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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 29, No. 4, December 2023

December 1, 2023

RECOGNITION

Two Marshall Dennehey Practice Group Leaders Named “Best of the Bar” by the Philadelphia Business Journal. 
We are pleased to announce that John J. “Jack” Delany, III, Chair of the firm’s Catastrophic Claims Litigation Practice Group, and John J. Hare, Chair of the firm’s Appellate Advocacy and Post-Trial Practice Group, have been named 2023 Best of the Bar honorees in the area of Business Litigation by the Philadelphia Business Journal. The annual program recognizes the region’s most impactful lawyers based on their recent achievements, including the legal significance of their successes, the scale of their results, and the business impacts of their accomplishments. 

Marshall Dennehey Named a 2024 “Best Law Firm” In Multiple Practice Areas by Best Lawyers®
We have been named a “2024 Best Law Firm” in multiple practice areas, both nationally and across numerous regions of the country, by Best Lawyers®. Nationally, the firm ranked in the practice areas of Admiralty & Maritime Law; Commercial Litigation; Insurance Law; and Mass Tort Litigation/Class Actions - Defendants. Read more here. 

Marshall Dennehey Announces 2023 New York Metro Super Lawyers and Rising Stars
Seven attorneys from our New York City, Westchester County, and Long Island offices have been selected to the 2023 edition of New York Metro Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Read more here.

Marshall Dennehey Ranks on Law360’s “Ceiling Smashers” List
We ranked #3 on the Law360 Pulse Ceiling Smashers List for law firms with 251-600 attorneys. Firms are ranked based on the number of women attorneys in equity partnerships. According to the report, “The firms that made it onto Law360 Pulse’s Ceiling Smashers list are demonstrating that strides towards gender parity at the upper ranks are possible.” 
 

APPOINTMENTS

John Hare (Philadelphia, PA) has been appointed by the Pennsylvania Supreme Court as the co-chair of the Court’s new Historical Commission. The Commission will develop programming and publications to foster civics education about the importance of the rule of law and judicial independence. 

 

OTHER NEWS

Janice Merrill (Orlando, FL) was quoted in the article, “How to Identify and Defend Against Malicious Lawsuits,” appearing in the October issue of Healthcare Risk Management magazine. You can read the article here.

 

PUBLISHED ARTICLES

On September 15, 2023, The Legal Intelligencer published “You Diligently Protect Your Clients; What About You? Part 2 (The Middle and the End),” written by Josh J.T. Byrne and Alesia S. Sulock (Philadelphia, PA). You can read their article here.

On November 17, 2023, The Legal Intelligencer also published “Probable Cause as a Matter of Law in Dragonetti Cases,” by Josh J.T. Byrne and Alesia S. Sulock (Philadelphia, PA). You can read their article here. 

On November 10, 2023, the New York Law Journal published “Trend Watch: Out-of-Staters Finding the Basis for Personal Jurisdiction,” by Adam Calvert and Brian Ramkissoon (New York, NY). You can their article here.

Dana Gittleman’s (Philadelphia, PA) article “Trying the PL Case: Lessons Learned in the Courtroom,” was published on September 21, 2023, on the PLUS Blog. You can read her article here.

Brad Haas’ (Pittsburgh, PA) article “Unveiling the Power of Usage-Based Insurance in Personal Injury Discovery,” was published in the November 2nd Personal Injury Supplement of The Legal Intelligencer. You can read this article here.

Patricia Monahan (Pittsburgh, PA) authored the article, “Pa. Supreme Court Evaluates Constitutional Parameters of a Jury’s Punitive Damage Award,” appearing in the October 3, 2023, issue of Pennsylvania Law Weekly. Her article discusses the court’s decision in Bert v. Turk, 298 A.3d 44 (Pa. 2023) that addressed whether the appropriate ratio of punitive to compensatory damages in a case with multiple joint tortfeasor defendants should be calculated on a per judgment basis or a per defendant basis, and how the decision applies to statutory bad faith cases. Click here to read.

Michele Punturi (Philadelphia, PA) co-authored, with clients, the article, “Reflecting the Talent You Want to Recruit: Building and Achieving a Diverse Team and a Better Business,” appearing in the September 2023 issue of CLM Magazine. The article discusses DEI&B (diversity, equity, inclusion and belonging) and its role in building an inclusive culture within an organization. You can read her article here.  

Estelle McGrath (Pittsburgh, PA) authored the article, “EEOC Mediation: Five Things to Consider Before Participating,” appearing in The Legal Intelligencer’s Employment Law Supplement. The article points to five things to discuss with your client ahead of time so they can make an informed decision about whether or not to participate in an EEOC mediation. You can read the article here.

