.

Estelle Kokales McGrath

Supervisor, Professional Liability - Western Pennsylvania

Chair, Real Estate E&O Liability Practice Group

Portrait of Estelle Kokales McGrath

Estelle is a Shareholder in the firm’s Professional Liability Department and serves as Supervisor of the Professional Liability Practice Group in Western Pennsylvania, where she oversees the operations and strategic direction of the Professional Liability attorneys in the firm’s Pittsburgh, Erie, Cincinnati, and Cleveland offices.  Her practice focuses on various miscellaneous professional liability matters, including errors and omissions, directors and officers liability and management liability.

Insurance Agents & Brokers Liability.  A significant portion of Estelle’s practice is dedicated to defending errors and omissions claims against insurance agents and brokers.  She represents agents and brokers of all sizes in both pre-suit matters and litigation and is skilled at managing the complex relationships among agents, insureds, and insurance carriers.

Real Estate E&O Liability.  As Chair of the firm’s Real Estate Errors and Omissions Liability Practice Group, Estelle represents real estate agents and brokers, appraisers, home inspectors, property management companies, homeowner associations, boards, and individual board members. Her work frequently involves detailed analysis of contracts, association governing documents, and the Uniform Planned Community Act.

Public Entity and Civil Rights.  Estelle also maintains a robust practice in public entity and civil rights defense.  She represents municipalities, school districts, universities, and other public entities, as well as police chiefs, police officers, constables, humane officers, volunteers, security personnel, and educators – including teachers, professors, and coaches– in a wide range of professional liability and civil rights matters.

Employment Law.  In the employment law arena, Estelle counsels employers pre-suit and defends public entities and private companies in claims alleging discrimination and retaliation, in addition to whistleblower claims and allegations of sexual assault.  She frequently appears before the EEOC and PHRC and continues representation through litigation in state and federal courts. She also previously served as a pro bono mediator for the Equal Employment Opportunity Commission.

Estelle also recently served a two-year term on the firm’s Executive Committee Advisory Council, a select group of firm leaders dedicated to strengthening communication between the Executive Committee and associates, special counsel, and junior shareholders.

