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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 30, No. 3, September 2024

September 1, 2024

RECOGNITION

Robert Aldrich (Scranton, PA) was recently elected to a five-year term to the Executive Board of the Pennsylvania Defense Institute. Rob has been a board member of PDI for the past eight years. With his elevation to the Executive Board, he will begin his term as PDI’s secretary and will ultimately become PDI’s president, following in the footsteps of many other Marshall Dennehey past presidents, including most recently Stuart Sostmann, Jason Banonis and Matthew Keris.

Kimberly Kanoff Berman (Fort Lauderdale, FL) was appointed treasurer of the Florida Supreme Court Historical Society at the 42nd Annual Board of Trustees meeting of the Florida Bar. 

Melanie Foreman (Philadelphia, PA) has been appointed as a Hearing Committee Member for the Disciplinary Board of the Supreme Court of Pennsylvania. She will serve a three-year term that began on July 1, 2024, to run through June 30, 2027. Hearing Committee Members perform essential roles in Pennsylvania’s disciplinary system, chief among them to review Disciplinary Counsel’s recommended dispositions and to conduct hearings into formal charges of attorney misconduct and petitions for reinstatement. These efforts are critical to guiding the Board and the Supreme Court in their determinations. 
 
Christopher Reeser (Harrisburg, PA) appeared on Pennsylvania Cable Network (PCN) as a commentator who introduced cases that were argued before the Pennsylvania Supreme Court. Chris and a local plaintiff’s attorney alternated in describing the facts of a case, the procedural history, and the issues to be decided by the Court before oral argument of the case was televised on PCN.

Congratulations to Seth Schwartz (Philadelphia, PA), co-chair of our Construction Injury Litigation Practice Group, on being named a 2024 Client Service All-Star by The BTI Consulting Group. Seth is one of only 296 attorneys selected nationwide who were identified by corporate counsel for superior client service. Clients say, “Everything Seth does is very client service oriented. He makes us feel like his only client.” Learn more about Seth’s practice and approach to client service: https://lnkd.in/e-dSSArK
 

PUBLISHED ARTICLES

The Legal Intelligencer published “DOL’s Retirement Security Rule Imposes New Fiduciary Standards on Financial Services, Insurance Industries,” authored by Samuel Cohen and Ryan Friel (both of Philadelphia, PA). You can read their article here.

PLUS Blog published Dana Gittleman’s (Philadelphia, PA) article “Insurance Agents and Brokers Get No Summer Vacation from Risk Management.” You can read her article here. 

PLUS Blog published Dana Gittleman’s (Philadelphia, PA) and Jeremy Zacharias’ (Mount Laurel. NJ) article “Insurance Agent Skorrs Victory in New Jersey’s Appellate Division.” You can read this article here. 

Joslyn Restivo and Oner Kiziltan (both of Fort Lauderdale, FL) authored the article, “Florida High Court Clears Path for Insurance Companies to Utilize Payment Methodologies Enumerated in PIP Statute,” which appeared in the Daily Business Review. The article discusses the Florida Supreme Court’s decision in Allstate Insurance v. Revival Chiropractic regarding the “billed amount” issue—one of the most longstanding issues in Florida PIP law. You can read their article here.

InsuranceLawGlobal.com published Alesia Sulock’s (Philadelphia, PA) article “The Assessment of Professional Liability Claims in the U.S.” You can read Alesia’s article here. 

The Legal Intelligencer published “Your Well-Being Matters: Attorney Mental Health and Professional Competence” and “‘But I Could Have Gotten More!’—Damages Speculation in Legal Malpractice Cases” by Alesia Sulock and Josh J.T. Byrne (both of Philadelphia, PA). 

David Tomeo (Roseland, NJ) and Melissa Dziak (Scranton, PA) authored the article, “Navigating a New Legal Landscape: Protecting the Corporate Veil in the Med Mal Suit,” which appeared in the New Jersey Law Journal’s Medical Malpractice Supplement. The article explores the historical roots and status of the “piercing the corporate veil” doctrine in New Jersey and Pennsylvania. You can read their article here. 

 

SPEAKING ENGAGEMENTS

Mohamed Bakry (Philadelphia, PA), in his role as president of The Lawyers Club of Philadelphia, hosted a CLE, “Communications with Parties and the Court,” with Josh J.T. Byrne (Philadelphia, PA) as one of the panelists. This one-hour program was comprised of four 30-minute presentations by the panelists, followed by a discussion and Q&A from the audience. The presentations focused on how to determine whether a party is represented and specifically addressed the topic of current and former corporate employees. The discussion also included how to ethically communicate with unrepresented parties from the perspectives of an attorney and a judge.

We are proud to have two outstanding attorneys from our firm involved with DRI’s annual Diversity for Success Seminar. Mohamed Bakry (Philadelphia, PA), a member of our DE&I Committee, served as the 2024 Program Chair, and Christina Gonzales (Philadelphia PA) moderated a portion of the DRI Women of Color Roundtable discussion.

Josh J.T. Byrne (Philadelphia, PA) presented “Disciplinary and Reinstatement Cases You Should Know” at the Disciplinary Board of the Supreme Court of Pennsylvania’s training for new hearing committee members. The presentation focused on the disciplinary process from the perspective of respondent’s counsel. 

Josh J.T. Byrne and Alesia Sulock (both of Philadelphia, PA) presented for Attorney Protective on the “Ethical Use of Social Media in the Practice of Law.” The presentation attracted over 1,300 attendees.

Michele Frisbie (King of Prussia, PA) was a guest lecturer on “Avoiding Liability for Personal Trainers” at Montgomery County Community College’s Health and Fitness Professional AAS Degree and Personal Training Certificate programs.

