.

Legal Updates for Lawyers' Professional Liability

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

Presented by the Lawyers’ Professional Liability Practice Group

February 1, 2024

LAWYERS' PROFESSIONAL LIABILITY RESULTS*

Josh J.T. Byrne (Philadelphia, PA)

  • Obtained a verdict for the defense following trial on a wrongful use of civil proceedings (Dragonetti Act) claim in the Court of Common Pleas, Philadelphia County. The action arose out of an underlying FDCPA claim. 
  • Achieved a dismissal of a disciplinary complaint against a family law attorney. The disciplinary complaint arose out of issues relating to the safekeeping of client funds and whether Rule 1.15 funds were properly maintained in an appropriate escrow/IOLTA account. 
  • Achieved a dismissal of a disciplinary complaint against an attorney who served as the guardian of a disabled person. The 60-paragraph complaint included assertions of multiple violations of the Rules of Professional Conduct arising out of alleged failures to pay bills on behalf of the disabled person and provide timely reports on the guardianship required by the court.

Howard Mankoff and Fred Mason (Roseland, NJ) 

  • Obtained a dismissal of a legal malpractice claim where we represented an attorney whose client was a housekeeper for the plaintiff. The housekeeper purchased a house from the plaintiff, who later claimed the parties agreed the seller could live in the house the rest of his life (he was 85) and the agreement was not included in the closing documents. The plaintiff sued the attorneys, the housekeeper and the realtors. We moved, in lieu of an answer, to dismiss the complaint. The court accepted our argument that our client did not owe a duty to the plaintiff, based on case law holding that the circumstances in which an attorney owes a duty to a non-client third party are limited to those in which the attorney knows or should know that the non-client third party is relying on the attorney’s work. The court also accepted our arguments, based on the statute of limitations and the entire controversy doctrine.

Jack Slimm (Mount Laurel, NJ) 

  • With the assistance of Justyn Coddington (Mount Laurel, NJ), successfully handled an extremely complex case involving the value of an ultrasound company in an underlying equitable distribution case. At the close of evidence, the court granted our motion for involuntary dismissal, finding that the plaintiff’s experts had offered net opinions. The court dismissed the claims and took the case away from the jury. 
  • Obtained a defense jury verdict in a complex legal malpractice action arising out of two wrongful termination trials. The trial took place in Burlington County, NJ. This extremely complicated legal malpractice action arose out of two underlying employment trials for wrongful termination claims, as well as an appeal, and involved intellectual property. Jeremy Zacharias (Mount Laurel, NJ) handled a significant amount of the pretrial and key Motions on this case. In addition, Sydney Larsen (Mount Laurel, NJ) handled the evidence exhibits at trial. There were numerous evidence issues with there being two underlying trials. However, we were successful on pretrial hearing in limiting plaintiff’s proofs and in barring significant damages claims asserted by plaintiff’s expert. The jury rejected plaintiff’s claims, and awarded all of our client’s fees, with interest and costs.
  • Obtained an order from the Superior Court in Ocean County, New Jersey, on the eve of trial, granting our motion for summary judgment in a complex legal malpractice action arising out of an underlying equitable distribution arbitration. The case involved $14 million in damages. The court ruled in connection with our argument that the plaintiff’s expert’s opinion was speculative and, therefore, not admissible. Accordingly, the court granted our motion for summary judgment. 
  • Obtained an order from the Superior Court in Burlington County, New Jersey, on the eve of trial granting our motion to dismiss in a multiparty complex legal malpractice action. This suit was filed against a court-appointed administrator of an estate, the sellers of the property, the beneficiaries of the estate, and the estate itself. The case involved two actions in the Chancery Division, two actions in the Law Division, and an appeal arising out of the same, all involving claims for breach of contract, breach of fiduciary duty, negligence and legal malpractice against the administrator. The case was filed because the property was contaminated, and it was alleged that the estate and the administrator knew or should have known about the unlawful dumping but ignored those activities, allowed the property to become damaged, and kept the information about the contamination from the plaintiff’s beneficiaries. However, the court found that the claims against the lawyer/administrator were barred because in the underlying probate action, the court had held that the administrator fulfilled his duties and was discharged from all duties and obligations under New Jersey’s Probate Code. Accordingly, the court dismissed the Law Division action based upon the Entire Controversy Doctrine, res judicata, collateral estoppel and judicial estoppel.