    • Widener University Delaware Law School (J.D., 2001)
    • Juniata College (B.A., 1998)
    • Pennsylvania, 2001
    • West Virginia, 2011
    • U.S. District Court Southern District of West Virginia, 2011
    • U.S. District Court Western District of Pennsylvania, 2011
    • U.S. District Court Northern District of West Virginia, 2017
    • Pennsylvania Super Lawyer Rising Star (2008, 2012-2016)
    • Allegheny County Bar Association
    • Council on Litigation Management
    • FETA 2013-present
    • Pennsylvania Bar Association
    • Professional Liability Underwriting Society (PLUS) 2013-present
    • West Virginia Bar Association
    • Navigating Real Estate Claims from New York to New Jersey and Pennsylvania, Client Seminar, May 2026.
    • Anti-Harassment, Anti-Discrimination and Anti-Bullying /Workplace Conduct, Client Seminar, August 2025
    • Prohibition Against Discrimination and Harassment, Client Seminars, June 2025
    • Insurance Agent and Broker Webinar, Philadelphia Insurance Company, April 1, 2025
    • Risk Management for Insurance Agents & Brokers, Pittsburgh I-Day, October 8, 2024
    • How to Avoid Mistakes with Mismanagement of Life & Health Claims, Joint Webinar with National Association of Professional Agents, May 2023
    • Pandemic Coverage Litigation Update / Insurance Broker Best Practices, Client Webinar, September 2022
    • The Aftermath of the Pandemic For Carriers and Agents, Client Webinar, July 2021
    • Civil Litigation Updates in COVID-19 Litigation – Where Do We Stand One Year Later? Marshall Dennehey Webinar, May 2021
    • Supervisor Training on Discrimination, Client Seminar, June 2021
    • Impact of COVID-19 on Insurance Agents, Client Webinar, May 2021
    • Pandemic Coverage Litigation Update: Agent E & O Wars to Come, Client Webinar, March 2021
    • Pregnancy Discrimination, Client Seminar, March 2020
    • Promoting Diversity & Inclusion, Client Seminar, November 2019
    • Police:  Handling Critical Incidents, Client Seminar, May 2018
    • "Lessons From Accountant's Age Discrimination Suit," Pennsylvania CPA Journal, Spring 2024
    • "EEOC Mediation: Five Things to Consider Before Participating,"The Legal Intelligencer, Employment Law Supplement, October 2023
    • "Top 10 Ways an Insurance Broker Can Avoid Liability," National Association of Professional Agents, March 1, 2023
    • "Top Ten Ways an Insurance Broker Can Avoid Liability,"Legal Update for Insurance Agents & Brokers, December 21, 2022
    • “HOA Living. It Is Not For Everyone,” Defense Digest, June 2021, Vol. 27, No. 3
    • "Ten Ways An Employer Can Reduce Their Chances of Being Sued for Discrimination,"PLUS Blog, May 10, 2021
    • “HOA Living. It Is Not For Everyone.,” Defense Digest, March 2021, Vol. 27, No. 2
    • "House Bill No. 88 to be Signed by Governor Rendell," What's Hot in Workers' Comp, Volume 7, No. 12, December 2003
    • "Supreme Court Reverses Caso Decision," What's Hot in Workers' Comp, Volume 7, No. 12, December 2003
    • "Course of Employment Argument Saves Employer," Defense Digest, Volume 9, No. 2, June 2003
    • "Board's Decision Reversed Where Claimant Failed to Present Evidence," Lawyers Journal, The Journal of the Allegheny County Bar Association, June 27, 2003
    • "Borough of Lewistown v. Pennsylvania Labor Relations Board: The Supreme Court of Pennsylvania Holds Arbitration Award Final and Binding When Participating Joint Employer Failed to Appeal the Award," 9 WIDENER J. PUB. L 615 (2001).
    • Motion to Dismiss Granted with Prejudice for Borough and its Employees, March 26, 2026 An owner of a sexually oriented business, who did not own property in the Borough, but periodically booked events in the Borough, was prohibited by a permanent injunction from performing at a particular restaurant due to a zoning ordinance violation. Plaintiff then brought a Section 1983 action alleging that defendants violated his rights under the First Amendment, Fourteenth Amendment and Equal Protection Clause.  After filing a motion to dismiss arguing that the plaintiff lacked standing, the Court agreed and explained that plaintiff had no legally recognized property right in the Borough.  The Court further explained that the state proceedings were between the Borough and the restaurant – against whom the injunctions were directed – not plaintiff.  The lack of standing was fatal to all of his claims and his case was dismissed with prejudice.
    • Secured Voluntary Dismissal of Suit Against Domestic Violence Entity and its Employees, February 20, 2026 An individual, who had never received services and who had never been an employee, sued a domestic violence entity along with several of its employees alleging various claims including negligence, emotional distress, defamation, civil conspiracy, and retaliation.  After filing preliminary objections attacking the entire complaint as legally insufficient and arguing that the court should view the complaint as potentially violative of a protection from abuse order (which was available on the public docket), the plaintiff withdrew the complaint. 
