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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 30, No. 4, December 2024

December 1, 2024

RECOGNITION

We're proud to announce that six attorneys from our Wilmington office have been selected "Top Lawyers" by Delaware Today Magazine. Each year, the publication invites all practicing attorneys in the Delaware Bar to participate in a peer nomination process to select Top Lawyers in numerous practice areas across the state. Congratulations to:

Sarah Brannan Cole
Bradley Goewert
Thomas Marcoz, Jr.
Lorenza Wolhar
Aaron Moore
Keri Morris-Johnston

 

PUBLISHED ARTICLES

November 18, 2024 – The Legal Intelligencer published “What Are Forbidden Sexual Relations with Clients?” by Alesia Sulock’s and Josh J.T. Byrne (both of Philadelphia, PA). You can read their article here

November 14, 2024 – A. Judd Woytek’s (King of Prussia, PA) article “Goodbye 'Yellow Freight' Road?” was published in The Legal Intelligencer. You can read his article here.

November 11, 2024 – Michele Punturi (Philadelphia, PA) provided commentary in the article, “Workers’ Comp Making Gains in Attracting Claims Talent,” appearing in the November issue of CLM Magazine. The article discusses Rising Medical Solution’s benchmark study concerning the workers’ compensation sector. Read here.

October 29, 2024 – “Attorney Well-Being Doesn’t Have to Be Spooky: Steps Attorneys Can Take to Support Mental, Emotional and Physical Health,” by Dana Gittleman and Alesia Sulock (both of Philadelphia, PA) was published by PLUS Blog. You can read their article here.

October 15, 2024 – The Legal Intelligencer published “How Do You Define Success? Four Women Lawyers Share Their Thoughts,” authored by Josie Scanlan (Roseland, NJ). You can read her article here.

October 10, 2024 – Gregory Graham’s (Pittsburgh, PA) article, “Don’t Reinvent the Wheel: Approaching Gen AI Usage in Litigation,” was published in The Legal Intelligencer. You can read his article here.

Fall 2024 – James Cullen (Pittsburgh, PA) authored the article, “Grossly Underestimated: Exploring Gross Negligence and Liability Waivers in Pennsylvania Premises Liability Law,” which was published in the Fall 2024 issue of Pulse, the publication of the Pennsylvania Association of Mutual Insurance Companies. You can read Jim’s article here.

September 20, 2024 – Kimberly Berman (Fort Lauderdale, FL) authored “The ‘Sunshine’ State: New Comparative Negligence Jury Instructions Following the Adoption of House Bill 837,” which appeared in the Daily Business Review. Read it here.

September 18, 2024 – Alesia Sulock’s and Josh J.T. Byrne’s (both of Philadelphia, PA) article “Socially Responsible Lawyers: Why You Need to Understand Social Media to Competently Represent Your Clients (Part 1)” was published in The Legal Intelligencer. You can read their article here.

September 13, 2024 – Heather Carbone (Jacksonville, FL) authored an article in the Jacksonville Business Journal about the potential impact of Florida’s new heat exposure law on workers’ compensation in the state. Read “Florida’s New Heat Exposure Law May Impact Workers’ Comp” here.  

September 12, 2024 – Michele Punturi (Philadelphia, PA) authored the article, “6 Key Workers’ Compensation Safety and Data Analysis Considerations,” for Risk & Insurance. Read the article here.

September 2024 – Rachel Insalaco's (Scranton, PA) article, “Let the Sunshine In: Exploring the Impact of Pennsylvania’s Sunshine Act on School Board Decision-Making,” was published in Counterpoint. You can read Rachel’s article here.

September 5, 2024 – The Legal Intelligencer published Matthew Keris’s (Scranton, PA) article “Say ‘Goodbye’ to Medical Negligence Cases as We Know Them.” You can read his article here.

August 20, 2024 – Christopher Woodward and Allison Krupp (both of Harrisburg, PA) co-authored the article, “‘Regular Use Exclusions’ Stand: Pa. Supreme Court’s Latest Ruling Post-’Gallagher’,” appearing in The Legal Intelligencer’s Insurance Law Supplement. Read here.

August 9, 2024 – The Legal Intelligencer published Michael McMaster’s (Philadelphia, PA) article “AI in Workers’ Compensation: Are We There Yet?” You can read Mike’s article here.  

August 2024 – Jon Cross (Philadelphia, PA) was published in Insurance Law Global’s The Sports Bulletin, 3rd Edition. Jon wrote on the topic “‘No-duty’ Rule Is Key to the Successful Defense of Sports Injury Lawsuits in Pennsylvania, U.S.A.” You can read his article here.

August 2024 – Alicia Caridi (Tampa, FL), Sara Mazzolla (Roseland, NJ) and Carla Candelario (Tampa, FL) were also published in Insurance Law Global’s The Sports Bulletin, 3rd Edition. Alicia, Sara and Carla discussed “Negotiating the Call: What the Americans with Disabilities Act May Demonstrate as Trends in Finding the Line Between Equal Participation and Safety.” You can read their article here.
 