Tony Natale (King of Prussia, PA) authored the article, “Beware of the Language Used in Your Settlement Agreements: Medicare is Watching,” appearing in The Legal Intelligencer’s October 10, 2023, Workers’ Compensation Supplement. The article discusses the pivotal role of settlement agreements in workers’ compensation litigation, and the importance of including the appropriate language in such agreements when the claimant is a Medicare beneficiary. You can read his article here.  

 

SPEAKING ENGAGEMENTS

Mohamed Bakry (Philadelphia, PA) joined a panel at the Federation of Defense & Corporate Counsel Corporate Counsel Symposium in Philadelphia to discuss “Lessons from the Varsity Blues Scandal.” This panel discussed why every corporate counsel must be prepared to defend the enterprise against claims of civil and potentially criminal liability arising from honest services fraud, bribery, conspiracy, and other claims, due to the actions of rogue employees. 

Josh J.T. Byrne and Alesia S. Sulock (Philadelphia, PA) were featured speakers at the Professional Liability Defense Federation (PLDF) annual meeting in Denver. They were part of a panel titled “Defending and Avoiding Disciplinary Complaints.”

Josh J.T. Byrne (Philadelphia, PA) joined a Pennsylvania Bar Institute panel to present a CLE on ethical use of social media for attorneys.

James Cole (Philadelphia, PA) presented “Risky Business: New Trends in Insurance Fraud,” at CLM’s Fraud Focus Conference in New York City.

Christopher Conrad (Harrisburg, OA) co-presented “Extended School Year – It’s Not Summer School,” at the Pennsylvania Bar Institute’s Exceptional Children Conference. The presentation addressed the scope of available Extended School Year services for special needs students, determining eligibility, and the appropriateness of services. The presentation also included a discussion of relevant and recent case law and hearing officer decisions, as well as tips for how to litigate expedited Extended School Year due process hearings.

Angela DeMary (Mount Laurel, NJ) presented “Assessing the Injury and Case,” at the National Business Institute’s New Jersey Workers’ Compensation Fundamentals webinar.

Michael Detweiler (King of Prussia, PA) participated was a webinar panelist for “Travel Advisors E&O Insurance: Lessons in Liability,” hosted by Travel Professional News. The webinar discussed what E&O insurance actually safeguards you against and why most organizations and host agencies require or strongly suggest travel advisors carry coverage. The program also walked through insurance policy language and coverage terms related to E&O insurance and the importance of protecting yourself or your agency. Real-life case studies illustrated the common allegations made against travel professionals and what you can do to help safeguard yourself against client demands and lawsuits. 

Melisa Dziak (Scranton, PA) joined a “Claims Hot Topics Roundtable” on September 21st at the Medical Professional Liability Association’s Claims and Risk Management/Patient Safety Workshop. With more than 10 years of medical malpractice defense and health care liability experience, Melissa provided critical information for claims, risk, and clinical professionals involved in managing medical professional liability claims. 

Scott Eberle (Pittsburgh, PA) presented “Avoiding Legal Malpractice,” to members of the Beaver County Bar Association. Scott also presented “Ethics Issues in Auto Law,” at the Pennsylvania Bar Institute’s Auto Law Update webinar.

Elizabeth Ferguson (Jacksonville, FL) participated in AMBest’s webinar “How Insurers Are Controlling Expert Costs in Construction Defect Claims.” In this one-hour webinar, claims professionals examined best practices for engaging expert testimony, with a special focus on how that process works in handling and litigating construction defect claims. You can watch here.

John Hare (Philadelphia, PA) was a keynote speaker at an event honoring new Pennsylvania Supreme Court Chief Justice Debra Todd, the first woman to serve in that role. All Supreme Court justices and members of Pennsylvania’s other two appellate courts were in attendance. John also presented a 90-minute CLE for the Pennsylvania Coalition for Civil Justice Reform, a consortium of insurers, corporations, and other defense-oriented groups. The title of the CLE was “The Transformation of Pennsylvania Law: 2016-2023,” and focused on the expansion of civil liability in Pennsylvania in recent years. Finally, John spoke at a symposium honoring the 125th anniversary of the Pennsylvania Superior Court. The symposium focused on different aspects of the Court’s work. John focused on civil litigation. The event was broadcast on Pennsylvania Cable Network. 

