.

Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 5, December 2021

December 1, 2021

New Shareholders

We are pleased to announce that 13 associates and five special counsel have been elevated to shareholder, effective January 1, 2022. 

  • Elizabeth A. Dietz, an Associate in our Workers’ Compensation Department in Roseland; 
  • Ashley S. Eldridge, an Associate in our Workers’ Compensation Department in Philadelphia;
  • Dana A. Gittleman, an Associate in our Professional Liability Department in Philadelphia;
  • Lisa M. Grubb, an Associate in our Casualty Department in Wilmington;
  • Andrew H. Isakoff, a Special Counsel in the Casualty Department in Cleveland;
  • Ryan M. Krescanko, an Associate in the Casualty Department in Pittsburgh;
  • Todd J. Leon, a Special Counsel in the Professional Liability Department in Philadelphia.
  • Adam E. Levy, a Special Counsel in the Professional Liability Department in Mt. Laurel.
  • Debra M. Marcus, a Special Counsel in the Healthcare Department in Roseland.
  • Erin N. Margolin, an Associate in the Casualty Department in Pittsburgh.
  • Jennifer M. Meyers, an Associate in the Casualty Department in Westchester.
  • Missy Minehan, a Special Counsel in the Healthcare Department in Harrisburg.
  • Darren M. Newberry, an Associate in the Casualty Department in Pittsburgh.
  • Jennifer M. Roberts, an Associate in the Casualty Department in Melville.
  • Sam V. Ruggeri, an Associate in the Casualty Department in Melville.
  • Steven B. Saal, an Associate in the Casualty Department in Westchester. 
  • Corey K. Setterlund, an Associate in the Professional Liability Department in Jacksonville.
  • Alesia S. Sulock, an Associate in the Professional Liability Department in Philadelphia.

Recognition

Buck Buchanan (Philadelphia, PA) received the 2021 Renaissance Man Award From the Philadelphia Chapter of the National Bar Association Women Lawyers Division. Buck was recognized during the organization’s virtual “Jazz in June” awards ceremony and cocktail reception. The annual award recognizes an African American man who has demonstrated commitment to the empowerment, advancement and full participation of women of color in the legal profession. It additionally honors a legacy of professional excellence and commitment to the African American legal community, including support of the NBA/WLD.
 

Published Articles

Kimberly Berman (Fort Lauderdale, FL) authored the article “Decision Creates Potential for Legal Malpractice Actions Against Retained Defense Attorneys,” in the Daily Business Review. You can read the article here: https://www.law.com/dailybusinessreview/2021/07/30/decision-creates-potential-for-legal-malpractice-actions-against-retained-defense-attorneys/. 

Josh Byrne (Philadelphia, PA) recently authored an article entitled “Preparing for the Worst: Considerations in Purchasing Legal Malpractice Insurance—Part I,” for The Legal Intelligencer. You can read this article here: https://marshalldennehey.com/articles/preparing-worst-considerations-purchasing-legal-malpractice-insurance%E2%80%94part-i. 

Karen Grethlein and David Shannon (Philadelphia, PA) co-authored the article “Cyber Threats: Why the Construction Industry Could be the Next Big Target,” which was published in The Legal Intelligencer, Construction Law Supplement on August 12, 2021. The article can be read here: https://marshalldennehey.com/articles/cyber-threats-why-construction-industry-could-be-next-big-target. 
    
Kiara Hartwell (Mount Laurel, NJ) answers the question “What does the future hold for current COVID-19 workers’ compensation claims?” in an article from the June 2021 issue of CLM Magazine. You can read “Consulting the Comp Crystal Ball” here: https://bit.ly/3qAwhQ5. 

Megan Nelson (Orlando, FL) authored the article, “Am I Getting Fired? How to Handle Meetings With Your Facility’s Attorney,” which was published in the September 2021 issue of Orlando Medical News. You may read the article here: https://www.orlandomedicalnews.com/article/5034/am-i-getting-fired-how-to-handle-meetings-with-your-facilitys-attorney

Tony Natale (Philadelphia, PA) authored the article, “The State of Pay for Play – College Athletes as Employees and the Implications for Workers’ Compensation,” appearing in the September 2021 issue of CLM Magazine. The article discusses how college athletes are inching closer to being recognized as “employees” of their schools, and what the implications are for workers compensation. Click to read the article: https://736506f6.flowpaper.com/CLMSeptember2021/#page=30 

David Shannon (Philadelphia, PA) recently authored the article, “Kaseya Data Breach Is Another Signal to Cyber Underwriters About the Dangers of Ransomware Attacks,” for PLUS Blog. You can read this article here: https://plusblog.org/2021/07/19/kaseya-data-breach-is-another-signal-to-cyber-underwriters-about-the-dangers-of-ransomware-attacks/. 

Frank Wickersham (King of Prussia, PA) authored the article “Blurred Lines: A Breakdown of Conventional Workplace Boundaries During the Pandemic,” published in Pennsylvania Law Weekly. You can read the article here: https://marshalldennehey.com/articles/blurred-lines-breakdown-conventional-workplace-boundaries-during-pandemic. 
 

