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Results

  • Investigation Against Home Appraiser Shut Down by Defense

    We successfully defended a home appraiser in a regulatory investigation undertaken by the Pennsylvania Commonwealth Bureau of Enforcement relating to the appraisal of a five-acre parcel of property. The complainant contended the valuation arrived at by the appraiser (as part of a divorce proceeding) was artificially low given the fact the parcel was sub-dividable. We convinced the investigator that the appraisal number arrived at was in line with comparable properties in the area, particularly given some of the ingress issues involved in accessing the property. After an in-person interview of the appraiser and submissions, the investigator elected to shut the investigation down and take no further action against the appraiser. 

  • Successful Representation of Home Appraiser in Regulatory Investigation

    The investigation was undertaken by the Pennsylvania Commonwealth Bureau of Enforcement relating to the appraisal of a five-acre parcel of property. The complainant contended the valuation arrived at by the appraiser (as part of a divorce proceeding) was artificially low given the fact the parcel was sub-dividable. We convinced the investigator that the appraisal number arrived at was in line with comparable properties in the area, particularly given some of the ingress issues involved in accessing the property. After an in-person interview of the appraiser and submissions, the investigator elected to shut the investigation down and take no further action against the appraiser.

  • Trial Court's Sanctions Against Attorney and His Zoning Board Clients Vacated

    We assisted an attorney and his zoning board clients in having sanctions that had been imposed by a trial court judge vacated. We helped the attorney in obtaining pre-claim assistance coverage from his insurance carrier, and then worked with him to author an appellate brief challenging the sanctions. In an unpublished opinion, the judge writing for the Commonwealth Court agreed with the arguments presented by our team and the client. The Commonwealth Court found that the trial court had no jurisdiction to issue sanctions under Section 2503 of the Judicial Code. The Commonwealth Court also found there was no basis to sanction the attorney or his clients under Rule of Civil Procedure 1701, and that the trial court did not provide appropriate due process prior to making a finding of contempt. The trial court’s order for sanctions was vacated.

  • Third Circuit Affirms Dismissal of Consumer Fraud Class Action Against Unclaimed Property Recovery Services Firm

    We obtained a dismissal of a consumer fraud class action against our clients, a national firm and its principal, who specialize in identifying and reclaiming lost property for consumers who are unaware that such lost property exists. The plaintiff brought claims under the Pennsylvania Unfair Trade Practices Consumer Protection Law (UTPCPL) and for fraudulent inducement, arguing that the business model was deceptive because consumers could recover their own property without paying for the ease and convenience of having the defendant business work on their behalf.  Not surprisingly, the district court found that the plaintiff’s serial complaints failed to allege anything “more than Defendants’ expertise,” and that there was no factual basis to support the notion that consumers are unduly influenced or misled.  On appeal, the Third Circuit affirmed the dismissal, expressly noting that the defendants made no misrepresentation at any time, and the UTPCPL and fraud claims were dismissed as without merit.  DeSimone v. U.S. Claims Servs., Inc., 2020 WL 2556949 (E.D. Pa. May 20, 2020), aff’d 2021 WL 1662779 (3d Cir. Apr. 28, 2021).

  • Summary judgment for dentist in employment case.

    We obtained summary judgment on behalf of a dentist who sold her practice in an employment and contract claim. The plaintiff, also a dentist, was employed by our client. He claimed his contract automatically renewed, and that he was entitled to two years of pay. The plaintiff also claimed he was entitled to be compensated because our client allegedly prevented him from taking records of patients he was treating. The court accepted our argument that the plaintiff waived the extension of his contract, and that the patient records belonged to the practice and the patients, not the plaintiff.

  • Appellate Victory in Fence Dispute

    ​The homeowners claimed the homeowners association’s response to their request to mediate the dispute violated the applicable mediation statutes. They sued the association for declaratory and injunctive relief. The circuit court, sitting in its appellate capacity, had affirmed the final judgment in favor of the association and awarded it appellate attorney’s fees and costs. The homeowners then filed a petition for writ of certiorari to the Fifth District Court of Appeal, alleging the circuit court deprived them of due process and committed an error of law that resulted in a miscarriage of justice. The Fifth District Court of Appeal denied the petition and awarded the association its appellate attorney’s fees. This prompted the homeowners to dismiss another pending appeal and resolve all claims for attorney’s fees in favor of the association without further litigation.

