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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 3, June 2021

June 1, 2021

Appointments

Niki Ingram (Philadelphia, PA) has been named the first-ever Diversity, Equity & Inclusion Officer of the Philadelphia Bar Foundation. The position was created following the nationwide demonstrations against police brutality and racial injustices over the summer of 2020. “Racism is prevalent in all civil legal matters, from housing to unemployment to immigration, and the work of civil legal aid agencies is critical in the fight for racial justice,” said Jessica R. Hilburn-Holmes, Executive Director of the Philadelphia Bar Foundation. “The Bar Foundation is committed to this fight and to doing the work in order to promote a better, more equitable Philadelphia community. The addition of a DE&I Officer is a first step toward that goal – and we couldn’t find a more competent nor passionate person to lead this charge than Niki Ingram.” Niki joined the Philadelphia Bar Foundation for a three-year Board term in 2019.

Recognition

Marshall Dennehey Announces 2021 New Jersey Super Lawyers and Rising Stars. Eight attorneys from the Mount Laurel and Roseland, New Jersey, offices have been selected to the 2021 edition of New Jersey Super Lawyers magazine. A Thomson Reuters business, New Jersey Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Each year, no more than five percent of the lawyers in the state are selected as Super Lawyers and no more than 2.5 percent are selected for Super Lawyer Rising Stars. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.

The firm’s New Jersey Super Lawyers include:

  • Leonard Leicht, Civil Litigation Defense and Transportation/Maritime. Leonard concentrates his practice in defending significant commercial motor vehicle, personal injury, employment, civil rights and professional liability matters. Recognized by the Supreme Court of New Jersey as a Certified Civil Trial Attorney, he has handled precedent-setting appellate matters before the Supreme Court and Appellate Division of New Jersey, and regularly represents clients in administrative, disciplinary and labor hearings.
  • John L. Slimm, Professional Liability Defense. Jack has devoted the majority of his 40-year career to the representation of attorneys, accountants, architects and engineers, directors and officers, and investment and insurance professionals in litigation.
  • Lary I. Zucker, Personal Injury Defense and Entertainment & Sports Defense. Lary co-chairs the firm's Amusements, Sports & Recreation Practice Group and has 48 years of litigation experience.

The firm’s New Jersey Super Lawyer Rising Stars include:

  • Ariel Brownstein, Insurance Coverage. Ariel focuses his practice on insurance fraud and SIU litigation, with an emphasis on medical provider fraud and large loss fraud.
  • Christopher DiCicco, Transportation/Maritime Litigation. Chris focuses his practice on admiralty and maritime litigation, including maritime personal injury cases and marine construction cases. He also handles trucking and aviation cargo defense matters. He is admitted to practice in both New Jersey and New York, and he actively handles litigation in both states.
  • Ryan Gannon, Personal Injury, Medical Malpractice Defense. Ryan focuses on medical malpractice and nursing home malpractice litigation.
  • Heather LaBombardi, Medical Malpractice Defense. Heather defends health care practitioners and facilities in medical malpractice and health care liability matters.
  • Sara Mazzolla, Personal Injury, General, Defense. Sara defends matters involving premises liability, amusements, sports and recreation, construction, automobile and condominium/community association law. She also defends professional liability claims involving sports coaches and real estate professionals.

Published Articles

William Banton (Philadelphia, PA) and Paul Laughlin (Allentown, PA) authored the article “Child Protective Services Law: Implications for Behavioral Health Organizations,” which appeared in the March/April issue of The Pennsylvania Lawyer. Click here to read the article.

Ryan Burns (Fort Lauderdale, FL) authored the article “Understanding Florida’s Sweeping New Immunity Law for COVID-19 Claims,” which was published on April 15, 2021, in Insurance Journal’s Southeast edition. You may read the article at this link.

Peggy Smith Bush (Orlando, FL) contributed the article, “How to Get Your Business Relationships – and Yourself – Back on Track After a Year of Isolation,” to the Orlando Business Journal. Peggy is an active member of The Florida Bar’s Mental Health and Wellness of Florida Lawyers Committee and is pursuing a master of professional studies psychology of leadership degree from Penn State University.

