Thought Leadership

CASUALTY DEPARTMENT

Andrew Campbell (Philadelphia, PA) obtained a defense award in favor of our client, a prominent road and bridge constructor, at arbitration in Philadelphia. The plaintiff alleged a trip and fall in our client’s construction zone, with knee and back injuries. Andrew argued that the plaintiff failed to prove any actionable defect, that the condition was open and obvious, and that the plaintiff’s own negligence was the proximate cause of the fall.

Ana McCann (Wilmington, DE) was granted summary judgment on behalf of a national truck manufacturer in an asbestos case where the plaintiff claimed his mesothelioma diagnosis was the result of his work on his employer’s trucks. The plaintiff had worked and resided the majority of his life in Mississippi; therefore, Mississippi law was applicable. In granting summary judgment, the court found that any alleged exposure to the manufacturer’s trucks was de minimis in relation to his other alleged asbestos exposures. The court also found that under the “bare metal” defense, our client was not liable for third-party manufacturers’ parts used in conjunction with their trucks, which our client did not manufacture or supply. The plaintiff had issued a six-figure demand in the matter.

Blake Wills (New York, NY) obtained dismissal and proved a fraudulent claim was made against our insurance carrier client in a New York No-Fault/PIP Action. Blake argued the medical provider’s assignor was involved in a staged loss/fraudulent accident in order to obtain No-Fault/PIP benefits. In support of the defense, an SIU affidavit and the transcript of an Examination Under Oath (EUO) from the assignor (conducted by Marshall Dennehey) were submitted, which included facts that casted doubt on the legitimacy of the accident. These contained details such as the lack of an official police report, the insurance policy having been suspiciously purchased right before the accident, the later cancellation of the policy, and the inability of the assignor to remember key details of the accident at the EUO. After a successful argument at the arbitration, the arbitrator ruled in favor of our client, dismissing the claims. 

Matthew Gray (Melville, NY) obtained full dismissal in a medical billing claim against our insurance carrier client in a New York No-Fault/PIP Action. The plaintiff, a major medical provider, filed suit seeking the total amount of $22,610.79, claiming our client owed it for the claimant’s unpaid medical billing. The claimant had been involved in a motor vehicle accident and sought payment for medical treatment. Counsel for the medical provider argued that, since the billing was never paid by the insurer, it was due in full—despite the fact that the same matter had previously been fully exhausted and denied on the same or similar grounds. While there were evidentiary issues in our client’s case, our position was strong. After negotiations/arguments, and prior to the necessity of motion practice/trial on the issues in the matter, plaintiff’s counsel acquiesced to a full discontinuance and dismissal of the matter. Thereby, our client was absolved from any fiscal liability in this action.

Taniesha Salmons and Bradley Remick (both of Philadelphia, PA) obtained summary judgment on behalf of a homeowner in a 10-plaintiff negligence action arising from a house fire. In granting summary judgment, the Philadelphia Court of Common Pleas agreed that the plaintiffs’ failure to secure a cause-and-origin expert was fatal to their case as the fire was alleged to be electrical in nature and, thus, outside the purview of the average juror. 

Ralph Bocchino and Evan Saltzman (both of Philadelphia, PA) successfully obtained dismissal of their client in a death-from-food-poisoning and hepatitis A case. The plaintiff, executrix of the deceased’s estate, alleged that the decedent passed away due to an outbreak of hepatitis A in southeast Pennsylvania, which was widely covered by the news at the time. The plaintiff, who claimed that the decedent passed away after eating at a pizzeria/restaurant, was seeking several million dollars from every food provider that served the restaurant, including our client. Fortunately, the plaintiff stipulated to our dismissal.

Timothy Hartigan (King of Prussia, PA) had a case dismissed on jurisdictional grounds. The plaintiff, a Philadelphia resident, was struck by a tractor trailer operated by our client, a Richmond, Virginia-based moving company that has never delivered to or picked up a delivery in Pennsylvania. The driver was also a Richmond, Virginia, resident, and the accident happened just outside of Richmond. We filed a motion to dismiss for lack of personal jurisdiction, which the Philadelphia Court of Common Pleas ultimately granted. The plaintiff had filed in Philadelphia CCP about a month before the statute of limitations ran, and we filed our objections promptly after the file assignment, about two weeks before the statute of limitations. The court’s decision came about three days after the statute of limitations, and the plaintiff filed a motion for reconsideration, which the court denied. Virginia has the same two-year statute of limitations as Pennsylvania. 