SPEAKING ENGAGEMENTS

November 25, 2024 – John “Jack” Slimm (Mount Laurel, NJ) presented along with an all-star lineup of some of the most experienced and respected trial attorneys and jurists in the region at the New Jersey State Bar Association’s Regional Trial Bootcamp. Presenters walked attendees through the framework of a trial by conducting the comprehensive trial of Al Capone for the St. Valentine’s Day Massacre.

November 20, 2024 – Gregory Graham (Pittsburgh, PA) presented “Searching for AI: Case Management Tips for Existing Litigation's AI Issues” for the Pennsylvania Defense Institute.

On November 19, 2024 – Scott Dunlop (Pittsburgh, PA) presented “Local Government Immunity in Pennsylvania—A Study of the Political Subdivision Tort Claims Act,” sponsored by PCoRP (The Pennsylvania Counties Risk Pool), to brokers and producers.

November 14, 2024 – Teresa Sirianni (Pittsburgh, PA) presented on a panel, “A Primer on Pursuing and Defending Remedies and Damages,” at the annual Allegheny County Bar Association Labor and Employment Law Symposium.  Teresa, along with Colleen Ramage, Esq. of Ramage Lykos, LLC and federal Magistrate Judge Kelly Their, discussed the legal and equitable forms of relief that are available in the vast area of employment law, strategic concerns to consider when pursuing or defending your side of the case and practical wisdom that can only come from a view from the bench. 

November 14, 2024 – Sean Greenwalt (Tampa, FL) and Alexander Lloret (Orlando, FL) hosted a webinar with the Central Florida CPCU Society. “First Party Auto and Property Year in Review: 2024 Case Law Impact on Claims Investigation and Evaluation” focused on the impact of recent Florida legislative and case law results on first-party auto and fire insurance claim investigations and evaluations.

October 31, 2024 – Kimberly Berman (Fort Lauderdale, FL) was a guest speaker at the Miami-Dade Bar Association Appellate Court Committee’s CLE program “Advanced Brief Writing.” 

October 29, 2024 – Jeffrey Rapattoni (Mount Laurel, NJ) presented the webinar “Legal/Ethics Update” at the Ohio Chapter of International Association of Special Investigation Units Fall Training.

October 22, 2024 – Matthew Burdalski and Ariel Brownstein (both of Mount Laurel, NJ) presented “Cracking the Case: Investigating Chiropractic Care from Record Review to Examination Under Oath” at the New Jersey Special Investigators Association’s 33rd annual seminar. 

October 18, 2024 – Linda Wagner Farrell (Jacksonville, FL) was a panelist for two “evidence” discussions at the Florida Office of Judges of Compensation Claims’ OJCC Work Comp Academy. The program is aimed to educate young lawyers or lawyers new to the practice area.

October 18, 2024 – Christopher Conrad (Harrisburg, PA) co-presented with Kathleen Metcalfe, Esquire, managing attorney for special education at Raffaele & Associates, “From Complaint to Appeal and Beyond: Litigating a Special Education Due Process Case,” at the Pennsylvania Bar Institute’s Exceptional Children Conference 2024.

October 16, 2024 – Robert Fitzgerald (Mount Laurel, NJ) co-presented “Know When to Hold ‘em, When to Fold ‘em! Best Bets to Limit Exposure in Claims Management” at the National Workers’ Compensation and Disability Conference. 

October 9, 2024 – Dana Gittleman (Philadelphia, PA) and Estelle McGrath (Pittsburgh, PA) co-presented at the Pittsburgh Insurance Club’s annual Pittsburgh I-Day. Dana and Estelle presented “Risk Management for Insurance Agents and Brokers: Best Practices to Avoid Liability.” 

October 8, 2024 – Matthew Keris (Scranton, PA) was a featured speaker at the 2024 American Society for Healthcare Risk Management Annual Conference in San Diego. Matt served as a panelist for “Multi-Disciplinary Evaluation of Opportunities and Risks with Artificial Intelligence (AI) in Health Care,” “Recommendations to Safely Use AI in Health Care,” and “Public Perception of ‘Big Medicine’ Requires New Jury Considerations.”

October 4, 2024 – Linda Farrell and Heather Carbone (both of Jacksonville, FL) made presentations at the Northeast Florida International Association of Rehabilitation Professionals 2024 Fall Forum. Linda’s presented “Medical-Marijuana-Workers’ Compensation,” and Heather was part of a panel that discussed “Legal Updates/Changes Impacting Florida.”

October 3, 2024 – Jeffrey Rapattoni (Mount Laurel, NJ) delivered two presentations at the National Insurance Crime Bureau’s Medical & Work Comp Fraud Conference in Chicago: “Ethics and the Investigator” and “Measuring an SIU Program’s Success In an Ever-Changing Environment.” 