Elias Hassinger (Philadelphia, PA) presented at the Philadelphia Bar Association’s 2023 Bench-Bar & Annual Conference in Atlantic City. In the session “Proper Identification of Pain Generators in Work Injuries/Personal Injuries and Novel Treatment Options,” Eli joined a panel discussion on the proper identification of pain generators focused on identifying disc herniations and radiculopathy; discogenic pain and annular tears; vertebrogenic pain; injured joints in the spine; and using platelet rich plasma for tendon/ligament injuries. The panelists also addressed novel treatment options and how they may affect a workers’ compensation claim.

Jahlee Hatchett (Philadelphia, PA) moderated “Productivity Architects: Unlocking Potential and Redefining Success in the Hybrid Era,” at the Philadelphia Bar Association’s 2023 Bench-Bar & Annual Conference.

Ryan Hauck (Pittsburgh, PA) spoke at the Pennsylvania Bar Association’s Workers’ Compensation Fall Section Meeting in Hershey, Pennsylvania. He was a panelist on the topic of “Specific Loss/Disfigurement.”

Matthew Keris (Scranton, PA) spoke at the Forum on Obstetric Malpractice Claims in Philadelphia. Matt joined a panel to discuss “Evaluating the Use of AI in Obstetric Diagnostics: Understanding Enhanced Capability and Inherent Risks.”

Mark Kozlowski (Scranton, PA) presented “Employment Law Basics - 2023 Year in Review: What’s New, What’s Changed, and What Do I Need to Know?” to the Society for Human Resource Management (SHRM), NEPA Chapter.

A.C. Nash and Ryan Burns (Fort Lauderdale, FL) presented “Legislative Update: New Florida Tort Reform Changes Under HB 837” at the RIMS Tampa Bay Chapter meeting in St. Petersburg. 

Michele Punturi (Philadelphia, PA) and Jeffrey Rapattoni (Mount Laurel, NJ) co-presented “Getting Caught with Your Hand in the Proverbial Cookie Jar,” at this year’s ClaimsXChange in Philadelphia. In this presentation, the panel discussed the best strategies for investigating, uncovering, and deterring fraudulent acts while exploring methods to recover monies paid out to fraudulent actors. They also examined how fraud impacts the claim value and how to counteract its debilitating effects. 

Victoria Scanlon and Melissa Dziak (Scranton, PA) presented to the Physician Assistant Program at Marywood University on “Mitigating Physician Assistant Legal Liability.”

Kacey Wiedt (Harrisburg, PA) and Daniel Deitrick (Pittsburgh, PA) presented “How the Lorino and Neves Decisions Have Impacted the Defense of Workers’ Compensation Cases,” at the CCAP Defense Counsel Meeting.

Courtney Schulnick (Philadelphia, PA) was part of a panel for the Philadelphia Law Department’s annual CLE program held at the Pennsylvania Convention Center. During this two-hour CLE, Courtney was joined by Alison Lintal, Esq, visiting Assistant Professor of Law and Director of the Externship Program at Penn State University Dickinson Law School and Dena Lefkowitz, Esq., author, business, and career coach for lawyers. The panel discussed Emotional Intelligence (EI) and how it can help attorneys to handle interpersonal relations judiciously and empathetically. Courtney focused on mindfulness practices that can help us step out of reactivity and choose how to most skillfully respond, whether it’s trying a case in court, dealing with a difficult adversary, serving the needs of our clients, working together with colleagues, or caring for a loved one.

David Shannon (Philadelphia, PA) hosted the third episode of his PLUS podcast, “Managing Cybersecurity Threats in 2023.” David was joined by Brendan McGann of Arete to discuss mid-year data breach trends. From increased ransom demands and paying for data deletion, to an uptick in breaches within the professional services industry, David and Brendan analyzed what’s happened so far in 2023 – and trends they anticipate will lead us into 2024. Click here to listen. 

Jack Slimm (Mount Laurel, NJ) presented with Frank Ciuffani P.J.Chancery (ret.) at the New Jersey State Bar Association’s NJICLE 2023 Business Litigation Seminar on November 1. Their topic, “NJ Business Rule and Its Application to Lost Profits,” explored the new rule and whether a new business can ever prove lost profits damages with reasonable certainty.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) presented a webinar entitled “Strategic Approaches to Handling Lost Profit Claims Under New Jersey’s New Business Rule.” Jack and Jeremy presented on the current New Jersey law on the New Business Rule after the Supreme Court’s decision in Schwartz v. Menas, a case Jack and Jeremy have been handling on behalf of their clients, a well-known law firm in New Jersey handling real estate and land use matters. Jack and Jeremy went through certain jurisdictional approaches to the New Business Rule, as well as New Jersey’s current rule after the Supreme Court decision in Schwartz v. Menas, 279 A.3d 436 (N.J. 2022). This presentation was attended by various claims professionals and underwriters, and crosses multi-dimensional practices between professional liability and casualty.