 

HEALTH CARE DEPARTMENT

Robert Aldrich (Scranton, PA) obtained a defense verdict on behalf of an anesthesiologist after a medical malpractice jury trial in Lehigh County, Pennsylvania. The plaintiff, who underwent an elective right-shoulder surgery, alleged that the anesthesiologist and the certified registered nurse anesthetist who performed his laryngoscopy intubated him too soon, and under suboptimal paralytic conditions, leading to permanent throat damage. After a five-day trial, the jury returned a defense verdict within 15 minutes.

Joseph Hoynoski (King of Prussia, PA) received a defense verdict at the Montgomery County Arbitration Center where the three-attorney panel found in favor of our clients, a pediatric primary care office and a pediatric nurse. The plaintiff claimed her median nerve was injured by a venipuncture procedure performed by the nurse. The case was originally filed in the Court of Common Pleas; however, after discovery revealed a weak damages claim—we found many TikTok videos helpful to our defense—it was dropped to the arbitration level.

Brett Shear (Pittsburgh, PA) received a defense verdict for his client, a general surgeon, who performed carpal tunnel surgery on the plaintiff’s left hand. Following surgery, the plaintiff continued to complain of tingling, numbness, and weakness in his hand. He went on to have two additional surgeries, performed by two different surgeons. During the third surgery, the surgeon found a median nerve injury. The plaintiff claimed that this nerve injury was caused by the defendant cutting the median nerve during his initial operation, and that the injury resulted in permanent dysfunction such that he would no longer be able to work or use his hand normally. At trial, the defendant demonstrated how he performs carpal tunnel surgery and protects the median nerve, making it nearly impossible to cut or injure the nerve. We contended that the median nerve injury must have happened later, likely during the second surgery. The jury rendered a defense verdict in favor of our client.

Missy Minehan (Harrisburg, PA) obtained a defense award on behalf of a skilled nursing facility in a hotly contested “wound” case after a two-day arbitration. The 93-year-old plaintiff had been a resident at the nursing facility for over three years without having suffered any pressure injuries, despite a plethora of risk factors. In August 2019, she was transferred emergently to an acute care hospital where she was diagnosed with a myocardial infarction (MI) and cardiogenic shock. The hospital administered five days of a vasopressor, a life-saving medication that can increase the risk of pressure injuries, and recommended that she consult with palliative medicine due to her poor condition and prognosis. The family declined palliative medicine. Within several weeks of her return to our client’s facility, she was found to have a Stage III left heel wound and a Stage II left buttocks wound. The wounds were treated and resolved within four and five months, respectively. The plaintiff did not suffer any additional pressure injuries until she was re-admitted to the acute care hospital in January of 2025. At 99 years of age, she still resides at the facility.

Adam Fulginiti (Philadelphia, PA) received a defense verdict in a nursing home malpractice matter involving the development and progression of pressure injuries the decedent experienced during her time in our client’s facility. As a result of these injuries, the plaintiff claimed damages, including but not limited to pain, suffering, and death. Adam cited the resident’s significant comorbidities and the noncompliance with pressure-reduction measures and nutritional support. Adam also cited documentation of the wound consultant, and he overcame potential liabilities, including several wounds that developed in-house, and documentation deficiencies.

PROFESSIONAL LIABILITY DEPARTMENT

Josh J.T. Byrne (Philadelphia, PA) received a unanimous decision from the Supreme Court of Pennsylvania which both limits the use of offensive collateral estoppel in disciplinary matters and establishes that the standard of proof for disciplinary matters in Pennsylvania is clear and convincing evidence. The Office of Disciplinary Counsel had sought to utilize non-mutual offensive collateral estoppel to preclude the respondent from disputing fact determinations by a bankruptcy judge when she sanctioned the respondent and his client. The Supreme Court determined that the burden of proof for the judge in issuing sanctions was something less than clear and convincing evidence and, therefore, collateral estoppel did not apply. In making its decision, the Supreme Court noted that the previously expressed standard of “preponderance of clear and satisfactory evidence” was confusing and archaic but is the functional equivalent of “clear and convincing.” A short concurrence by Justice Wecht leaves no doubt that going forward, the standard to be applied is “clear and convincing.”

Jacob Schultz and Josh J.T. Byrne (both of Philadelphia, PA) obtained an order on a motion to dismiss the plaintiff’s claims in a civil rights action brought against their attorney client in the Middle District of Pennsylvania. The plaintiff brought claims for Deprivation of Rights (42 U.S.C. § 1983), Conspiracy Against Rights (42 U.S.C. § 1985), and Civil Conspiracy. We filed a motion to dismiss pursuant to F.R.C.P. 12(b)(6), arguing that the plaintiff failed to state a claim upon which relief could be granted. The magistrate judge agreed, issuing a report and recommendation for the claims to be dismissed, which the district judge then adopted as the court’s decision. No timely appeal has been taken.

In a complex construction defect matter, Gregory Kelley (King of Prussia, PA) successfully defended an architect against a $7 million claim brought by a general contractor in connection with the renovation of a historic, city-block-sized building in Philadelphia. The contractor alleged design errors and sought additional damages under the Contractor and Subcontractor Payment Act, inflating its claim to $16 million. Through strategic early settlements, we eliminated a key subcontractor’s claims, weakening the contractor’s case. During contentious discovery, we exposed contradictions and falsehoods in the contractor’s testimony, leading to a partial summary judgment that dismissed the bulk of claims against our client. Facing a looming trial and a remaining $4 million claim, we worked with the building owner’s counsel to convince the settlement judge of the claim’s lack of merit. The plaintiff filed for bankruptcy, and the final settlement had to be approved in the Bankruptcy Court. The case settled for just $362,500, with our client paying only $181,250—an outstanding result in a high-stakes dispute.

Ray Freudiger (Cincinnati, OH) won summary judgment on behalf of a company that provided software for the overall design of roof trusses and sold truss connect plate hangers to one of the plaintiffs in this design defect case. The plaintiff owned the apartment complex being built and hired the co-defendant to construct the building. A national lumber company was subcontracted by the builder to build and install the roof trusses. The lumber company contracted with our client to use its software for the design of the roof trusses and to provide truss connect plate hangers. The building experienced severe water damage allegedly because the roof trusses were not sloped properly and the HVAC units were misplaced on the roof. Damages were estimated at over $1.2 million. The lumber company demanded that our client defend and indemnity it against the builder’s allegations. The court granted our motion for summary judgment.

Ray Freudiger and Morgan Henderson (both of Cincinnati, OH) won dismissal of two separate charges filed by the Ohio Civil Rights Commission (OCRC) against a public housing authority (PHA). In the first case, a tenant claimed the PHA discriminated against him based upon race, disability, sex, and sexual orientation or engaged in retaliation. He also claimed the PHA denied him a reasonable accommodation in violation of Ohio Revised Code 4112 and the Federal Housing Administration. The OCRC determined there was no discrimination and dismissed the charge against the housing authority. In the second case, the tenant claimed that in refusing to extend his housing voucher, the PHA failed to provide him a reasonable accommodation based on disability; thus preventing him from securing a home through the Housing Voucher Program. Ray and Morgan responded that the tenant was responsible for his own failure to succeed in the homeownership program because he did not submit complete documentation. Further, the PHA allowed the tenant at least nine extensions, but he failed to engage the homeownership program. The OCRC found no probable cause of discrimination and dismissed the charge. 

Eduardo Ascolese (Mount Laurel, NJ) won a motion dismissing all claims with prejudice against our clients in a case involving a major remediation project for environmental violations. We filed a motion for summary judgment to dismiss the plaintiff’s complaint based on its failure to provide an affidavit of merit within the prescribed time and because the agreed-upon liability waiver clause precludes litigation against the individual defendants. The plaintiff attempted to pursue litigation against our client’s individual employees in contradiction to the agreed upon exculpatory waiver clause in the agreement. We argued that public policy recognizes limitation of liability clauses when they are reasonable and when they incentivize the licensed professional to perform. The plaintiff was not without redress as it could pursue litigation against the employer, had equal bargaining power, and had entered into an arms-length transaction. Further, we argued that the affidavit of merit statute’s text and legislative purposes require the affidavit to be served within 60 days (extendable for good cause to 120 days) from the date when the licensed professional files its answer, regardless of whether the pleadings are subsequently amended to name other defendants or assert additional claims. Under New Jersey law, the plaintiff’s failure to provide an affidavit of merit confirmed that their claims must be dismissed with prejudice. The court agreed that: (1) the agreed-upon exculpatory waiver clause was reasonable and not against public policy; and (2) the plaintiff’s failure to provide an affidavit of merit was fatal. The court dismissed all claims as to our client and their individual employees with prejudice.

