.

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

Court Allows Recklessness and Punitive Damages Claims to Proceed After Work‑Zone Crash

In a case where a defendant filed preliminary objections against allegations of recklessness and punitive damages, the Susquehanna County Court of Common Pleas denied these preliminary objections. This case stems from a motor vehicle accident, where the defendants car struck the plaintiffs car after the defendant allegedly fell asleep at the wheel, going at a high rate of speed, through a construction work zone. Defendant first objected to the general allegations throughout the plaintiff’s complaint pertaining to “reckless” conduct contending that there were insufficient factual allegations to support the claim of reckless conduct. Defendant next objected to the plaintiffs claim for punitive damages, as punitive damages may only be assessed against a motorist for falling asleep while driving if there is further evidence to prove driver was aware of their drowsiness and risk of falling asleep. Lastly, defendant objected to plaintiffs complaint, claiming it lacked specificity. The court here found that the plaintiff had included in the complaint specific allegations related to the defendant’s alleged recklessness, including allegations regarding speeding in a work zone, almost striking the flagger, falling asleep at the wheel, and striking the plaintiffs vehicle which was stopped. Additionally, the court noted that falling asleep does not come without warning. The court found that these allegations were sufficient to support an allegation of recklessness at the pleadings stage.

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. 

Thought Leadership

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.

Thought Leadership

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.