Jeremy Zacharias (Mount Laurel, NJ) presented at the New Jersey ICLE’s “Commercial Real Estate: From Handshake to Closing Seminar.” Jeremy’s topic pertained to ethical considerations in handling commercial real estate transactions. He discussed the implications of the Rules of Professional Conduct on certain real estate transactions, including multiple representations, dealing with unrepresented parties, and practical pointers when facing a motion to disqualify when an attorney handles multiple representations in a commercial real estate deal. This presentation was well attended by members of the Bar, and and Jeremy discussed the importance of assessing the Rules of Professional Conduct in everyday practice.

 

Defense Digest, Vol. 29, No. 4, December 2023, 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. © 2023 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

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law. 

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

Thought Leadership

Florida Supreme Court Adopts Traditionally More Expansive Concept of Occupational Causation

The Florida Supreme Court issued a significant decision rebuking the First District Court of Appeal (1st DCA) in the high-profile case of Bouayad v. Normandy Insurance Co., a case addressing the compensability of workplace injuries resulting from assaults by third-party tortfeasors. The Judge of Compensation Claims (JCC) found the claimant was entitled to workers' compensation benefits, relying in part on the Florida Supreme Court's earlier decision in Strother v. Morrison Cafeteria from 1980. In Strother, the Court upheld an award of benefits to a cashier who was assaulted and robbed by individuals who followed her home from work under the mistaken belief that she was carrying restaurant cash deposits. In Bouayad, the 1st DCA concluded that the claimant's injuries were not compensable because they did not arise out of his employment. The Florida Supreme Court disagreed, holding that the 1st DCA applied too narrow an interpretation of the "arising out of employment" requirement. In doing so, the Court reaffirmed a broader and more traditional view of occupational causation than that recently adopted by the 1st DCA. The claimant in Bouayad was the general manager of a car rental business operating from a hotel near an airport. Around midnight, while walking along a covered outdoor walkway from the hotel's atrium, where the rental kiosk was located, to an office near the pool, he was shot multiple times by an unidentified assailant. As part of his regular duties, the claimant carried rental agreements and cash receipts from the kiosk to the office at the end of each shift. After the shooting, the claimant managed to return to the hotel atrium, where he stated that he believed "Robert" had shot him, referring to an individual who had threatened the claimant's son the previous day. The assailant, however, was never identified. Consequently, the Supreme Court analyzed the case as involving an unknown third party while the claimant was acting within the course and scope of his employment. The central issue therefore was whether the injury "arose out of" the claimant’s employment. At the final hearing, the claimant presented evidence regarding the risks and hazards associated with his employment, including the nature of his duties, his late-night work schedule, and the location of the business in a high-turnover hotel near a major airport. His expert opined that these factors exposed him to an increased risk of becoming the victim of a crime while at work. In contrast, the employer/carrier's expert characterized the shooting as a targeted attack rather than a robbery and asserted that the risk of violent crime was actually higher near the claimant's residence than at the hotel. Based on that analysis, the expert concluded that the claimant was not exposed to an increased workplace risk. The 1st DCA focused narrowly on the specific activity the claimant was performing at the moment of injury. According to the court, the claimant's “work performed” at the time of the shooting was simply "walking" between two employer-operated locations, and that act of walking did not itself cause the injury. The Florida Supreme Court found this analysis far too myopic and inconsistent with decades of workers' compensation precedent. Reaffirming longstanding principles of workplace causation, the Court explained that the proper inquiry is not whether the precise physical task being performed at the moment of injury directly caused the harm. Rather, the relevant question is whether the employment, viewed as a whole, exposed the worker to risks and hazards that contributed to the injury. The decision is significant because it reinforces a broader conception of work-relatedness in the “arising out of” compensability analysis. Instead of limiting the causation analysis to the employee's discrete physical activity at the time of injury, courts must consider the totality of the employment circumstances, including the employee's duties, work environment, hours, and occupational risks. Under that framework, an injury may arise out of employment when the employment places the employee in a position of increased hazard, even if the specific task being performed at the moment of injury is not itself the direct cause of the harm.

