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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 32, No. 2, June 2026

June 16, 2026

THOUGHT LEADERSHIP

Michael Salvati (Philadelphia) was a featured speaker in the A.M. Best podcast, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” Mike joined a panel of industry experts to discuss the evidentiary and strategic considerations behind a successful misuse defense. The program is available here (must register to listen). https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074

SPEAKING ENGAGEMENTS

Brad Remick (Philadelphia) served as a panelist for a Pennsylvania Defense Institute webinar on Recent Product Liability Pretrial and Trial Experience in Pennsylvania (State and Federal Courts). The program offered a 2026 update on key developments in Pennsylvania product liability law, highlighting significant appellate decisions, evolving jury instruction issues, and procedural trends shaping trial practice.

Sara Mazzolla (Roseland) participated on a panel where she shared her insights at the NAFDMA International Agritourism Association Convention & Expo. She kicked things off on February 8 with “Safety and Legal Prep,” a session focused on proactive strategies for keeping agritourism operations protected. On February 9, Sara continued with “I’m Getting Sued. Now What?,” a dynamic walkthrough of what businesses should expect and how to respond when faced with a claim.

Suzanne Tighe (Scranton) presented to over 200 attendees at PBI’s Joint & Several Liability 2026 Virtual Seminar on February 12. In her session, “Negotiation, Settlement and Release,” Suzanne offered guidance on effective approaches to settlement negotiations, release drafting, and risk management in complex multi‑party matters, and walked participants through techniques for reaching fair, enforceable resolutions with greater efficiency.

Elizabeth Ferguson (Jacksonville) spoke on the topic of Design Professional Liability at the Florida Bar Real Property, Probate, and Trust Law Section’s Advanced Construction Law & Certification Review Course. This course prepares attorneys for board certification, covering topics from construction insurance to contract and form documents. Learn more about the course here: https://www.rpptl.org/DrawCommittees.aspx?GroupCommitteeID=60.

Trish Monahan (Pittsburgh), Brielle Winkler (Mt. Laurel), and Brad Haas (Pittsburgh) delivered a virtual presentation for AAA titled Defense Litigation: Key Concepts and Current Developments. Topics covered included special damages evaluation, recent litigation developments, Pennsylvania specific bodily injury defenses, early claim evaluation, UIM/bad faith issues, coverage considerations, New Jersey auto claims, and psych/concussion cases. These topics were developed in coordination with AAA to address current trends and challenges facing their claims teams.

​John Hare (Philadelphia) moderated a panel discussion at Temple Law School in which leading Pennsylvania judges addressed the origins and importance of judicial independence in the United States. The discussion was cohosted by the Pennsylvania Commission on Judicial Independence, of which John is a member, the American Constitution Society, and the Women's Law Caucus.

On April 1, Chris Conrad (Harrisburg) co-presented on a panel that included Middle District of PA Chief Judge, Matthew Brann, on Civil Rights Litigation as part of “The Courts and the Community: An Educational Series for the Public,” sponsored by Dickinson College.

Jeff Rapattoni (Philadelphia), James H. Cole (Philadelphia), Alec DelConte (Philadelphia), and Allison Krupp (Harrisburg) spoke at the 2026 Pennsylvania Association of Mutual Insurance Companies (PAMIC) Claims Summit on April 8th. Jeff's session "Civil Rico and Insurance Fraud – A National Perspective" highlighted the rise of mass RICO filings and the key cases, trends, and risks shaping their impact. Jim and Alec co-presented "Condominium Conundrum (Acts, Liability, & HO-6 and HOA master policies)," reflecting on the issues insurers encounter in navigating claims arising out of HO-6 and HOA policies. Lastly, Allision led "e-Bikes and e-Vehicles" with two other speakers, tackling the legislation pertaining to this growing form of transportation.

James H. Cole (Philadelphia), Director of our Professional Liability Department, presented four sessions at the Property & Liability Resource Bureau (PLRB) Annual Claims Conference in National Harbor, Maryland.  Jim kicked things off with “Unfair Claims Practices: This is Jeopardy!,” an interactive exploration of the Model Unfair Claims Practices Act (MUCPA) presented in a game‑show format, followed by “Liar, Liar, Your House is on Fire,” a session focused on common insurance fraud issues with an emphasis on property damage.

On April 9, Peggy Bush (Orlando) presented "Current Issues Faced by the Transportation Industry and Trends in Transportation Litigation," to the International Association of Defense Counsel (IADC) Corporate Counsel Committee via webinar. Ethan Collins (Orlando) assisted Peggy tremendously with research for the presentation.

On April 12, Victoria Scanlon (Scranton) was a faculty presenter at the 2026 American Roentgen Ray Society (ARRS) Annual Meeting in Pittsburgh. She participated in the “Resident Symposium: Producing Quality Reports,” focusing her presentation on “How to Write a Great Report: Malpractice Lawyer’s Perspective.” Vicky, the only attorney presenter for this two-hour segment, was joined by several health care professionals including diagnostic radiologists, an interventional radiologist, an internal medicine physician, and a radiologist turned AI entrepreneur expert.

PUBLISHED WORKS

​Brad Haas (Pittsburgh) authored the article, “Paul Miller's Law: Direct and Punitive Transportation Exposure," published in CLM Magazine.

RECOGNITION

Michele Punturi (Philadelphia) has been named one of four finalists nationwide for the 2026 CLM Professional of the Year Award in the Outside Counsel category. This prestigious national recognition honors an attorney who demonstrates exceptional commitment to claims and litigation management through thought leadership, mentorship, innovative practices, and meaningful contributions to the CLM community.

Our attorneys Rob Williams (Jacksonville), Terrence Hill (Orlando), Kimberly Berman (Ft. Lauderdale), Harris Kirsch (Ft. Lauderdale), and AC Nash (Ft. Lauderdale) attended the National Retail and Restaurant Defense Association Annual Conference in Amelia Island, FL, this week, where they connected with clients, colleagues, and industry leaders across the retail and restaurant space.

As Coach for Widener University Delaware Law School’s Moot Court Team, Joshua W. Brownlie (Philadelphia) led the team to victory at the 41st Annual Jerome Prince Memorial Evidence Moot Court Competition at Brooklyn Law School, one of the nation’s premier appellate advocacy competitions. Competing against 36 law schools from across the country — including Drexel, Villanova, NYU, and Yale — the team rose to the top to secure the national title. Adding to the achievement, student, Jayden Velazquez, was named Top Oralist out of all competitors. Josh also serves as an adjunct professor at the law school. Learn more about the competition here: https://www.widener.edu/news/noteworthy/delaware-law-students-capture-first-place-jerome-prince-memorial-evidence-competition.

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. 

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

Thought Leadership

Vendor Cyber Attack Compromises PII of More Than 3 Million Hunting and Fishing License Holders in Texas

The Texas Parks & Wildlife Department (TPWD) announced earlier this month that one of its vendors which handles the sale of state hunting and fishing licenses was the victim of a cybersecurity attack. The threat actor appears to have exfiltrated personal driver’s license information, passport numbers, email addresses, phone numbers and addresses of over 3 million hunting and fishing license holders.  The State Parks Department advised that the attack did not compromise social security numbers, dates of birth or financial information. Texas Cyber Command, the state’s new cybersecurity authority formed to protect critical infrastructure and coordinate threat responses across state and local government, reportedly assisted in detecting and containing the attack. TPWD has already set up free credit monitoring for those impacted through Kroll.  According to press reports, no specific group has yet been identified as the perpetrator of the theft. TPWD also advised that business has not been interrupted and license sales were continuing. This incident once again demonstrates that cybersecurity is only as strong as the weakest link in the supply chain. Businesses must prioritize security across their own environments and those of their vendors and contractors as well.

Thought Leadership

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

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.

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

Result

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