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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 31, No. 1, March 2025

March 1, 2025

RECOGNITION

Heather Byrer Carbone (Jacksonville, FL) was honored with the John J. Schickel Professionalism and Excellence Award by the E. Robert Williams Inn of Court. 

Peggy Smith Bush (Orlando, FL) and Heather Byrer Carbone (Jacksonville, FL) have been recognized as 2024 Florida Trend “Legal Elite NOTABLE - Women Leaders in Law.” Both were honored for their impact in the field of law, mentorship, and leadership in professional organizations and civic/community service initiatives. 

Congratulations to Jeremy J. Zacharias, RPLU, (Mount Laurel, NJ office) on his election to the Board of Trustees of the Professional Liability Underwriting Society. Jeremy has been an active member of PLUS since 2016. 
 

PUBLISHED ARTICLES

February 18, 2025 – The New Jersey Law Journal published David Levine’s (Roseland, NJ) article “Navigating Preexisting Conditions in New Jersey Workers’ Compensation Claims.” Read his article here.  

January 28, 2025 – Jillian Dinehart (Cleveland, OH) authored, “‘I Was Just Following Orders’ – Ohio’s Sixth Circuit Court of Appeals Applies Fourth Amendment’s Good-Faith Exception to First Amendment Retaliation Claims,” published in PLUS Blog. The article discusses Hall v. Navarre, where the Sixth Circuit found that a police officer who ticketed a protestor for disorderly conduct, despite not personally witnessing the conduct, had qualified immunity for the plaintiff’s First Amendment retaliation claim. Read Jillian’s article here.

November 27, 2024 – The Insurance Journal published Sean Greenwalt’s (Tampa, FL) article “Florida Appeals Court Nods Enforceability of Forum Selection Clauses in PIP Cases.” You can read Sean’s article here.

November 27, 2024 – The New Jersey Law Journal published “Opportunity Knocks: Modern Trends with Business Email Compromise in a Changing Cyber World” by David Shannon (Philadelphia, PA) and Jeremy Zacharias (Mount Laurel, NJ). You can read their article here.
 

SPEAKING ENGAGEMENTS

February 24, 2025 – Mohamed Bakry (Philadelphia, PA) co-moderated “Behind the Bench: A Candid Look at What Federal Judges Expect from Lawyers” at the Federation of Defense & Corporate Counsel’s (FDCC) Annual Winter Meeting. 

February 23–27, 2025 – John Delany, III (Philadelphia, PA), chair of our Catastrophic Claims Practice Group, moderated a compelling session at the Federation of Defense & Corporate Counsel Winter Meeting. Jack joined author Colum McCann, American Book Award-winning author of Let the Great World Spin, to discuss his book, American Mother. The session’s theme focused on how a more empathetic approach to practicing law cannot only increase understanding and good will between plaintiffs and defendants but also lower the likelihood of a nuclear verdict and bring about resolutions that all parties can feel better about.

February 19, 2025 – Jeffrey Rapattoni (Mount Laurel, NJ) co-presented the webinar “Bad Faith Legal Update” to members of International Association of Special Investigation Units (IASIU). Topics included current legislation affecting the SIU and anti-fraud professionals, case-specific legal decisions affecting the SIU community, as well as trending decisions and pending legislation.

February 12, 2025 – Michele Punturi (Philadelphia, PA) joined a panel at Claims Litigation Management’s (CLM) 2025 Focus Conference: Work Comp, Casualty and Risk Management. In “Workers’ Comp Risk Management Best Practices: Insights from High-Risk Industries,” the panel addressed the ongoing challenges of workers’ compensation in high-risk industries. 

February 11, 2025 – Rachel Insalaco (Scranton, PA) co-presented “Special Education Law: The Ultimate Guide” at a National Business Institute CLE. Rachel’s presentation addressed bullying and/or harassment involving students with special needs.

February 10, 2025 – Sara Mazzolla (Roseland, NJ) joined a panel of International Amusement & Leisure Defense Association professionals to present “Risk Management and Understanding the Claims Process” at the NAFDMA Agritourism Association Convention & Expo.

January 30, 2025 – Jacqueline Reynolds (King of Prussia, PA) co-presented “The Lawyer’s Guide to Mitigating Burnout: Caring for Ourselves and Our Clients in Challenging Times 2025” for the Pennsylvania Bar Institute.

January 28, 2025 – Samuel Cohen (Philadelphia, PA) participated in the session “Best Interest Reviews: Decoding FINRA 2330” at Level Up at OneVoice Annual Kickoff 2025.

January 16, 2025 – Josh J.T. Byrne (Philadelphia, PA) was a featured speaker in the Philadelphia Bar Association’s webcast “Recent Ethics Developments 2024.” Hosted by the Professional Guidance and Responsibility Committee, the program highlighted key cases, ethics opinions, disciplinary decisions, and changes in the rules of professional conduct from 2024. 

January 16, 2025 – Jon Cross (Philadelphia, PA) and Thomas Brown (Orlando, FL) were speakers during the three-hour presentation at the “Legal Roundtable” held at the Amusement Industry Manufacturers and Suppliers (AIMS) Conference.

January 16, 2025 – Jeffrey Rapattoni (Mount Laurel, NJ) discussed “Ethical Considerations for the SIU” at the National Insurance Crime Bureau’s (NICB) Mid-Atlantic Major Medical Fraud Task Force Training Event. Designed for NICB agents covering Pennsylvania, New Jersey and Delaware, the program provided information and strategies related to the prevention, detection, and prosecution of insurance fraud and crime. 

January 15, 2025 – A.C. Nash, Ryan Burns and Edwyna Estime (all of Fort Lauderdale, FL) headlined at the RIMS - Broward County chapter meeting. They co-presented “New Year, New Rules – Florida’s New Civil Procedure Rules,” which examined the Florida Supreme Court’s changes to the Florida Rules of Civil Procedure.

January 10, 2025 – Josh J.T. Byrne (Philadelphia, PA) co-presented “Dealing with Difficult Opposing Counsel 2025” for the Pennsylvania Bar Institute. 

December 18, 2024 – “Restoration After the Data Breach!” In the final episode of his 2024 PLUS podcast series, David Shannon (Philadelphia, PA) spoke with disaster restoration expert Heath Renfrow about managing sophisticated cyber attacks. Listen to the PLUS podcast here or read the transcript here.

December 18, 2024 – Josh J.T. Byrne (Philadelphia, PA) presented “Legal Malpractice Avoidance” at a Dauphin County Bar Association CLE webinar.

December 17, 2024 – Sara Mazzolla (Mount Laurel, NJ) participated in the Sports and Entertainment Risk Management Alliance (SERMA®)’s webinar “Roller Skating and Ice Skating Risk Management.”

December 9, 2024 – Matthew Keris (Scranton, PA) was a panelist for a webinar hosted by the Pennsylvania Coalition for Civil Justice Reform. In “A-Z on AI! Artificial Intelligence Litigation Trends and Ethical Issues,” Matt and his co-panelists led a discussion on AI from a medical liability perspective, including how the defense can weaponize AI and the ethical issues of AI in legal practice.

December 6, 2024 – Jack Delany (Philadelphia, PA) presented “Empathy in High-Stakes Trials” at the Litigation Counsel of America’s Renaissance Symposium XVIII. The symposium offered a full day of trial tactics and strategies, led by some of the country’s leading trial lawyers with years of experience, successes, and verdicts.

November 26, 2024 – Kimberly Kanoff Berman (Fort Lauderdale, FL) of our Florida Appellate Law practice presented at the National Business Institute course, “Obtaining Evidence from Electronic Devices in Florida.” The program focused on how to gather evidence from electronic devices and get it authenticated when hiring an expert is not feasible.

November 21, 2024 – Sara Mazzolla (Mount Laurel, NJ) and her International Amusement & Leisure Defense Association (IALDA) colleagues presented a Legal Roundtable at the International Association of Amusement Parks & Attractions (IAAPA) Expo 2024. The panel covered topics including including a three-part presentation on demystifying the science of acceleration forces; combatting reptile theory; using AI for demonstrative exhibits and jury consultants; updates on ASTM proposals and waivers; and case law in various jurisdictions.

November 20, 2024 – Anthony Natale (King of Prussia, PA) was one of the key speakers at the annual Delaware Valley Workers’ Compensation Trust’s (DVWCT) Claim Prevention seminar. This live event was attended by risk control employees, managers, police chiefs, command staff, department heads, and local government leadership in the townships and municipalities that are administered by the DVWCT. Tony spoke on the importance of presenting unified and global defenses between workers’ compensation, unemployment compensation, internal grievance arbitration, and employment law where applicable in cases involving workplace injuries. Tony was able to give examples of this unified directive, citing a current case in litigation involving all of these areas of law and the blue print used to provide a global defense. 



 

Defense Digest, Vol. 31, No. 1, March 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

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

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. 

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.