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Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 29, No. 2, June 2023

June 1, 2023

by Craig S. Hudson

Beginning in April 2021 and extending through the end of this April, Marshall Dennehey added 14 lateral shareholders. While public pronouncements were issued at the time each joined our firm, I want to introduce them again as a group, to show how the addition of these shareholders reaffirms our continuing commitment to be the go-to civil defense firm in every jurisdiction where we practice. 

This influx of new, experienced attorneys took place in nine out of our 19 offices, in six states, and in all four of our practice departments. These shareholders augment our already deep roster of talented and experienced litigation specialists. They have an average of over 28 years of legal experience, representing clients in federal and state court. Together, they have handled over 375 jury trials and countless non-jury trials, arbitrations, mediations, and administrative hearings. Collectively, they have handled every imaginable type of civil litigation, and each of their practices and experiences add depth to our existing practices. Many of them are active in national, state, and local bar associations and industry groups, are frequent lecturers to attorneys and claims professionals, and are contributors to several legal publications. 

Seven of the shareholders who joined Marshall Dennehey over this period are in our Casualty Department. The most high-profile of these occurred this past October, when Jack Delany, a prominent, international, catastrophic damage trial attorney, decided to join our firm. Joining Jack as shareholders from his previous firm are Kristen Worley and Andrew Campbell. Jack and his team have been counsel in some of the most significant national and international civil litigation in recent memory, including lawsuits stemming from the Grenfell Tower fire in London, the Surfside condominium collapse in Florida, a recent factory explosion in Pennsylvania, and many other high-profile catastrophic events. Within weeks of joining Marshall Dennehey, Jack, Kristen, and Andrew began a large construction defect case in which the plaintiffs sought over $24 million in damages. After a three-week trial in federal court, the jury returned with a unanimous defense verdict. 

In February 2021, Melissa Devich Cochran was the first of the 14 shareholders to join Marshall Dennehey. Melissa was already familiar with Marshall Dennehey, having previously been a 12-year Marshall Dennehey attorney, who decided to return after several years at another firm. She rejoined our Pittsburgh office in our Asbestos and Mass Tort Litigation Practice Group. Melissa quickly settled back into familiar surroundings, bringing with her deep client relations and extensive knowledge and experience in defending national equipment manufacturers, outside contractors, and suppliers in asbestos litigation throughout Western Pennsylvania. 

Later in 2021, Vince Cononico joined our Cleveland office from a major insurance company’s staff counsel office where, for over 25 years, he handled a variety of significant automobile, premises liability, uninsured/underinsured motorist, and other personal injury matters throughout Ohio. Vince has first-chaired over 50 jury trials and several times was acknowledged by the insurance company as having the highest winning percentage of the staff counsel in his region. 

In 2022, John Yaninek, a 33-year trial attorney, joined our Harrisburg office. John, who is admitted in both Pennsylvania and Maryland, handles a variety of complex casualty matters in both states. John’s experience extends beyond his injury cases, as he has also defended clients in white-collar criminal cases and clients in real estate E&O matters. John is a decorated U.S. Army veteran of the Gulf War, where he managed legal issues for the Army in occupied Iraqi territory during the ground conflict. John retired from the Army Reserve as a Lieutenant Colonel.

Just a few months ago, Keith McCabe joined our New Haven office, which we opened in February of 2022. Keith brings to this rapidly-growing office over 30 years of litigation experience, defending personal and commercial clients in the Connecticut federal and state courts. Keith has tried over 75 jury cases to verdict in a broad range of cases, including those that involve catastrophic injuries and deaths. 

Four of the 14 lateral shareholders joined our Health Care Department. The first is Bill Gianaris, who joined our Westchester office where he represents hospitals and medical providers in the five boroughs of New York City and upstate New York. A 34-year attorney, Bill spent the first 14 years of his career as an Assistant District Attorney in Queens County where he tried numerous criminal cases. Since leaving the District Attorney’s office, Bill has been primarily defending medical liability and general liability matters. He has tried numerous high-exposure cases involving medical professional liability across New York.

Near the end of 2022, Suzanne Utke joined our Health Care Department in Philadelphia. Suzanne, who was a critical care nurse before going to law school, has over 20 years of experience defending physicians, nurses, and health care providers against medical and psychiatric malpractice claims. She also represents professionals in peer and credential reviews before various State Boards. 

This year, two additional shareholders joined our Health Care Department. In March, David G. Tomeo, a litigation leader with more than 30 years of experience across New Jersey, Pennsylvania, and New York, joined our Roseland office. In addition to his medical professional liability practice, Dave handles commercial and business litigation and insurance coverage matters. Dave is also frequently called upon to defend urgent care center franchisors in medical malpractice suits and handles other matters at the intersection of franchise and medical malpractice law. 

A few weeks later, experienced medical malpractice litigator Tracey S. McGurk joined Marshall Dennehey as a shareholder in the firm’s Cleveland office. A member of the Health Care Department, she focuses on the defense of medical professionals and providers, including physicians, hospitals, and nursing home/extended care facilities. In addition to her medical liability experience, Tracey also represents non-medical professionals, primarily real estate agents and agencies, in a variety of E&O and commercial matters. 

Two of the 14 shareholders who joined Marshall Dennehey over the last 24 months are in our Workers’ Compensation Department. The first is Michael Sebastian, who joined our Scranton office and has represented employers in workers’ compensation matters for over 30 years. Mike came to us with a loyal client following and vast experience at all levels of the workers’ compensation system. 

Next, Kristopher Starr joined our Wilmington office. Kris started his legal career as a Deputy Attorney General, prosecuting criminal cases. The Delaware Secretary of Labor appointed Kris as a Workers’ Compensation Hearing Officer, where he spent three years issuing opinions and orders, before leaving the bench to represent public and private employers, which he continues to do. 

Finally, Josh J.T. Byrne joined our Professional Liability Department in 2021 as a shareholder in the Philadelphia office. A well-known attorney in the Pennsylvania legal community, Josh has over 24 years of experience representing and defending clients in a variety of professional liability matters, as well as assisting those clients with professional disciplinary and licensing matters. Josh is a frequent commentator on legal malpractice, disciplinary matters, and attorney ethics. He also serves as chair of the Pennsylvania Bar Association’s Professional Liability Committee, co-chair of the Pennsylvania Bar’s Amicus Curiae Brief Committee, and co-chair of the Philadelphia Bar Association’s Professional Responsibility Committee.

The successful integration of these 14 attorneys is the result of a disciplined process we employ at Marshall Dennehey. More than ten years ago, we created the role of Lateral Integration Coordinator to assist new shareholders in their transition to the firm. Since that time, Sandy Caiazzo, who is also Director of Administrative Services, has held this position. Sandy is the key internal point of contact for all lateral attorneys joining our firm. She works closely with these laterals before, during, and after their arrival to ensure a timely start and seamless transition. Many of these lateral shareholders brought with them other associates or special counsel, paralegals, and administrative staff, and Sandy oversees their onboarding as well. 

Among her responsibilities, Sandy liaises with the firm’s administrative departments to ensure that conflict searches are performed, client guidelines and rates are obtained, and press releases and marketing materials are prepared. From day one, she ensures that lateral shareholders who join Marshall Dennehey have the technological and administrative resources and training tools necessary to enable them to hit the ground running. Each of the 15 new shareholders was uniformly impressed with our lateral integration process and marveled at how quickly they were assimilated into Marshall Dennehey.

I am very pleased to highlight the addition of our remarkable new lateral shareholders, who further enhance our firm’s extraordinary litigation talent across our many jurisdictions, offices, and practice areas. To a person, these new attorneys saw Marshall Dennehey as the perfect firm in which to further develop their careers and build meaningful professional and personal relationships. I am humbled by their confidence in us, and I firmly believe that they made the right decision in joining us. With their transitions eased by the efficiency of Sandy Caiazzo’s team and our firm’s many other administrative and technological resources, our new lateral shareholders position Marshall Dennehey very well for continued success in the service of our clients. I am also confident that, over the coming months, Marshall Dennehey will have the opportunity to welcome other lateral shareholders who will continue our tradition of finding the right attorneys to serve our clients. 

Defense Digest, Vol. 29, No. 2, June 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants