.

Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 28, No. 3, October 2022

October 1, 2022

APPOINTMENTS

Melanie Foreman (Philadelphia, PA) and her co-chair of the Leadership Council of Community Legal Services will spearhead CLS’s annual Bar Campaign. The Bar Campaign raises critical funds for CLS from Philadelphia law firms and businesses. Funds raised support the mission of CLS.

Harold Moroknek (Westchester, NY) has been selected to the Executive Committee of the Bus Industry Safety Council (BISC), a division of the American Bus Association. BISC is comprised of security, mechanical, safety, operational and maintenance leaders from across the North American motor coach industry. As an attorney member of the council, Harold advises on legal issues impacting the industry, including litigation strategies for defending, mitigating and avoiding transportation claims.

Charlene Seibert (Pittsburgh, PA) has been appointed to a three-year term as a Hearing Committee Member of District IV or the Disciplinary Board of the Supreme Court of Pennsylvania. Hearing Committee Members perform essential roles in Pennsylvania’s disciplinary system, chief among them to review Disciplinary Counsel’s recommended dispositions and to conduct hearings into formal charges of attorney misconduct and petitions for reinstatement. These efforts, which include reviewing pleadings and briefs, weighing evidence, and writing reports, are critical to guiding the Board and the Supreme Court in their determinations.

Stuart Sostmann (Pittsburgh, PA) was elected president of the Pennsylvania Defense Institute (PDI) at the organization’s recent annual conference.

RECOGNITION

Michael Bradford (Tampa, FL) and James Hanratty (Jacksonville, FL) have been selected to the 2022 Florida Trend Legal Elite. Both are recognized for excellence in the Civil Trial category. Honorees represent less than 2% of active Florida Bar members and include attorneys in private practice as well as top government and non-profit attorneys.

A.C. Nash (Fort Lauderdale, FL) received a “Best Mentors Award” from the Daily Business Review.

G. Mark Thompson (Philadelphia, PA) was named to 2022 City & State Pennsylvania’s Law Power 100. The list annually recognizes lawyers who exhibit excellence in the profession of law and are deemed to be some of the state’s most influential leaders.

SEMINARS

Mohamed Bakry (Philadelphia, PA) presented at the Federation of Defense & Corporate Counsel (FDCC) Winter Meeting. His topic was “Two Years Into a Pandemic – What Your Jurors May Be Thinking.” Mohamed was also a panelist at the FDCC Annual Meeting, where he discussed the topic “Anatomy of a Trial: Opening Statement and Closing Argument.” The panel reviewed how to use an opening statement and closing argument to establish why fairness and justice require a favorable verdict for your client. Finally, Mohamed spoke on behalf of the International Association of Defense Counsel (IADC) on “Becoming an Active Ally with a Focus on Allyship With Our Muslim Colleagues: How to Get Involved, Stay Involved, and Educate Others About Racial and Social Injustice.”

Kimberly Kanoff Berman (Fort Lauderdale, FL) participated in an episode of Summarily: A Podcast for Busy Lawyers. In “UNprecedented,” Kim and Adam Richardson of Burlington Rockenbach discussed how Florida state courts and lawyers are treating precedent.

Josh Byrne (Philadelphia, PA) presented at the Pennsylvania Bar Association’s annual Spring 2022 Avoiding Legal Malpractice Program. “Avoiding Legal Malpractice” was presented by the PBA Professional Liability Committee and featured information on a variety of issues that have been identified as common areas where attorneys can be exposed to liability or malpractice claims and focuses on steps we can all take to avoid, or at least mitigate, potential claims. Josh also co-presented the webinar “Dealing with Difficult Opposing Counsel 2022” for the Pennsylvania Bar Institute. Co-presented with members of the Bar and the judiciary, this session offered tools, techniques and insight into practical and effective methods of dealing with difficult opposing counsel, while complying with the Rules of Professional Conduct.