Jack Slimm and Art Wheeler (Mount Laurel, NJ)

  • Won a decision from the Superior Court of New Jersey Appellate Division, which affirmed an order for summary judgment in a complex multi-party legal malpractice action involving financial ventures that led to two legal malpractice actions with economic losses at $11,583,180. The dismissal was affirmed, with the Appellate Division agreeing with the trial judge that the plaintiff’s expert reports were net opinions and inadmissible. Since the plaintiff could not demonstrate his actual damages to the jury, the trial court’s orders were affirmed.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) 

  • Obtained an order of dismissal on a motion to dismiss for failure to state a claim in the Superior Court in Monmouth County, New Jersey, in a complex legal malpractice action. This action arose out of a remand from the New Jersey Supreme Court in the matter of Schwartz v. Menas, et al., 251 N.J. 556 (2022). The court agreed with our argument, as well as the argument of the co-defendant, a national home builder, that all claims (conspiracy and fraud) for alleging stealing the plaintiffs’ development rights were barred under the Entire Controversy Doctrine and the Doctrine of Res Judicata, based upon the ruling of the court in the reported decision of Schwartz v. Menas, et al., 251 N.J. 556 (2022), which we argued before the New Jersey Supreme Court. 
  • Obtained a dismissal, prior to trial, of a complex legal practice action arising out of a multiparty medical malpractice failure-to-diagnose case in Burlington County, New Jersey. In this case, Jack and Jeremy represented one of Philadelphia’s most well-known and highly respected plaintiffs’ medical malpractice firms. Prior to granting dismissal, the trial court found that the plaintiff’s expert’s opinion was net. In addition, the court barred the plaintiff’s malpractice expert from testifying at trial. The court also denied plaintiff’s motion for reconsideration, notwithstanding the fact that the plaintiff submitted a new amended expert report, attempting to cure the deficiencies in the deposition we took of plaintiff’s expert. It is significant that in its decision, the court relied upon the Appellate Division’s decision in Morris Properties, Inc. v. Wheeler, et al., No. A-2653-20, 2023 WL 2249975, at *1 (N.J. Super. Ct. App. Div. Feb. 28, 2023) (approved for publication August 22, 2023), an appeal handled by Jack and Jeremy Zacharias. The court found that the Appellate Division decision was dispositive, and required the court to strike the plaintiff’s expert report and precluded his testimony at trial. The court then dismissed the case with prejudice. 

Carly Edman (Pittsburgh, PA) 

  • Obtained a dismissal of plaintiff’s legal and accounting malpractice claims in the U.S. District Court for the Western District of Pennsylvania. The plaintiff filed suit against a number of defendants as a result of tax liability stemming from a prior unrelated legal settlement. The plaintiff claimed that our attorney client was negligent in providing legal and accounting advice in regard to corrective tax filings following a legal settlement with a state entity. The plaintiff asserted claims of legal malpractice, accounting malpractice, fraud, and a host of constitutional violations. Carly sought dismissal via a number of arguments, including a lack of subject matter jurisdiction. After multiple rounds of amended pleadings and briefing, the court entered an order adopting our jurisdictional argument and dismissed the plaintiff’s latest complaint without prejudice based upon a Rule 8 violation for his failure to plead a proper jurisdictional basis. While the dismissal order was without prejudice, the running of the statute of limitations results in our client obtaining the win. 

*Prior Results Do Not Guarantee a Similar Outcome

 

LAWYERS’ PROFESSIONAL LIABILITY THOUGHT LEADERSHIP

On January 27, 2024 - Josh Byrne (Philadelphia, PA) was part of a panel which presented on avoiding legal malpractice at the Pennsylvania Bar Association’s Mid-Year Meeting. The panel focused on the benefits and risks of generative AI in the practice of law.

January 26, 2024 - Alesia Sulock (Philadelphia, PA) co-presented “The Business and Ethics Basics of Law Firm Management 2024” for the Pennsylvania Bar Institute CLE.

December 1, 2023 - Josh J.T. Byrne (Philadelphia, PA) joined a Pennsylvania Bar Institute panel to record the webinar “Continuity of Legal Services for Solo and Small Firm Attorneys 2023.” 

November 21, 2023 - Michael Turner (Philadelphia, PA) presented “Jury Selection: What You Need to Know!” for the Philadelphia Association of Defense Counsel. Participants learned the voir dos (and don’ts) of the voir dire process.

November 17, 2023 - Alisia Sulock’s and Josh J.T. Byrne’s (Philadelphia, PA) article, “Probable Cause as a Matter of Law in Dragonetti Cases,” was published in the The Legal Intelligencer. You can read their article here.


 

Legal Update for Lawyers’ Professional Liability – February 2024 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 © 2024 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

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

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. 

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

News

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

Result

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

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.

News

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

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.