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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

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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.

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

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.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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. 

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

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.