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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

Thought Leadership

Vendor Cyber Attack Compromises PII of More Than 3 Million Hunting and Fishing License Holders in Texas

The Texas Parks & Wildlife Department (TPWD) announced earlier this month that one of its vendors which handles the sale of state hunting and fishing licenses was the victim of a cybersecurity attack. The threat actor appears to have exfiltrated personal driver’s license information, passport numbers, email addresses, phone numbers and addresses of over 3 million hunting and fishing license holders.  The State Parks Department advised that the attack did not compromise social security numbers, dates of birth or financial information. Texas Cyber Command, the state’s new cybersecurity authority formed to protect critical infrastructure and coordinate threat responses across state and local government, reportedly assisted in detecting and containing the attack. TPWD has already set up free credit monitoring for those impacted through Kroll.  According to press reports, no specific group has yet been identified as the perpetrator of the theft. TPWD also advised that business has not been interrupted and license sales were continuing. This incident once again demonstrates that cybersecurity is only as strong as the weakest link in the supply chain. Businesses must prioritize security across their own environments and those of their vendors and contractors as well.

Thought Leadership

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

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

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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. 

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia