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Legal Updates for Lawyers' Professional Liability

Legal Updates for Lawyers’ Professional Liability – RESULTS

Legal Updates for Lawyers’ Professional Liability – January 2026

January 1, 2026

Carol VanderWoude (Philadelphia, PA) and Aaron Moore (Wilmington, DE) secured a Delaware Supreme Court affirmance of the dismissal of a complex legal malpractice claim. The plaintiffs—seven affiliated property development companies and their owners—had been sued by their bank for defaulting on multiple credit lines totaling about $7 million plus attorneys’ fees. Our client defended those suits, which ultimately settled for the full amount owed, plus interest and fees. The plaintiffs later alleged malpractice, claiming our client should have advised an earlier settlement to avoid legal fees, expert costs, additional interest, and lost business opportunities. The trial court dismissed the claims because the plaintiffs’ expert lacked relevant experience and their damages were speculative, and the Supreme Court affirmed.

Aaron Moore (Wilmington, DE) obtained dismissal of an unjust enrichment claim brought by a condominium unit owner against the attorneys who represented her condominium association. The unit owner claimed that the law firm was liable to her for unjust enrichment in connection with legal fees it received from the association for legal services provided in their efforts to collect on past due assessments owed by the unit owner. Pursuant to the association’s governing documents, the charges were passed on to the unit owner. The court agreed that the fees paid to our client by the condominium association were properly earned.

Michael Jacobson (New York, NY) obtained dismissal of a legal malpractice suit that also alleged breach of fiduciary duty, fraudulent misrepresentation, and a Judiciary Law § 487 violation. The plaintiff had retained our clients to pursue an employment discrimination claim, which was compelled to arbitration and ultimately rejected after a four-day hearing. We argued the malpractice complaint lacked allegations of negligence and causation, the additional claims were duplicative, and § 487 does not apply to arbitration. The court agreed and dismissed all claims.

Maria Nudelman and Michael Jacobson (both of New York, NY) were successful in having their motion to dismiss granted in a legal malpractice and breach of fiduciary duty case. Our client represented the plaintiffs in an underlying landlord-tenant proceeding commenced against them by the Department of Housing Preservation and Development of the City of New York (HPD). The plaintiffs allegedly failed to correct over 20 Building Code violations. Our client was retained by the managing agent of the buildings and appeared as counsel and executed a Consent Order on behalf of all the respondents proceeding, including the plaintiffs. The Consent Order gave the plaintiffs and the other respondents until June 30, 2021, to pay $37,500 to HPD, and if they failed to make the payment, a judgment for that amount could be entered against them. The plaintiffs claimed that they never knew about the Consent Order and as a result, a $375,000 judgment was entered against them. We moved to dismiss, arguing that the claim was barred by the statute of limitations and that the breach of fiduciary duty claim was simply duplicative of the malpractice claim and should also be dismissed. The court agreed and dismissed both counts.

Diane Toner and Matthew Flanagan (both of New York, NY) were successful in defending an appeal from the denial of the plaintiff’s motion to set aside the verdict following unanimous jury verdict in favor of our clients. The plaintiff, Hyon S. Yi, as administrator of the Estate of Chin W. Yi, commenced this action against our clients alleging causes of action for legal malpractice, breach of contract, breach of fiduciary duty, and a violation of Judiciary Law § 487. The plaintiff alleged that our clients committed legal malpractice by: (1) failing to assert claims in the underlying action; (2) changing the terms of the retainer agreement to a contingency agreement after discovering that settlement of the underlying action was imminent; (3) failing to assert direct shareholder claims against the corporate defendant in the underlying action; (4) failing to assert fiduciary duty claims against the majority shareholders of the corporate defendant; (5) failing to seek a receivership or attach the assets of Eastern Farms; (6) and failing to demand prejudgment interest in the second underlying action brought in 2015. The jury found in favor of our clients on all counts. Diane Toner was able to secure dismissal of the plaintiff’s appeal by arguing that the order denying the plaintiff’s motion to set aside the jury verdict was an intermediate order from which there was no right of direct appeal once the final judgment was entered, and that plaintiff did not appeal from the final judgment. The Appellate Division agreed and dismissed the appeal.

