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Director Emeritus, Professional Liability Department

Portrait of Craig S. Hudson

Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 27, No. 3, June 2021

June 1, 2021

by Craig S. Hudson

In the previous Defense Digest, you were provided with a link to a well-deserved and moving video tribute to Chris Dougherty, my predecessor as director of the Professional Liability Department and a member of the Executive Committee, who stepped down from both positions at the end of 2020. If you have not yet watched the video, I urge you to do so. I can envision no greater honor and privilege than to succeed my friend, Chris, as the director of the Professional Liability Department.

Settling into this new position has caused me to reflect on my 28 years at Marshall Dennehey. In 1993, I was a senior associate at the Liebert Short law firm. I was invited to join a group of the partners that had decided to join Marshall Dennehey. I was considering my options when Bob Coleman, who “ran” Marshall Dennehey at the time, called and asked me to meet with him. I did, and we spent an hour together. During our conversation, Bob told me of his vision for Marshall Dennehey’s future. When he was done, I knew that Marshall Dennehey was the firm for me. I said, “Yes.” To this day, I consider my decision to join the firm to be one of my best.

When I first started at Marshall Dennehey, I was part of the Casualty Department. Over the ensuing years, I was fortunate to work with and learn from some very fine attorneys, including Harry Short, Eric Weiss, Keith Heinold and Tom Brophy. I handled a mix of cases, ranging from motor vehicle product liability cases to defending Sesame Place (always an advantage to be representing Big Bird).

A couple of years into my time at Marshall Dennehey, Bob Coleman again called and asked that I come to his office. As I walked down the hall to meet him, I had more than a little bit of trepidation. Bob told me that he recalled from our initial meeting that I had told him that one day I would like to get involved in firm management and not just handle cases. Bob said he wanted to give me a chance to see if this was really something I wanted and could do. He asked if I would like to oversee the summer law clerk program. I followed my father’s advice to never turn down opportunities presented to you by your boss (and believe me, Bob was the boss). A couple of years later, I was asked to get involved in associate recruiting. Again, I said yes. I then worked closely with and later succeeded Howard Dwoskin as the firm’s attorney hiring coordinator. I have to admit I take some pride in the fact that some of the attorneys I recruited have become leaders in our firm.

A few years later, I was “recruited” to practice in the Professional Liability Department. Again, I agreed. A short while later, I started working with Phil Toran and Chris Dougherty, who was then the assistant director of the Professional Liability Department, on recruiting and hiring associates. I also was tasked with providing some oversight and direction to the department’s lawyers who practiced out of the Philadelphia office.

After several years in this role, a new opportunity arose. By then, the firm had entered the Florida market, and, by 2005, its four offices were growing. Marshall Dennehey’s base was solid, with Mark Thompson as the manager of the Orlando office, but there was a need to strengthen the firm’s additional offices in Fort Lauderdale, Jacksonville and Tampa. I just so happened to be part of a conversation among Phil Toran, Peter Miller and Tom Brophy, where it was stated that the Fort Lauderdale office might benefit from having a stronger connection to Philadelphia. Having recently returned from a business trip to our Florida offices, I somehow thought it was a good idea to suggest that I might be willing to go to Florida and take on that role. Phil, Pete and Tom were surprised and intrigued to hear that I would even consider doing so. Wisely, they suggested that I should first discuss the idea of moving to Florida with my wife, Connie. Good advice. That night I went home and told her what had transpired and what I was contemplating. Fortunately for me, Connie was supportive of the idea. And so, after 22 years of practicing in Pennsylvania and New Jersey, I took and passed another bar exam (with the same MBE score), and, in July of 2006, relocated to Fort Lauderdale where I became the managing attorney of the Fort Lauderdale office and the supervising attorney of the Florida Professional Liability attorneys.

In addition to my management duties, I also handled cases. When I first arrived in Fort Lauderdale, we had a small office. All of the attorneys had to handle a variety of cases. Over the next 13 years, I handled almost every type of professional liability case. I have represented lawyers, accountants, real estate and insurance agents, architects and engineers, debt collectors, and HOA and condominium boards. Over the last several years, I have also handled a number of employment matters. I have tried cases in state and federal courts in all four of the South Florida counties.

During the next 14 years, Marshall Dennehey emerged as one of the leading civil defense firms in Florida. Today, we have a combined 67 attorneys practicing out of our four Florida offices.

This bring us to 2020. Little did any of us envision what that year had in store for us. For me, startling and life-changing events of 2020 started a bit earlier than for many of you. You see, I turned 60 in January of 2020, and Connie planned a short vacation to celebrate. A day after my birthday, we were walking on the beach, talking about the past and future. Although we both missed certain things about Philadelphia, we liked living in Florida. I was enjoying my position as regional manager of the Florida offices, having succeeded Mark Thompson in that role following his elevation to president and CEO. I was looking forward to the upcoming years working with the attorneys in Florida as we continued to grow our presence in the state. While this may sound a bit too “new age” for me, I had reached a state of contentment. Little did we know that our world would change two days later. That was when Mark Thompson came to Fort Lauderdale for a surprise visit. Mark told me that the Executive Committee would like Connie and me to agree to return to Philadelphia so I could become the assistant director of the Professional Liability Department and eventually succeed Chris when he retired. Again, following my father’s advice, I agreed. Lucky for me, so did Connie.

Since February 2020, I have spent my time becoming re-acquainted with Philadelphia, reconnecting with long-term friends and colleagues, and getting to know the shareholders, associates, paralegals and staff who make up the Professional Liability Department. I have been busy—the department has 120 attorneys in 17 distinct practice groups covering a wide variety of specialties. This past year, I have come to appreciate, more than ever, those attorneys, paralegals and staff members—a group of talented men and women who are dedicated to providing our clients with top-notch legal representation. They care about the work they do and the services they provide.

Going forward, I pledge to continue the vision and drive for excellence first established by Phil Toran, and then honed by Chris Dougherty. Both of them set the standard for providing top-level service to our clients in a cost-effective manner. We strive to be effective advocates for our clients, while treating everyone, including opposing counsel and the judiciary, with respect. As the director of the Professional Liability Department, I bring my years of management and leadership experience and my 20+ years of legal experience gained from defending professionals and other entities in Pennsylvania and Florida.

As a member of the Executive Committee, I have the good fortune to work with my friends and colleagues, Howard Dwoskin and Mark Thompson. We share a commitment to providing clients with excellent legal representation and service, which has been, and will continue to be, the hallmark of our law firm. Doing so with a sense of humor and respect for one another is what makes Marshall Dennehey the place I am so glad I said “Yes” to 28 years ago.

Defense Digest, Vol. 27, No. 3, June 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2021 Marshall Dennehey Warner Coleman & Goggin. 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

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. 

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.