.

Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 29, No. 1, March 2023

March 1, 2023

Marshall Dennehey Announces 2023 Shareholder Class - Largest in Firm’s 60-Year History

Marshall Dennehey is pleased to announce that 20 attorneys, 12 men and eight women, have been elevated to shareholder, effective January 1, 2023. The class is the largest in the firm’s 60-year history and all but one were previously associates of the firm. These new shareholders represent the firm’s four core departments – Casualty, Professional Liability, Health Care, and Workers’ Compensation – and come from 12 of the firm’s 19 regional offices. They are:

Robert J. Aldrich, III, Health Care Department
Jillian L. Dinehart, Casualty Department
Daniel Dolente, Health Care Department
Benjamin K. Durstein, Workers’ Compensation
Adam Fogarty, Casualty Department
Melanie J. Foreman, Casualty Department
G. Michael Garcia, II, Casualty Department
Andrew C. Goldstein, Casualty Department
Brad E. Haas, Casualty Department
Kimberly House, Casualty Department
Sara W. Mazzolla, Casualty Department
Michael S. Miller, Jr., Casualty Department
Nadia E. Niazi, Casualty Department
Lauren E. Purcell, Casualty Department
Josie A. Scanlan, Casualty Department
Kelly Scifres, Workers’ Compensation Department
Mark Volpi, Casualty Department (formerly Special Counsel)
Christian A. Weimann, Casualty Department
Robert E. Williams, Casualty Department
Jeremy J. Zacharias, RPLU, Professional Liability
 

RECOGNITION

Marshall Dennehey Named Among 2022 Most Recommended Law Firms by BTI Consulting Group

BTI Consulting Group, the leading provider of strategic market research to the legal community, has recognized Marshall Dennehey as a law firm that top legal decision makers frequently recommend. In its report, BTI Most Recommended Law Firms 2022, Marshall Dennehey is among 77 firms that are frequently recommended by corporate counsel. “These firms separate themselves by exceeding client expectations, earning the coveted unprompted client recommendation,” stated the BTI report.

BTI Most Recommended Law Firms 2022 draws on data collected in BTI’s ongoing Annual Survey of General Counsel, which this year included more than 340 in-depth telephone interviews with GCs at organizations with $700 million or more in revenue.

Earlier this year, Marshall Dennehey was named to the BTI Associate Satisfaction A-Listers 2022: BTI Survey of Law Firms Where Associates are Happiest. Among the report’s findings, a large number of women associates named the firm distinguished in activities associates value most in deriving high levels of job satisfaction at law firms. For more information about both reports, please visit www.bticonsulting.com.

 

Marshall Dennehey Named a 2022 “Tipping the Scales” Firm by the Diversity & Flexibility Alliance

Marshall Dennehey has been named a 2022 “Tipping the Scales” law firm by the Diversity & Flexibility Alliance, as reported in the organization’s New Partner Report. Each year the Alliance compiles data from the nation’s largest and top-grossing law firms to examine the gender breakdown of attorneys promoted to partnership in their U.S. offices.

Marshall Dennehey is one of 57 law firms who have been recognized in the report for having 50% or more women in their 2022 new shareholder class. In announcing the report results, the Alliance stated, “By promoting equal numbers of men and women to Partner, you have signaled your commitment to gender parity and your understanding of the value that women in leadership bring to your firm and your clients.”

Earlier this year, Marshall Dennehey was named to the BTI Associate Satisfaction A-Listers 2022: BTI Survey of Law Firms Where Associates are Happiest. Among the report’s findings, a large number of women associates named the firm distinguished in activities associates value most in deriving high levels of job satisfaction at law firms.

 

Marshall Dennehey Named a 2023 “Best Law Firm” in Multiple Practice Areas By U.S. News - Best Lawyers®

Marshall Dennehey Warner Coleman & Goggin has been named a “2023 Best Law Firm” in multiple practice areas, both nationally and across numerous regions of the country, by U.S. News – Best Lawyers®. Nationally, the firm ranked in the practice areas of Admiralty & Maritime Law and Insurance Law.

The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in the field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a 2023 ranking, a law firm must have at least one lawyer recognized in the 27th Edition of The Best Lawyers in America list for that particular location and specialty.