Jim Cole (Philadelphia, PA) recently gave two presentations on insurance fraud. He co-presented “Appraisal: The Good, The Bad and The Ugly” at the 2022 Pennsylvania Insurance Fraud Conference in Hershey, PA. Jim also presented, “Fraud Claims: The Real Housewives Edition,” at the 2022 PLRB Claims Conference & Insurance Services Expo in San Antonio, TX.

Benjamin Durstein (Wilmington, DE) presented “The Do’s and Don’ts of Workers’ Compensation Practice” on behalf of the Delaware State Bar Association.

Linda Farrell (Jacksonville, FL) presented “You Had Me at…Avoiding Fee Exposure” at the Association of Workers’ Compensation Claims Professional’s 30th Annual Claims Management and Leadership Conference.

Elizabeth Ferguson (Jacksonville, FL) chaired The Florida Bar’s Construction Law Review Course.

John Hare (Philadelphia, PA) presented Civil Litigation Update 2022 on behalf of the Pennsylvania Bar Institute. John also attended the Commemoration of the 300th Anniversary of the Supreme Court of Pennsylvania at the National Constitution Center in Philadelphia. John was part of a distinguished faculty of scholars, attorneys and jurists at this symposium, which included the Honorable Anthony M. Kennedy, Retired Associate Justice of the United States Supreme Court.

Matthew Keris (Scranton, PA) has been traveling the county giving presentations on RaDonda Vaught criminal verdict and artificial intelligence in health care. Here is a sample of his recent presentations:

American Legal Connections - “Liability Issues With Artificial Intelligence in Healthcare Litigation”

American Society for Healthcare Risk Management - “Best Practices for Balancing Transparency While Avoiding Liability Following the RaDonda Vaught Criminal Verdict”

CHART Institute’s virtual conference - “A New Frontier: Maintaining Transparency and Defenses Following the RaDonda Vaught Criminal Verdict”

Duke University’s School of Nursing - “RaDonda Vaught—What Happened and What Can We Learn From Her Trial”

Medical Professional Liability Association - “Artificial Intelligence in Healthcare: Revolutionary or Risky?”

New England Regional Healthcare Risk Management Conference (NERHRMC) - “The New Reality--Managing the EMR and Audit Trail”

Ohio Hospital Association Annual Meeting - “Risks and Legal Aspects of Artificial Intelligence in Health Care”

Thomson Reuters’ Virtual Conference - “Litigation Risks Associated with AI in Healthcare”

Washington Healthcare Risk Management Society Annual Meeting in Seattle, WA - “New Risks With the Application of Artificial Intelligence to Medicine”

West Virginia ASHRM Chapter - “A Hard Task: Balancing Transparency While Avoiding Liability Following the RaDonda Vaught Criminal Verdict”

Mark Kozlowski (Scranton, PA) presented “Pay & Benefits – Overtime, Minimum Wage, Compensable Time, Legally Required Benefits” before the members of the Society for Human Resource Management (SHRM).

Paul Krepps (Pittsburgh, PA) was a featured speaker at the Allegheny County Bar Association CLE program, “Law Against Violence.” Paul and a panel of lawmakers, practitioners, academics, and the judiciary covered the current state of the domestic violence prevention system and the pros and cons of adopting Alina’s Law, which would increase electronic monitoring of both parties to domestic violence in an effort to provide protection to the victim. Paul presented, “Impact of Protection from Abuse Orders: A Case Study,” that described the homicide of a victim of domestic violence, observations on the legal system and improvements that were enacted post-investigation. Paul also was a co-presenter at the annual Pennsylvania Defense Institute Conference on the topic of Qualified Immunity.

Mary Kate McGrath and Adam Fulginiti (Philadelphia, PA) presented “Taking the Telemedicine Time-Out,” an educational webinar for the Philadelphia Area Society of Healthcare Risk Management (PASHRM). They discussed the importance of taking “time-outs” to ensure that telemedicine systems comport with regulatory requirements, enhance the quality of patient care, and reduce the potential for malpractice.