  • Dismissal of $10 Million Tortious Interference and Defamation Case Against Attorney

    Marshall Dennehey successfully argued pre-trial motions to dismiss in the Superior Court of New Jersey, Camden County in a matter involving a $10 million tortious interference and defamation case filed on behalf of investors against an attorney and bank counsel arising out of a multi-million dollar loan for a commercial land transaction. The allegations against the attorney included slander and a claim for tortious interference, with prospective economic advantage for a contract that the plaintiff entered into with the investor. With regard to slander, we argued that the established case law in New Jersey holds that the subject pejorative was simply name calling and did not rise to the level of actionable defamation or slander in New Jersey. The court agreed and dismissed the defamation claims. Additionally, the court dismissed the plaintiff’s tortious interference claim, rejected the plaintiff’s claims of willful misconduct of the bank’s attorney and found that the plaintiff’s damages claims, although supported by expert reports, were speculative. The court agreed with the defense argument that the plaintiff’s claims for lost profits were barred by New Jersey’s New Business Rule. Under the New Business Rule, prospective profits of a new business are considered too remote and speculative to meet the legal standard to recover damages. As a result, the court entered a dismissal of the entire case.

  • Dismissal of All Claims Against Attorney in a Consumer Rights Lawsuit

    The plaintiff was named as a defendant in a debt collection action for failing to pay her attorney’s legal bills. Judgment was entered against her but never fully enforced. More than five years later, our client filed a Praecipe to Issue Writ of Revival and then mistakenly filed a Praecipe for Writ of Execution before the judgment was revived by the court. Although the Sheriff’s Sale of the plaintiff’s home never proceeded, she nonetheless sued our client for due process violations, abuse of process, conspiracy, negligence, intentional infliction of emotional distress, and violations of the Fair Debt Collection Practices Act and the Fair Credit Extension Uniformity Act. Most of the claims were dismissed early in the proceedings. Thereafter, we successfully argued in a summary judgment motion that the plaintiff failed to adduce evidence that our client acted in a manner to harass, oppress or abuse her, or that our client engaged in any other activity in violation of the FDCPA or FCEUA. The court agreed and dismissed the plaintiff’s remaining claims.

  • Successful Defense of Legal Malpractice Claim in Delaware

    We successfully defended a legal malpractice claim where the plaintiffs alleged their former attorneys caused them to sustain more than $1.3 million in damages. ​The plaintiffs, a collection of property developers, were named as defendants in a series of debt collection actions brought by their lender. Our attorney client represented them in those matters and sought to renegotiate the debt; however, they were unsuccessful, and the lender prevailed. In the legal malpractice matter, the plaintiffs sought to recover amounts they were required to reimburse the bank for its legal fees, their own expert witness fees and the legal fees they paid to our client. In a matter of first impression, the Delaware Superior Court held that a legal malpractice plaintiff who was a defendant in an underlying matter must demonstrate that it was caused to lose a judgment in order to prevail on its legal malpractice claim. It was insufficient to suggest that the attorneys should have settled the cases before the attorneys’ fees escalated. Because the plaintiffs could not demonstrate that they would have prevailed in the underlying cases, they could not prevail on their subsequent legal malpractice claim.

  • Dismissal of Surveying Company in Professional Negligence Case

    We won dismissal of a professional negligence case against a surveyor filed in the U.S. District Court for the Northern District of Ohio. ​This action was filed by two title companies that had paid a title insurance claim to a property purchaser and sought subrogation from our client, a surveying company. They alleged that a defective survey was the cause of the title insurance claim. Ohio has a four-year statute of limitations for professional negligence claims against surveyors, and this case was filed more than four years after the allegedly defective survey was completed, rendering it untimely. The plaintiffs attempted to avoid dismissal by captioning their claims as claims for breach of contract, in order to take advantage of a longer limitations period. We argued that, despite how the claims were captioned, they were, in substance, claims for professional negligence and time-barred. The court agreed and dismissed the case.

