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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

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

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

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

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

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

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.

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.