Alesia Sulock (Philadelphia, PA) won a defense verdict in a legal malpractice case arising from an underlying civil rights claim. The plaintiff was arrested in August 2015 following a physical altercation with her daughter and her daughter’s friends. The plaintiff alleged that, while she was being searched at the police detention unit, a city employee struck her, causing her to fall into a “split” and suffer a hamstring avulsion. The defendant attorneys represented the plaintiff in a lawsuit against the city. The underlying case was filed as an arbitration-level matter, and the plaintiff lost at arbitration. She was never able, during the underlying case, to identify the employee who allegedly assaulted her. She did not respond to communications from the defendant attorneys regarding the arbitration award and the appellate deadline; thus, no appeal was filed. This legal malpractice matter followed. During trial, we presented evidence that the plaintiff could not have won the underlying case within the case because she lacked corroborating evidence of the alleged assault and the only medical expert testimony opined that she was more likely to have suffered the injury during the fight with her daughter than in the manner of assault described by the plaintiff. We also presented evidence that the plaintiff could not prove damages arising from the alleged injury. The court agreed and entered a defense verdict following a bench trial. 

Jeremy Zacharias (Mount Laurel, NJ) successfully secured the dismissal of a counterclaim alleging legal malpractice and ethics violations against his client, a New Jersey matrimonial law firm. The counterclaim accused the firm of violating multiple court orders, committing professional malpractice, and breaching fiduciary duty in connection with a divorce case that ultimately led to the spouses reconciling and voluntarily dismissing their divorce complaint. Jeremy argued that the malpractice claim was merely a pretext to avoid paying the nearly six-figure attorney’s fee owed to the firm, which had been the subject of a fee complaint filed against the couple.

Following pre-trial motions, Jack Slimm (Mount Laurel, NJ) obtained an order from the trial court barring the plaintiff’s engineering expert’s opinions as net and inadmissible in a multi-party action in which Jack represented a national management company. Once the court granted Jack’s motion to strike the net opinions, the court then entered an order of dismissal in favor of our client.

Matthew Behr (Mount Laurel, NJ) successfully obtained summary judgment for a county in a lawsuit alleging disability discrimination and failure to accommodate under the New Jersey Law Against Discrimination. The plaintiff, a former custodian, used a cane while performing his job duties. After being sent for a fitness-for-duty examination, a medical professional determined he was not fit for duty, leading to his termination. The court ruled in favor of the county, granting summary judgment on all claims and dismissing the case with prejudice.

Sharon O’Donnell (Harrisburg, PA) achieved summary judgment on behalf of an art store chain in a racial discrimination suit over a caricature drawing of a Black woman and her infant son. She, her father, and her father’s girlfriend, all visitors to an amusement park, sued the owner of the kiosk for race discrimination, retaliation, and interference under 42 U.S.C. Section 1981, alleging that they were drawn with exaggerated and offensive features rooted in harmful racial stereotypes. They also alleged they were kicked out of the amusement park. The kiosk owner argued that while the caricatures might have been poorly drawn, they were not drawn in any manner intended to be offensive, and while they were happy to see the angry father leave their kiosk, the family was not kicked out of the park. The court determined on summary judgment that no reasonable jury could find in favor of the plaintiffs on all three claims and dismissed the action. 

WORKERS’ COMPENSATION DEPARTMENT

Michael Duffy (King of Prussia, PA) received a decision granting his review and termination petitions and denying the claimant’s review petition. The claimant fell approximately 20 feet from a ladder while climbing off a roof. He landed on his feet and sustained bilateral calcaneal fractures. The employer issued a Notice of Compensation Payable, accepting bilateral ankle fractures. In his termination petition, Mike alleged a full recovery, and in his review petition, he sought to amend the description of injury to bilateral calcaneal fractures instead of bilateral ankle fractures. The claimant, too, filed a review petition to amend the description of injury to include traumatic neuropathic pain secondary to bilateral calcaneal fractures, lumbar spine strain, lumbar spine disc injury, and bilateral lumbar radiculopathy. The workers’ compensation judge found our defense expert more credible than the claimant’s expert. 

Benjamin Durstein (Wilmington, DE) successfully persuaded the Industrial Accident Board to deny the claimant’s assertion of a 40% permanent impairment to her left arm due to complex regional pain syndrome. The claimant’s expert based this assessment on the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment. However, the Board favored the testimony of the employer’s medical expert, who referenced the 6th Edition of the AMA Guides. As a result, the Board determined that the appropriate impairment rating was 13% for the left upper extremity.