Christopher Conrad (Harrisburg, PA) wrote an article titled “Bullies In the Schoolyard and Beyond: Avoiding and Defending Federal Bullying Claims Against Schools and School Leaders” for the Pennsylvania Liability Defense Quarterly. Click here to read.

Bridget Mead (Philadelphia, PA) and faculty from Drexel University Thomas R Kline School of Law and Catholic University authored an article published in the Singapore Academy of Law, Special Issue on Law and Technology. Titled, “Defensibility: Changing the Way Organisations Approach Cybersecurity and Data Privacy,” the article discusses the Equifax data breach and analyzes shortcomings in traditional approaches to cybersecurity and data privacy by first examining current laws, rules and regulations across the globe. You may access the article at this link: https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-Special-Issue/Current-Issue/ctl/eFirstSALPDFJournalView/mid/503/ArticleId/1599/Citation/JournalsOnlinePDF.

Michelle Michael (Roseland, NJ) authored the article, “NJ Supreme Court Confirms Scope and Application of Pregnant Workers Fairness Act,” appearing in the New Jersey Law Journal.

Steven Petramale (Pittsburgh, PA) authored an article appearing in The Legal Intelligencer’s Medical Malpractice Supplement. The article, “Courts’ Interpretations of Statutes Demonstrate Shifting Landscape for Defense Bar,” discusses the recent interpretations of the Peer Review Protection Act, MCARE Act, Patient Safety and Quality Improvement Act, and the Health Care Quality Improvement Act, as well as methods that attorneys can employ to maintain privilege over certain documentation. Read the article here.

Alesia Sulock (Philadelphia, PA) authored “Reinstating the Two-Year Statute of Limitations for Legal Malpractice Claims,” in which she discusses the “gist of the action doctrine” in Pennsylvania and its impact on legal malpractice claims. Published in The Legal Intelligencer, you can read the article here.

Jeremy Zacharias’ (Mount Laurel, NJ) article, “The Impact of COVID-19 on the Global IPO Marketplace,” was published by PLUSBlog on March 15, 2021. To read, click here.

Speaking Engagements

Robert Aldrich (Scranton, PA) presented at the Pennsylvania Association for Health Care Risk Management Spring Conference. This webinar was offered in conjunction with the Pennsylvania Defense Institute. Rob’s presentation focused on the 21st Century Cures Act.

Heather Carbone (Jacksonville, FL) presented “Average Weekly Wage and Indemnity Benefits (Other than PTD)” at the 2021 Florida Bar Workers’ Compensation Forum. Conference attendees included adjusters, case managers, vocational experts, supervisors, managers, attorneys and executives from the Florida workers’ compensation claims community.

Jim Cole (Philadelphia, PA), Jon Cross (Philadelphia, PA), AC Nash (Fort Lauderdale, FL), Matt Schorr (Roseland, NJ), Dave Shannon (Philadelphia, PA), Sunny Sparano (Roseland, NJ) and Vlada Tasich (Philadelphia, PA) recently participated in ILG WEEK. “Insurance Claims Snapshots from Around the Globe” was a week-long series of practice area-specific webinars in areas such as concussion litigation, autonomous vehicles, ransomware attacks, changes in the construction industry, COVID-19 and business interruption claims, and negligent security. All of our presenters guided participants through case studies and interactive sessions, addressing key issues of importance to claims professionals and insurance industry personnel.

Ashley Eldridge (Philadelphia, PA) was a speaker at the Dispute Resolution Institute’s Person Injury Potpourri, presenting “COVID-19 and Workers' Compensation.” Ashley also spoke at Philly I-Day. In “Professional Development Trends, Emerging Topics in Learning and Leadership Development,” Ashley joined senior learning leaders representing a wide swath of the industry, including a major personal lines carrier and an international property casualty carrier, to learn about professional development trends, including emerging topics in training, learning and development, as well as leadership development.

Brooks Foland (Harrisburg, PA) presented at the Pennsylvania Defense Institute’s Lunch Time Webinar, “With Vehicle Technologies in the Fast Lane, How Can We Keep Up?” Brooks co-chairs the PDI’s Motor Vehicle Committee. The webinar addressed the new technologies in motor vehicles and their use in gathering relevant evidence for litigated cases.

John Hare (Philadelphia, PA) spoke at the Civil Litigation Update 2021 presented by the Pennsylvania Bar Institute on March 4, 2021.