Jack Slimm (Mount Laurel, NJ) successfully defended an attorney who specializes in the representation of school boards in a grievance before the New Jersey Office of Attorney Ethics (OAE). The grievance was filed by a plaintiff’s attorney, who argued that our client violated the rules of professional conduct in connection with his arguments to the court at the trial level and on appeal. The OAE rejected the grievance, finding that the allegations of racist and misogynistic behavior by defense counsel were unfounded, that the attorney did not disrespect the court either at trial or on appeal, that the attorney did not lie about the defendant’s defenses, and did not make any false statements of fact in response to the plaintiff’s grievance. 

Josh J.T. Byrne (Philadelphia, PA) won a motion to dismiss a complaint with prejudice in the Eastern District of Pennsylvania in a legal malpractice action stemming out of the criminal investigation into Nicole Daedone and her “orgasmic meditation” company OneTaste.

Scott Eberle (Pittsburgh, PA) achieved a dismissal of a complaint alleging abuse of process on preliminary objections in the Court of Common Pleas of Allegheny County. The complaint alleged the defendant attorney abused process by filing a meritless complaint that contained false allegations for the purpose of “extorting” the insurance company and earning a fee. The trial court found that the plaintiff’s claim failed to state a claim upon which relief can be granted, stating that the primary focus of the plaintiff’s averments were not on alleged abuse of process after it was initiated, but on the alleged ill intentions in initiating the process in the first place. The court noted that the plaintiff had not and could not state a claim for wrongful use of civil proceedings because the plaintiff settled the underlying action and, therefore, could not allege a favorable termination. 

Scott Eberle and Gregory Graham (both of Pittsburgh, PA) obtained a damage-limiting ruling on a motion to dismiss in the District Court for the Western District of Pennsylvania. The case involved defamation per se allegations against our client, a local public broadcasting organization, that were claimed to have resulted in over $30 million in business losses. Via motion to dismiss, Scott and Greg were able to successfully argue that the claim had to be limited in time to a narrow window, thus limiting the plaintiffs’ ability to recover the extensive damages they sought.

Gregory Graham (Pittsburgh, PA) achieved a summary judgment dismissal in the Court of Common Pleas of Allegheny County. The case involved claims of legal malpractice arising from divorce proceedings. 

Nicholas Chrysanthem (New York, NY) obtained summary judgment in a legal malpractice case that arose from an underlying real estate deal that fell apart. The plaintiff claimed that our client failed to properly cancel a real estate contract and alleged the loss of a $175,000 security deposit and unspecified loss of opportunity income. The court initially dismissed the duplicative breach of fiduciary cause of action and the negligent infliction of emotional distress cause of action on our pre-answer motion to dismiss. After the conclusion of discovery on the malpractice cause of action, the court granted summary judgment to our client. 

Nick also obtained pre-answer dismissal of a legal malpractice case against our client who was sued for legal malpractice because his associate neglected to oppose a threshold motion in the underlying auto case. The underlying court granted that threshold motion, in part, and denied it, in part. The plaintiff retained a new attorney without firing our client. The new attorney commenced a malpractice action against our client and refused to substitute as attorney of record in the underlying action. We moved to dismiss the case on a number of issues pre-answer, but primarily because the legal malpractice action was premature and the plaintiff could not prove that “but for” the failure to oppose the underlying threshold motion he would have been able to prove that he had a “serious injury” or actual damages. The court granted our motion to dismiss the legal malpractice complaint. 

Dante Rohr (Orlando, FL) recently secured dismissal of the latest in a series of filings brought by a former client against his attorneys alleging malpractice in the handling of his workers’ compensation and potential American with Disabilities Act claims. The first complaint, filed in state court, was stayed pending final disposition of the plaintiff’s claims in arbitration pursuant to the arbitration provision in the parties’ Retainer Agreement. However, rather than bringing the action in arbitration as directed, the plaintiff refiled his complaint in federal court, adding a plethora of federal causes of action. We argued that none of the pled federal causes of action stated a cause of action under Rule 12(b)(6). The court agreed, dismissing all federal causes of action with prejudice. Because the remaining claims arose solely from state law, the court declined to exercise its subject matter jurisdiction over those claims. Back in state court, more than two years had passed since the entry of the order compelling the plaintiff to bring his claims in arbitration. Because the plaintiff failed to do so, the court dismissed the previously stayed action with prejudice.

*Prior Results Do Not Guarantee a Similar Outcome

Legal Updates for Lawyers’ Professional Liability – January 2026 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 © 2026 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 MEDeSatnick@mdwcg.com.
 

Firm Highlights

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

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. 

Thought Leadership

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

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.

Result

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

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.

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

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

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

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.