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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 4, September 2021

September 1, 2021

Appointments

Karen Grethlein (Philadelphia, PA) has been re-appointed for a three-year term as the Young Lawyer Delegate for Philadelphia in the Pennsylvania Bar Association House of Delegates.

Josh J.T. Byrne (Philadelphia, PA) has been appointed co-chair of the Pennsylvania Bar Association’s Amicus Curiae Brief Committee. The position became effective May 21, 2021, and will terminate at the close of the 2022 PBA Annual Meeting. Josh has drafted or co-authored several amicus curiae briefs on behalf of the Pennsylvania Bar Association in his capacity as co-chair of its Professional Liability Committee.

Recognition

For the ninth year running, Marshall Dennehey was selected by the Philadelphia Business Journal as one of the Philadelphia region’s “Best Places to Work.” The award recognizes our achievements in creating a positive work environment that attracts and retains employees through a combination of benefits, working conditions and company culture. We have been recognized as a “Best Place to Work” every year since 2013, winning the extra large company category in 2017, 2019 and 2020. Hundreds of companies submitted nominations to the program, which ranks the top employers according to scores given to the companies by their own workers. Our Delaware Valley locations, including our Philadelphia headquarters and offices in King of Prussia and Mount Laurel, New Jersey, were included in the survey. “We are always pleased to learn that we have been selected, but this year might be the sweetest of all,” said Marshall Dennehey President and CEO, G. Mark Thompson. “Our employees rose to every challenge presented by the pandemic, and then some. We are so grateful for their hard work and dedication, and we will continue to do whatever we can to maintain and improve our working environment so that all of our employees are engaged and have the opportunity to succeed.”

The Philadelphia Chapter of the National Bar Association Women Lawyers Division (NBA/WLD) selected Butler “Buck” Buchanan (Philadelphia, PA) as the 2021 recipient of its annual Renaissance Man Award. The 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. Buck “accepted” the award during the organization’s virtual Jazz in June Awards Ceremony and Cocktail Reception on June 17, 2021. Congratulations, Buck!

Elizabeth Ferguson (Jacksonville, FL) has been recognized in Florida Trend magazine’s 2021 Legal Elite list in the category of Construction law. Elizabeth was previously featured on the Legal Elite list in 2014, 2018 and 2020, as well as the Up & Comers list in 2008 and 2010-2013. Now in its 18th year, Florida Legal Elite presents the state’s top licensed and practicing attorneys selected by their peers. The resulting list represents less than 2% of the active Florida Bar members who practice in Florida. Elizabeth has been Board Certified in Construction Law by The Florida Bar since 2009, and she is a former board member of the Florida Board of Professional Engineers. She is a Construction Panel Arbitrator for the American Arbitration Association, has served as a professor of Construction Law, and is a frequent speaker on legal and construction industry issues. Additionally, she is a past president of the Jacksonville Bar Association.

Daniel McDermott and Edward Radzik (New York, NY) have once again been cited as “Notable Practitioners” in the 2021 edition of Chambers USA. Both attorneys were recognized in the Transportation: Shipping/Maritime: Litigation (New York), Nationwide Band 3 category. Dan was described by clients as, “His counsel is always sound and he approaches things in a practical manner.” Clients remarked of Ed: “He is a solid cargo attorney who is knowledgeable and a formidable opponent.” Congratulations to Dan and Ed!

2021 Florida Super Lawyers & Florida Rising Stars

Seven attorneys from our Florida offices have been selected to the 2021 edition of Florida Super Lawyers magazine. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. Our attorneys selected to the 2021 Florida Super Lawyers list include:

  • Michael J. Bradford, Civil Litigation Defense.
  • Michael J. DeCandio, Construction Litigation.
  • Elizabeth B. Ferguson, Construction Litigation.
  • Alan C. “A.C.” Nash, Civil Litigation Defense.

Our attorneys selected to the 2021 Florida Super Lawyers Rising Stars list include:

  • Julie Cunningham Aiello, Transportation & Maritime.
  • Amanda J. Podlucky, Personal Injury Defense.
  • Irene Thaler, Insurance Coverage.

2021 Pennsylvania Super Lawyers and Rising Stars

Forty-five attorneys from our Pennsylvania offices have been selected to the 2021 edition of Pennsylvania Super Lawyers magazine. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. Receiving special recognition for the 16th consecutive year is Dan Sherry (King of Prussia, PA), who has been named to the “Top 100 Attorneys in Pennsylvania” and the “Top 100 Attorneys in Philadelphia” Super Lawyer lists. For the fourth year in a row, John Hare (Philadelphia, PA) was named to the “Top 100 Attorneys in Pennsylvania” and the “Top 100 Attorneys in Philadelphia” Super Lawyer lists. Our 2021 Pennsylvania Super Lawyers include:

  • Harrisburg: Brooks Foland, John Ninosky, Edwin Schwartz
  • King of Prussia: Audrey Copeland, Kevin Fitzpatrick, Chandler Hosmer, Edward McGinn, Donna Modestine, Stephen Ryan, Daniel Sherry
  • Philadelphia: William Banton, Ralph Bocchino, Kimberly Boyer-Cohen, Buck Buchanan, Raphael Duran, Scott Gemberling, Tiffany Giangiulio, John Hare, Niki Ingram, Kate Kramer, Bruce McKissock, Michele Punturi, Bradley Remick, Daniel Ryan, Joseph Santarone, Vlada Tasich, Mark Thompson, Michael Turner, Thomas Wagner
  • Pittsburgh: Dennis Roman, Stuart Sostmann

Our 2021 Pennsylvania Super Lawyer Rising Stars include:

  • Harrisburg: Brittany Bakshi
  • Philadelphia: Nicholas Bowers, Lee Durivage, Ashley Eldridge, Dana Gittleman, Andrew Goldstein, Kimberly House, Robert Stanko, Alesia Sulock, Daniel Tran
  • Pittsburgh: Jillian Corbett, Gregory Graham, Patrick Reilly
  • Scranton: Mark Kozlowski

Published Articles

Kimberly Berman (Fort Lauderdale, FL) was featured in Law.com’s “How I Made Partner” series. The article discusses her career trajectory from law school to now. Read the article: https://www.law.com/2021/05/04/how-i-made-partner-i-opened-the-door-to-partnership-by-becoming-an-appellate-specialist-says-kimberly-berman-of-marshall-dennehey/.

Josh J. T. Byrne (Philadelphia, PA) authored the article “How Are You Incorrectly Using Your IOLTA Account (Part II)?,” appearing in the May 18, 2021, issue of The Legal Intelligencer. Read the article here: https://www.law.com/thelegalintelligencer/2021/05/18/how-are-you-incorrectly-using-your-iolta-account-part-ii/.

Heather LaBombardi and Nataliana Guida (Roseland, NJ) authored the article “Vicarious Liability—Do You Really Need an Affidavit of Merit?” for the New Jersey Law Journal. Read the article here: https://www.law.com/njlawjournal/2021/05/06/vicarious-liability-do-you-really-need-an-affidavit-of-merit/.

Amanda Podlucky (Orlando, FL) authored the article “Incident Prevention and Response Hits Close to Home,” appearing in the May 19, 2021, issue of Multi-Housing News. Read the article here: https://www.multihousingnews.com/post/incident-prevention-and-response-hits-close-to-home/.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) authored an article entitled “Strategy Is Key for Opening Statements and Closing Arguments,” which is featured in the NJSBA’s June 2021 edition of the New Jersey Lawyer Magazine. In this article, Jack and Jeremy address the importance of forming a sound litigation strategy in preparing opening statements and closing arguments and explain what can and cannot be said during openings and closings and discuss objections that could be made during the opening statements and closing arguments. Read this article at https://marshalldennehey.com/articles/strategy-key-opening-statements-and-closing-arguments.

Speaking Engagements

Mohamed Bakry (Philadelphia, PA), a member of the firm’s Diversity Committee, moderated a presentation at the 2021 DRI Diversity For Success seminar in New Orleans, Louisiana. 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.

