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Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by G. Mark Thompson

As the holidays approach, I want to thank our loyal clients and everyone at Marshall Dennehey for helping transform another challenging year into a success.

2022 produced a unique set of circumstances for the country at large and our industry in particular.

These included the Omicron surge at the beginning of the year, pitting a relatively milder variant against a largely vaccinated population. It was somehow less a threat but highly transmissible and, before long, the number of us testing positive had soared. This had a disruptive effect on businesses large and small and got many off to a slow start.

No sooner did Omicron recede did the Great Resignation intensify, which ultimately led to some 40 million Americans changing jobs. Perhaps you are one of them and now settling into a new position. We know both the claims and legal industry saw unprecedented movement this year and often fierce competition for talent.

But there is more. While these events were unfolding, the rate of inflation reached a 40-year high, the stock market tumbled, and our country’s supply chains stalled.

If it seemed like business was anything but usual, that is because it was. Anything but usual.

And yet, through all the uncertainty, Marshall Dennehey remained a beacon of reliability to clients and opportunity for employees. There we stood. An Am Law 200 law firm with 19 offices in seven states. Resolute. Proud to be celebrating 60 years in business. Grateful for our many blessings.

In one of the tightest labor markets in history, we continued to attract legal talent. Throughout the year, we recruited. We hired. We onboarded associates, lateral shareholders with portable business, and, in October, the former Delany Law Group—absorbing much of that firm.

How did we attract such extraordinary trial talent when a number of our competitors had approached them as well? In a conversation before his arrival, the Delany Law Group’s founder, Jack Delany, explained it was Marshall Dennehey’s “integrity, impeccable reputation and progressive ideals.”

This year, in addition to bringing associates, shareholders, and another law firm into Marshall Dennehey, we opened a brand new office in New Haven, Connecticut. In less than a year, it has become one of the fastest growing in the firm.

It has also been energizing, throughout the year, to reunite in person with clients from California to London, England, and resume attending and presenting at industry conferences. We had really missed the personal connections and have enjoyed congratulating so many of you on your promotions since we had last been together.

In that same spirit, one of the most important, consequential, and enduring things we did this year was stand up Marshall Dennehey’s next generation of leaders. Careers advanced at every level, including practice department directors, managing attorneys of our regional offices, practice group silos, and administrative departments. At our Annual Shareholder’s Meeting, 20 different attorneys were elected to shareholder effective January 1st. All this was done with an eye toward diversity and inclusion and was in keeping with an ongoing commitment to elevate women to positions of leadership and responsibility in the firm.

Such progress has attracted attention. In a large-scale, independent survey of law firms to determine where associates are happiest, BTI awarded the firm a coveted spot on its “Associate Satisfaction A-Listers.” Women attorneys, in particular, distinguished Marshall Dennehey for programs that associates value most. We were also named a 2022 “Tipping the Scales” law firm by the Diversity & Flexibility Alliance for our advancement of women in the profession.

This recognition complimented other accolades. Marshall Dennehey was named a “2023 Best Law Firm” in multiple practice areas, both nationally and across numerous regions of the country, by U.S. News – Best Lawyers®. It was recognized by BTI Consulting Group as one of the “Most Recommended Law Firms” in the country by corporate counsel.

Because we have long considered our culture one of the firm’s greatest assets, it was also nice to be applauded, for the tenth consecutive year, as a “Best Place to Work” by the Philadelphia Business Journal.

And as we enter a season of giving, it's worth noting that’s exactly how we celebrated the firm’s 60th Anniversary. By giving back. This year, in lieu of throwing ourselves a big gala, Marshall Dennehey celebrated 60 years in business by providing thousand dollar grants to 60 different charities in the local communities in which we do business. This benefited literacy programs, humane societies, homeless shelters, food banks, libraries, legal aid clinics, substance abuse programs, disease treatment centers, and a host of other worthy causes.

It was a rewarding experience that left us mindful of the significant need all around us.

Folks, it has been quite a year. One marked by adversity but filled with hope, resilience, and the thrill that comes from solving complex problems together. Whether you are a client or an employee, thank you for your contribution to these efforts and for making Marshall Dennehey the extraordinary firm that it is.

On behalf of the Executive Committee, we wish you and your families the very best of holidays and a new year filled with success, happiness, and good health.

Firm Highlights

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. 

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

News

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.

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.

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies.