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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

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

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

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.