Butler Buchanan (Philadelphia, PA) joined a panel to discuss “Workplace Culture, Equity and Safety as Our Community Emerges From a Global Pandemic” at the Philadelphia Bar Association’s Virtual Spring Quarterly.

Peggy Bush (Orlando, FL), Leonard Leicht (Roseland, NJ) and Harold Moroknek (Westchester, NJ) presented the webinar “Rules of the Trucking Industry: Staying on Track!,” at the recent Transportation Lawyers Association (TLA) Annual Conference.

James Cole (Philadelphia, PA) participated in the Insurance Law Global and Lloyd’s Market Association Young Professionals Virtual Boot Camp. He co-presented “US/Canadian Litigation in a Post-COVID-19 World.”

Ashley Eldridge (Philadelphia, PA) was a speaker at the Dispute Resolution Institute’s Personal Injury Potpourri, presenting “COVID-19 and Workers’ Compensation.”

Michele Frisbie (King of Prussia, PA) presented “Personal Injury Exculpatory Clauses” on behalf of Stafford Publishing. This CLE webinar guided counsel in personal injury cases in interpreting, challenging or defending exculpatory clauses, the use of which invites a whole host of legal issues and public policy concerns. The program explored the difference between exculpation from liability arising out of a familiar activity with a well-defined set of risks with exculpation for injuries from novel and undefined risks. The program discussed how exculpatory clauses fare in real-world contexts—such as commercial leases, product liability, healthcare and sports.

Adam Fulginiti, Mary Kate McGrath (Philadelphia, PA) and Jeffrey Rapattoni (Mount Laurel, NJ) presented “Charting the Course of Telehealth in the Post-COVID Landscape” as part of the ASHRM Webinar Series. The session focused on the fundamental principles and best practices to help ensure that telemedicine systems work in tandem with AI-based insurance systems, comport with regulatory requirements and avoid the potential for malpractice.

Scott Gemberling (Philadelphia, PA) presented “Dram Shop, The Toxicology and the Law” on behalf of the National Academy of Continuing Legal Education.

Kevin Hexstall (Philadelphia, PA) was a featured speaker at the Perrin Conferences’ In-House Counsel Perspectives Symposium. Kevin’s session was titled, “Maintaining Relationships With Outside Counsel.”

Howard Mankoff (Roseland, NJ) was a featured speaker at the New Jersey State Bar Association Annual (virtual) Meeting. Howard participated on a panel that discussed “Successful Mediation of Employment Disputes: Common Pitfalls and Strategies to Dig Out!” The presentation focused on the widely differing mediation expectations and lack of preparation; particular challenges of multi-party cases; adversaries with at-odds negotiation styles; and how to get the most value from virtual mediations.

Michele Punturi (Philadelphia, PA) presented “Changing the Employee Safety and Wellness Mindset to Reduce Workers’ Compensation Costs and Avoid Liability” at CLM’s Workers’ Compensation and Retail, Restaurant & Hospitality Conference.

Eric Reichenberger (Fort Lauderdale, FL) was a co-presenter for “Not Fun & Games: Litigating Injury Claims Involving Minors” at the DRI Retail & Hospitality Virtual Seminar. Eric and panel discussed hospitality companies, and in particular theme park owners and operators, facing a disproportionate number of claims made on behalf of minors. Presenters also reviewed how in-house counsel and outside litigators can best adapt to defend those claims in court and in the public arena.

Our firm was well-represented at the latest Pennsylvania Defense Institute’s annual conference. Patrick Reilly (Pittsburgh, PA) co-presented “The New Marketing Tool—Creating a Podcast that People Want to Hear.” Robert Aldrich (Scranton, PA) participated in “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.” Finally, Charlene Seibert (Pittsburgh, PA) co-presented “Legal Malpractice Concerns in the New Remote World—Ethics Complaints, Legal Malpractice Actions, and Protecting Your Practice in the Post-COVID-19 –World.”

 

Defense Digest, Vol. 27, No. 4, September 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

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

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.

News

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.