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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 31, No. 2, June 2025

June 1, 2025

THOUGHT LEADERSHIP

April 17, 2025 – Lauren Purcell’s (Pittsburgh, PA) article, “A Post-’Sullivan’ World Requires a Strong Expert Report,” was published by The Legal Intelligencer. You can read here article here.

March 17, 2025 – The Legal Intelligencer published Alesia Sulock’s and Josh J.T. Byrne’s article “‘Clear and Convincing’ Is the New Standard for Attorney Disciplinary Matters.” You can read their article here.

February 27, 2025 – Brad Haas (Pittsburgh, PA) authored the article, “Pennsylvania’s Expanding Vicarious Liability Standard,” appearing in The Legal Intelligencer. The article discusses the Pennsylvania Superior Court’s January 31st ruling in Coryell v. Morris, which represents an expansion in the state’s approach to vicarious liability for franchisors. Read the article here.  


SPEAKING ENGAGEMENTS

Jason Banonis (King of Prussia, PA) teamed up with William L. Roberts, MBA, ARM on May 7, 2025, to present “The Great Eight: 8 Questions Every Risk Professional, Claims Director or Litigation Manager Must Ask Defense Counsel Before Taking a Verdict” at the annual RIMS Conference.

Josh J.T. Byrne (Philadelphia, PA) participated in the Pennsylvania Bar Institute webinar “The New World of Immigration Under the Trump Administration: Sensitive Area and Worksite Enforcement” on April 22, 2025.

James Cole (Philadelphia, PA) co-presented “This Is Jeopardy!!! Unfair Claims Practices” at the 2025 PLRB Conference on March 31, 2025. Presented in the popular game show format, this interactive session provided an in-depth analysis of the Model Unfair Claims Practices Act. 

Lee Durivage (Philadelphia, PA) co-presented at the Pennsylvania Bar Institute’s two-day “Employment Law Institute 2025,” held in Philadelphia on April 15–16, 2025.

John Hare (Philadelphia, PA) joined a panel of judges and attorneys to present the live webcast “New Voir Dire Rule Pa.R.C.P. 220.3,” on behalf of the State Civil Litigation Section of the Philadelphia Bar Association on March 19, 2025. 

Kevin Hexstall (Philadelphia, PA) co-presented “The Art of Settlement: Techniques and Strategies for Choosing the ADR Option that Gets the Best Results for Your Client” for the Philadelphia Bar Association. Held on May 7, 2025, this webcast presented a comprehensive examination of the various options for dispute resolution, including mediation, ADR, and judicial settlement conferences. 

Matthew Keris (Scranton, PA) presented “MPL Crossfire: How to Prepare for AI From a Medico-Legal Perspective” at the 2024 Medical Professional Liability Association conference on May 22, 2025. On May 5, Matt presented “Tips to Minimize and Manage Your Audit Trail Footprint” at the 33rd Annual New England Regional Healthcare Risk Management Conference. Finally, on May 2, Matt co-presented “Venue Shopping, Risk Management & Avoidance” with Curt Schroeder ((PA Civil Justice Reform) at the Keystone Chapter American College of Surgeons.

Matthew Keris and Nicole Tanana (both of Scranton, PA) headlined at the Pennsylvania Association for Health Care Risk Management (PAHCRM) 2025 Annual Conference. On April 16, 2025, Matt, chair of our Electronic Medical Record and Audit Trail Practice Group (and also PAHCRM President-Elect), presented “Tips for Keeping a “Clean” Medical Record in an Electronic World.” On April 17, Nicole presented a “Legal/Case Law Update.”

Andrew Marchese (Fort Lauderdale, FL) co-presented “Understanding Directors & Officers Liability and Insurance for Community Association Boards” for the Florida Bar Association on April 16, 2025. The Real Property, Probate & Trust Law Section’s CLE webcast focused on potential liabilities for community association board members; how they have changed with Florida’s new statutory requirements; and what liabilities are covered by insurance policies.

A.C. Nash (Fort Lauderdale, FL) co-presented “The Yellow Brick Road to Litigation Success: What Happens When Carriers and Defense Counsel Team Up?” on April 10, 2025, at the annual CLM Conference.

Jeffrey Rapattoni (Mount Laurel, NJ) presented “Ethics and the Investigator” at the 18th Annual New England Chapter of the IASIU Seminar. On April 16, Jeff co-presented “Update in Fraud - A Legal Panel” at the 2025 Pennsylvania Insurance Fraud Conference, a collaboration between the Insurance Fraud Prevention Authority and International Association of Special Investigation Units. Additionally, on March 4, Jeff presented at the Insurance Fraud Management (IFM) Conference where he spoke on two different panels during the conference: “Emerging Challenges in Insurance Fraud Investigations,” and “Exploring the Past and Predicting the Future of the SIU Landscape.” 

Jacqueline Reynolds (King of Prussia, PA) co-presented “Give Us Liberty and Give Us Safety: Understanding Civics in the 21st Century Campus Conversations Series” at Gwynedd Mercy University on March 18, 2025. Hosted by the Montgomery Bar Association, this discussion on the enduring legacy of the U.S. Constitution, explored key amendments—including the 1st, 2nd, 4th, 5th, 6th, and 14th—examined their language, legal interpretation, and real-world impact. From safeguarding individual freedoms to limiting government overreach, these amendments continue to shape our society 238 years after the Constitution’s ratification. Also, on March 7, 2025, Jacqueline joined a panel to present “Preparing Your Bar Association for the Silver Tsunami: What Are the Roles and Opportunities for Bar Associations Related to Aging Members and an Aging Community.” This presentation was made at the Pennsylvania Bar Association’s Annual Conference of County Bar Leaders.

Alesia Sulock (Philadelphia, PA) joined a panel discussion at the American Bar Association Spring 2025 LPL conference, “By Young Professionals, For Young Professionals: YP Roundtable – Part Three – A Lunch Discussion” on April 3, 2025.

Elizabeth Underwood (Philadelphia, PA) presented as part of “Decoding the Doctor’s Notes: A Legal Guide to Medical Evidence,” a day-long webinar hosted by NBI. Held on March 20, 2025, the webinar focused on providing insights and skills to effectively utilize and challenge medical records and experts in litigation. Beth presented two sessions, one on “Getting the Most Out of Medical Experts” and the other on “Best Practices for Presenting Medical Records and Expert Testimony.” 

 

Defense Digest, Vol. 31, No. 2, June 2025, is prepared by Marshall Dennehey 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. © 2025 Marshall Dennehey. 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

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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

Result

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

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

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

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. 

News

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

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

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.