Ranked firms, presented in three tiers, are listed on a national and regional-based scale. Firms that received a tier designation reflect the high level of respect a firm can earn among other leading lawyers and clients in the same communities and practice areas. A description of the selection methodology may be found here: https://bestlawfirms.usnews.com/methodology.aspx.

NATIONAL TIER 1

  • Admiralty & Maritime Law

NATIONAL TIER 3

  • Insurance Law

METROPOLITAN TIER 1

  • Harrisburg: Litigation – Insurance; Personal Injury Litigation – Defendants
  • Jacksonville: Construction Law; Litigation – Construction; Professional Malpractice Law - Defendants
  • New Jersey: Legal Malpractice Law – Defendants; Personal Injury Litigation – Defendants; Professional Malpractice Law – Defendants
  • New York City: Admiralty & Maritime Law
  • Philadelphia: Personal Injury Litigation - Defendants;
  • Pittsburgh: Legal Malpractice Law – Defendants; Medical Malpractice Law – Defendants; Personal Injury Litigation – Defendants; Product Liability Litigation – Defendants

METROPOLITAN TIER 2

  • Cleveland: Insurance Law; Litigation – Health Care; Medical Malpractice Law – Defendants
  • Harrisburg: Workers’ Compensation Law – Employers
  • Jacksonville: Commercial Litigation; Personal Injury Litigation – Defendants
  • Philadelphia: Civil Rights Law; Commercial Litigation
  • Pittsburgh: Workers’ Compensation Law – Employers
  • Tampa: Personal Injury Litigation – Defendants

METROPOLITAN TIER 3

  • Delaware: Product Liability Litigation – Defendants
  • Pittsburgh: Litigation – Health Care
  • Tampa: Commercial Litigation

 

SEMINARS

Robert Aldrich (Scranton, PA) presented “Hot Topics in Healthcare” at the Pennsylvania Association of Health Care Risk Management (PAHCRM) conference.

Brigid Alford (Harrisburg, PA) was the moderator and a featured speaker at the Pennsylvania Bar Institute’s “Settlement Strategies and Tips 2022” webinar. Other panelists included Chief Magistrate Judge Karoline Mehalchick from the U.S. District Court for the Middle District of Pennsylvania, and Magistrate Judge Lisa Lenihan from the U.S. District Court for the Western District of Pennsylvania. The seminar drew more than 160 attendees from throughout the state.

Kimberly Berman (Fort Lauderdale, FL) co-presented “Insurer Malpractice Claims Against Defense Counsel: Recognizing, Defending, and Preventing Potential Claims.” This webinar guided insurance defense counsel through the increasingly important topic of insurer claims against defense counsel for legal malpractice committed while defending the insured. The program reviewed common errors, whether a cause of action exists and who may assert it, how liability is established, whether and how work restrictions and counsel guidelines imposed on defense counsel affect liability, how damages are proved, and whether and how the attorney-client privilege or work product protection of the insured affects the case. Kimberly also moderated a panel titled “Brief Writing for the Third DCA” at the Florida Bar’s Appellate Practice’s Practicing Before the Florida Third District Court of Appeal 2022 CLE Seminar.

Christopher Block (Roseland, NJ) presented “Mastering the Professional Malpractice Mediation” at the Professional Liability Defense Federation’s (PLDF) annual meeting in Chicago.

Josh Byrne (Philadelphia, PA) joined a Pennsylvania Bar Institute panel presentation, “Essential Ethics 2022,” focusing on email privacy and security, ethical challenges when lawyers change jobs, and fundamentals of the Pennsylvania Disciplinary Process. Josh also participated in the Dauphin County Bar Association’s Member Benefit Compliance Session. Josh co-presented the ethics portion titled “PBA Malpractice Avoidance.”

Samuel Cohen (Philadelphia, PA) spoke on a panel at the Alternative & Direct Investment Securities Association trade conference in Las Vegas. The panel was titled “Hiring with Caution: How One Bad Apple Can Spoil Your Business.”

Christopher Conrad (Harrisburg, PA) presented “Safe Schools and Bullying” at the Pennsylvania Bar Institute’s Exceptional Children Conference. Christopher also co-presented “Special Education Litigation: Best Practices for Avoiding Liability, and Strategies for a Successful Defense” at the Professional Liability Defense Federation’s (PLDF) annual meeting in Chicago.

John Deasy (Pittsburgh, PA) recently presented “Defending Roller Skating Claims” at a chapter event for the Roller Skating Association in Pittsburgh.

Angela DeMary (Mount Laurel, NJ) participated on a panel at the 33rd Annual New Jersey Workers’ Compensation Bench Bar Conference Moving Forward Together in a Time of Change. Angela’s topic was “Diversity, Equity, Inclusion & the Elimination of Bias in Workers’ Compensation – Why This Matters to You and Your Clients to Achieve the Best Possible Outcome.”

Brooks Foland (Harrisburg, PA) led a practical and interactive Pennsylvania Bar Institute CLE program along with a distinguished panel of ADR professionals titled “Using ADR for Your Practice,” which focused on ADR and Mediation. Brooks also co-moderated the webinar “In the Zoom: Ins and Outs of Remote Mediation” for the Dauphin County Bar Association.

Melanie Foreman (Philadelphia, PA) spoke at the Claims X Change annual conference. She joined a panel to discuss “Three’s Company: Navigating Claims Management Within the Parameters of the Tripartite Relationship.”

Janes Hanratty (Jacksonville, FL) presented “Fresh Approaches to Enhance the Effectiveness and Productivity of Mediations.” Presented at the Jacksonville Bar Association Mediators and Trial Lawyers CLE Forum, Jim and fellow panelists discussed fresh approaches to enhance the effectiveness and productivity of mediations.

John Hare (Philadelphia, PA) spoke at the 2022 Convention of the Defense Research Institute. John addressed the history and notable decisions of the Pennsylvania Supreme Court. John also spoke at the 2022 Pennsylvania Governor’s Office of General Counsel University, the yearly training program for attorneys in the executive branch of state government. There were more than 500 live attendees. John spoke at the invitation of the Pennsylvania Supreme Court and discussed the Court’s functions and notable decisions.

Mark Kozlowski (Scranton, PA) presented “Employment Law Basics – The Basis of OSHA, FLSA, ADA & More,” as the final presentation in an HR 101 Series for the Northeast Pennsylvania Chapter of the Society for Human Resource Management.

Mary Kate McGrath and Adam Fulginiti (Philadelphia, PA) gave a Telehealth Presentation at the Pennsylvania Association of Health Care Risk Management (PAHCRM) conference.

Harold Moroknek (Westchester, NY) presented at the recent Auto Haulers Association Fall Expo in Orlando. His topic was “Where Are You Leaking? Pain Points and Missteps: Things That Cost a Motor Carrier Unnecessary Defense and Indemnity Dollars.”

A.C. Nash (Fort Lauderdale, FL) presented “Talkin’ Bout My Generations” at the RIMS, Broward County Chapter meeting.

Tony Natale (Philadelphia, PA) recently sat down with AM Best’s Insurance Law Podcast to discuss workers’ compensation fraud. You can listen to the podcast here: https://lnkd.in/eTMvMkVe.

Tony Natale and Robin Romano (Philadelphia, PA) were co-presenters at last year’s Philly I-Day conference. Their session, “Hot Topics in Worker’s Comp and Litigation Trends,” focused on trends and case law that are making waves in Pennsylvania workers’ compensation litigation, including unreasonable contest, discharge from employment issues within a workers’ compensation case, head injuries with post-concussion syndrome, and specific loss and extension to full body. Robin and Tony analyzed the impact of these cases on future similar litigation and provided tips for mitigating exposures and liabilities from a risk management perspective. The presentation was attended by local insurance, claims and legal professionals.

Jeff Rapattoni (Mount Laurel, NJ) participated in various sessions at the International Association of Special Investigation Units (IASIU) conference. In “The Management of Brand Protection,” Jeff joined a panel that explored current risks in investigative insurance fraud while balancing the importance of protecting a company’s brand. The use of desk investigations, pass through claims, post-COVID major case, and best practices were explored. Other topics included avoiding bad faith, proper statement techniques, and technology integration between claims and SIU. Jeff also co-presented “Legal Update: Emerging Legal and Legislative Trends in Fraud Fighting,” where a panel of legal experts involved in insurance fraud defense discussed current and emerging legal and legislative trends in the fight against fraud. Finally, he presented an Ethics session focused on investigator ethics, and heard comments and critiques on current case law impacting the SIU and how it relates to the ethical investigation of insurance fraud moving forward.

