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Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 27, No. 4, September 2021

September 1, 2021

by G. Mark Thompson

Have you experienced a greater appreciation lately for the things you used to take for granted? I have. Downing a cup of coffee and leaving the house for work feels better than ever. I’m happy knowing we are all back in the office and spurred by how wonderful that feels. This past year helped me realize how much the people of Marshall Dennehey mean to me and how much better I am around them. I look forward each day to the boost I get from the folks I’m fortunate to work alongside.

Our sense of community, and all its positive energy, is back. Across the firm, hallways are louder as attorneys, paralegals, and support staff linger to talk, laugh and check in on one another. We have gone back to holding doors and sharing elevators. And in our kitchens, baked goods, pizza and all kinds of unhealthy treats have reappeared. It’s marvelous!

There really is an antidote for much of the frustration and fatigue we have come to experience in the past year. Just look up. Look up and take stock of all we have to be grateful for. Do that and you’ll find it impossible to be grateful and discouraged at the same time.

When I look around I smile, thinking of the 17 new attorneys we recently onboarded at Marshall Dennehey. I told them during an in-person orientation that they had chosen an exceptional firm that does exceptional things. I meant and declared it with conviction because I know it to be true. I am both grateful to say that and for the talented lawyers I was able to say it to.

Whether you are a client or an employee of Marshall Dennehey, I want you to feel good about what this firm stands for and know you are part of something special.

You enable us, when others falter, to step forward and lead. And we are grateful. It is because of you we press on, always striving to do the right thing, regardless of circumstance. And it is why, I believe, we are blessed to be an exceptional firm.

Think about this, last year Marshall Dennehey was able to accomplish what 95% of the Am Law 200 could not.

This prestigious group, among which we are proud to be ranked, represent the 200 largest, most successful law firms in the country. The best of the best. And yet last year, when faced with adversity, they flinched.

Ninety-five percent of these firms opted to lay off or cut the pay of their employees. The majority did both.

I am grateful we took a different path.

At Marshall Dennehey, we determined to take care of each other. We committed to keeping our entire 1,200-member family together, safe, fully employed and fully paid. It is a commitment from which we have never wavered. And it’s something we achieved without PPP, stimulus checks or bank loans.

We did it through hard work, shared sacrifice and a healthy dose of providence. Facing an uncertain future, our shareholders put the pursuit of good before the pursuit of profit. Everyone participating in our 401(K) plan gave up their employer match. We deferred employer-paid social security taxes and we saved on expenses. And together we did what our peers did not. We avoided layoffs, pay cuts, and the hardship those measures would have imposed on our employees and their families. We chose character over compromise. We did what was right and emerged grateful and intact from the largest threat to ever confront our 59-year-old firm.

Why do I think we’re exceptional? Why am I grateful to work at Marshall Dennehey? Because putting us ahead of me has always been part of our culture. Instilled by our founders, it’s a guiding principle that provides clarity, calmness and strength. And our resolve to follow that tenet makes all the difference.

Putting us ahead of me explains our distinct pay structure. Marshall Dennehey doesn’t compensate its lawyers based on origination. A recent ALM Intelligence survey found that 83% of law firms still do. This is a tired but pervasive practice in which the lawyer who first touched (or originated) the client receives credit, often in perpetuity, for all subsequent assignments. He or she might then share credit with the lawyer who grows the account and/or the attorney who performs most of the client’s legal work. The lawyers are then paid on the basis of these “originations.”

These systems encourage hoarding. They create incentives and shape behaviors that are me-focused and counter to most clients’ interest. Lawyers end up disregarding venue, subject matter expertise or experience, all in an effort to retain a file and preserve origination credit.

At Marshall Dennehey, we’d rather focus on client-oriented performance. Spurning origination credit allows us to easily assign the right matter to the right lawyer in the right location. Our lawyers are also able to specialize in distinct areas of law such as ride sharing, employment, insurance coverage or appellate advocacy. By contrast, where compensation is based on origination, lawyers tend to juggle multiple disciplines in an effort to keep matters under their own name.

Our unique approach puts our clients’ interest first but also fosters sharing, team work and trust among our lawyers, putting us ahead of me and strengthening the firm.

This past year, as the world staggered from order to disorder, it was putting us ahead of me that galvanized and drove our firm to recalibrate, remain ahead of the curve and continue providing clients superior legal services. I’m still in awe of what our people, working together, were able to accomplish.

The firm’s IT department scaled our remote work capacity almost overnight to serve more than 1,100 employees working from home—including nearly 500 administrative staff who had never before worked remotely. Our finance department got immediately to work bringing innovation, digitization and greater efficiency to invoicing while our lawyers learned to market, litigate and resolve cases virtually, successfully and as never before. In fact, it was Marshall Dennehey attorneys who led the way when first virtual and then socially distanced, in-person civil jury trials resumed.

Here in Philadelphia, putting us ahead of me meant a legal aid clinic, founded and continuously staffed by our firm since 2015, pushed through a pandemic and continued operating virtually with a dedicated team of volunteer attorneys spanning associates to senior management.

Putting us ahead of me accounts for why Marshall Dennehey was one of only a few firms in the country to honor its commitment to law students and run a fully intact, multi-state Summer Associate program last year, something it’s doing again this summer.

Putting us ahead of me explains why we continued to provide opportunity when other firms were laying people off, onboarding 67 new attorneys in the past year and a half.

And when asked what we were doing returning to the office while others sat at home—putting us ahead of me - became our proud reply.

It is something we did with a sense of urgency, balancing risk with obligation to our employees, our clients and our future. Working together, we brought back 20 offices across six different states safely, methodically and without any incidence of outbreak. These offices have now been up and running for months.

Which brings me back to where I started—looking up and seeing the value of community. To say it’s important is a gross understatement. To Marshall Dennehey, community is everything. It is what enlightens and protects us as an organization. It is what holds us accountable, teaches, refines, motivates and encourages us. It is in community that we are informed, that we collaborate, improve as a law firm and better serve our clients.

It’s a notion we have always grasped and one that’s catching on. It was reported earlier this month that Morgan Stanley’s CLO, Eric Gross, recently delivered a message to outside counsel, declaring the legal industry’s apprenticeship model vital to the development of young lawyers. He noted “individual lawyers learn and perform best and collectively deliver the best results when they are together -actually together.” He went on to opine that “...firms that return to the office will have a significant performance advantage over those that do not, and will see that advantage reflected in their client service and ability to deliver successful outcomes...”

We agree and have always known we’re better together.

That being said, we also see the value of flexibility and are trying to strike the right balance. Long before the pandemic, Marshall Dennehey had developed and implemented a remote work program for attorneys. Inspired by its success and our experience last year, we have now expanded the program to include paralegals and administrative staff. At present, we are operating under a hybrid model and seeking the right mix. Our attorneys and paralegals are required to come into the office at least three days a week and our administrative staff four. Everyone can otherwise work remotely. It’s a popular arrangement that emphasizes community while still affording some flexibility.

It appears to be working well.

Which can also be said of our firm.

I hope after reading this you have a better understanding of what we stand for, what makes Marshall Dennehey special and why I am so grateful to be its CEO. Our story is a powerful proof of concept: no matter what we face, we can do the right thing and still succeed.

Firm Highlights

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

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.

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.

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.