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Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 28, No. 1, April 2022

April 1, 2022

by Craig S. Hudson

Over this past year, much has been written and said about what employees of today want from their employer, regardless of the industry. While every so-called expert and pundit has their own perspective, a few consistent themes emerge. Employees want their employer to be invested in their professional and personal development. Employees want constant feedback, affirmation and direction. Employees want to be treated with respect and dignity. Employees want their workplace to have a sense of community and to believe they are a part of a team.

To Marshall Dennehey, the aspirations of today’s employees are nothing new. What today’s employees are purportedly looking for in their workplace environment has always been found at Marshall Dennehey. A staple of our culture has been to treat each and every employee, regardless of their position, with respect and dignity. We have long believed in creating a positive workplace environment that fosters a sense of community and teamwork. We have a tradition of making and keeping our commitment to every employee’s professional development. Our culture is why so many of our professional and non-professional staff spend their entire working life at Marshall Dennehey. It is why we have a number of shareholders who have spent their entire careers at Marshall Dennehey. It is why, when lateral attorneys join us, they lament that they failed to make the jump sooner. It is why many of our administrative directors and managers, who started at an entry level position, now find themselves responsible for numerous employees and key operational functions. 

Our desire is to attract employees who we believe will thrive at Marshall Dennehey. Our process is to involve a number of employees in recruitment and interviewing to bring different perspectives and life experiences to the table. This ensures that we embrace each potential employee’s differences. The paramount reason for doing so is to identify potential employees who will be successful regardless of their background. We look for individuals who have the potential to be long-term employees and who are themselves sincerely looking for such an opportunity. 

Our commitment to the long-term success of our employees is evident immediately after a person is hired and begins working at Marshall Dennehey. Long before “on-boarding” became a catch phrase, we expended a great deal of time, energy and expense in the training of new employees. Every new employee goes through our on-board program. The initial training includes sessions by our administrative departments on our structure, systems and best practices. The training also includes presentations on our history and culture. Additionally, the on-boarding process provides every new employee the opportunity to establish a rapport with other employees at Marshall Dennehey to facilitate teamwork. 

For attorneys, the on-boarding process does not end with their initial training session. Twice a year, we hold a “New Attorney” orientation, where we bring every newly-hired attorney, regardless of their experience, back to Philadelphia for a two-day meeting and dinner. At this two-day session, hosted by Larry Schempp, our Director of Professional Development and Training, recently hired attorneys meet the members of the Executive Committee, the practice group directors, our CFO, COO and other administrative directors. There are workshops and training sessions that are incorporated to enhance their professional development, as well as sessions dedicated to explaining Marshall Dennehey’s structure, history, and culture. 

For our associates in Philadelphia, Larry Schempp hosts frequent in-house “Lunch and Learn” CLEs that not only provide training and professional development, but they also create an opportunity for the associates, regardless of their practice group, to get to know one another and to establish relationships that serve them well during their careers. For the associates in our offices outside of Philadelphia, we hold similar training sessions. In addition, we hold annual two-day conferences that bring associates from several of our offices together. The program, designed by Larry, includes presentations from shareholders, administrative directors, and at least one member of the Executive Committee, all geared to enhance their professional development and success at Marshall Dennehey. 

Every associate is assigned to one of our four Practice Departments, and they are then assigned to work in smaller practice groups within their department. Every new associate is assigned a supervising attorney. Assigning a new associate to work with a limited number of attorneys allows each associate the opportunity to specialize in a particular area and to receive one-on-one training from a more seasoned lawyer. Supervising attorneys are charged with finding opportunities for the associates to interact with claims professionals, clients, opposing counsel, judges, and, when appropriate, to handle depositions and arguments on motions. We want our associates out front, and working with senior attorneys—not confined to working behind the scenes. We believe this is how you effectively train associates. In granting these opportunities, the associate becomes part of the team, and their hard work and accomplishments are recognized. Supervising attorneys and other senior lawyers are encouraged to provide constant feedback and mentoring to the associates in their group. 

