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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

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

News

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

Thought Leadership

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

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

Thought Leadership

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

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

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

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.

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

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.