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Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 27, No. 3, June 2021

June 1, 2021

by Craig S. Hudson

In the previous Defense Digest, you were provided with a link to a well-deserved and moving video tribute to Chris Dougherty, my predecessor as director of the Professional Liability Department and a member of the Executive Committee, who stepped down from both positions at the end of 2020. If you have not yet watched the video, I urge you to do so. I can envision no greater honor and privilege than to succeed my friend, Chris, as the director of the Professional Liability Department.

Settling into this new position has caused me to reflect on my 28 years at Marshall Dennehey. In 1993, I was a senior associate at the Liebert Short law firm. I was invited to join a group of the partners that had decided to join Marshall Dennehey. I was considering my options when Bob Coleman, who “ran” Marshall Dennehey at the time, called and asked me to meet with him. I did, and we spent an hour together. During our conversation, Bob told me of his vision for Marshall Dennehey’s future. When he was done, I knew that Marshall Dennehey was the firm for me. I said, “Yes.” To this day, I consider my decision to join the firm to be one of my best.

When I first started at Marshall Dennehey, I was part of the Casualty Department. Over the ensuing years, I was fortunate to work with and learn from some very fine attorneys, including Harry Short, Eric Weiss, Keith Heinold and Tom Brophy. I handled a mix of cases, ranging from motor vehicle product liability cases to defending Sesame Place (always an advantage to be representing Big Bird).

A couple of years into my time at Marshall Dennehey, Bob Coleman again called and asked that I come to his office. As I walked down the hall to meet him, I had more than a little bit of trepidation. Bob told me that he recalled from our initial meeting that I had told him that one day I would like to get involved in firm management and not just handle cases. Bob said he wanted to give me a chance to see if this was really something I wanted and could do. He asked if I would like to oversee the summer law clerk program. I followed my father’s advice to never turn down opportunities presented to you by your boss (and believe me, Bob was the boss). A couple of years later, I was asked to get involved in associate recruiting. Again, I said yes. I then worked closely with and later succeeded Howard Dwoskin as the firm’s attorney hiring coordinator. I have to admit I take some pride in the fact that some of the attorneys I recruited have become leaders in our firm.

A few years later, I was “recruited” to practice in the Professional Liability Department. Again, I agreed. A short while later, I started working with Phil Toran and Chris Dougherty, who was then the assistant director of the Professional Liability Department, on recruiting and hiring associates. I also was tasked with providing some oversight and direction to the department’s lawyers who practiced out of the Philadelphia office.

After several years in this role, a new opportunity arose. By then, the firm had entered the Florida market, and, by 2005, its four offices were growing. Marshall Dennehey’s base was solid, with Mark Thompson as the manager of the Orlando office, but there was a need to strengthen the firm’s additional offices in Fort Lauderdale, Jacksonville and Tampa. I just so happened to be part of a conversation among Phil Toran, Peter Miller and Tom Brophy, where it was stated that the Fort Lauderdale office might benefit from having a stronger connection to Philadelphia. Having recently returned from a business trip to our Florida offices, I somehow thought it was a good idea to suggest that I might be willing to go to Florida and take on that role. Phil, Pete and Tom were surprised and intrigued to hear that I would even consider doing so. Wisely, they suggested that I should first discuss the idea of moving to Florida with my wife, Connie. Good advice. That night I went home and told her what had transpired and what I was contemplating. Fortunately for me, Connie was supportive of the idea. And so, after 22 years of practicing in Pennsylvania and New Jersey, I took and passed another bar exam (with the same MBE score), and, in July of 2006, relocated to Fort Lauderdale where I became the managing attorney of the Fort Lauderdale office and the supervising attorney of the Florida Professional Liability attorneys.

In addition to my management duties, I also handled cases. When I first arrived in Fort Lauderdale, we had a small office. All of the attorneys had to handle a variety of cases. Over the next 13 years, I handled almost every type of professional liability case. I have represented lawyers, accountants, real estate and insurance agents, architects and engineers, debt collectors, and HOA and condominium boards. Over the last several years, I have also handled a number of employment matters. I have tried cases in state and federal courts in all four of the South Florida counties.

During the next 14 years, Marshall Dennehey emerged as one of the leading civil defense firms in Florida. Today, we have a combined 67 attorneys practicing out of our four Florida offices.

This bring us to 2020. Little did any of us envision what that year had in store for us. For me, startling and life-changing events of 2020 started a bit earlier than for many of you. You see, I turned 60 in January of 2020, and Connie planned a short vacation to celebrate. A day after my birthday, we were walking on the beach, talking about the past and future. Although we both missed certain things about Philadelphia, we liked living in Florida. I was enjoying my position as regional manager of the Florida offices, having succeeded Mark Thompson in that role following his elevation to president and CEO. I was looking forward to the upcoming years working with the attorneys in Florida as we continued to grow our presence in the state. While this may sound a bit too “new age” for me, I had reached a state of contentment. Little did we know that our world would change two days later. That was when Mark Thompson came to Fort Lauderdale for a surprise visit. Mark told me that the Executive Committee would like Connie and me to agree to return to Philadelphia so I could become the assistant director of the Professional Liability Department and eventually succeed Chris when he retired. Again, following my father’s advice, I agreed. Lucky for me, so did Connie.

Since February 2020, I have spent my time becoming re-acquainted with Philadelphia, reconnecting with long-term friends and colleagues, and getting to know the shareholders, associates, paralegals and staff who make up the Professional Liability Department. I have been busy—the department has 120 attorneys in 17 distinct practice groups covering a wide variety of specialties. This past year, I have come to appreciate, more than ever, those attorneys, paralegals and staff members—a group of talented men and women who are dedicated to providing our clients with top-notch legal representation. They care about the work they do and the services they provide.

Going forward, I pledge to continue the vision and drive for excellence first established by Phil Toran, and then honed by Chris Dougherty. Both of them set the standard for providing top-level service to our clients in a cost-effective manner. We strive to be effective advocates for our clients, while treating everyone, including opposing counsel and the judiciary, with respect. As the director of the Professional Liability Department, I bring my years of management and leadership experience and my 20+ years of legal experience gained from defending professionals and other entities in Pennsylvania and Florida.

As a member of the Executive Committee, I have the good fortune to work with my friends and colleagues, Howard Dwoskin and Mark Thompson. We share a commitment to providing clients with excellent legal representation and service, which has been, and will continue to be, the hallmark of our law firm. Doing so with a sense of humor and respect for one another is what makes Marshall Dennehey the place I am so glad I said “Yes” to 28 years ago.

Defense Digest, Vol. 27, No. 3, June 2021 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. © 2021 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

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.

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

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.