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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 30, No. 2, June 2024

June 1, 2024

RECOGNITION

Stephanie Andrade (Fort Lauderdale, FL) has been selected by The Florida Bar Young Lawyers Division (YLD) as one of the Top “36 Under Thirty-Six” lawyers in the state. The professionalism award was bestowed upon 36 honorees, all under the age of 36, who were vetted through a rigorous review and selection process. According to the YLD, recipients display the highest standards of professionalism and ethics, “their character and integrity remain unwavering, and their dedication to raising the bar in the legal profession is unmatched.” Stephanie is a member of the firm’s Casualty Department where she represents local and national clients in a variety of civil litigation matters. 

Melanie Foreman (Philadelphia, PA) has been elected to the Board of Philadelphia Legal Assistance (PLA). PLA is dedicated to enforcing and protecting the rights of individuals and families by providing accessible, creative and high-quality legal assistance, and working collaboratively for systemic change. Melanie is also a board member of its sister organization, Community Legal Services (CLS), and co-chairs the CLS/PLA Development Committee. 

Congratulations to Michael Turner (Philadelphia, PA) on being inducted as a Fellow into the International Academy of Trial Lawyers. The Academy’s purpose is to cultivate the science of jurisprudence, promote reforms in the law, facilitate the administration of justice, and elevate the standards of integrity, honor and courtesy in the legal profession. Membership in the Academy is highly selective and offered only to lawyers who have demonstrated skill and ability in jury trials, trials before the court, and in appellate practice, and to those who have attained the highest level of advocacy.

Congratulations to Kacey Wiedt (Harrisburg, PA) on his selection to the Central Penn Business Journal’s 2024 Power List for Law! The honorees are some of the Central Pennsylvania region’s most significant, influential, and respected leaders in their fields, as chosen by the CPBJ’s editorial leadership team and readers. Learn more here. 
 

PUBLISHED ARTICLES

Kimberly Berman and Gabrielle Wright (both of Fort Lauderdale, FL) authored the article, “Where Are We Now? Punitive Damages Claims in Fla. 2 Years Post-Interlocutory Review Rule Change,” which appeared in the Daily Business Review. Read the article here. 

Dana Gittleman’s and Tim Ventura’s (both of Philadelphia, PA) article “Words Matter: Shielding Against UTPCPL Claims with Subjective Verbiage” was published on March 14, 2024, on PLUSBlog.com. You can read their article here.  

Dana Gittleman also authored the article “Pennsylvania Strengthens Application of One-Year Statute of Repose Under Pennsylvania Home Inspection Law,” appearing in the April 30, 2024, issue of PLUSBlog.com. You can read her article here.

Writing for CLM Magazine, Jessica Wojcik Gordon (Mount Laurel, NJ) and Michelle Leighton, AIC, partner and national claim advocacy and consulting leader at Conner Strong & Buckelew, dive into the rise of artificial intelligence and its impact on workers’ compensation claims handling. Read their article here. 

Estelle McGrath’s (Pittsburgh, PA) article “Lessons from Accountant’s Age Discrimination Suit” was published in the Spring 2024 issue of the Pennsylvania CPA Journal. You can read her article here.

Jack Slimm’s and Jeremy Zacharias’ (both of Mount Laurel, NJ) article “Strategic Defenses to Appellate Malpractice Claims” was published on PLUSBlog.com on April 19, 2024. Read their article here.

Alesia Sulock and Josh J.T. Byrne (both of Philadelphia) published two articles recently. Their article “Risk Management in the Practice of Law” was published on February 27, 2024, on AttorneyProtective.com, which you can read here. On March 21, 2024, their article “Restricting Restrictions: When Attorney Employment Agreements Run Afoul of the Rules of Professional Conduct,” was published in The Legal Intelligencer. You can read this article here.

Ashley Toth (Mount Laurel, NJ) authored “Best Practices for Service Animals in the Workplace,” which appeared in the New Jersey Law Journal’s Employment Law Supplement. You can read the article here. 
 

SPEAKING ENGAGEMENTS

Mohamed Bakry (Philadelphia, PA) was a featured speaker at the 2024 Federation of Defense & Corporate Counsel (FDCC) Winter Meeting in St. Petersburg, Florida. Mohamed, who also served as a host of the conference, was joined in a panel to discuss trending issues in leadership. 

