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Dylan T. Trochtenberg

Associate

DTTrochtenberg@mdwcg.com

Portrait of Dylan T. Trochtenberg

In his role in the Health Care Department, Dylan’s practice focuses on defending claims of medical malpractice and nursing home negligence.

Dylan is experienced in the many facets of litigation, having participated in dozens of arbitrations and hundreds of depositions, and having argued countless matters on behalf of his clients. He uses this experience to effectively litigate every matter, often resulting in favorable outcomes for his clients.

Prior to joining Marshall Dennehey, Dylan practiced at a small but well-respected firm in Central Jersey, where he litigated hundreds of cases on behalf of one of the largest insurance carriers in New Jersey. He previously served as a Committee Chair in the New Jersey Defense Association.

Dylan lives in Mount Laurel, New Jersey, with his wife.

    • Rutgers Law School (J.D., 2021)
    • University of Missouri (B.A., 2018)
    • New Jersey, 2021
    • New Jersey Defense Association, Expert Database Committee Chair (2023-2025)

Thought Leadership

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The Quarterly Dose

Medical Malpractice and AI: How the Federal Court’s Holding in United States v. Heppner Impacts HealthCare Litigation

August 26, 2026

For more than a century, civil law in the United States has protected the communications of litigants under a number of protections, including attorney client privilege and the work-product doctrine. That longstanding framework began to shift on February 17, 2026, when Judge Rakoff of the United States District Court for the Southern District of New York took the first step toward modernizing privacy and confidentiality rules to address the ever looming issue of generative AI. In the landmark case of United States of America v. Bradley Heppner, 820 F. Supp. 3d 292 (2026), Judge Rakoff held that the documents a criminal defendant generated using Claude, a publicly available generative AI platform operated by Anthropic, were not privileged or protected as work product. The facts of Heppner include an indictment for a variety of alleged frauds and falsification of corporate records, which arose out of his alleged misconduct as an executive of multiple corporate entities. In conjunction with Mr. Heppner’s arrest, the FBI executed a search warrant of his home and seized numerous documents, including 31 documents which memorialized his communications with Claude. These documents covered particularly pertinent topics, such as defense strategies, possible arguments to specific facts or law he anticipated to be included in the indictment, and were prepared without any suggestion from his counsel to do so. By and through his counsel, Mr. Heppner asserted privilege over the documents generated by Claude. He argued (1) that the documents included information he had learned from his attorney; (2) were created for the purpose of speaking with counsel to obtain legal advice; and (3) had all been shared with counsel after they were created. Following oral argument on the government’s motion seeking a determination that the AI-generated documents were neither protected nor privileged, the court granted the motion on February 10, 2026. In issuing his opinion, Judge Rakoff determined that the AI documents lacked two, “if not all three,” of the elements required for attorney-client privilege—namely that the communications were not “between a client and his or her attorney,” the documents were not “intended to be” or were “in fact” kept confidential, and the AI documents were not prepared by Mr. Heppner “for the purpose of obtaining legal advice.” Put simply, Judge Rakoff noted that, “Because Claude is not an attorney, that alone disposes of Heppner’s claim of privilege.” Ultimately, Judge Rakoff concluded that, as the generated documents were not prepared at the request of Mr. Heppner’s counsel and did not disclose his attorney’s strategies, they failed to merit protections as work-product and were thus discoverable by the government. The ramifications of Heppner will likely cause many changes in litigation practices as a direct result of the increased use of generative AI. Indeed, use of generative AI has exploded as of late. Recent data from Sciencedirect.com shows that the top 40 generative AI tools received nearly 3 billion monthly visits worldwide in March 2024 alone. Even Judge Rakoff noted the ever-growing prevalence of AI use, stating that “more than half of United States households have adopted AI in some form.” While Heppner involved a criminal case, the holding will similarly be applicable to civil matters. It is incumbent on health care litigators to thoughtfully engage in discovery to determine whether plaintiffs consulted a generative AI platform in relation to their case. In practical use, this could be completed by questioning plaintiffs at deposition regarding whether they have asked ChatGPT, Claude, or one of the dozens of other generative AI platforms regarding the possible value of their cases, advice on what to say during a deposition, or a number of other queries. Likewise, these questions could be directed to a plaintiff via an Interrogatory or Request for Admissions. Regardless the avenue of questioning, it is paramount for attorneys to test the boundaries of courts across the country which are only now braving the new world intersections of AI, privacy, and privilege.

The Quarterly Dose

Claims of Future Medical Expenses Must Be Examined Carefully During Discovery to Avoid Unnecessary Surprise at Trial

August 26, 2026

Legal Roundup: New Jersey Often in actions involving injuries in New Jersey, a claim for future medical damages is made in tandem with any injury claim. Luckily, in January of 2026, the Appellate Division in the unpublished decision of Terrell v. Chitra provided insight as to when a plaintiff may actually recover future medical expenses. Plaintiff was involved in a motor vehicle accident wherein she claimed injuries to the neck, back, and right shoulder, with specific claims of cervical disc herniation. Plaintiff’s orthopedic surgeon recommended she undergo a cervical discectomy and fusion, though she never took any substantial steps towards receiving the surgery. However, at the time of trial, plaintiff testified that she wanted to have the surgery and the trial court permitted medical expert testimony regarding the need for surgery and the cost of same. Ultimately, the jury returned a verdict of $1,300,000 - $1,000,000 for pain and suffering and $300,000 for future medical costs. On appeal, defendant argued that the future medical costs were inadmissible due to: 1. plaintiff’s failure to disclose her intention on having the surgery; and 2. the introduction of the cost of the speculative future surgery tainted the jury’s pain and suffering award. The Appellate Division agreed and found that the plaintiff never made a definitive statement pre-trial that she would have the surgery, thus prejudicing the defendant. The court also found that the plaintiff expert’s opinion testimony regarding the future costs of the surgery were improper and tainted the overall value of the injuries and pain/suffering. Ultimately, the matter was remanded back to the trial court for an entirely new trial on damages, with a bar on introducing evidence of speculative future medical expenses. On June 2, 2026, the Supreme Court of New Jersey entered an order denying a petition for certification. See Terrell v. Chitra, 2026 N.J. LEXIS 536 (2026). At its core, the holding in Terrell is a reminder that trial counsel must proactively file motions in limine to bar claims for speculative future medical expenses. While Terrell is a motor vehicle accident case, the holding is equally as applicable to medical malpractice and long-term care matters where plaintiffs make claims regarding future care. Defense counsel should be certain to question plaintiffs at their deposition regarding any future surgeries and make specific evaluations of medical expert reports for the claimed costs of future treatment.

Firm Highlights

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

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. 

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

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

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.