    • Summary Judgment For Child Care Center In Employment Case, November 19, 2025 We obtained summary judgment on behalf of a child care center in an employment discrimination action brought by two former employees. Plaintiffs alleged multiple claims arising from their termination, including age and race discrimination and unlawful interference with leave, in violation of the Age Discrimination in Employment Act (ADEA), the Pennsylvania Human Relations Act (PHRA), Title VII, Section 1981, and the Family and Medical Leave Act (FMLA).  The Court agreed that Plaintiffs failed to establish a prima facie case of age discrimination, as they could not show they were replaced by sufficiently younger employees to support an inference of discriminatory animus.  Plaintiffs likewise failed to meet their burden on their race discrimination claims, as they did not demonstrate that the employer retained similarly situated employees who were not within the protected class.  Finally, the Court rejected Plaintiff’s FMLA interference claim, finding that the employee voluntarily ended her leave and that the employer would have continued to honor her FMLA rights had she not done so.  Accordingly, the Court held that Plaintiffs failed to present evidence to support their prima facie claims and granted summary judgment in favor of the employer.  
    • Preliminary Objections Sustained in Employment Suit for Public Entity, October 5, 2023 Obtained dismissal of employment case for public entity.  Plaintiff alleged a whistleblower claim and multiple wrongful discharge claims after being terminated.  The Judge sustained the employer’s preliminary objections, as the Court agreed that plaintiff failed to set forth any legally viable claims against her supervisor or prior employer.
    • Dismissal of Employment Discrimination Charge Before the Pennsylvania Human Relations Commission, August 24, 2023 A terminated employee filed a Charge of Discrimination with the Pennsylvania Human Relations Commission against her non-profit employer alleging age, sex and disability discrimination.  We were able to prove through the investigation process that there was no discrimination.  The Charge was accordingly dismissed.
    • Dismissal of Employment Discrimination Charge Before Pittsburgh Commission on Human Relations, August 14, 2023 A terminated employee filed a charge of discrimination with the Pittsburgh Commission on Human Relations against his non-profit employer alleging age and disability discrimination.  We were able to prove through the investigation process that there was no age or disability discrimination.  The Charge was accordingly dismissed.
    • Secured Voluntary Dismissal of Employment Suit for Public Entity, May 24, 2023 A terminated employee filed suit in the United States District Court for The Western District alleging violation of his First Amendment Rights as a result of retaliation based on political opposition and protected speech.  The employee also alleged a violation of the Equal Protection clause of the Fourteenth Amendment.  After filing a Motion for Sanctions, the employee voluntarily dismissed the entire federal lawsuit. 
    • Secured Voluntary Dismissal of Homeowners Association in Unjust Enrichment Suit, January 13, 2023 A contractor sued a homeowner's association for unjust enrichment because the builder failed to pay it for its services.  After discussions with counsel, the contractor agreed to voluntarily withdraw said suit against the homeowner's association.
    • Motion to Dismiss Granted in Employment Suit for Public Entity, December 19, 2022 Secured dismissal of First Amendment count in the United States District Court for The Western District on behalf of public entity alleged to have retaliated against plaintiff for exercising her First Amendment rights to freedom of speech and to petition the government for redress of grievances. The public entity employer was entitled to dismissal of the First Amendment Count because plaintiff’s complaints were only intended to protect her interests, not that of the public.  The court declined to exercise supplemental jurisdiction over the remaining state law claims.
    • Summary Judgment Granted for Vocational School, May 10, 2021 Obtained summary judgment in state court on behalf of a vocational school alleged to have violated the plaintiff’s procedural due process rights to continued enrollment.  The plaintiff alleged sexual assault by an instructor and asserted that she was dismissed from the school after reporting the alleged assault.  The school was entitled to judgment as a matter of law as the plaintiff was unable to prove that she had a recognized property right in continued enrollment in a commercial driver’s license program.