Suzanne Utke (Philadelphia, PA) taught a course, “Medical Legal Issues for Physicians Assistants,” for Thomas Jefferson University’s Physicians Assistant program. The class was attended by more than 110 students. As an adjunct professor, Suzanne has taught this course for more than 20 years.

Jeremy Zacharias (Mount Laurel, NJ) was a panelist at the Rutgers School of Law’s Professionalism Seminar. This seminar is offered twice a year, and Jeremy is a recurring panelist. He discussed the defense of ethics grievances and the RPCs in the state of New Jersey. The audience included first year law students learning about the Rules of Professional Conduct, and the panel included a federal judge and an attorney from the Public Defender’s Office. Jeremy discussed the importance of the Rules of Professional Conduct in daily practice as well as applications of the Rules of Professional Conduct in practical examples.

Jeremy also presented at an all-day CLE for the New Jersey State Bar Association titled “Commercial Real Estate Transactions: from Fist Bump to Closing.” Jeremy’s section related to ethical considerations pertaining to commercial real estate and the new age of cannabis litigation and the use of commercial space for cannabis dispensaries. Jeremy’s topic focused on the Rules of Professional Conduct and the various duties to disclose certain information during real estate transactions in a commercial setting and duties to third parties relying on an attorney’s advice.

Lary Zucker (Mount Laurel, NJ), Alicia Caridi and Sara Mazzolla (Roseland, NK) made presentations at the International Association of Amusement Parks & Attractions (IAAPA) annual Conference. Together, they presented the annual Legal Roundtable. Larry also presented “IALDA Game Show” and “New Jersey Ride Regulations and ASTM.”

 

OTHER NEWS

Melanie Foreman (Philadelphia, pa) has been elected to the Board of Trustees of the Philadelphia Bar Foundation. She will serve a three-year term, effective January 2023.

Robert Williams (Jacksonville, FL) served as Master of Ceremony for the first of the Inn year meeting as current president for a local chapter of the American Inns of Court held in Jacksonville, Florida. In attendance was Judge Nordby, First District Court of Appeal of Florida, as guest speaker, as well as two Judges of Workers’ Compensation’ Claims.

Josh Byrne (Philadelphia, pa) was quoted in The Legal Intelligencer article, “ ‘They’ll Get Theirs’: Attorneys Strategize When Depositions Get Heated.” You can read the article here: https://www.law.com/thelegalintelligencer/2023/01/13/theyll-get-theirs-attorneys-strategize-when-depositions-get-heated/

Michael Packer (Fort Lauderdale, FL) was quoted in the Insurance Law Journal article, “New Florida Law Makes Joint Settlement Offers ‘Legit’ Buy May Not Go Far Enough.” You can read the article here: https://www.insurancejournal.com/news/southeast/2023/01/06/701949.htm

 

 

PUBLISHED ARTICLES

Kimberly Kanoff Berman (Fort Lauderdale, FL) co-authored “A Not-So-Little Problem with Precedent: Intra-District Conflict in Florida District Courts of Appeal.” This article appeared in January/February 2023 edition of Florida Bar Journal. You can read it here: https://www.floridabar.org/the-florida-bar-journal/a-not-so-little-problem-with-precedent-intra-district-conflict-in-florida-district-courts-of-appeal/#u6daa

Josh Byrne (Philadelphia, PA) co-authored “Settle and Sue Your Lawyer: The Muhammad Doctrine Under Fire,” which was published in the January 2023 issue of Pennsylvania Bar Association Quarterly. You can read the article here: https://marshalldennehey.com/articles/settle-and-sue-your-lawyer-muhammad-doctrine-under-fire. Josh’s article “What Is Worse Than Hiding Your Head in the Sand? A Few Examples” was published in The Legal Intelligencer on November 18, 2022. You can read the article here: https://marshalldennehey.com/articles/what-worse-hiding-your-head-sand-few-examples

Jillian Dinehart (Cleveland) discusses municipalities’ rights and liabilities in weapons and ordnance legislation in the December issue of Cleveland Metropolitan Bar Journal, the publication of the Cleveland Metropolitan Bar Association. Read now: https://lnkd.in/ehndqCax

Evan Dubow and Alexander Mendez (Fort Lauderdale, FL) discuss a recent lawsuit filed by a luxury car dealership against a major foreign auto manufacturer, which has the potential to significantly change the way cars may be sold throughout Florida. To learn more about The Collection’s fight against Porsche AG’s attempt to transition to a direct-to-consumer sales model, read their article in Auto Dealer Today. You can read their article here: https://marshalldennehey.com/articles/porsche-paving-new-sales-model-or-will-dealerships-still-have-collection-cars

Dana Gittleman’s (Philadelphia, PA) article, “Discovery Rule Still Rules in Legal Malpractice Actions,” was published by PLUS Blog. You can read the article here: https://plusblog.org/2023/01/12/discovery-rule-still-rules-in-legal-malpractice-actions/

Gregory Graham (Pittsburgh, PA) authored the article “Demand for Remote Desktop Access and Cloud Computing Services Necessitates a Refined Approach for Civil Litigation E-Discovery,” appearing in Lawyers Journal, the publication of the Allegheny County Bar Association. In his article, Greg discusses data mapping as a solution for bypassing challenges that cloud computing and remote access services can create for e-discovery. Read the article here: https://marshalldennehey.com/articles/demand-remote-desktop-access-and-cloud-computing-services-necessitates-refined-approach

Brad Haas’s (Pittsburgh) article “Managing Liability for Videoconferencing While Driving” was published on January 3, 2023, by Risk Management. You can read the article here: http://www.rmmagazine.com/articles/article/2023/01/03/managing-liability-for-videoconferencing-while-driving

Ronda O’Donnell (Philadelphia, PA) contributed an article to Pennsylvania Law Weekly. Titled, “Board Takes Aim at Employers’ Rules That Violate National Labor Relations Act.” The article discusses how employers must be mindful when developing, implementing, or enforcing rules or policies that might arguably restrict employees’ speech, particularly when it comes to discussions regarding the terms and conditions of employment and employees’ compensation and wages. Employers who fail to pay attention to these types of prohibitions might, reluctantly, find themselves among those targeted for action by the NLRB.

Michael Salvati’s (Philadelphia PA) article “A Two-Pronged Test Becomes One: Why the Superior Court’s Venue Decision in Hangey Departs from Decades of Prior Precedent” was published in The Pennsylvania Lawyer. You can read the article here: https://assets.marshalldennehey.com/content/uploads/2026/04/O-643-by-M.-Salvati-01-02.2023-The-PA-Lawyer.pdf

Robert Stanko and Andrew Goldstein (Philadelphia, PA) authored the article, “Increase in Crime Forces Local Businesses Into a Catch-22,” that was published in The Legal Intelligencer’s Personal Injury Supplement. You can read the article here: https://marshalldennehey.com/articles/increase-crime-forces-local-businesses-catch-22

 

Defense Digest, Vol. 29, No. 1, March 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

Florida Supreme Court Adopts Traditionally More Expansive Concept of Occupational Causation