Harold Moroknek (Westchester, NY) made a presentation at the Omaha Nebraska CLM Chapter event titled “Where Are You Leaking.” This presentation was a look at controlling costs and reducing claims through minimizing errors and omissions. Additionally, Harold presented for a client on “Assault Analysis” discussing the rise of claim numbers and values nationally in physical and sexual assault cases. Harold also spent time in Atlanta at the Auto Haulers Association of America (AHAA) Spring 2022 meeting. He partnered with Carrie Wall of the Bill Fralic Insurance Group to present “Where Are You Leaking? Pain Points and Missteps: Things That Cost a Motor Carrier Unnecessary Defense and Indemnity Dollars.”

Michael Packer (Fort Lauderdale, FL) presented at the Florida Defense Lawyers Association’s Florida Liability Claims Conference. His seminar, “Investigating a Claim Under a Reservation of Rights,” explored strategies for managing claims that may not be covered and continuing the investigation once a Reservation of Rights has been issued.

Michele Punturi (Philadelphia, PA) presented “The Dawning of the Age of Remote Work” at CLM’s Workers’ Comp and Retail, Restaurant & Hospitality Conference.

Jeff Rapattoni (Mount Laurel, NJ) presented twice at the New England Chapter of IASIU’s annual conference, where he presented “Fraud in Telemedicine” and “Litigation Trends in SIU.” Jeff also gave a presentation to the Illinois Chapter of IASIU entitled “PI’s in the Field – Pre, During & Post COVID & New Manned/Unmanned Surveillance.” Jeff also attended the annual CLM Conference and presented “The CAT’s Out of the Bag: Insurance Fraud in Catastrophic Losses.” Jeff participated remotely in the ILG Annual Conference held in London, when he presented “Financial Institutions (White Collar Crime/Fraud).” Finally, Jeff was recently in Malmo, Sweden, at the International Association of Special Investigation Units European Seminar & Expo where he co-presented “Major Case Preparation.”

Martin Schwartzberg (Long Island, NY) recently made a presentation titled “Ethics for Engineers” to the Long Island Chapter of American Council of Engineering Companies (ACEC).

Dave Shannon (Philadelphia, PA) co-presented at the ILG annual conference and the USLI Cyber Security Conference. On behalf of ILG, Dave participated as a speaker in the program “Cyber (Ransomware).” Dave also gave a seminar entitled “How to Protect Yourself from Hackers, Rogue Employees and Cyber Crime” for USLI at their annual Cyber Security Conference.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) presented a webinar entitled “Virtual Trials in New Jersey: The Good, the Bad, and the Ugly.” This was presented to an audience comprised of claims professionals, attorneys and various insurance companies. Jack and Jeremy explained their experience with trying cases in a virtual and hybrid setting, and gave practical pointers and strategies in trying a case, picking a jury, and presenting evidence in a virtual format. Jack and Jeremy introduced the firm’s capabilities from a technological standpoint and described the staffing that is needed for trying a virtual or a hybrid case.

Robert Stanko (Philadelphia, PA) recently presented a webinar for the members of the Dallas Claims Association (DCA) on the topic “Successful Strategies for Effective Mediation.”

OTHER NEWS

Gaylene Coover, office manager of our Jacksonville office, was recently sworn in as a member of the Board of Directors of the Association of Legal Administrators Jacksonville Chapter.

Congratulations to our very own Stephanie Ransom, assistant office manager of our New York City and Roseland, NJ offices, upon her selection to the Association of Legal Administrators (ALA) Certification Committee. This is a national position and follows Stephanie’s tenure as a Vice President on the ALA’s NYC Chapter Board of Directors.