Michael McMaster (Philadelphia, PA) successfully had a petition for workers’ compensation benefits denied. The claimant was at work installing a large garage door when the door fell and struck his leg, later requiring an amputation. The claimant alleged both physical injury and severe psychological injuries. The claimant was the 100% owner of the company, and when he purchased workers’ compensation insurance, he signed an acknowledgement that, as the owner, he would not be considered an “employee” under the Act. At the first hearing, Mike moved to bifurcate the matter for a decision on whether the claimant was covered under the Act. The workers’ compensation judge granted this motion. At the next hearing, Mike argued that the claimant was not an employee under the Act and, therefore, not entitled to receive any benefits. Mike submitted both the original application for insurance, where the claimant signed the acknowledgement, and a copy of the policy that was effective at the time of the injury, which included a form stating that the claimant had previously agreed to not be considered an employee. With that evidence being admitted, claimant’s counsel had no rebuttal, and the workers’ compensation judge dismissed the petition.

Anthony Natale (King of Prussia, PA) successfully prosecuted a third level appeal on behalf of a New Jersey branch of a national assurance company regarding Medicare conditional payments after an auto accident injury. This appeal centered on the federal government’s contractor who continually denied the company’s initial level appeals to limit conditional payment recoupment based on policy exhaustion. The court found the evidence submitted supported the auto policy at issue, the payments made on the basis of the policy and exhaustion of the policy after paying numerous medical bills. The government sought additional conditional payments over and above the policy exhaustion amount (some of these payments were not even related to the underlying accident). After oral argument, the court found no additional conditional payments were due and granted the company’s third level appeal. 

Anthony Natale (King of Prussia, PA) successfully defended a national interstate trucking company before the Workers’ Compensation Appeal Board. The claimant originally sustained a head injury with post-concussive syndrome during a collision brought on by an epileptic seizure. The claimant was disqualified from ever returning to work as a truck driver based on his non-work-related epilepsy condition. He continued to allege symptoms of post-concussive syndrome and maintained his right to continue to collect workers’ compensation benefits. In the underlying action, Tony presented evidence (including the claimant’s own treating neuropsychologist) which the court found to prove full recovery from all injuries. The claimant appealed to the Board, alleging the workers’ compensation judge disregarded substantial evidence in support of ongoing disability. Tony made a two-pronged argument, citing to the fact that the claimant’s appeal did not conform to statutory requirements and that the evidence record demonstrated the claimant’s work injury resolved and the driving force behind the appeal was to keep the claimant collecting benefits since he could not work due to a non-work-related condition. The Board affirmed the underlying court, and all benefits remained terminated.

Michele Punturi (Philadelphia, PA) successfully prosecuted a modification petition, establishing a significant reduction in dependent benefits. The claimant’s daughter was over 18 and was not enrolled as a full-time student in any accredited educational institution, pursuant to § 307 of the Pennsylvania Workers’ Compensation Act. Based upon documentary evidence and a sound legal argument, the judge granted the decrease in weekly benefits and awarded a 100% credit against future benefits for the employer to recoup the overpayment that occurred beginning in 2023.

A. Judd Woytek (King of Prussia, PA) successfully defended against the claimant’s review/reinstatement petition. The workers’ compensation judge favored the testimony of our medical expert, who concluded the claimant had fully recovered from the accepted low back strain and right shoulder strain and that the shoulder surgery was unrelated to the work injury. Additionally, the judge found the claimant’s testimony inconsistent and not credible, leading to the approval of our termination petition.

Francis Wickersham (King of Prussia, PA) received a decision dismissing claim petitions for two separate injuries. The claimant worked as a delivery driver for the employer and allegedly suffered a concussion and injuries to his right shoulder on October 31, 2021, and November 2, 2022, from tripping and falling at locations where he had been making deliveries. The employer accepted his November 2, 2022, work injury, but only as to his left elbow. The claimant returned to his regular work after the November 2 injury and continued working until January 2023, when he took a severance from the employer. He then filed claim petitions for the two injuries. During litigation, Frank forced the claimant’s expert orthopedic surgeon and neurologist to admit that no concussion or right shoulder injuries were suffered in either incident by confronting them with emergency room records, which showed that no such injuries had been reported by the claimant. Based on these experts’ admissions, the workers’ compensation judge found their testimonies to be not credible and dismissed the claim petitions. The judge also granted the employer’s termination petition as to the November 2, 2022, injury. 

*Results do not guarantee a similar result. 

_{Defense Digest, Vol. 31, No. 2, June 2025, is prepared by Marshall Dennehey 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. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}