Niki Ingram (Philadelphia, PA) was a panelist at a recent webinar hosted by the Philadelphia Association of Defense Counsel. “How Women Judges and Lawyers Succeed During Challenging Times” featured an esteemed panel of women in the legal profession offering advice and sharing real life experiences on how to move forward while overcoming obstacles, juggling work life with personal life and maintaining civility.

Ben Nicolosi (Scranton, PA) recently made a virtual presentation for the Luzerne County Bar on “An Overview of Pennsylvania Premises Liability Law.”

Kacey Wiedt (Harrisburg, PA) presented at the County Commissioners Association of Pennsylvania’s (CCAP) “Controlling Workers' Compensation Costs Workshop” on March 18. The rapid-fire spread of the coronavirus over the course of the past year has employers concerned about the health and safety of their employees. As the pandemic continues, many are also wondering if there is workers’ compensation coverage for employees who contract the virus. In this session hosted by the CCAP, Kacey discussed the importance of working together during the pre-litigation phase to properly manage COVID-19 claims and mitigate risk.

Media Commentary

Raphael Duran (Philadelphia, PA) was a guest speaking on WPHT Talk Radio. Raph and his fellow panelists—JB Dilsheimer of Stampone O’Brien Dilsheimer Law and Geoff Dlin of Krasno Krasno Onwudinjo—discussed different litigation styles (such as when to be a bulldog and when to be cooperative), and how it impacts workers’ compensation cases. Various claims were discussed involving subrogation, catastrophic and minor claims. The effectiveness of various litigation styles, in the speakers’ respective specialties, was also debated.

Matt Keris (Scranton, PA) was interviewed by NBC News and ED Legal Letter. In a March 4, 2021, report titled, “Kentucky Mom Alleges Hospital Workers Missed Her Cancer -- Then Covered Up Their Mistake,” by NBC NEWS, Matt commented on how audit trail litigation is driving up the cost of medical malpractice lawsuits. The full article can be read here. Matt was also quoted in ED Legal Letter in the March 2021 article, “Misdiagnosis Top Allegation in Aortic Dissection Malpractice Claims.” The full article can be found here.

 

Defense Digest, Vol. 27, No. 3, June 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

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 Reaffirms That Actual Cash Value Includes Labor and Overhead, Not Just Materials

Greenaker v. Universal Prop. & Cas. Ins. Co., Case No. 2D2024-1964, (Fla. 2nd DCA May 8, 2026). The plaintiffs filed a breach of contract suit against Universal for refusal to pay for all of plaintiffs’ damages from a storm in November 2020. Universal filed a motion in limine to prevent the plaintiffs from introducing evidence concerning both actual cash value and replacement cost value of the loss. They argued that the plaintiffs did not complete repairs or incur any expenses in repairing the damaged property, thus being limited to actual cash value as their measure of damage and the plaintiffs’ submitted estimate of damages contained labor costs necessary for repair and, therefore, not an actual cash value estimate. Universal further asked for a directed verdict at the hearing because the plaintiffs would have no evidence to support the claim for damages. The trial court agreed and granted Universal’s motion, entering a final judgment in Universal’s favor.  The plaintiffs filed a motion for rehearing and reconsideration due to the court improperly converting Universal’s motion in limine to a motion for final summary judgment. The court denied plaintiffs’ motion and the plaintiffs appealed. The Second District Court of Appeal agreed with the plaintiffs and determined that the trial court improperly entered a final judgment based on a pretrial ruling in limine, advising there was recognized procedures, including summary judgment, judgment on the pleadings, and default judgment that could have been exercised. Further, the court continued that the improper procedure was not the only reason for the judgment to be reversed. They noted the insurance policy did not provide a definition of actual cash value nor how to calculate it, and the parties disputed the definition and calculation of such.  Universal argued that actual cash value is defined as the value of the property that suffered the direct physical loss less depreciation and deductible, i.e. costs of physical materials that were damaged.  The plaintiffs argued that actual cash value includes the amount of repair costs in addition to the value of the property that suffered direct physical loss because it is calculated as the replacement cost minus depreciation.  The court agreed with the plaintiffs, noting that Universal’s definition was not supported by the insurance contract, the statute governing replacement value insurance contracts, nor decisional authority.  The court noted that Universal “cherry-picked” the phrase “direct physical loss” from the perils insured against provision and applied it to the loss settlement provision, which doesn’t state “direct physical loss,” but instead states “insured loss.”  Further, the court conveyed that application of “direct physical loss” would be used on both actual cash value and replacement cost value, as they are both present in the loss settlement provision, which would mean insureds never got payments beyond costs of physically damaged material, which is contradictory to the replacement cost value definition.  The court advised that the Florida Supreme Court had approved the court’s interpretation of actual cash value as including costs other than damaged physical property, including overhead and profit, noting that these costs can be included in actual cash value to which a portion, like all other costs, could be depreciated. The court noted the difference between actual cash value and replacement cost value is not between types of costs, i.e. materials vs. labor, but between the valuation of the costs with the distinction of being a depreciated vs. undepreciated value. The court refused to exclude intangible costs such as labor, profit and overhead from actual cash value, finding these costs inclusions were consistent with statutory and contractual language as well as Florida Supreme Court precedent. The court reversed the judgment and remanded the case back to the trial court.