Jeff Rapattoni (Mount Laurel, NJ) was recently interviewed at a recent International Association of Special Investigation Units (IASIU) conference. In this video, he explains how carriers can avoid bad faith by making sure staff gets real training by getting interactive and personal attention. This will ensure people make right and informed decisions. If carriers are prepared and encourage staff to know they have their backs and will indemnify them, people will embrace the challenge of starting a career in insurance. They will not be afraid to do the right things when fighting fraud.

An interview with Jeremy Zacharias (Mount Laurel, NJ) was published by PLUS (Professional Liability Underwriting Society). Jeremy discusses his involvement in PLUS and his career in the liability insurance industry. Interview Link: RPLU Designee Testimonials (plusweb.org).

Published Articles

Josh Byrne’s (Philadelphia, PA) article “Sometimes You Have to Fire Your Client to Avoid Issues” was published in the March 18, 2022, edition of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/sometimes-you-have-fire-your-client-avoid-issues. Josh also authored the article “Legal Malpractice: Taking a Mistake and Making It a Fiasco,” appearing in the May 18, 2022 edition of The Legal Intelligencer. Click here to read the article: https://www.law.com/thelegalintelligencer/2022/05/17/legal-malpractice-taking-a-mistake-and-making-it-a-fiasco/. Finally, Josh’s article “Mental Health, Malpractice Avoidance and Ethical Conduct” was published in the July edition of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/mental-health-malpractice-avoidance-and-ethical-conduct

Samuel Cohen and Ryan Friels’ (Philadelphia, PA) article “FINRA, the SEC and Congress Aim to Safeguard Senior Investors” was published in the May 12, 2022 issue of The Legal Intelligencer. Click here to read the article: https://marshalldennehey.com/articles/finra-sec-and-congress-aim-safeguard-senior-investors.

Dana Gittleman’s (Philadelphia, PA) recent article “The Importance of Memorializing Insurance Discussions” was posted on PLUS blog. You can read her article here: https://marshalldennehey.com/articles/importance-memorializing-insurance-discussions

Brad Haas’s (Pittsburgh, PA) article “Superior Court Reviews Discoverability of Mental Health Records” was published in the April 7, 2022, issue of Lawyers Journal. You can read the article here: https://marshalldennehey.com/articles/superior-court-reviews-discoverability-mental-health-records

Matthew Keris’s (Scranton, PA) article, “The Evolution of the EMR: The Integration of AI in Medicine,” was published in the March 28, 2022, edition of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/evolution-emr-integration-ai-medicine

Jeff Rapattoni and Michael Sweeneys’ (Mount Laurel, NJ) article “Beyond Bad Faith: Expanding Bad Faith Damages Fraud-Fighting,” was recently published in the Journal of Insurance Fraud in America for The Coalition Against Insurance Fraud. The article, published March 3, 2022, can be seen at https://insurancefraud.org/publications/jifa-beyond-bad-faith/

Steven Saal’s (Westchester, NY) article “New York State Finalizes Changes to Insurance Disclosure Law” appeared in the May 20, 2022, edition of New York Law Journal. Click here to read this article: https://assets.marshalldennehey.com/content/uploads/2026/04/O-630-by-S.-Saal-05.20.2022-NY-Law-Journal.pdf

Robert Stanko (Philadelphia, PA) authored the article “Commentary: Consequences of SCOTUS Leak Could Be Significant,” appearing in the May 6, 2022 edition of The Legal Intelligencer. You may read the article here: https://www.law.com/thelegalintelligencer/2022/05/06/commentary-consequences-of-scotus-leak-could-be-significant/.

Alesia Sulock (Philadelphia, PA) authored the article “The Attorney-Client Relationship: Keeping the Lines of Communication Open,” appearing on the PLUS Blog. Click here to read: https://plusblog.org/2022/05/09/the-attorney-client-relationship-keeping-the-lines-of-communication-open/.

 

Defense Digest, Vol. 28, No. 3, October 2022 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. © 2022 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

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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

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.

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

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.

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

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.