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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

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.

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

Court Allows Recklessness and Punitive Damages Claims to Proceed After Work‑Zone Crash

In a case where a defendant filed preliminary objections against allegations of recklessness and punitive damages, the Susquehanna County Court of Common Pleas denied these preliminary objections. This case stems from a motor vehicle accident, where the defendants car struck the plaintiffs car after the defendant allegedly fell asleep at the wheel, going at a high rate of speed, through a construction work zone. Defendant first objected to the general allegations throughout the plaintiff’s complaint pertaining to “reckless” conduct contending that there were insufficient factual allegations to support the claim of reckless conduct. Defendant next objected to the plaintiffs claim for punitive damages, as punitive damages may only be assessed against a motorist for falling asleep while driving if there is further evidence to prove driver was aware of their drowsiness and risk of falling asleep. Lastly, defendant objected to plaintiffs complaint, claiming it lacked specificity. The court here found that the plaintiff had included in the complaint specific allegations related to the defendant’s alleged recklessness, including allegations regarding speeding in a work zone, almost striking the flagger, falling asleep at the wheel, and striking the plaintiffs vehicle which was stopped. Additionally, the court noted that falling asleep does not come without warning. The court found that these allegations were sufficient to support an allegation of recklessness at the pleadings stage.

Thought Leadership

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.