.

Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 29, No. 3, September 2023

September 1, 2023

RECOGNITION

121 Marshall Dennehey Attorneys Recognized in the 2024 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 121 attorneys who have been recognized in the 2024 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, five of the firm’s attorneys received the Best Lawyers® 2024 “Lawyer of the Year” awards in their respective practice areas and demographic regions. 

Marshall Dennehey Named a Finalist in The American Lawyer Regional Litigation Departments of the Year Awards for New Jersey and Florida
Marshall Dennehey has been named a finalist in The American Lawyer Regional Litigation Departments of the Year awards in both New Jersey and Florida. Winners will be announced at Law.com’s annual awards gala in New York, NY on November 15, 2023.

Five Marshall Dennehey Attorneys Selected to the 2023 Florida Super Lawyers List
Five attorneys from the Florida offices of Marshall Dennehey have been selected to the 2023 edition of Florida Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Marshall Dennehey Announces 2023 Pennsylvania Super Lawyers and Rising Stars
Twenty-seven attorneys across Marshall Dennehey's six Pennsylvania offices have been selected to the 2023 edition of Pennsylvania Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. 

Marshall Dennehey Announces 2023 New Jersey Super Lawyers and Rising Stars
Eight attorneys from Marshall Dennehey’s Mount Laurel and Roseland, New Jersey offices have been selected to the 2023 edition of New Jersey Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Marshall Dennehey Continues “Best Places to Work” Streak for 11th Year
For the 11th year in a row, Marshall Dennehey has been selected one of the Philadelphia region's "Best Places to Work" by the Philadelphia Business Journal. The award recognizes the company's achievements in creating a positive work environment that attracts and retains employees through a combination of benefits, working conditions and company culture.

Clients Name Marshall Dennehey to the BTI Client Service 100
Marshall Dennehey has earned a coveted spot in the BTI Client Service 100 report, as recommended by corporate counsel. The report is based on research with more than 24,000 buyers of professional services, who rank firms according to performance of 17 activities that drive superior client relationships. Among the report’s findings, Marshall Dennehey was also one of only 50 law firms named to the BTI Midsize Client Service Masters list. The survey is one of the leading measures of its kind. Rankings are purely research-driven and are not subject to law firm submissions, self-referrals, suggestions, or payments.

Bradley Blystone Recognized as Notable Managing Partner by Florida Trend's Legal Elite
Bradley P. Blystone, shareholder and managing attorney of Marshall Dennehey's Orlando, Florida office, has been selected a Notable Managing Partner by Florida Trend Legal Elite. The award recognizes attorneys who have made a measurable and specific impact not only in their legal practice but also in their community.

 

OTHER NEWS

Kimberly Kanoff Berman (Fort Lauderdale, FL) was appointed to two new positions. First, she has been appointed Vice Chair (Live Programs) of the CLE Committee, Appellate Practice Section of the Florida Bar and, second, as Secretary of the Florida Supreme Court Historical Society.

Ryan Hauck (Pittsburgh, PA) has been elected by his peers to a second term on the Council of the Allegheny County Bar Association’s Workers’ Compensation Section. The committee supports the resolution of problems that are identified within the practice of workers’ compensation via interaction with the Bureau of Workers’ Compensation and its administrative personnel.

Peggy Smith Bush (Orlando, FL) received the University of North Alabama 2023 Alumni Award for Public Service. She was honored for her strong commitment to professional and community activities that have benefited others over the course of her career.

Matthew Keris (Scranton, PA) was named the recipient of the Defense Research Institute (DRI) Foundation Community Service Award. The award honors a DRI member who has  demonstrated a commitment to the well-being of the general public by initiating or participating in programs which have a positive impact on the community. Matt has been active in the leadership of DRI and is the outgoing President of the DRI Foundation which provides support to DRI members and their communities. Proceeds raised by the Foundation go directly to funding DRI charitable initiatives including community service, member attorney support programs, disaster recovery, support for the judicial system, and diversity programming.

 

PUBLISHED ARTICLES

Samuel Cohen and Ryan Friel (both in Philadelphia, PA) authored “FINRA Proposal Creates Urgency for Brokers Seeking Expungement of Customer Complaints,” which appeared in the May 4, 2023, edition of The Legal Intelligencer.

Brad Haas’ (Pittsburgh, PA) article, “Tracking the Truth: Utilizing App Data in Personal Injury Defense,” was published in the July 6, 2023, edition of The Legal Intelligencer.

Holly Hamilton’s (Fort Lauderdale, FL) article, “Consider the Charge Before Responding to An EEOC Investigation,” was published on the PLUS Blog on June 22, 2023.