Mohamed Bakry and Christina Gonzales (both of Philadelphia) spoke at the 2024 DRI Life, Health, Disability, and ERISA Seminar in Philadelphia. Their panel delved into the intricacies of modern law firms and their clients in a thought-provoking dialogue, unveiling the art of integrating innovative methodologies with well-established practices in order to cultivate diverse, high-performing teams. 

Heather Byrer Carbone and Linda Wagner Farrell (both of Jacksonville, FL) presented the webcast, “Motions to Dismiss and Motions for Summary Final Order,” for the Florida Bar Workers’ Compensation Section.

Buck Buchanan, Jessica Wachstein, Jeremy Zacharias and Zac Ottoson hosted the Rutgers Law Minority Student Program (MSP) for an interviewing skills workshop held in our Philadelphia office. The program featured a panel presentation regarding strategies for maximizing summer clerkship interviews, as well as how to succeed during a summer clerkship program. The event was the second in a series of events the firm is hosting in collaboration with the Rutgers MSP program.

Josh J.T. Byrne (Philadelphia, PA) co-presented at the Montgomery Bar Association Women in the Law Committee’s seminar “The Importance of Civility in the Law.” This program provided attendees with the tools and information they need to ensure they are practicing with civility, responsibility, and professionalism while also avoiding ethical issues as they navigate cases with challenging opposing counsel, parties, and others.

Our Securities and Investments Professional Liability Practice Group took center stage at the Independent Broker Dealer Consortium, LLC 2024 Annual Risk Management Conference. Samuel Cohen (Philadelphia, PA), chair of the practice group, joined a panel to discuss protecting customers; Gerard Kowalski (Philadelphia, PA) explained the new expungement rule; and Ryan Friel (Philadelphia, PA) explored the differences between advisors and registered representatives, and the types of claims each face. 

James Cole (Philadelphia, PA) co-presented “This Is Jeopardy!!! Unfair Claims Practices” at the Property & Liability Resource Bureau’s 2024 Claims Conference in Boston. He also presented “Untying Tangle Titles – How Property Insurance Drives Fraud” at the 2024 Pennsylvania Insurance Fraud Conference. This annual conference is hosted by the International Association of Special Investigation Units’ Delaware Valley and Greater Pittsburgh Chapters and the Commonwealth of Pennsylvania’s Insurance Fraud Prevention Authority.

Jack Delany (Philadelphia, PA) was a featured speaker at the 2024 Federation of Defense & Corporate Counsel (FDCC) Winter Meeting in St. Petersburg, Florida. Jack and fellow speakers addressed how challenges, problems, and even disasters at trial can be transformed into opportunities and, ultimately, successful outcomes for clients. 

Elizabeth Ferguson (Jacksonville, FL) co-presented “The Ethics Escape Room: Finding the Way Out of Insurance Dilemmas” at CLM’s Annual Conference in San Francisco. Elizabeth also moderated a panel entitled “Views from the Bench: Complex Construction Litigation – Trials and the Run-Up” at The Florida Bar Real Property, Probate and Trust Law Section’s Construction Law Institute in Orlando. She also spoke on “Design Liability” at the Construction Review Course that runs alongside the CLI. 

Robert Fitzgerald (Mount Laurel, NJ) was a panelist for a presentation at the New Jersey Self Insurers’ Association Annual Conference in Atlantic City. Bob joined a group of industry professionals to discuss hot topics in workers’ compensation.

Ray Freudiger (Cincinnati, OH) gave a presentation to members of the Housing and Development Law Institute (HDLI) General Counsel Forum on “The Challenges in Administering Section 8 Project Based Vouchers.” Joining Ray in the presentation was the CEO and General Counsel for Dayton Metropolitan Housing Authority. They discussed the jury defense verdict we won in federal court which was upheld by the 6th Circuit Court of Appeals. 

John Hare (Philadelphia, PA) presented the annual Appellate Review seminar for the Pennsylvania Coalition for Civil Justice Reform.

