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Professional Liability

Legal Updates for Lawyers' Professional Liability

Legal Update for Lawyers’ Professional Liability - RESULTS & THOUGHT LEADERSHIP

Legal Updates for Lawyers’ Professional Liability – August 2023

August 1, 2023

RESULTS*

Aaron Moore (Philadelphia, PA & Wilmington, DE) obtained a unanimous jury verdict in favor of our clients, a lawyer and his law firm in a legal malpractice case arising out of the lawyer’s drafting of a postnuptial agreement. The postnuptial agreement was invalidated by a family court judge, causing the husband to lose approximately $1.2 million as part of a subsequent property separation agreement. The jury considered testimony from the plaintiff’s ex-wife which reflected that she had signed the agreement under duress, and concluded that the plaintiff could not demonstrate that the postnuptial agreement was invalidated as a result of anything the lawyer did.

Aaron Moore (Philadelphia, PA & Wilmington, DE) and Alesia Sulock (Philadelphia, PA) obtained a unanimous defense jury verdict in Philadelphia on a legal malpractice claim. The plaintiffs had hired our attorney client to represent them in a property damage case against contractors and an insurance company after, as they claimed, the roof of their property was left open and water damage was sustained. The plaintiffs argued that their attorney failed to faithfully represent them and caused them to lose their claims against the contractors. After a week-long trial, we successfully proved that our attorney client did not cause the plaintiffs to lose the underlying claims, and we obtained a unanimous defense verdict in favor of the attorney defendant and his law firm.

Scott Eberle (Pittsburgh, PA) obtained summary judgment on an alleged fraud case arising out of the sale of an oil and gas lease. The District Court for the Western District of Pennsylvania granted the motion for summary judgment on the statute of limitations. 

Michele Frisbie (King of Prussia, PA) obtained a transfer and dismissal, with prejudice, on a motion to dismiss in a legal malpractice action. Michele argued that the plaintiff’s claim that her daughter’s court-appointed guardian ad litem’s negligence led to the award of custody to the father following a dependency hearing. The custody award, the plaintiff alleged, put her at a disadvantage in the divorce and damaged her and the child. First, Michele successfully argued for the transfer of the matter from the county of the mother’s residence to the county of the dependency hearing. She then successfully argued that the plaintiff had no right to bring a cause of action for herself or the child.

Josh Byrne (Philadelphia, PA) successfully handled the following matters:

  • Finding for defendants in an arbitration involving a wrongful use of civil proceedings claim arising out of an underlying wrongful use of civil proceedings claim, which, in turn, arose out of an alleged copyright violation.
  • Received dismissal of a disciplinary complaint in a matter involving alleged conflicts of interest and an alleged failure by an attorney to explain the relationship between two attorneys in the matter.
  • Representing a prominent Philadelphia criminal defense firm in a legal malpractice action, Josh had preliminary objections sustained and the legal malpractice complaint dismissed with prejudice in Lehigh County. The court sustained Josh’s preliminary objections on the basis that the plaintiff’s breach of contract claim was barred by the gist of the action doctrine and the statute of limitations had expired on any potential negligence claim.
  • The Superior Court affirmed an order of the trial court sustaining preliminary objections. Josh successfully argued that the wrongful use of civil proceedings claim (Dragonetti), which arose out of an underlying wrongful use of civil proceedings claim, was barred as a matter of law by the applicable statute of limitations.
  • Josh was part of a multi-state team of lawyers who participated in a three-day bench trial in Arapahoe County, Colorado, and successfully argued that an underlying client had the capacity to execute a retention agreement with a forum selection clause requiring any legal malpractice action be brought in Pennsylvania. The legal malpractice claims alleged multimillions of dollars of damages and involved representation of a billionaire oil investor who had been involved in a multiyear battle with his family over control of his businesses. An order and opinion enforcing the forum selection clause was entered on March 17, 2023. Enforcement of the forum selection clause effectively bars the legal malpractice claims due to the operation of the statute of limitations.
  • Achieved an informal admonition, the lowest form of discipline which is non-public, for his client in a matter that involved alleged failures to appropriately represent clients and timely file appeals in six different criminal matters.
  • Received a dismissal of a disciplinary complaint for his client in a matter involving allegations of failures to communicate with clients and prosecute a case over a six-year period. The letter requesting information from the Office of Disciplinary Counsel was 99 paragraphs long, the response took 106 single-spaced pages with 176 exhibits.
  • Achieved dismissal of a 99-paragraph disciplinary complaint that alleged lack of communications with clients over the course of a 12-year-long underlying matter. The response to the disciplinary complaint was over 100 single-spaced pages setting forth the details of the underlying matter and included more than 150 exhibits.

Nicholas Chrysanthem (New York, NY) was successful on a pre-answer motion to dismiss with respect to four of five causes of action relating to fraud and intentional misrepresentation, unjust enrichment, fraudulent concealment and piercing the corporate veil.

Nicholas Chrysanthem (New York, NY) and Tim Raveica (Melville, NY) were successful in convincing the judge to dismiss the complaint against their client on a pre-answer motion based on the statute of limitations.

Jack Slimm (Mount Laurel, NJ) and Jeremy Zacharias (Mount Laurel, NJ) were successful on pretrial motions in obtaining orders in the Superior Court Burlington County, striking the plaintiff’s expert reports and barring the plaintiff’s liability and damages experts from testifying at trial in a complex legal malpractice case. This matter, where the damages exceeded $1 million, arose out of the plaintiff’s alleged wrongful termination by his employer. The case had resulted in two trials, an appeal and a remand. The plaintiff holds an MBA from Harvard and claimed that, as a result of the termination, he was unable to market and sell his intellectual property.

Scott Eberle (Pittsburgh, PA) won summary judgment on behalf of a law firm in an alleged fraud case filed in the U.S. District Court for the Western District of Pennsylvania. The case arose out the firm’s representation of a party to the sale of an oil and gas lease in McKean County, Pennsylvania. The court ruled that the plaintiff’s action was time-barred by the applicable statute of limitations based upon the plaintiff’s principal’s deposition testimony regarding the plaintiff’s knowledge of the alleged harm. The court applied the “sham affidavit” doctrine to disregard the plaintiff’s subsequent contradictory affidavits.

*Prior Results Do Not Guarantee a Similar Outcome
 

 

THOUGHT LEADERSHIP

On June 6, 2023, Scott Eberle (Pittsburgh, PA) and Alesia Sulock (Philadelphia, PA) presented on a panel discussion, “Avoiding Legal Malpractice,” on behalf of the Pennsylvania Bar Association and in connection with the Pennsylvania Bar Institute. The presentation was a live broadcast to several hundred attorneys across Pennsylvania.

Josh Byrne (Philadelphia, PA) spoke to the Monroe County Bar Association on June 15, 2023, on legal malpractice avoidance.

Scott Eberle (Pittsburgh, PA) spoke to the Westmoreland County Bar Association on June 16th on legal malpractice avoidance. 

Alesia Sulock (Philadelphia, PA) spoke to a law firm client on legal malpractice avoidance on June 20, 2023.

Jack Slimm (Mount Laurel, NJ) spoke at the Camden County Bar Association webinar “Mediation Process & Techniques in Civil & Chancery Disputes: Producing the Best Results for Your Client.”
 

 

Legal Update for Lawyers’ Professional Liability – August 2023 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 © 2023 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.

Firm Highlights

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

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

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

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

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Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

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

Result

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

Thought Leadership

Legal Update for Special Education Law: Recent Positive Outcomes From the Group

Hearing Officer Confirms District Acted Appropriately Under IDEA and Section 504 William J. McPartland (Scranton) obtained a finding in favor of our client, a school district, on all issues following a due process hearing. The parent had filed a due process complaint alleging that the school district had breached its child find duty under the IDEA and Section 504, that the school district had discriminated against the student on the basis of disability in violation of Section 504, and that the school district had denied a free and appropriate public education to the student both by developing inadequate IEPs and via an actionable procedural violation.  Specifically, the student had received a Section 504 evaluation in October 2023, after a number of behavioral infractions culminating in a fight in September 2023, was identified as having anxiety and a sleep disorder, and received appropriate Section 504 accommodations. The student had never previously demonstrated signs of a learning disability, and the parent denied the school district permission to evaluate the student for special education needs in November 2023, and January 2024. The parent granted the district permission to evaluate the student in October 2024, after a private psychologist diagnosed the student with Attention Deficit Hyperactivity Disorder, possible Oppositional Defiance Disorder, a learning disorder, and anxiety. The school district issued a special education evaluation report in December 2024, finding that the student had an emotional disturbance and other health impairment, and an IEP providing an itinerant level of emotional support, as well as instruction in academics and social skills, was issued in January 2025, and amended in February, March, and April 2025. The student withdrew from the school district in April 2025, to attend a cyber charter school. The hearing officer determined that the school district had not violated its child find duty to the student in violation of either the IDEA or Section 504 where the district developed a Section 504 plan for the student within a month and a half of the parent’s first request for a Section 504 evaluation and where the parent repeatedly denied consent to conduct an IDEA evaluation of the student. The hearing officer noted that the student’s sporadic record of behavioral infractions prior to September 2023, did not suggest that the student had a disability prior to the parent’s initial request for an evaluation. The hearing officer further determined that no evidence had been produced to suggest that the student was discriminated against on the basis of disability in violation of Section 504. Additionally, the hearing officer determined that the IEP offered to the student was substantively adequate and that, to the extent the social and emotional programming offered by the school district was not received by the student, this resulted from the parent’s refusal to accept the same. The hearing officer finally determined that the school district did not commit an actionable procedural violation by delaying development of an IEP for the student where the parent repeatedly denied consent to evaluate the student. Court Dismisses Three of Four Claims Against School District Christopher J. Conrad and Daniel P. McGannon (Harrisburg) achieved a significant early victory on behalf of a school district client in. The team successfully obtained dismissal of three of the four claims asserted in the plaintiff’s amended complaint. The former district superintendent brought multiple claims arising out of his alleged “forced resignation,” including age discrimination under the ADEA, a Section 1983 Equal Protection claim, a Pennsylvania Whistleblower claim, and breach of contract. On behalf of the district, the defense team moved to dismiss the complaint in part, arguing: The plaintiff failed to plead sufficient facts to support a prima facie case of age discrimination. The equal protection claim was barred because the ADEA provides the exclusive federal remedy for age-based employment claims. The breach of contract claim could not stand because the underlying employment agreement had expired prior to the alleged breach. The court agreed, dismissing the ADEA, equal protection, and breach of contract claims in their entirety. As a result, only a single claim under the Pennsylvania Whistleblower Law remains pending. This outcome substantially narrows the scope of the litigation and positions the client for a more efficient defense moving forward.

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. 

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

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Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

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

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