John Hare (Philadelphia, PA) and Pennsylvania Superior Court President Judge Jack Panella authored a publication entitled 125 Years of Justice, which is a history of the Superior Court that will be presented during an event commemorating the Court’s 125th anniversary. Also, John authored an article entitled “Medical Malpractice Venue Un-Reform” in the Claims Judicial and Legislative Affairs (CJLA) Quarterly Digest. John was also quoted in The Philadelphia Inquirer article, “Jury Verdicts Like the $183 Million Award Against Penn Medicine Can Be Tied Up for Years, But Usually Stand.”

William Murphy’s (Roseland, NJ) article “The Implications of Remote Work on Workers’ Compensation” was published in the June 6, 2023, edition of The New Jersey Law Journal.

Tony Natale (Philadelphia, PA) authored the article, “Why Do Claimants Lie? Because They Can and Swift Prosecution Is the Only Way to Deter It,” appearing in the June 2023 issue of CLM Magazine.

“Why Your Mental Health Matters to the Disciplinary Board,” by Josh Byrne and Alesia Sulock (Philadelphia, PA) was published in the May 16, 2023, edition of The Legal Intelligencer. On July 14, The Legal Intelligencer published “You Diligently Protect Your Clients; What About You? Part 1 (The Beginning),” also by Alesia and Josh.

David Tomeo (Roseland, NJ) authored the article, “Turnabout Is Fair Play: When an Expert Switches Sides on the Eve of Trial,” appearing in the New Jersey Law Journal’s Medical Malpractice Supplement.

Eli Hassinger (Philadelphia, PA) authored the article, “Pa. High Court Doubles Down on the Workers’ Comp Act’s Exclusivity Provision,” for Pennsylvania Law Weekly. 

 

SPEAKING ENGAGEMENTS

Mohamed Bakry and Mike Turner (both of Philadelphia, PA) presented “Know Your Worth: Promotion, Rate, and Salary” at the DRI Diversity for Success Seminar.

Jeffrey Bates (Philadelphia, PA) presented “Anatomy of a Lawsuit” at the annual meeting of the Pennsylvania Prosthodontic Association.

Michael Bradford (Tampa, FL) presented “Here Comes the Boom: Cranes and Accidents” at the recent Florida Defense Lawyers Association Conference.

Ryan Burns (Fort Lauderdale, FL) presented “Florida’s Tort Reform” to members of RIMS Broward County Chapter.

Josh Byrne (Philadelphia, PA) spoke to the Monroe County Bar Association on legal malpractice avoidance.

Samuel Cohen (Philadelphia, PA) presented “Educational and Technology Tools that May Save you in the Long Run if you are Named in an Arbitration/Lawsuit” at the Annual IBDC-RIAC Risk Management Conference in Park City, Utah.

James Cole (Philadelphia, PA), Jeffrey Rapattoni (Mount Laurel, NJ) and Christopher Woodward (Harrisburg, PA) were featured speakers at the 2023 Pennsylvania Insurance Fraud Conference. Jim and Chris presented “Untying Tangled Titles – How Property Insurance Drives Fraud,” and Jeff presented “Legal Update.”

Lee Durivage (Philadelphia, PA) co-presented “You Have Headaches? We Have Solutions” at the Public Risk Management Association Annual Conference.

Benjamin Durstein and Keri Morris-Johnston (Wilmington, DE) were featured speakers at the Workers’ Compensation Seminar 2023, co-hosted by the Delaware State Bar Association and Industrial Accident Board. Ben was a panelist for “Ethics and the Duty to the Tribunal and Opposing Counsel,” while Keri participated as part of a panel discussing “The Legal Implications of Successive Injuries.”

Scott Eberle (Pittsburgh, PA) spoke to the Westmoreland County Bar Association on legal malpractice avoidance. 

Scott Eberle (Pittsburgh, PA) and Alesia Sulock (Philadelphia, PA) presented on a panel discussion, “Avoiding Legal Malpractice,” on behalf of the Pennsylvania Bar Association and in connection with the Pennsylvania Bar Institute. The presentation was a live broadcast to several hundred attorneys across Pennsylvania.

Linda Wagner Farrell (Jacksonville, FL) was a faculty member at the Office of Judges of Compensation Claims “Work Comp Academy 2023: The Next Generation.” Linda presented on evidence and trial memorandum.

John Gonzales (Philadelphia, PA) spoke at the 110th Annual Pennsylvania Chiefs of Police Association Annual Conference and Seminar. John spoke on “Recent Trends in Police Civil Rights Litigation.”

John Hare (Philadelphia, PA) presented a seminar on civil litigation developments for the Pennsylvania Coalition for Civil Justice Reform. The seminar was held at the Pennsylvania Manufacturers Association facility in Harrisburg and was attended by representatives from more than forty insurance carriers and corporations. John also presented the “Pennsylvania Supreme Court Update” at the annual Appellate Update CLE course for the Pennsylvania Bar Association.