Relatedly, every associate has formal mid-year and end-of-year review meetings with their supervising attorney. This lets the associate know what they are doing right and identifies areas that need improvement. During their review, the associate is encouraged to identify their accomplishments, raise any concerns they may have and specify how the firm can assist them in their professional development.

Mentoring of associates at Marshall Dennehey has always played a key role in the development and retention of lawyers. I know that every shareholder at Marshall Dennehey recognizes that they had mentors who were instrumental in their success. Consequently, our more experienced attorneys embrace being a mentor themselves. While we have always encouraged and stressed the importance of mentorship to the success and retention of associates, our Executive Advisory Committee and our Diversity, Equity and Inclusion Committee are both actively engaged in working with our Executive Committee to identify opportunities to further enhance the mentoring process. 

Perhaps nothing demonstrates our desire to create a workplace environment that is collaborative and provides opportunities for success better than having a compensation system for attorneys that is not origination-based. This has always been the foundation of our compensation system. Every attorney’s year-over-year compensation is based on their overall contribution to the firm, not just the hours they have billed or the work they have generated. In determining each attorney’s compensation, a number of factors are considered, including how an attorney treats staff members and other attorneys, and whether they are a team player, willing to assist others. Our system encourages our associates to help one another. Because our compensation system is not origination-based, our lawyers are more apt and, in fact, are encouraged to share opportunities with each other. The lack of an origination-based compensation system is also why our senior attorneys are so receptive to having associates communicate and work directly with clients and claims professionals. A non-origination-based compensation system also serves our desire to become a more diverse and inclusive workforce. 

When I interview associates from other firms, I am surprised to hear that at some firms, associates are not permitted to communicate directly with the client or claims professional. Apparently, this grows out of some concern that the associate may establish a relationship with the client or claims professional and someday take the client away from the partner. Such a concern does not exist at Marshall Dennehey. We want our associates to have direct communications with claims professionals and clients. In doing so, we make associates part of the team and invest them in serving our clients’ best interests. 

Another part of our firm structure and culture that creates a sense of being part of a team is that every shareholder owns one share of stock. We don’t have equity and non-equity shareholders. And we do elevate associates to shareholder. In fact, we do it every year. Just this past year, we welcomed 17 new shareholders. Many of them have spent their entire legal careers at Marshall Dennehey. These 17 newly-elected shareholders have demonstrated that they possess the talent, drive, and dedication to be successful attorneys and, importantly, that they have the qualities that enhance our firm’s culture. 

Perhaps there is no better example of Marshall Dennehey’s sense of commitment to its professional and non-professional staff than the fact that, back in the early stages of the pandemic, when we went into a “lockdown” of unknown duration, we decided that we would not lay off any employees or cut compensation. This was done because we at Marshall Dennehey are a community that stands together. 

As a community, we emphasize that we talk to each other face-to-face and not through a computer screen or during a scheduled Zoom call. We need to confront issues together and share our insights and experiences. None of this happens if we are working from home. This is why we adopted a hybrid return-to-the-office policy that requires professional and non-professional staff to work a specified minimum number of days in the office. A majority of our professional and non-professional staff have elected to return to their pre-pandemic routine of working in the office every day. This is a testament to our positive and fulfilling working environment.

Marshall Dennehey’s desire to create a positive and enriching workplace environment is nothing new. We described our culture and our continued aspirations for that culture on our website well over a decade ago: 

•    It’s a culture that treats employees fairly and respectfully, be they shareholders, associates, administrative assistants, receptionists or file clerks. 
•    It’s a culture that recognizes and promotes diversity among its members. 
•    It's a culture in which lawyers like and trust one another and like and trust their leadership.
•    It's a culture that hires employees with the hope and expectation they will finish their careers at the firm. 
•    It's a culture that encourages and rewards loyalty, humility and teamwork. 

This statement of Marshall Dennehey’s culture remains just as accurate and important today as it did many years ago. It is a culture we are dedicated to preserving. 
 

Defense Digest, Vol. 28, No. 1, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2022 Marshall Dennehey Warner Coleman & Goggin. 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

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

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. 

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.