John Gonzales (Philadelphia, PA) presented a webinar entitled “An Introduction to Fourth Amendment Police Liability Claims” for the National Academy of Continuing Legal Education. 

Sean Greenwalt (Tampa, FL), Oner Kiziltan, and Joslyn Restivo (both of Fort Lauderdale, FL) presented at the Florida Insurance Fraud Education Committee’s annual conference. Their presentation, “No Tipping, Please: Responding to Gratuitous Payment, Coverage, and Policy Disputes,” tackled all the new and old challenges to PIP exhaustion and policy limits.

Matthew Keris (Scranton, PA) joined hundreds of the country’s leading health care executives, clinicians, and other professionals at the 2024 American Hospital Association Leadership Summit. Matt co-presented the session “Multi-Disciplinary Evaluation of Liability Risks of AI in Health Care: The Board Focus,” with Susan Boisvert, Senior Patient Safety Risk Manager at The Doctors Company. The session focused on how professionals can prepare for upcoming medicolegal challenges in light of anticipated increases in AI legal spend.

Julia Klubenspies (Roseland, NJ) was a featured speaker at the new resident orientation for the first class of resident physicians at The Valley Hospital in Paramus, New Jersey. Julia spoke on “Risk Management Topics and Strategies for the Resident Physician.”

Leaders of our Trucking & Transportation Litigation Practice Group revealed the major employment law issues impacting the industry with AM Best Information Services. Leonard Leicht (Roseland, NJ), Peggy Bush (Orlando, FL), and Harold Moroknek (Westchester, NY) shared lessons learned from actual cases they have handled. Listen now! https://lnkd.in/eAG5cfxN

Harold Moroknek (Westchester, NY) was part of a group of presenters at this year’s Auto Haulers Association Spring Conference.
 
Michele Punturi (Philadelphia, PA) was joined by Michelle Leighton, Vice President - Senior Claim Consultant at Connor Strong, and Robin S. Roeder, Senior Vice President Risk Management at Sedgwick, in presenting CLM’s webinar “The Dream Team Approach to WC Case Management.” 

Jeffrey Rapattoni (Mount Laurel, NJ) spoke at the New England Chapter IASIU two-day training seminar, where he presented “Ethics and the Investigator.”

Tune in to the latest Professional Liability Underwriting Society podcast, where David Shannon and Ryan Friel (both in Philadelphia, PA) discuss the new SEC rule for cybersecurity and its impact on compliance frameworks and reporting obligations. https://lnkd.in/esBGPCDA 

Jack Slimm (Mount Laurel, NJ) joined a panel to present the New Jersey State Bar Association’s CLE program, “Legal Malpractice Update.” The seminar touched on ethical issues in legal malpractice, including claims and proofs involving the New Jersey Lawyers Fund for Client Protection, problems arising from accepting electronic payments, fee splitting and referral fees, emotional distress damages, the impact of artificial intelligence on legal malpractice, and appellate malpractice.

Robin Snyder (Philadelphia, PA) joined a panel at the Pennsylvania Chamber of Business and Industry’s Healthcare Summit to present “Navigating Medical Malpractice: Insights Into Pennsylvania’s Legal Landscape.”

Sunny Sparano (Roseland, NJ) joined a panel of fellow Insurance Law Global members to present “Navigating Liability for Design: Key Considerations for Contractors, Professionals, and Insurers.” In this webinar, the panel of construction law experts contrasted the duties imposed on design and construction practitioners in the USA, France, and Australia respectively.

Alesia Sulock (Philadelphia, PA) joined an international panel of attorneys and members of Insurance Law Global to present the webinar “The Assessment of Damages in Professional Liability Claims.” This panel of experts compared and contrasted how damages are calculated in Argentina, Australia, Italy, Spain, the UK, and the USA. Alesia also presented with the Pennsylvania Bar Association’s Professional Liability Committee, “Avoiding Legal Malpractice,” to the Monroe County Bar Association.

Suzanne Utke (Philadelphia, PA) lectured on the topic of “Medical Legal Issues” for the physicians assistant programs of Thomas Jefferson University.

Timothy Ventura (Philadelphia, PA) and Christopher Block (Roseland, NJ) presented “The Seven-Ten Split Mock Trial: Navigating Agent Errors & Omissions,” at the Annual Professional Insurance Agents (PIA) Conference. The mock trial was designed to mimic a trial based on actual errors that arose under E&O liability for insurance agents. During the session, attendees were also provided with an overview of E&O liability, including an examination of how the agent could have avoided a lawsuit, and common causes of E&O claims against insurance agents.

Mark Wellman (New York, NY) hosted “AI - The Future of Litigation,” at the CLM Alliance (Claims and Litigation Management) New York City local chapter event.

Jeremy Zacharias (Mount Laurel, NJ) was a panelist for a New Jersey Institute CLE seminar entitled, “Solving Problems in Commercial Real Estate Transactions,” where he discussed 21st Century ethical considerations in commercial real estate transactions. The seminar, geared towards individuals handling commercial real estate matters, also discussed commercial real estate transactions in New Jersey and how one can craft and negotiate contracts and leases that protect your clients against excessive risk. 

Lary Zucker (Mount Laurel, NJ) joined a panel to present a webinar, “Managing Bowling & Pickelball Claims,” for the Sports and Entertainment Risk Management Alliance. This webinar provided an in-depth review of the most common risks in bowling and provided guidance on how to identify, manage, mitigate, investigate, and defend these cases. It also covered risks associated with America’s fastest-growing sport, pickleball. The panel discussed the dos and don’ts of liability and exposure. 

 

Defense Digest, Vol. 30, No. 3, September 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

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

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

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

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.

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.

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.

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