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Daniel defends clients in all areas of civil litigation, ranging from individuals, to owners of small businesses, to major corporations. Daniel's primary focus in his practice is defending physicians and other health care providers, as well as physician's offices, nursing homes, outpatient centers, hospitals and health systems in all types of litigation matters. He is routinely consulted outside of formal litigation to implement best practices and to identify issues and potential areas of liability. If a lawsuit is initiated against his clients, Daniel works closely with them to defend against the claims, identify end goals and craft an effective strategy to reach them.

In addition to his clients in the health care industry, Daniel also defends corporations in multi-party, catastrophic injury cases in the general casualty, product liability, construction injury, dram shop and premises liability fields.

Working with a team of accomplished trial attorneys, Daniel has handled every stage of litigation from routinely drafting successful dispositive motions that dismiss his clients entirely from lawsuits to vigorously questioning adverse parties on the stand at trial.

Daniel received his undergraduate degree in English from the Pennsylvania State University in 2010. He went on to attend the Widener University School of Law, now Delaware Law School, in Wilmington, Delaware, where he graduated magna cum laude with a certification in trial advocacy. Daniel was an active participant in many societies and organizations while pursuing his juris doctor. He served as the copy editor for the Delaware Journal of Corporate Law. He competed in the Allegheny County Academy of Trial Lawyers annual mock trial invitational as a member of Widener's civil trial team. Daniel also participated in the Veterans Law Clinic, counseling retired military members and their families and representing veterans' interests in appeals before the Department of Veterans Affairs.

    • Widener University Delaware Law School (J.D., magna cum laude, 2013)
    • The Pennsylvania State University (B.A., 2010)
    • New Jersey, 2013
    • Pennsylvania, 2013
    • U.S. District Court Eastern District of Pennsylvania, 2014
    • U.S. District Court District of New Jersey, 2023
    • Pennsylvania Super Lawyers Rising Star (2023-2026)
    • The Lawyers Club of Philadelphia, former Board Member
    • The Disciplinary Board of the Supreme Court of Pennsylvania, Reviewing Member
    • An Update on Venue Transfer Practice in Philadelphia, Marshall Dennehey Trends in Health Care and Health Law Seminar, May 9, 2024
    • “A Law Firm Defending a Named Physician Cannot Also Represent a Non-Party Treating Physician for Purposes of a Subpoenaed Deposition,” Defense Digest, Vol. 28, No. 12, December 2022
    • "Consider Retaining Multiple Experts to Opine on the Standard of Care to Increase Your Chances of Securing a Defense Verdict," Defense Digest, Vol. 22, No. 4, December 2016
    • Case Law Alerts, regular contributor, 2015-present
    • "Advice For Attorneys Starting Their First "Real" Law Firm Job," The Legal Intelligencer, April 3, 2014
    • Veteran's Law Clinic at Widener University School of Law

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Defense Digest

Attorney’s Representation of Treating Physician Prohibits Ex Parte Communication When the Attorney’s Firm Already Represents a Named Defendant

September 1, 2024

Key Points: A law firm that represents a named defendant cannot also represent a non-party treating physician for that physician’s deposition.  The Pennsylvania Rules of Civil Procedure prohibit counsel from communicating with a non-party treating physician outside of the parameters of discovery.  The Pennsylvania Supreme Court ruled that the “client exception” to Rule 4003.6 is inapplicable where the treating physician’s attorney is from a firm that already represents a named party.  The Supreme Court of Pennsylvania recently solidified developing precedent regarding the limits of the attorney-client relationship, interpretation of Rule 4003.6, and a law firm’s ability to engage in deposition-only representation of a non-party treating physician.  The court’s June 2024 decision confirms that a law firm representing a named defendant physician cannot circumvent Rule 4003.6’s prohibition against ex parte communications in order to obtain information from a non-party treating physician by way of establishing an attorney-client relationship through representation of that non-party physician for his or her deposition. Mertis v. Oh, 2024 WL 3033416 (Pa. June 18, 2024). The court’s decision affirms the Pennsylvania Superior Court’s 2022 holding in Mertis v. Oh, 2022 WL 3036698 (Pa. Super. Aug. 2, 2022).  In Mertis, the plaintiff brought medical negligence claims against an anesthesiologist who gave her nerve blocking medication during her knee surgery. Suit was filed against that anesthesiologist, the anesthesia company, and the hospital where the surgery occurred. During discovery, the plaintiff subpoenaed the surgeon, who was not a named party, for deposition. The surgeon sought counsel for the deposition from his insurer, which assigned an attorney from the same firm as the attorney representing the defendant anesthesiologist.  The plaintiff contended that, because the surgeon’s attorney was from the same firm as the anesthesiologist’s attorney, the firm was violating Pennsylvania Rule of Civil Procedure 4003.6’s prohibition against ex parte communications with a treating physician.  For context, Rule 4003.6, regarding “Discovery of Treating Physicians,” is designed to prevent defense counsel from communicating directly with a plaintiff’s treating physician. Under Rule 4003.6, defense counsel can seek information from a treating physician only by obtaining the party’s written consent or through formal discovery. The Rule’s aim is to avoid ex parte communications between defense counsel and the plaintiff’s physician in favor of conventional means of discovery, such as interrogatories or depositions, where all parties can participate. Essentially, the Rule is designed to prevent a defendant from obtaining information from a doctor who treated the plaintiff which the plaintiff or co-defendants and their counsel are not privy to.  However, Rule 4003.6 does have exceptions. That is, an attorney can seek information from a treating physician who is (1) their client, (2) an employee of their client, or (3) an ostensible employee of their client. The “client exception” was specifically at issue in Mertis. The firm whose attorneys represented the anesthesiologist and the surgeon contended that, because they established an attorney-client relationship with the surgeon, their communications with the surgeon fell under the scope of the Rule 4003.6(1) client exception.  The Pennsylvania Supreme Court ruled to the contrary. The court held that the client exception was inapplicable in this situation as the attorneys for both the named defendant and the non-party treating physician were from the same firm. Even though the defendant anesthesiologist and non-party surgeon were represented by different individual attorneys from the same firm—who entered the case at different stages and for different purposes—the court made certain that Rule 4003.6 commands a firm wide effect. Essentially, once a law firm enters for a named defendant, Rule 4003.6 prevents a different attorney within the same law firm, who was initially uninvolved in the firm’s defense of a named defendant, from representing the non-party treating physician.  The court’s holding creates a clearly defined rule. Only with written consent from a plaintiff’s counsel can a law firm represent both a defendant and non-party treating physician.  Although the Pennsylvania Superior Court’s 2022 decision flagged this issue, the Supreme Court’s 2024 holding solidifies this interpretation of Rule 4003.6. The practical effect of this decision is that defense firms must be aware of situations like the one in Mertis, where a non-party physician seeks, or is assigned, representation for their deposition from an attorney at a firm which already represents a named defendant.  In a practice area where medical providers and their insurers often have existing relationships with counsel, and where non-party treating physicians could foreseeably be employed by named defendant providers who are already represented by that same counsel, this situation is by no means far-fetched. For example, the surgeon in Mertis sought an attorney for his deposition based on the attorney’s previous representation of the surgeon in an unrelated case. Those same circumstances may arise when a past client is implicated as a fact witness in a subsequent case and seeks familiar counsel for their deposition.  In that event, the Mertis court’s holding demands that, unless the attorney obtains written consent from the plaintiff, the attorney cannot accept representation if their firm is already representing a defendant. It has now been made certain that doing so would constitute prohibited ex parte communication under Rule 4003.6.  In conclusion, the Mertis rule is a strong warning that large defense firms, generally speaking, should not represent a non-party physician when their firm has already been retained to represent a named defendant in a medical malpractice case. The likely result? The defense firm will be disqualified.  Daniel and Jack are members of our Health Care Department and work in our Philadelphia, Pennsylvania, office.    Defense Digest, Vol. 30, No. 3, September 2024, 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. © 2024 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.

