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Professional Liability

Legal Updates for Lawyers' Professional Liability

Legal Updates For Lawyers’ Professional Liability - RESULTS & THOUGHT LEADERSHIP*

Presented by the Lawyers' Professional Liability Practice Group

May 16, 2022

LAWYERS’ PROFESSIONAL LIABILITY RESULTS*

Josh Byrne and Alesia Sulock (Philadelphia, PA) succeeded in having a complaint dismissed with prejudice on preliminary objections in a legal malpractice action in Philadelphia County. This case arose out of representation in a hotly contested divorce matter. The plaintiff’s complaint was dismissed with prejudice as to all defendants.

Josh Byrne (Philadelphia, PA) successfully defeated a petition for allowance of appeal to the Pennsylvania Supreme Court by the Office of Disciplinary Counsel. In a highly unusual move, the Office of Disciplinary Counsel filed a petition for allowance of appeal, seeking to have the decision of the Disciplinary Board changed from a private reprimand to a public reprimand in a case with potential national implications. Josh successfully defeated this petition, maintaining his client’s privacy.

Howard Mankoff (Roseland, NJ) successfully defended a legal malpractice suit based on the Texas Citizens Participation Act. Howard represented a Texas attorney who was sued in New Jersey. In a suit pending in Texas, our client had obtained a commission and had asked a New Jersey court to issue a subpoena to a bank. The plaintiff claimed that the bank produced confidential records and the subpoena was improper. We moved to dismiss the complaint filed in New Jersey, arguing that the complaint should be dismissed based on the Texas Citizens Participation Act (TCPA). The purpose of TCPA is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights. Texas case law holds that these rights include lawsuits. A defendant may file a motion to dismiss, subject to expedited review, for “any suit that appears to stifle the defendant’s exercise of those rights.” After receipt of our motion, the plaintiff dismissed its complaint.

Aaron Moore (Philadelphia, PA) prevailed on motions to dismiss in the U.S. District Court for the Eastern District of Pennsylvania in two separate wrongful use of civil proceedings cases filed by a plaintiff against our client law firm and one of its lawyers, who had been representing a school district in the underlying matters. 

Edwin Schwartz (Harrisburg, PA) and Kimberly Boyer-Cohen (Philadelphia, PA) obtained the dismissal of a legal malpractice action. The plaintiff brought a professional negligence claim against our client arising from the law firm’s representation of the plaintiff in a lease agreement dispute. After the deadlines passed for completion of discovery and production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report, but failed to act with due diligence and could not substantiate each element of its claim without an expert report. True Railroad Realty v. McNees Wallace and Nurick, LLC, _ A.3d _, 2022 PA Super 70 (April 19, 2022).

Jack Slimm and Jeremy Zacharias (Mt. Laurel, NJ) obtained a summary judgment decision in a legal malpractice matter where the underlying case concerned a matrimonial representation in a highly contested divorce. In the underlying matter, our clients represented the wife in a divorce from her attorney husband, and this divorce was contentious based upon the facts and circumstances in the case. At all times, our clients advised the wife regarding litigation strategy, and the disputes concerning discovery and failure to provide documents, which delayed the matrimonial case even further. At all times, our clients aggressively represented the wife and retained competent experts to evaluate the husband’s law practice for purposes of equitable distribution. When the wife terminated the representation by our clients, they advised the wife of the risks of settling the case with her husband (an attorney) without counsel present, which advice was not heeded by the wife in the settlement of the claims. Jack and Jeremy were successful in arguing that their clients did not deviate from the standard of care and represented the wife adequately up until the point of termination of their representation. This was potentially a multi-million dollar case based on the size of the marital estate, and the judge granted summary judgment on behalf of the attorney defendants.

Jack Slimm and Jeremy Zacharias (Mt. Laurel, NJ) were successful before the Appellate Division, which affirmed the Probate Court’s order granting our motion to dismiss the complaint of the beneficiary. The Appellate Division’s opinion in In the Matter of the Estate of Richard Ehrlich, A-4033-19 (App. Div. March 11, 2022), protects the New Jersey Estates Bar in connection with probate litigation under New Jersey’s Probate Statute, N.J.S.A. 3B:17-8. The Appellate Division affirmed the Probate Court’s order granting our motion to dismiss the beneficiary’s complaint, which alleged that the attorney/administrator of the estate deviated from the standard of care, and erred in connection with sales of the decedent’s properties; in redeeming of tax certificates; and in the failure to investigate assets. Jack and Jeremy successfully argued that the beneficiary’s claims against the attorney/administrator of the estate were barred under New Jersey’s Probate Statute, N.J.S.A. 3B:17-8, which provides that judgments allowing accountings are considered res judicata as to all exceptions that might have been taken. In Ehrlich, the beneficiary filed numerous exceptions to the accountings presented by the attorney/administrator to the Probate Court in the underlying probate action. The Probate Court approved the accountings over the exceptions filed by the beneficiary. Then, the beneficiary filed a complaint against the attorney/administrator. The Appellate Division affirmed the decision of the Probate Court which found that the beneficiary’s complaint was barred under the doctrine of res judicata, as set forth in New Jersey’s Probate Statute, N.J.S.A. 3B:17-8. That is, once an accounting is approved, it serves as res judicata, meaning that later claims arising out of or in connection with the Administrator’s accountings will be barred. 

*Prior Results Do Not Guarantee A Similar Outcome
 

 

THOUGHT LEADERSHIP

Josh Byrne’s (Philadelphia, PA) article “Sometimes You Have to Fire Your Client to Avoid Issues” was published in the March 18, 2022, edition of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/sometimes-you-have-fire-your-client-avoid-issues 

Alesia Sulock (Philadelphia, PA) authored the article, “The Attorney-Client Relationship: Keeping the Lines of Communication Open,” appearing on the PLUS Blog. Click here to read: https://plusblog.org/2022/05/09/the-attorney-client-relationship-keeping-the-lines-of-communication-open/ 


 

Legal Update for Lawyers’ Professional Liability – May 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin 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 © 2022 Marshall Dennehey Warner Coleman & Goggin, 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

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

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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.

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

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.

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

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. 

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

News

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

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.