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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

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.