.

Results

  • Summary Judgment Obtained in a Premises and Product Liability Case

    We won a motion for summary judgment in Schuylkill County, PA, in a premises liability and product liability case. We represented the manufacturer of a concrete railroad crossing that was installed at an intersection in 2005. In 2021, the plaintiff was riding his bike across the crossing when his bike tire allegedly became stuck in a gap in the concrete. There was ample evidence that the railroad was responsible for inspecting and maintaining the crossing while our client did nothing other than supply the prefabricated crossing. We argued the gap that developed in the crossing was not the responsibility of the crossing manufacturer and that the statute of repose barred the lawsuit. The court agreed and granted summary judgment in favor of the manufacturer.

  • Successfully Defended Appeal Sustaining Objections of Improper Venue

    We successfully defended the plaintiff’s appeal of a trial court decision sustaining preliminary objections on the grounds of improper venue. This case involved the death of a 19-year-old woman at a university who fell down an 11-story trash chute in an off-campus condominium building. In this mixed negligence and product liability case, we represented two of the multiple defendants, the condominium association and the building management company. The Philadelphia Court of Common Pleas found that venue was improper in Philadelphia County and ordered that the case be transferred to Centre County. The plaintiff appealed that decision, and the matter was briefed and argued in the Superior Court of Pennsylvania. The Superior Court, in a precedential decision, affirmed the trial court’s decision and found that there was no abuse of discretion in sustaining the preliminary objections. In support of its decision, the Superior Court found that the plaintiff’s arguments were unsupported by Pennsylvania law. The Superior Court, in finding waiver of an issue, quoted directly from the brief prepared by Kim.

  • Defense Verdict Obtained After Seven-Day Bench Trial

    We received a defense decision after a seven-day bench trial in a product liability action in which the exposure in the case exceeded $30 million. Our client designs, sells and services engineered equipment for the energy industry, including natural gas compression apparatuses for use in transmission pipeline systems. In 2015, the client sold the plaintiff two reciprocating compressor systems to replace outdated equipment at a station located near Downingtown, PA. The compressor systems were designed to inject oil into the gas stream for piston lubrication. This lubricating oil needed to be removed from the gas stream using filtration devices supplied by the plaintiff. The plaintiff claimed weld debris contained within certain vessels of the compressors migrated downstream upon commissioning and compromised several gas filtration devices. The plaintiff further contended the damaged filtration devices permitted excess lubricating oil into the pipeline, which fouled multiple turbines owned by its downstream customer at a large natural gas-fired power plant, causing significant economic losses. The applicable contract between the plaintiff and our client contained a forum selection clause requiring litigation to take place in Lake County, Indiana. The plaintiff claimed commercial losses of $18 million, plus attorney fees (per contract) in the neighborhood of $4 million. The plaintiff also maintained it was entitled to pre-judgment interest. If successful in establishing liability, this sum would have added another $5 million to $7 million to the damage award, depending on the interest rate employed by the court. Therefore, the pure exposure in the case exceeded $30 million. In response to the plaintiff’s claims, we successfully established that the weld debris incident was a red herring and did not damage the filtration equipment. Material testing of debris from within the filtration devices revealed very little weld debris compared to pipe scale and other naturally occurring components. Through key expert testimony, we established that the plaintiff could not meet its burden of proof because the oil contamination events may have been caused by several factors directly attributable to the plaintiff’s lack of design engineering, inadequate equipment maintenance, equipment failure and inappropriate response to system alarms.

  • Dismissal Secured in Food Poisoning and Hepatitis A Case

    We successfully obtained dismissal of their client in a death-from-food-poisoning and hepatitis A case. The plaintiff, Joyce Neeld, executrix of the Estate of Alfred Neeld, alleged that Mr. Neeld passed away due to an outbreak of hepatitis A in southeast Pennsylvania, which was widely covered by the news at the time. The plaintiff, who claimed that Mr. Neeld passed away after eating at Gino’s Pizzeria and Ristorante, was seeking several million dollars from every food provider that served the restaurant, including our client. Fortunately, the plaintiff stipulated to our dismissal.

  • Summary Judgment Obtained in House Fire Case

    We obtained summary judgement on behalf of a homeowner in a 10-plaintiff negligence action arising from a house fire. In granting summary judgement, the Philadelphia Court of Common Pleas agreed that the plaintiffs’ failure to secure a cause and origin expert was fatal to their case as the fire was alleged to be electrical in nature and, thus, outside the purview of the average juror.

  • Summary Judgment Secured in “Exploding” Wine Bottle Case

    We successfully secured summary judgment in a product liability case involving an “exploding” wine bottle. Our client was the distributor of the bottle and was brought into the case as a third-party defendant. The plaintiff testified that on Thanksgiving Day, she attempted to open the bottle with the handle of a wooden spoon when the bottle unexpectedly and suddenly exploded in her hands. The plaintiff brought a product liability claim, asserting defects with the design of the bottle in using unusually thin glass prone to breakage. As the plaintiff did not produce any liability expert reports, we were able to argue that expert testimony was necessary for the plaintiff to prove her case, as the subject matter was one involving special skills and training not common to the ordinary layperson.   

  • Jury Defense Verdict Obtained in New Jersey Product Liability Case

    We secured a jury defense verdict in the Superior Court of New Jersey in a product liability case where the demand was $650,000. The plaintiff alleged a defect in the handle of an ultraviolet light disinfecting device that caused her to develop trigger finger. They alleged a design defect and failure to warn claim, claiming permanent damage to her ring finger and hand as a result of surgeries to correct the injury.

  • Successful Representation of National Home Improvement Corporation’s Tool & Truck Rental Division

    Marshall Dennehey’s trial and appellate attorneys were successful in their representation of a national home improvement retail corporation’s tool and truck rental division. Handling the case at both the trial and appellate levels, the defense was successful in convincing the New Jersey appellate court to affirm the trial court’s decision on July 23, 2024. At the trial level, the judge granted our motion for a directed verdict and dismissed the case. The plaintiff had rented a flatbed truck in 2018 to move a cabinet he had just purchased. He alleged that a store employee gave him a set of ramps to use in the truck, but while doing so, they moved and he fell, sustaining serious and permanent injury to his back. The plaintiff alleged he later returned to the store and was told that he had been given the wrong ramps. The panel said that the record included no actual evidence that the ramp did not fit the truck beyond the employee’s saying it was the wrong ramp, or that the ramp slipped because it was incompatible with the truck. Even in his testimony, the panel said the plaintiff did not actually identify any physical cause for the ramp to move. “The dearth of evidence establishing the manner and cause of the slip or slide of the ramp rendered it impossible for the jury to make a reasoned determination as to whether defendant’s purported negligence proximately caused plaintiff’s fall and injuries,” the panel said. The court, therefore, affirmed the case on appeal. 

  • Secured Defense Verdict for Global Men’s Hair Dye Manufacturer in Bladder Cancer Claim

    We won a defense verdict in a high-exposure product liability trial, defeating claims that a client’s hair dye caused bladder cancer. The verdict was reached after a two-and-a-half week jury trial in the Philadelphia Court of Common Pleas. The plaintiffs’ claim was that the hair dye made by global men’s hair dye manufacturer caused the husband’s bladder cancer. Prior to trial there was a significant demand, but the jury wholly rejected the plaintiffs’ negligence and strict liability claims. Background: The plaintiff was a part-time barber in Reading and Philadelphia, Pennsylvania, from 1994–2008. On occasion, he used the defendant’s hair dye on his customers and himself. He also worked full-time as a book binder at various printing companies. In August of 2016 he was diagnosed with bladder cancer. He filed suit against the manufacturer, claiming that their hair dye was contaminated with the chemical 4-aminobiphenyl (4-ABP), which is a known carcinogen. Numerous expert witnesses were called by both sides—toxicologists, epidemiologists, organic/anylytical chemists, urologists and occupation physicians. The defense denied that the hair dye product contained 4-ABP because its manufacturing process is conducted in such a manner that it would not create 4-ABP. This was supported via corporate witnesses and multiple experts. After one hour and 13 minutes of deliberations, the jury found that the defendant was not negligent and their product was not defective. Read about this verdict in The Legal Intelligencer (subscription required): Pa. Jury Rejects Claims Linking 'Just For Men' Hair Dye to Cancer."  

  • Dismissal with Prejudice Obtained in Case Targeting Alcoholic Beverage Manufacturer

    We secured a dismissal with prejudice in a product liability case in Pennsylvania. The plaintiffs, who were involved, but not responsible, for a drunk driving accident, claimed that the beverage manufacturer was liable to them because the product had more alcohol than other alcoholic beverages and was improperly marketed to minors. Our team successfully argued several points, including that Pennsylvania does not recognize such a product liability cause of action because the dangers of drinking alcohol and driving are obvious, and the manufacturer has no duty to warn potential users of such dangers.

  • Defense Verdict Secured in Highly-Contentious Slip and Fall Case

    We obtained a defense verdict in a slip and fall case which allegedly occurred in a New York supermarket. The plaintiff, a supermarket employee, claimed that he slipped and fell on water from a floor washing machine being used to clean the floors. During investigation of the claim, we discovered that the plaintiff slipped and fell on water from frozen food that he was unpacking. At trial, we successfully argued to preclude the plaintiff’s expert from testifying that the floor washing machine was leaking water in that this expert never inspected the floor washing machine. As the plaintiff never produced witnesses of the accident or photographs of the accident location, the jury rendered a defense verdict in 26 minutes.

  • Client Successfully Dismissed from Significant Product Liability Matter

    We obtained dismissal of our client via preliminary objections in a significant product liability matter. The plaintiffs were seriously injured in a workplace accident involving a tile packaging machine. Despite the plaintiffs asserting that original process was properly served on our client, we successfully argued to the court that the purported certified mail receipt was never signed by an agent of our client and, in fact, simply said “COVID-19” on the signature block. The court sustained our objections and dismissed the case as to our client.

  • Appellate Success in Wrongful Death Product Liability Action

    Our attorneys succeeded in obtaining an affirmance in the Fifth District Court of Appeal of a final dismissal order of a wrongful death product liability action. The decedent’s estate filed the lawsuit two years after the statute of limitations expired. The estate argued the statute was tolled for a variety of reasons. The trial court dismissed the case, with prejudice, after giving the Estate five attempts to amend. The Fifth District affirmed the dismissal and dispensed with oral argument that same day. 

  • Denial of Nationwide and Pennsylvania-Wide Class Certification Affirmed

    Our attorneys prevailed on an appeal to the Third Circuit, which affirmed the district court’s rejection of the plaintiffs’ request for class certification in a product liability and warranty action. The named plaintiffs are several property owners and communities of common ownership who allege they have yellow-jacketed, corrugated stainless steel tubing (CSST) transporting natural gas through their structures. The flexible, yellow CSST is the modern heir to the black iron pipe formerly universal in the building industry. The flexible CSST offers advantages, including ease of installation, but the plaintiffs asserted there are latent product defects that risk failure in the event an electrical surge makes its way to the tubing, either from an in-house event or nearby lightning strike. The district court denied the plaintiffs’ request for nationwide and Pennsylvania-wide class certification of their disparate claims because of a failure of record proof on the elements of ascertainability of a sufficiently numerous class, predominance of typical and common claims, and an inability to demonstrate proof of liability and damages issues on a class-wide basis. The Third Circuit granted the plaintiffs’ request for interlocutory review of the class certification decision, but nevertheless affirmed the district court’s ruling on largely the same bases. Without passing on the merits of the product defect claims, the Third Circuit recognized that there was no basis to grant class-wide treatment given the differences in everything from notification to putative class members, liability and damages proofs, and the law governing claims. The denial of class certification was affirmed, and the case will proceed on an individual basis only.

  • Defense Clips Product Liability Lawsuit on Behalf of Nail Salon Owner

    The defense prevailed on summary judgment for a nail salon owner against negligence and product liability claims by a plaintiff who slipped and fell off-site while still wearing pedicure slippers. The plaintiff had received a pedicure at our client’s nail salon. When she left the premises, she continued to wear the disposable pedicure slippers. The plaintiff then walked in the rain and eventually slipped and fell upon entering a retail store. The plaintiff brought general negligence and product liability claims against the nail salon’s owner. At the conclusion of discovery, the court granted our motion for summary judgment based upon the plaintiff’s admission that there was nothing wrong with the slippers and her failure to provide expert opinion as to the existence of any defect in the slippers.

  • Company Under Fire in Product Liability Suit Had No Duty to Install or Advise to Install New Valves

    We were successful on a motion for summary judgment that was granted dismissing all claims against our client, an environmental compliance services and tank testing company, in a case where the plaintiff made an $8.75 million settlement demand. ​The plaintiffs, a minor mother and child, were at a gas station in Philadelphia when a vehicle inadvertently struck a fuel dispenser, knocking it over and causing a fire and explosion. The claims and cross-claims asserted against our client alleged it should have installed or advised the gas station owners to install a valve that would have prevented the fuel leakage that exacerbated the fire. We filed a summary judgment motion arguing that the claims and cross-claims asserted against our client went beyond the scope of the environmental compliance services it was hired to perform such that our client had no duty to either install or advise of installing different valves. The court granted our motion dismissing all claims and cross-claims against our client.

  • Product Liability Case Dismissed for Lack of Personal Jurisdiction Over a National Corporation

    In this complex lawsuit, the plaintiff suffered traumatic injury when the steering column of his tractor trailer became unyoked, rendering it uncontrollable and causing it to crash. The manufacturer is a Delaware LLC headquartered in North Carolina, but it manufactured the truck at its plant in Virginia. The plaintiff, a Pennsylvania citizen, crashed while driving it in Texas. The suit was filed in Philadelphia, as the LLC’s sole corporate parent is a Pennsylvania corporation. Based upon that, the plaintiff argued that the LLC should be deemed a citizen of Pennsylvania. The trial court sustained our preliminary objections due to lack of jurisdiction. We briefed and argued the appeal the plaintiff filed with the Superior Court, which affirmed on the basis that, despite its Pennsylvania parent, the LLC itself is not “at home” in Pennsylvania because it is formed and headquartered elsewhere. Therefore, there is no general personal jurisdiction over it.

  • Summary Judgment for Wellhead Manufacturer

    We obtained summary judgment on behalf of a wellhead manufacturer in a product liability matter pending in Western Pennsylvania. The plaintiff drill operator alleged a wellhead was defectively designed, causing oil and gas to escape during operation, which led to a fire at the well site. The plaintiff asserted economic losses in excess of $1.4 million. We successfully argued that the plaintiff failed to elicit sufficient expert opinion to support the defect claim and also spoliated evidence in discarding the subject wellhead.

Firm Highlights

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

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.

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.