    • Complaint Dismissed Against Homeowners' Association and Property Management Company, January 28, 2020 A homeowner, Plaintiff, filed suit in Butler County Court of Common Pleas.  Plaintiff sued the Homeowners' Association, the Property Management Company, the Property Managers and individual board members alleging breach of contract, breach of fiduciary duty, gross negligence, intentional misrepresentation and negligent misrepresentation. After arguing preliminary objections to the 490-paragraph complaint, the Judge sustained the objections and dismissed the entire lawsuit with prejudice.  The Judge also granted the Defendants' Motion for Sanctions against Plaintiff for failing to voluntarily dismiss the individual defendants from the suit.
    • Motion to Dismiss Granted for Housing Authority Alleged to Have Violated Civil Rights of Tenant and Guest, January 13, 2020 Plaintiffs filed a lawsuit in the United States District Court for the Southern District of West Virginia alleging that the housing authority and their employee violated state and federal laws.  After filing a motion to dismiss all claims against the housing authority and their employee, the Judge granted the motion in its entirety dismissing three counts alleging violations of federal laws and four counts alleging violations of state laws.
    • Defeated Class Action Certification Against Property Management Company, November 20, 2019 Eight homeowners filed a class-action complaint in Washington County Court of Common Pleas avering claims of conversion and conspiracy against a property manager of their homeowners' association. The homeowners sought to certify a class-action lawsuit for all of the unit owners in the planned community.  They accused the property manager of wrongfully converting unit owner association fees and conspiring to delay the "turn over" of their homeowners' association. After a lengthy and contentious discovery process, the Judge denied the class certification against the property management company. 
    • Dismissal of Employee's Claims of Employee Status, August 2018 Claimant filed a claim petition alleging he was an employee of a newspaper. The case was bifurcated to determine whether the claimant was an employee versus an independent contractor. The Judge dismissed the claim petition finding that claimant was an independent contractor. The Judge’s decision was upheld by the Workers’ Compensation Appeal Board and the Commonwealth Court. 
    • Voluntary Dismissal of Real Estate Agent from Lawsuit, November 16, 2017 A buyer sued multiple defendants, in Westmoreland County Court of Common Pleas, including the seller's real estate agent alleging claims of misrepresentation and unfair trade practices in Pennsylvania state court.  During the discovery process, counsel was able to prove that the real estate agent was not liable. Thus, Plaintiff voluntarily agreed to discontinue the lawsuit as to the real estate agent.   
    • On Trial Team: Secured Defense Verdict for Police Officer and Hung Jury Verdict for Second Officer in Sixteen Day Jury Trial, September 2017 Plaintiff brought claims of excessive force under Section 1983 of the Civil Rights Act and the Fourth Amendment in addition to assault and battery claims against both officers and sought compensatory and punitive damages. The claims arose from a traffic stop that plaintiff ultimately fled from while one of the officers was still partially inside his vehicle, which caused plaintiff to be shot multiple times resulting in his paralysis from the waist down.
    • Voluntary Dismissal of Borough and Chief of Police, March 17, 2017 A prior employee (plaintiff) filed a complaint in the United States District Court For The Western District of Pennsylvania alleging that the borough, the mayor and chief of police unlawfully discriminated against him, which forced him to resign. The employee set forth various federal and state claims including a violation of his substantive due process rights and intentional infliction of emotional distress. After deposing the plaintiff, he voluntarily agreed to dismiss the complaint with prejudice. 
    • Employee Injuries Denied and Determined Fully Recovered, May 2016 A union president filed multiple petitions against the employer for accepted and unaccepted injuries. During a six-year battle, the employer was successful in its defenses before the workers' compensation judge, the workers' compensation appeal board, the Commonwealth Court and the Pennsylvania Supreme Court. 
    • Employee's Claims for Wage Loss Denied, March 17, 2015 An employee, truck driver, filed a claim in West Virginia for injuries he suffered in the course of his employment. The Employer was successful in proving that claimant's disc injury was preexisting in nature, which was affirmed by the Supreme Court of Appeals.
    • Preliminary Injunction Denied, November 24, 2014 Plaintiff, a manufacturer and seller of refractory products, filed a Motion for Injunctive Relief to prohibit their prior employees from working with a new company, which also manufactured and sold refractory products. The Judge denied Plaintiff's Motion for Preliminary Injunctive Relief after a contentious, speedy discovery stage of depositions and other motions. The trial team was successful in protecting the defendants' new business from being shut down. 