  • Dismissal of Complex Legal Malpractice Action

    We obtained a dismissal of a legal malpractice action arising from a Law Against Discrimination and Conscientious Employment Practices Act action against a municipality and its School Board. In this complex multi-party action, our client, an expert in school law, was retained by the school district to handle a hearing against the plaintiff, a teacher and coach. The plaintiffs alleged a conspiracy among the lawyers and the school board to oust the plaintiff. There were also allegations of malicious prosecution and malicious abuse of process against the town and its attorneys. The court granted our motion and dismissed based on the litigation privilege.

  • Marshall Dennehey Wraps up Legal Malpractice Case

    We obtained a defense verdict in a legal malpractice case affirmed on appeal. Our client was an attorney who represented a plaintiff in a civil rights case against a New Jersey municipality. The underlying facts were complex, involving fraud claims against the municipality, and claims based on contract, inverse condemnation, civil rights and negligence. In the legal malpractice case, the jury found deviation but no proximate cause. In the legal malpractice case, the plaintiff sought recovery of the legal fees and punitive damages to which he claimed he was entitled in the underlying case, plus prevailing party counsel fees, which can be recovered in a legal malpractice case in New Jersey. We also successfully handled the appeal, which involved all of the issues from the underlying case and the malpractice trial. 

  • Successful Outcome in Legal Malpractice Action

    We obtained summary judgment in a legal malpractice action in the Philadelphia Court of Common Pleas. The plaintiff, a Philadelphia police officer, was arrested after failing to appear in court following a hit-and-run car accident involving his motor vehicle. After proving that he was not the driver of the vehicle, the charges were dismissed. The plaintiff then sought damages from the township, police department and individual police officers for alleged violations of his civil rights. Our client, an attorney, represented the plaintiff in connection with responding to summary judgment and appealing the dismissal of his civil rights claims. When the dismissal of the plaintiff's claims was affirmed, he sued the attorney for alleged malpractice. We successfully argued on summary judgment that the plaintiff's claims were time-barred and failed as a matter of law because the plaintiff could not have prevailed in the underlying litigation. In fact, the plaintiff brought similar civil rights claims in three separate lawsuits, all of which failed. The court agreed, dismissing the legal malpractice claims as time-barred and further stating that, even if they were not barred by the Statute of Limitations, the plaintiff's claims failed as a matter of law because he cannot demonstrate that he would have prevailed but for something the attorney did or failed to do.

  • Complex Legal Malpractice Case Dismissed

    On the eve of trial, we obtained summary judgment for our attorney-client, dismissing a complex legal malpractice case in which damages were sought in connection with the underlying land transaction. ​This case included allegations that our client had multiple conflicts. The plaintiffs’ claim for damages included an allegation of $8 million in lost profits due to our client advising the plaintiffs to sell out of this business deal early, while another client of the attorney made $40 million in this deal! We were successful in obtaining dismissal by demonstrating that the plaintiffs’ experts could not prove their lost profit claim due to New Jersey’s New Business Rule and due to the fact that they could not prove any out-of-pocket damages in this case.

  • Legal Malpractice and Fraud Action Brought By a Nursing Home Dismissed, With Prejudice

    We obtained the dismissal of a legal malpractice/fraud action brought by a nursing home against an attorney who represented a patient and who assisted the patient in the admission process. The owners of the nursing home claimed the attorney misrepresented his client’s assets in the application and that the nursing/assisted living facility relied on that representation in admitting the patient. However, the patient had previously filed an action against the nursing home for consumer fraud, and that case was still pending when the nursing home filed the legal malpractice/fraud action against the patient’s attorney. The defense argued that the legal malpractice/fraud action was barred under New Jersey’s Entire Controversy Doctrine. The court agreed and dismissed the legal malpractice action, with prejudice.

