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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

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Court Allows Recklessness and Punitive Damages Claims to Proceed After Work‑Zone Crash

In a case where a defendant filed preliminary objections against allegations of recklessness and punitive damages, the Susquehanna County Court of Common Pleas denied these preliminary objections. This case stems from a motor vehicle accident, where the defendants car struck the plaintiffs car after the defendant allegedly fell asleep at the wheel, going at a high rate of speed, through a construction work zone. Defendant first objected to the general allegations throughout the plaintiff’s complaint pertaining to “reckless” conduct contending that there were insufficient factual allegations to support the claim of reckless conduct. Defendant next objected to the plaintiffs claim for punitive damages, as punitive damages may only be assessed against a motorist for falling asleep while driving if there is further evidence to prove driver was aware of their drowsiness and risk of falling asleep. Lastly, defendant objected to plaintiffs complaint, claiming it lacked specificity. The court here found that the plaintiff had included in the complaint specific allegations related to the defendant’s alleged recklessness, including allegations regarding speeding in a work zone, almost striking the flagger, falling asleep at the wheel, and striking the plaintiffs vehicle which was stopped. Additionally, the court noted that falling asleep does not come without warning. The court found that these allegations were sufficient to support an allegation of recklessness at the pleadings stage.

Thought Leadership

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.

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

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

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. 

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.