Legal Updates for Health Care Liability

New Guidance from Pennsylvania’s Superior Court for Establishing Factual Basis to Transfer Venue

October 17, 2023

Since the Supreme Court of Pennsylvania’s August 25, 2022, order changed the venue rules in medical malpractice cases—from requiring that cases be filed “only in a county in which the cause of action arose” to applying the same venue standards that apply to all other types of cases—motions to transfer due to forum non conveniens have taken a much more prominent position in medical malpractice litigation. Now that the new venue rule has been in effect since January 1, 2023, defense practitioners must place more emphasis on what needs to be established factually in order to transfer a case from one county to another. The Superior Court’s October 11, 2023, opinion in Tranter v. Z&D Tour, Inc., 2023 Pa.Super. 200, --- A.3d --- (Pa. Super. Oct. 11, 2023) once again reaffirmed what practitioners are required to do in order to support a forum non conveniens motion. The Tranter case arises out of a bus accident that occurred in Westmoreland County, Pennsylvania. After the bus rolled over and became disabled, it was hit by multiple tractor trailers, which resulted in five fatalities and multiple other injured parties. The scene following the crash included multiple EMS personnel and first responders who came to attend to those involved in the accident. A civil action lawsuit was eventually filed in Philadelphia County. Certain defendants filed motions to transfer venue based upon forum non conveniens. In support of these motions, “eleven affidavits from first responders and others who lived and worked in and around Westmoreland County” were included with the motions. Additionally, the parties conducted depositions of the affiants, which provided another opportunity to develop a sufficient record for the motion to transfer venue. The trial court granted the motion to transfer venue, concluding that, because the potential witnesses would have to travel over 200 miles if called to testify at trial, the defendants established that Philadelphia County was an “oppressive and vexatious venue.” On appeal, however, the Superior Court reversed. In so doing, the court commented that there was no on-the-record discussion or other evidence to establish the significance of these proposed witnesses that was relied upon for the transfer to the defense of the case. Without establishing why the proposed witnesses were significant to the defense of the case, the court said that there was no reason to even examine the potential hardship. Accordingly, moving forward, when defense practitioners attempt to transfer venue based upon forum non conveniens, the first step is to determine the “key witnesses” to the defense. Once those witnesses are identified, an affidavit must be procured that first sets forth how each witness is relevant and necessary to establish or refute a specifically enumerated claim and/or defense. Second, after the affiant’s relevance to the defense has been established, specific facts that prove a hardship for the witness should also be set forth. The Superior Court has warned that “nearly identical claims of oppressiveness” are not viewed favorably. Thus, to the extent that the various affidavits set forth different facts showing hardship, it will serve to strengthen the motion to transfer. Finally, as demonstrated by the Tranter case, do not miss out on an opportunity to develop witnesses’ significance to the defense and hardships/oppression through deposition. Should the trial court allow depositions to take place, use them to further develop the record in support of the motion to transfer venue.      Legal Updates for Health Care Liability – October 17, 2023, 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. © 2023 Marshall Dennehey. All Rights Reserved.

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Firm Highlights

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

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

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.

Thought Leadership

Vendor Cyber Attack Compromises PII of More Than 3 Million Hunting and Fishing License Holders in Texas

The Texas Parks & Wildlife Department (TPWD) announced earlier this month that one of its vendors which handles the sale of state hunting and fishing licenses was the victim of a cybersecurity attack. The threat actor appears to have exfiltrated personal driver’s license information, passport numbers, email addresses, phone numbers and addresses of over 3 million hunting and fishing license holders.  The State Parks Department advised that the attack did not compromise social security numbers, dates of birth or financial information. Texas Cyber Command, the state’s new cybersecurity authority formed to protect critical infrastructure and coordinate threat responses across state and local government, reportedly assisted in detecting and containing the attack. TPWD has already set up free credit monitoring for those impacted through Kroll.  According to press reports, no specific group has yet been identified as the perpetrator of the theft. TPWD also advised that business has not been interrupted and license sales were continuing. This incident once again demonstrates that cybersecurity is only as strong as the weakest link in the supply chain. Businesses must prioritize security across their own environments and those of their vendors and contractors as well.

Thought Leadership

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

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.