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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

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.

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. 

News

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

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

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

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.

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.