared to address how prior litigation efforts did or did not impact the amount of hours being claimed in current litigation. Lastly, billing records must be sufficiently detailed so as to support any potential future fee claim.

Thought Leadership

United State District Court for the Middle District of Florida finds Evidence of Replacement Cost Value is Admissible and Recoverable Even When Repairs Have Not Been Made

The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.

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.