Speaking Engagements

Robert Aldrich (Scranton, PA), Patrick Reilly (Pittsburgh, PA) and Charlene Seibert (Pittsburgh, PA) presented at the Pennsylvania Defense Institute 2021 Annual Conference. Pat was a panelist presenting on the topic “The New Marketing Tool—Creating a Podcast that People Want to Hear.” Robert was a moderator for the topic “Legal Marketing on LinkedIn—Learn How Law Firms are Leveraging LinkedIn’s Unique Data and Environment to Engage Clients and Prospects to Grow Their Business.” Charlene was a panel member discussing “Legal Malpractice Concerns in the New Remote World—Ethics Complaints, Legal Malpractice Actions, and Protecting Your Practice in the Post-COVID-19 –World.”

Mohamed Bakry (Philadelphia, PA) moderated a panel at the Defense Research Institute’s Diversity for Success seminar. In their session, “A Conversation About Racial Justice in America,” Mohamed and panelists explored the inequities related to racial justice and addressed ways to move the dialogue into action so that the cycle of injustice can be broken.

Buck Buchanan (Philadelphia, PA) was among a panel of leaders for the Philadelphia Bar Association Virtual Spring Quarterly. Featuring Peter Cappelli, from The Wharton School, the panel discussed “Workplace Culture, Equity and Safety as Our Community Emerges From a Global Pandemic.”

Josh Byrne and Alesia Sulock (Philadelphia, PA) presented “Legal Malpractice Avoidance” to a number of local bar associations. They made this presentation to the Philadelphia Bar Association, the Monroe County Bar Association and the Chester County Bar Association. 

Peggy Smith Bush (Orlando, FL), Leonard Leicht (Roseland, NJ) and Harold Moroknek (Westchester, NY) presented “Rules of the Trucking Industry: Staying on Track!” at the virtual Transportation Lawyers Association Annual Conference. The panel discussed the new FMCSA regulations and the impact of the New Drug and Clearing House Rules. They also discussed updates in the Hours of Service Rules, the effect of national declarations entered during the COVID-19 pandemic, new requirements for CDL driving academies, and legal and practical issues in setting up a truck driving training school.

Several of our attorneys returned as faculty this September for the 2021 CLM Claims College. Christopher Block (Roseland, NJ) served as faculty with the School of Casualty, and Michael Packer (Fort Lauderdale, FL) and James Cole (Philadelphia, PA) were both instructors for the School of Property Claims. The Claims College is an educational experience designed to help educate and grow industry claims professionals and the industry. Each school within the college is comprised of three levels and participants who successfully complete all levels in a particular school receive a CLM designation reflecting their education and commitment to the profession.

Alicia Caridi (Tampa, FL) co-presented to the Roller Skating Association’s 2021 Sk8Expo in Clearwater Beach, Florida. Alicia and Jerry Landers, the president of IALDA, presented live and via Zoom on the topic of “Surveillance as Pertains to the Industry.”

Samuel Cohen, Gerry Kowalski, and Ryan Friel (Philadelphia, PA) presented “Claims Involving Life Insurance Impacting Life Agents and Broker Dealers” at the Independent Broker Dealer Consortium. Held in Bluffton, South Carolina, this annual conference is primarily attended by broker dealers, insurance brokers and E&O carriers. 

Jim Cole (Philadelphia, PA) co-presented “US/Canadian Litigation in a Post-COVID-19 World” at the Insurance Law Global and Lloyd’s Market Association Young Professionals Virtual Boot Camp webinar series. This free webinar explored how the pandemic has impacted insurance litigation across the U.S. and Canada. 

Joan Ford (King of Prussia, PA) was a panelist at The American Board of Trial Advocates program and CLE, “How to Succeed: Career Lessons from Veteran Female Trial Lawyers as We Face the Consequences of the COVID-19 Pandemic.” Attendees learned from veteran female trial lawyers as they shared the insights and experiences that led to their success and discussed best practices for career development as we face the consequences of the COVID-19 pandemic.

Janice Merrill, Chanel Mosley and Megan Nelson (Orlando, FL) presented at the Florida Society for Healthcare Risk Management & Patient Safety Annual Meeting & Education Conference. In “Adversity in the World of Adverse Incident Reporting: A Panel Discussion on Reporting Requirements and Addressing Related Discovery,” they discussed Amendment 7 and the requirements for reporting and investigating potential adverse events, including the impact of adverse events related to COVID-19. The program also highlighted best practices for complying with the reporting requirements while preserving the attorney-client communication, work product and peer review privileges.

Robin Romano (Philadelphia, PA) participated in a panel discussion, “Emotional Intelligence: The Art of Friendly Persuasion,” held by the Philadelphia Bar Association.

Anthony Williott (Pittsburgh, PA) was a panelist for a webinar, “Pain and Suffering in Personal Injury: Doctor, Plaintiff, and Defense Perspectives.” The program included doctor and attorney insights to provide the audience with concrete instruction for handling non-economic damages. Topics included how doctors assess the severity and cause of pain, understanding how an adjuster will value a claim, presentation strategies that will help deliver maximum offers and jury verdicts and defense tactics for managing excess exposure and avoiding runaway verdicts.

 

Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2021 Marshall Dennehey Warner Coleman & Goggin. 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

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

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

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. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

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.

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.

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.