  • Successful Defense of Law Firm Against Legal Malpractice Cross Claims Emerging from Underlying Litigation

    We obtained summary judgment in a legal malpractice action in Lancaster County. We represented a law firm in the defense of legal malpractice cross-claims arising during underlying litigation. The plaintiff, an environmental consulting company, sued landowners for allegedly withholding information relevant to the clean-up of gasoline spill(s) on the landowners’ property. The landowners sued their attorneys, our clients, claiming that any liability on their part was due to malpractice committed in negotiating the contract between the landowners and the consultant. We successfully argued on summary judgment that the consulting company knew or should have known the allegedly withheld information years earlier, based largely on testimony obtained during the plaintiff’s deposition. The court agreed, dismissing not only the legal malpractice claims due to lack of causation, but also the consulting company’s claims against its former clients on the basis of the statute of limitations.

  • Dismissal of Legal Malpractice Claims

    We obtained a dismissal in the U.S. District Court for the District of New Jersey in an extremely complex, multi-party legal malpractice action. The action arose out of two estate litigations filed in state court in which our client was the attorney for the decedent and the temporary administrator. The plaintiff, the nephew of the decedent, filed a breach of fiduciary duty claim against our client in the U.S. District Court. The probate cases went against the nephew. The accountings were all approved over the nephew’s exceptions, in which he did allege that our client breached a fiduciary duty in handling the estate administration in failing to preserve documents, failing to locate the will, selling assets in contravention of his fiduciary role, failing to investigate property in the Bahamas, failing to preserve assets, and obtaining orders from the probate judges through fraud and deception. In its lengthy opinion, the District Court granted the defense’s motion to dismiss all claims against our client.

  • Successful Defense of Real Estate Broker in Residential Transaction

    Successfully defended a Pennsylvania real estate broker who represented the seller in a residential real estate transaction. ​The homeowner-plaintiffs claimed that the seller and our client failed to disclose certain material defects in the property prior to closing. The plaintiffs’ complaint consisted of claims against our client for negligent misrepresentation and alleged violations of Pennsylvania’s Unfair Trade Practice and Consumer Protection Law (UTPCPL) and Real Estate Sellers Disclosure Law (RESDL). In preliminary objections, the defense argued that the plaintiffs’ claims should fail as a matter of law because the complaint did not allege that our client had actual knowledge of any material defects or that our client made any misrepresentations concerning the property. The plaintiffs’ UTPCPL claim was premised primarily upon the Seller’s Property Disclosure Statement, which the court agreed did not apply to our client as our client did not prepare or sign the document, and because our client was not identified in the document as a source of any information about the property. The court dismissed the RESDL claim on similar grounds and held that the Disclosure Statement failed to identify any misrepresentation made by our client. Furthermore, the court emphasized the clear language in the RESDL, which provides that a seller’s agent shall not be liable for any violation of the RESDL unless the agent had actual knowledge of a material defect. 

  • Defense Verdict in Florida Legal Malpractice Case

    Obtained a defense verdict in a legal malpractice case in Florida. Our clients, two board-certified construction lawyers, had unsuccessfully defended the plaintiff, a real estate developer for a project in West Palm Beach, Florida, in a lawsuit brought by the general contractor that ended with an adverse jury verdict of over $1 million. In the underlying lawsuit, the two lawyers pursued a litigation strategy that, upon reflection, had little chance of success. The lawyers never communicated to their client the prospect of an adverse result, at least not in writing. During the underlying trial, the judge made critical comments concerning the attorneys' preparation and made several adverse rulings, including dismissing a third-party complaint against one party, stating that the lawyer had sued the wrong party, and another ruling excluding their primary expert because the expert's opinions were not properly disclosed during discovery. Our defense focused on the theme that the legal advice and strategy the attorneys provided to their client was based on inaccurate information supplied by the client; that the client deliberately withheld critical information; that their developer was the one in control of the underlying litigation strategy; and that his own actions and trial testimony undermined his case, not the actions of his attorneys. The trial lasted 14 days; the plaintiff's case took ten and one-half days to present three live witnesses; and there were over 500 exhibits admitted into evidence. The defense case was presented in two and one-half days with testimony from four live witnesses, including the plaintiff's attorney from the underlying trial. The jury deliberated for less than one and one-half hours before returning a defense verdict on all counts.

Firm Highlights

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.