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Defense Digest

Message From the Executive Committee

Defense Digest, Vol. 27, No. 2, March 2021

March 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 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 also handled a number of employment matters. I 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. 2, March 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

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Thought Leadership

Vendor Cyber Attack Compromises PII of More Than 3 Million Hunting and Fishing License Holders in Texas

The Texas Parks & Wildlife Department (TPWD) announced earlier this month that one of its vendors which handles the sale of state hunting and fishing licenses was the victim of a cybersecurity attack. The threat actor appears to have exfiltrated personal driver’s license information, passport numbers, email addresses, phone numbers and addresses of over 3 million hunting and fishing license holders.  The State Parks Department advised that the attack did not compromise social security numbers, dates of birth or financial information. Texas Cyber Command, the state’s new cybersecurity authority formed to protect critical infrastructure and coordinate threat responses across state and local government, reportedly assisted in detecting and containing the attack. TPWD has already set up free credit monitoring for those impacted through Kroll.  According to press reports, no specific group has yet been identified as the perpetrator of the theft. TPWD also advised that business has not been interrupted and license sales were continuing. This incident once again demonstrates that cybersecurity is only as strong as the weakest link in the supply chain. Businesses must prioritize security across their own environments and those of their vendors and contractors as well.

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

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

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

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. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.