Portrait of Thomas Glassman. Text: Joining our Cincinnati Office as a Shareholder in the Casualty Department

News

Marshall Dennehey Adds Shareholder Thomas F. Glassman in Cincinnati, Expands Casualty Practice in Ohio and Kentucky

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Thought Leadership

Appeals Court Reverses Trial Court Order Striking Complaint as Sanction for Violating Discovery Order

All Dry USA v. Savell, 2026 WL 816093 (Fla. 1st DCA 2026) The First District Court of Appeal reversed the trial court’s order denying All Dry USA’s complaint as a sanction for violating a discovery order. The appellate court found that All Dry USA’s failure to comply with the trial court’s case management order did not give the trial court the authority to strike All Dry USA’s pleadings. All Dry USA provided water mitigation, mold remediation, and a restorative tarp at the property owned by the Savells. The property had been damaged by Hurricane Sally. All Dry USA provided invoices for the three services it performed in the amount of $90,130.61. The Savells refused to pay the invoices, stating that while they had retained All Dry USA, there was no agreement reached regarding the cost of the services. All Dry USA proceeded to file a lawsuit against the Savells, alleging breach of contract and unjust enrichment. The Savells answered the lawsuit and served discovery upon All Dry USA. All Dry USA failed to respond to the discovery requests and the Savells moved for an order compelling discovery. The trial court issued an order compelling All Dry USA to respond to Savells discovery requests and comply with all outstanding discovery deadlines per the case management order. On the day its responses were due, All Dry USA filed a motion to extend the deadline to comply with the court’s order. Before the motion was ruled upon, the Savells filed a motion to have All Dry USA’s complaint stricken for violating the trial court’s order compelling All Dry USA’s responses. The trial court granted the motion to strike, and then granted the Savell’s request for entry of default final judgment, based upon there no longer being an operative complaint. The First District Court of Appeal reversed, ruling that an order striking pleadings is justified if it is found that a party has violated numerous discovery orders, or has shown a “deliberate and contumacious disregard of the court's authority.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). The appellate court stated that a trial court’s authority to strike pleadings is not unbridled and that the situation before the court did not justify the striking of All Dry USA’s pleadings. In reaching its decision, the First District focused on the fact that the trial court only addressed the potential prejudice to Savell by All Dry USA failing to respond to discovery and seeking an extension of the deadline. The appellate court stated that prejudice is not the only factor to be considered and that the trial court needed to address if All Dry USA’s behavior in failing to comply with the discovery order was willful and deliberate.  The First District also stated that nothing in rule 1.200 or 1.380 grants a trial court the authority to strike a pleading because certain case management deadlines are not met. The appellate court held that the Florida Rules of Civil Procedure allow trial courts to bring the parties in, order them to comply with the case management discovery deadlines, and then strike pleadings if the subsequent discovery orders are disobeyed. This ruling shows the importance of understanding the authority that is binding on the trial court a party is appearing in front of. The First District’s view on a trial court’s ability to strike pleadings is in contrast with other appellate court’s throughout Florida.

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

Stacey R. Gorin Installed as President of the Burlington County Bar Association

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.