The Florida Supreme Court issued a significant decision rebuking the First District Court of Appeal (1st DCA) in the high-profile case of Bouayad v. Normandy Insurance Co., a case addressing the compensability of workplace injuries resulting from assaults by third-party tortfeasors. The Judge of Compensation Claims (JCC) found the claimant was entitled to workers' compensation benefits, relying in part on the Florida Supreme Court's earlier decision in Strother v. Morrison Cafeteria from 1980. In Strother, the Court upheld an award of benefits to a cashier who was assaulted and robbed by individuals who followed her home from work under the mistaken belief that she was carrying restaurant cash deposits. In Bouayad, the 1st DCA concluded that the claimant's injuries were not compensable because they did not arise out of his employment. The Florida Supreme Court disagreed, holding that the 1st DCA applied too narrow an interpretation of the "arising out of employment" requirement. In doing so, the Court reaffirmed a broader and more traditional view of occupational causation than that recently adopted by the 1st DCA. The claimant in Bouayad was the general manager of a car rental business operating from a hotel near an airport. Around midnight, while walking along a covered outdoor walkway from the hotel's atrium, where the rental kiosk was located, to an office near the pool, he was shot multiple times by an unidentified assailant. As part of his regular duties, the claimant carried rental agreements and cash receipts from the kiosk to the office at the end of each shift. After the shooting, the claimant managed to return to the hotel atrium, where he stated that he believed "Robert" had shot him, referring to an individual who had threatened the claimant's son the previous day. The assailant, however, was never identified. Consequently, the Supreme Court analyzed the case as involving an unknown third party while the claimant was acting within the course and scope of his employment. The central issue therefore was whether the injury "arose out of" the claimant’s employment. At the final hearing, the claimant presented evidence regarding the risks and hazards associated with his employment, including the nature of his duties, his late-night work schedule, and the location of the business in a high-turnover hotel near a major airport. His expert opined that these factors exposed him to an increased risk of becoming the victim of a crime while at work. In contrast, the employer/carrier's expert characterized the shooting as a targeted attack rather than a robbery and asserted that the risk of violent crime was actually higher near the claimant's residence than at the hotel. Based on that analysis, the expert concluded that the claimant was not exposed to an increased workplace risk. The 1st DCA focused narrowly on the specific activity the claimant was performing at the moment of injury. According to the court, the claimant's “work performed” at the time of the shooting was simply "walking" between two employer-operated locations, and that act of walking did not itself cause the injury. The Florida Supreme Court found this analysis far too myopic and inconsistent with decades of workers' compensation precedent. Reaffirming longstanding principles of workplace causation, the Court explained that the proper inquiry is not whether the precise physical task being performed at the moment of injury directly caused the harm. Rather, the relevant question is whether the employment, viewed as a whole, exposed the worker to risks and hazards that contributed to the injury. The decision is significant because it reinforces a broader conception of work-relatedness in the “arising out of” compensability analysis. Instead of limiting the causation analysis to the employee's discrete physical activity at the time of injury, courts must consider the totality of the employment circumstances, including the employee's duties, work environment, hours, and occupational risks. Under that framework, an injury may arise out of employment when the employment places the employee in a position of increased hazard, even if the specific task being performed at the moment of injury is not itself the direct cause of the harm.

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

News

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

Thought Leadership

Appellate Division Affirmed Trial Judge’s Orders Granting Summary Judgement for Defendants on COVID-19 Case

In Dunne v. Advanced Subacute Rehab Servs. at Sewell, LLC, et al., the plaintiffs appealed from two Law Division orders. By way of background, Louis Doto, Sr. (Doto) worked for BP & SC Services, Inc. (BP). BP leased Doto to Advanced Subacute Rehabilitation Center at Sewell, LLC (Advanced Subacute) and it had control of his work, paid wages, and had the power to hire or fire him. A BP employee was assigned to the facility to train and supervise him and BP was responsible for securing workers’ compensation coverage. Doto worked as an aide in the laundry department. Linen from COVID-19 residents were delivered in clearly marked bags and he had no direct contact with residents. A co-worker, Sheila Smith, was also an aide and she never contracted COVID-19 at the facility. Advanced Subacute did not require Doto to wear an N-95 mask, but instead a surgical mask, though N-95 masks were available to all employees. He was also required to attend period mandatory meetings with other high-risk employees, the last of which he attended was in November 2020. All employees were required to test for COVID-19 and there were no reported cases from June to October 2020. On December 23, 2020, Doto tested positive for COVID-19 and passed away on January 18, 2021. The last member of housekeeping that Doto may have encountered tested positive 22 days earlier. After his death, OSHA found two “serious” violations concerning the N-95 masks worn by housekeepers. In response, Advanced Subacute fit tested all non-clinical staff. Doto’s estate filed a workers’ compensation claim and named both BP and Advanced Subacute as his employer. The estate received an award. In July 2022, the plaintiffs filed a complaint in the Law Division, alleging wrongful death and survivor causes of action. In October 2024, the defendants moved for summary judgment, arguing: 1) immunity pursuant to the Emergency Health Powers Act: 2) the exclusive remedy provision of the Workers’ Compensation Act; 3) Doto’s inability to establish infection at the facility; 4) net expert opinions by the plaintiffs’ expert; and 5) inadmissibility of the OSHA report. The plaintiffs opposed and filed a cross-motion for summary judgment, arguing: 1) no immunity as Advanced Subacute engaged in gross negligent or willful misconduct; 2) no preclusion by the Workers’ Compensation Act as Doto was not Advanced Subacute’s employee; and 3) no net expert opinions. In February 2025, the judge issued a written decision granting the defendants’ motion. Specifically, he found Advanced Subacute’s COVID-19 immunity precluded the plaintiffs’ claim as no reasonable jury could find any gross negligence or utter disregard for Doto’s safety. He also addressed the other defenses for completeness. The plaintiffs moved for reconsideration and the judge issued another written decision denying the plaintiffs’ motion in April 2025. The plaintiffs then appealed both decision. The Appellate Division affirmed the orders for reasons stated by the judge in his written decisions. The Appellate Division only added: 1) Advanced Subacute acted consistently with the legislative grant of immunity; 2) there was no doubt Doto was an employee of both BP and Advanced Subacute and the latter may have inadvertently failed to follow some precautions; and 3) confirmed the plaintiffs’ experts did not identify a basis for their opinions. Ultimately, the Appellate Division found no reason to disturb the judge’s well-reasoned decisions and affirmed the judge’s orders.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Result