Matthew Keris (Scranton, PA) and fellow panelists discussed the criminalization of health care errors at the Medical Professional Liability Association annual conference. Matt was also a panelist at the fourth annual American Legal Connections Healthcare Symposium in Atlanta, Georgia. Matt joined a distinguished panel of speakers to discuss “Criminal Prosecutions: Dobbs and the Future of Care.”

Mark Kozlowski (Scranton, PA) presented “FLSA – Wage and Labor Laws” for NEPA SHRM (Northeast Pennsylvania Chapter of Society of Human Resource Management). This was the second presentation in a four-part HR 101 series Mark is participating in for NEPA SHRM.

Estelle McGrath (Pittsburgh, PA) presented a webinar, “How to Avoid Mistakes with Mismanagement of Life & Health Claims,” with members of NAPA (National Association of Professional Agents).

Missy Minehan (Harrisburg, PA) presented “Trends, Tips & Tricks in the Defense of Long-Term Care Facilities” at the Pennsylvania Association for Health Care Risk Management conference.

A.C. Nash (Fort Lauderdale, FL) was in New York City to present “Civil Rights for Uncivil Times” at the International Association of Claims Professionals’ 2023 Conference. 

Jeffrey Rapattoni (Mount Laurel, NJ) presented “Top 10 Cases Impacting Fraud Fighting & the SIU” at the IASIU New England Chapter’s Annual Seminar.

Courtney Schulnick (Philadelphia, PA) was part of a panel for the Philadelphia Law Department’s annual CLE program held at the Pennsylvania Convention Center. During this two-hour CLE, Courtney was joined by Alison Lintal, Esq., visiting Assistant Professor of Law and Director of the Externship Program at Penn State University Dickinson Law School and Dena Lefkowitz, Esq., author, business and career coach for lawyers. The panel discussed Emotional Intelligence (EI) and how it can help attorneys to handle interpersonal relations judiciously and empathetically. Courtney focused on mindfulness practices that can help us step out of reactivity and choose how to most skillfully respond, whether it’s trying a case in court, dealing with a difficult adversary, serving the needs of our clients, working together with colleagues, or caring for a loved one.

Jack Slimm (Mount Laurel, NJ) spoke at the Camden County Bar Association webinar “Mediation Process & Techniques in Civil & Chancery Disputes: Producing the Best Results for Your Client.” 

Sunny Sparano (Roseland, NJ) spoke at the New Jersey Institute for Continuing Legal Education 2023 Construction Law Forum. The title of her session was “Coordinating the Design Defense.” 

Frank Wickersham (King of Prussia, PA) presented “One Less Zombie in the Workers’ Compensation Apocalypse” at the CLM 2023 Workers Compensation, Casualty & Risk Management Conference.

Heather Byrer Carbone (Jacksonville, FL) was a featured speaker at the 77th Annual Workers’ Compensation Institute Educational Conference & 34th Safety & Health Conference on August 22 in Orlando. Heather joined a panel that presented “Hot Topics for Attorneys,” which delved into the most important and controversial case law decided by the Florida appellate courts and the most relevant amendments to the law enacted by the Florida Legislature.

Jeremy Zacharias (Mount Laurel, NJ) presented “Commercial Real Estate Transactions: From Handshake to Closing” at the NJICLE seminar.

Kimberly Berman (Fort Lauderdale, FL) was a panelist on The Florida Bar Appellate Practice Section’s Audio Webcast, “A Not-So-”Little” Problem With Precedent: Intra-District Conflicts in Florida’s District Court of Appeals.” The webcast explored the question of what happens when two panels of the same appellate court disagree—which opinion controls future disputes? Kimberly and her co-presenters discussed the historical jurisprudence underpinning the debate, and gave advice for lawyers who confront intra-district conflicts in their own cases. More than 100 judges and appellate law practitioners attended the program.

Andrea Rock (Philadelphia, PA) presented a webinar as part of the Philadelphia Bar Association Workers’ Comp Compliance Crusher 2023: Update on Important Issues in Workers' Compensation Practice. In “Navigating the Medicare Maze,” Andrea and plaintiff’s counsel co-panelist discussed the basics of Medicare, including including who exactly is a Medicare Beneficiary and the reasonable expectation of Medicare enrollment. They highlighted how knowing the Medicare laws, the intricacies of Medicare Set-aside allocations, the effect of conditional payments, and the impact Medicare can have on settlement, are all imperative in the representation of clients.

 

Defense Digest, Vol. 29, No. 3, September 2023, 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. © 2023 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.

Firm Highlights

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. 

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

News

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

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. 

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.

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.

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.

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