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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

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

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. 

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

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. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

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.

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

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.