Federal Statute Declared Constitutional

In this products liability case, the Supreme Court of Pennsylvania reversed the Superior Court and upheld the constitutionality of the Protection of Lawful Commerce in Arms Act (PLCAA), which resulted in judgment as a matter of law for the defendant manufacturer.

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law. 

Thought Leadership

Commonwealth Court Deemed Worker an Employee Despite Independent Contractor Agreement; Insurer Estopped from Denying Coverage

In this case, the claimant filed a Claim Petition for injuries sustained on October 28, 2019, naming J&S as his Employer, and alleging that the injuries occurred when he fell from a ladder while installing a satellite dish for Dish Network. Dish Network contracted with J&S to install satellite dishes. Subsequently J&S filed a Petition to Join Brickstreet Insurance Company and the claimant filed a Claim Petition against the Uninsured Employer Guaranty Fund. The Fund then joined Dish Network as another employer.  Before the Workers’ Compensation Judge (WCJ), the claimant testified that he was hired in 2015 by J&S and at the time signed an Independent Contractor Agreement (IC Agreement). J&S defended the case on the basis that the claimant was not an employee, but was an independent contractor, even after the IC Agreement expired. Additional evidence showed that, at the time of the October 28, 2019, work injury, J&S’ workers’ compensation insurance with Brickstreet had lapsed, even though a Brickstreet agent had been working to renew J&S’ policy and had a Certificate for coverage from September 25, 2019 to September 25, 2020 issued, with Dish Network listed as the Certificate Holder. A renewal policy was not in effect at the time the Certificate was issued and the agent learned on October 25, 2019 that Brickstreet was not going to renew their policy with J&S, due to an unpaid premium.    Ultimately, the WCJ found that the claimant was an employee of J&S at the time of the work injury and that J&S did not have a workers’ compensation policy in place at the time, due to their failure to pay the renewal premium to Brickstreet. The WCJ also found Dish Network was a Statutory Employer under Section 302(a) of the Act. The Claim Petition and the Guaranty Fund Claim Petition were both granted, as was the Guaranty Fund’s Petition to Join Dish Network. The WCJ also denied J&S’ Petition to Join Brickstreet, finding that neither J&S or Dish Network showed that Brickstreet was estopped from denying coverage. J&S and Dish Network appealed to the Workers’ Compensation Appeal Board (Board) and the Board affirmed. J&S and Dish Network appealed to the Commonwealth Court. The Commonwealth Court rejected J&S' argument that the claimant was an independent contractor. In doing so, the court noted that the claimant credibly testified that he worked for J&S full time, could not work for another company, and that J&S, scheduled his jobs, tracked him, and scheduled additional installations, if he finished early. Additionally, the court noted the claimant lacked discretion in the manner he performed his job, because all questions had to be referred to J&S.  As for Dish Network’s appeal, the court held that the WCJ erred in holding that Brickstreet was not estopped from denying coverage as to Dish Network. According to the court, the insurance agent was an authorized representative of Brickstreet and, at the direction of J&S, issued the Certificate of Insurance that he knew was not accurate at the time, and was aware would be presented as proof of coverage for J&S. Dish Network relied upon that information and continued to use J&S, ultimately leading to Dish Network being named as the Statutory Employer liable for payment of benefits because of J&S’ uninsured status. The court held that the Board erred in affirming the WCJ ’s conclusion that Dish Network did not establish that Brickstreet was equitably estopped from denying coverage, reversed the decision below, and remanded the case to the WCJ. 

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.