Kevin Hexstall (Philadelphia, PA) was a featured speaker at the Perrin Conferences asbestos conference. Kevin was part of a panel that presented “The Top Emerging Trends in Asbestos Litigation.” Kevin and panelists addressed filing trends, hot and emerging jurisdictions, and defense-plaintiff coordination. 

Rachel Insalaco (Scranton, PA) presented at the National Business Institute’s CLE, “Pennsylvania Police Liability Claims: A Primer.” Rachel’s presentation addressed qualified, absolute, and state tort immunity implications in cases concerning police departments.

Matthew Keris (Scranton, PA) participated in the following presentations: 

  • At the National Medical Professional Liability Association’s Dental Workshop in Savannah, Georgia, Matt presented “The New Liability Target: Forensic Patient Record Interactions.” 
  • At the American Legal Connections webinar, he presented “Voir Dire of an EMR/Audit Trail Expert.” 
  • At the DRI IRT Meeting in Chicago, IL, he was co-moderator of a roundtable on Social Inflation. 
  • At the Hospital Insurance Forum Annual Meeting in Scottsdale, AZ, he co-presented “Advice for the Efficient Integration of AI Into Medicine.” 
  • At the AALNC (American Association of Legal Nurse Consultants) Annual Forum, he presented “Artificial Intelligence in Healthcare.” 
  • At the American Association of Legal Nurse Consultants annual Forum, held this year in Pittsburgh, PA, he presented “Artificial Intelligence in Healthcare: An Introduction.”

Michael Packer (Fort Lauderdale, FL) was a featured speaker at the ALM/Property Casualty 360 Complex Claims & Litigation Forum in Las Vegas. In “Under Oath: What Claims Professionals Need to Know to Conduct an Effective EUO,” Mike focused on the most effective ways to prepare for and efficiently conduct Examinations Under Oath in both the personal lines and commercial lines context. 

Jeffrey Rapattoni (Philadelphia, PA) presented an Ethics session at the Rocky Mountain Association of Special Investigators Annual Insurance Fraud Conference.

Bradley Remick (Philadelphia, PA) and his son, Griffin Remick, presented a product liability update at the Dispute Resolution Institute’s annual Personal Injury Potpourri CLE.

Andrea Rock (Philadelphia, PA) was a panelist for a webinar hosted by the Workers’ Compensation Section of the Philadelphia Bar Association. In “Got Pain? How to Recognize and Assess Pain Including the Identification of Pain Generators in Work Injuries and Novel Treatment Options,” the panelists discussed the issues with pain generators, treatment options and their interaction in workers’ compensation litigation. 

In Season 2 of his podcast with the Professional Liability Underwriting Society, David Shannon (Philadelphia, PA) chatted with guest Stephen Ramey about the cybersecurity landscape for 2024. David and Stephen reflected on the persisting threat of ransomware and citing prevalent groups like LockBit, ALPHV/BlackCat, and Akira. Listen now! https://lnkd.in/eCwUwQdN 

Anthony Williott and Paul Krepps (both of Pittsburgh, PA) participated in a Mock Trial as a part of the American Association of Legal Nurse Consultants annual Forum. Paul participated in an exercise that demonstrated to Legal Nurse Consultants how an expert witness is prepared for deposition and trial by an attorney. Additionally, he served as the “judge” for the mock trial. In the trial, Tony defended the interests of “Hometown Hospital” in a case that involved the failure to timely diagnose sepsis in a patient. The case was designed to highlight the role of the Legal Nurse Consultant in medical malpractice cases.

Jeremy Zacharias (Mount Laurel, PA) participated in a panel discussion for Drexel University’s LeBow College of Business to prospective students joining the legal profession. Jeremy spoke about factors to consider in applying to law school, private practice, as well as strategies to effectively maximize law school performance. Jeremy is a recurring speaker at both Rutgers Law and Drexel University on professionals and topics, including ethics, the Rules of Professional Conduct, and the business of law.

Lary Zucker, Sara Mazzolla (both of Mount Laurel, NJ) and Alicia Caridi (Tampa, FL) presented a legal roundtable at the Roller Skating Association International’s annual convention. 

 

Defense Digest, Vol. 30, No. 2, June 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

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

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.

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.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

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

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial