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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

News

John J. Hare Featured in Pennsylvania & Delaware Super Lawyers Magazine

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

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

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department