September 26, 2024 – Dana Gittleman and Alesia Sulock (both of Philadelphia, PA) participated in the panel discussion, “Attorney Well-Being as a Matter of Professional Competence,” at the Professional Liability Defense Federation Annual Meeting. 

September 26, 2024 – Christopher Conrad (Harrisburg, PA) co-presented “UNcivil Discourse: The 1st Amendment and Regulating Speech at Public School Board Meetings” at the Professional Liability Defense Federation annual meeting. 

On September 20, 2024 – Josh J.T. Byrne (Philadelphia, PA) participated in a panel discussion, “Emergency Planning for Attorneys,” at the annual Philadelphia Bar Association Bench-Bar Conference.

September 19, 2024 – Lindsay McCormick (Tampa, FL) was a speaker at the annual Claims and Litigation Management Alliance Construction Conference. Lindsay co-presented “Ethics Escape Room 2.0: Construction Defect Style.” 

September 19, 2024 – Darren Newberry (Pittsburgh, PA) joined a panel of insurance professionals to present the webinar, “Trends in Oil and Gas Pipeline, Wellsite and Energy Production Injury Litigation,” produced by AM Best Information Services. 

September 12, 2024 – Anthony Natale (King of Prussia, PA) co-presented “Average Weekly Wage” at the Pennsylvania Bar Association’s Workers’ Compensation Fall Section Meeting in Hershey, PA.

September 10, 2024 – Jon Cross (Philadelphia, PA) co-presented “Audit Your Park to Lower Your Premiums” at the International Adventure & Trampoline Park Association annual conference.

September 10, 2024 – Matthew Flanagan (New York, NY and Melville, NY) was one of the guest speakers at the New York State Bar Association’s statewide “Risk Management for Lawyers” webinar. The issues he addressed included the joint and several liability of attorneys for malpractice under New York law; intra-firm relationships of attorneys; the supervisory obligations of lawyers under the Rules of Professional Conduct; and file retention requirements for attorneys under New York law. 

September 5, 2024 – James Cole (Philadelphia, PA) and Christopher Block (Roseland, NJ) once again served as faculty at the Claims and Litigation Management Alliance annual Claims College. Jim served as faculty for the School of Property Claims, and Chris served as faculty for the School of Casualty Claims. In their respective curriculums, they shared strategies and tools that claims professionals can apply to help them better manage their case files.

August 26, 2024 – Jeffrey Rapattoni (Mount Laurel, NJ) participated in three seminars at the 2024 International Association of Special Investigation Unites Conference. He presented “SIU Ethics,” “Building a Better Major Case: From Investigation to Suit,” and “Legal Updates.”

August 16, 2024 – Megan Nelson (Orlando, FL), who is also a registered nurse, presented “Tort Reform: Where Do We Go from Here?” at the Florida Society for Healthcare Risk Management and Patient Safety 44th Annual Meeting and Education Conference. 

August 5, 2024 – Josh J.T. Byrne (Philadelphia, PA) was a panelist for the Philadelphia Bar Association Family Law Section webinar “Suicide Prevention and the 302 Process: Training for Family Law Practitioners.” 

August 1, 2024 – Michele Punturi (Philadelphia, PA) was a co-presenter in “The Dream Team Approach to WC Case Management,” which was part of Claims and Litigation Management Alliance Workers’ Comp Week, a five-part series focusing on the latest trends and hot topics in workers’ compensation. 

August 1, 2024 – A.C. Nash (Fort Lauderdale, FL) presented “DE&I – Your Ally in the War for Talent” at the 2024 Florida Risk Management Society Educational Conference. This session focused on inclusivity, why it is important, and how it can be a key differentiator in attracting and retaining talent within an organization.

August 1, 2024 – Scott Gemberling (Philadelphia, PA) co-presented the webinar “Dram Shop, The Toxicology and the Law” for the National Academy of Continuing Legal Education. 

July 31, 2024 – Anthony Williott (Pittsburgh, PA) presented “Nursing Homes vs. Medical Malpractice Litigation” at the National Business Institute Nursing Home Failure of Care Litigation 2024 webinar. 

July 30, 2024 – Mohamed Bakry (Philadelphia, PA) co-presented “DEI Policies in the Crosshairs: A Discussion of Students for Fair Admissions v. Harvard and Its Impact on DEI Initiatives in the Private Sector” at the Federation of Defense & Corporate Counsel annual meeting in Toronto. 

July 22, 2024 – Harold Moroknek (Westchester, NY), with participation from Scott Taffet (Westchester, NY), Peggy Smith Bush and Thomas Brown (both in Orlando, FL), presented “Mock Trial, Trial Run, Tabletop Role Playing – GUILTY or NOT?” at the 2024 Annual Summer Meeting for the Bus Industry Safety Council. 


 

Defense Digest, Vol. 30, No. 4, December 2024, 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. © 2024 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

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.

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.

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.