Results

Putative Class Action Lawsuit Dismissed

In a case where we represented a child care center, a federal district judge from the Western District of Pennsylvania granted our motion to dismiss with prejudice. The plaintiffs were nine minority employees who were involuntarily furloughed in the fall of 2020. They filed suit, alleging their employment was terminated in violation of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Pennsylvania Human Relations Act, the Wage Payment and Collection Law, and Section 1981 of the Civil Rights Act. The court agreed with the arguments made by the center, finding that the plaintiffs’ class claims were not timely exhausted. The court disagreed with the plaintiffs’ arguments that their charges gave notice of their putative class claims because each charge only focused on the individual complainant’s alleged personal disparate treatment. The court also found that the plaintiffs were not entitled to equitable tolling as they did not exercise reasonable diligence in obtaining essential information bearing on their claim. Accordingly, the court dismissed the entire complaint with prejudice, finding no need to address the other bases for dismissal or the center’s request to strike the class action allegations. 

Lawsuit Against Insurance Broker Dismissed

In a case where we represented an insurance broker, a Federal District Judge from the Southern District of West Virginia granted our motion to dismiss and dismissed the suit in its entirety. The plaintiff was a women’s fashion and accessory boutique. The suit arose from a dispute over the plaintiff’s insurance coverage for damages it sustained while being ordered to close by West Virginia’s COVID-19-related orders. The insurance carrier filed a motion to dismiss, and, thereafter, the plaintiff voluntarily dismissed the carrier. The broker filed a motion to dismiss all of the claims plead against it, including bad faith, West Virginia’s Unfair Trade Practices Act, estoppel and breach of fiduciary duty. The court dismissed the counts of bad faith and Unfair Trade Practices Act, finding that the plaintiff failed to provide sufficient allegations to support such claims. The court further explained that the plaintiff alleged very few facts specific to the broker and that the allegations plead did not support any unreasonable conduct by the broker, which is required to establish bad faith or deception. For similar reasons, the court held that the plaintiff’s estoppel claim failed. The plaintiff alleged the broker advised that they would have coverage as a result of the COVID-19 orders. The court found that the plaintiff failed to allege how it relied on those representations or how that reliance was detrimental. The alleged representations occurred months after the plaintiff accepted the policy and did not appear to have any impact on the plaintiff’s request for payments from its insurance carrier. Finally, the court explained that the plaintiff failed to identify any West Virginia authority to establish a breach of fiduciary duty against the broker. Regardless, the court found that the plaintiff failed to allege that it requested specific coverage before the broker procured the policy.

Thought Leadership

Legal Updates for Real Estate E&O Liability

Protecting Real Estate Professionals with Renewed Strength and Expanded Reach

November 1, 2025

We are excited to announce the reinvigoration of our Real Estate Professional Liability defense team, servicing clients in eight states including Delaware, Florida, Maryland, New Jersey, New York, Ohio, Pennsylvania and West Virginia. Our Real Estate E&O Liability Practice Group represents real estate professionals and related service providers in high-stakes civil litigation across a wide range of claims. We have extensive experience defending real estate brokers, agents, and REALTORS® against malpractice and breach of duty allegations stemming from residential and commercial transactions, as well as those who play critical roles in facilitating these transactions, including title agents, abstractors, surveyors, mortgage brokers, appraisers, home inspectors and title insurance companies.  Our attorneys understand the complexities of real estate law and the nuances of professional standards in each of the jurisdictions in which we practice, allowing us to craft targeted defenses that protect our clients’ reputations and livelihoods. We are creative, proactive and strategic, working closely with our clients and their insurers to craft a formidable defense, often helping to resolve matters through negotiation or early motion practice pre-suit. When litigation is unavoidable, we bring deep courtroom experience and an unwavering commitment to defending our clients through trial and appeal, if necessary. We know that for professionals involved in real estate, litigation can be both financially and professionally disruptive. That’s why we prioritize efficient case management, cost-effective strategies and clear communication throughout the life of a case. Our goal is always to protect our clients’ interests while minimizing the impact on their business operations and professional standing. With a team that blends deep legal knowledge and real-world insight into the real estate industry, we are trusted counsel to professionals facing complex and often emotionally-charged disputes. Whether the matter involves a multimillion-dollar commercial deal or a single-family home transaction, our attorneys bring the same level of dedication and attention to detail. We are proud to be a reliable defense partner for real estate professionals and the businesses that support them. When your work is under scrutiny, you need a legal team that understands the stakes—and how to win.  Legal Update for Real Estate E&O – November 2025, 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Lessons from Accountant's Age Discrimination Suit

March 1, 2024

A recent employment law case in Pennsylvania reinforces the necessity for employers to base all employment decisions on legitimate, non-discriminatory business reasons. Further, the employer's decision-makers should be able to clearly articulate the rationale supporting such decisions. In a perfect world, contemporaneous documentation would be available to assist the defense. In Rodrock v. Public Utility Commission, an accountant's claims of age discrimination failed because there was no evidence to support that his employer's decision not to promote him was based on his age.

Firm Highlights

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.

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.