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

News

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Result

Federal Statute Declared Constitutional

In this products liability case, the Supreme Court of Pennsylvania reversed the Superior Court and upheld the constitutionality of the Protection of Lawful Commerce in Arms Act (PLCAA), which resulted in judgment as a matter of law for the defendant manufacturer.

Thought Leadership

Appellate Division Affirmed Trial Judge’s Orders Granting Summary Judgement for Defendants on COVID-19 Case

In Dunne v. Advanced Subacute Rehab Servs. at Sewell, LLC, et al., the plaintiffs appealed from two Law Division orders. By way of background, Louis Doto, Sr. (Doto) worked for BP & SC Services, Inc. (BP). BP leased Doto to Advanced Subacute Rehabilitation Center at Sewell, LLC (Advanced Subacute) and it had control of his work, paid wages, and had the power to hire or fire him. A BP employee was assigned to the facility to train and supervise him and BP was responsible for securing workers’ compensation coverage. Doto worked as an aide in the laundry department. Linen from COVID-19 residents were delivered in clearly marked bags and he had no direct contact with residents. A co-worker, Sheila Smith, was also an aide and she never contracted COVID-19 at the facility. Advanced Subacute did not require Doto to wear an N-95 mask, but instead a surgical mask, though N-95 masks were available to all employees. He was also required to attend period mandatory meetings with other high-risk employees, the last of which he attended was in November 2020. All employees were required to test for COVID-19 and there were no reported cases from June to October 2020. On December 23, 2020, Doto tested positive for COVID-19 and passed away on January 18, 2021. The last member of housekeeping that Doto may have encountered tested positive 22 days earlier. After his death, OSHA found two “serious” violations concerning the N-95 masks worn by housekeepers. In response, Advanced Subacute fit tested all non-clinical staff. Doto’s estate filed a workers’ compensation claim and named both BP and Advanced Subacute as his employer. The estate received an award. In July 2022, the plaintiffs filed a complaint in the Law Division, alleging wrongful death and survivor causes of action. In October 2024, the defendants moved for summary judgment, arguing: 1) immunity pursuant to the Emergency Health Powers Act: 2) the exclusive remedy provision of the Workers’ Compensation Act; 3) Doto’s inability to establish infection at the facility; 4) net expert opinions by the plaintiffs’ expert; and 5) inadmissibility of the OSHA report. The plaintiffs opposed and filed a cross-motion for summary judgment, arguing: 1) no immunity as Advanced Subacute engaged in gross negligent or willful misconduct; 2) no preclusion by the Workers’ Compensation Act as Doto was not Advanced Subacute’s employee; and 3) no net expert opinions. In February 2025, the judge issued a written decision granting the defendants’ motion. Specifically, he found Advanced Subacute’s COVID-19 immunity precluded the plaintiffs’ claim as no reasonable jury could find any gross negligence or utter disregard for Doto’s safety. He also addressed the other defenses for completeness. The plaintiffs moved for reconsideration and the judge issued another written decision denying the plaintiffs’ motion in April 2025. The plaintiffs then appealed both decision. The Appellate Division affirmed the orders for reasons stated by the judge in his written decisions. The Appellate Division only added: 1) Advanced Subacute acted consistently with the legislative grant of immunity; 2) there was no doubt Doto was an employee of both BP and Advanced Subacute and the latter may have inadvertently failed to follow some precautions; and 3) confirmed the plaintiffs’ experts did not identify a basis for their opinions. Ultimately, the Appellate Division found no reason to disturb the judge’s well-reasoned decisions and affirmed the judge’s orders.

Thought Leadership

Commonwealth Court Deemed Worker an Employee Despite Independent Contractor Agreement; Insurer Estopped from Denying Coverage

In this case, the claimant filed a Claim Petition for injuries sustained on October 28, 2019, naming J&S as his Employer, and alleging that the injuries occurred when he fell from a ladder while installing a satellite dish for Dish Network. Dish Network contracted with J&S to install satellite dishes. Subsequently J&S filed a Petition to Join Brickstreet Insurance Company and the claimant filed a Claim Petition against the Uninsured Employer Guaranty Fund. The Fund then joined Dish Network as another employer.  Before the Workers’ Compensation Judge (WCJ), the claimant testified that he was hired in 2015 by J&S and at the time signed an Independent Contractor Agreement (IC Agreement). J&S defended the case on the basis that the claimant was not an employee, but was an independent contractor, even after the IC Agreement expired. Additional evidence showed that, at the time of the October 28, 2019, work injury, J&S’ workers’ compensation insurance with Brickstreet had lapsed, even though a Brickstreet agent had been working to renew J&S’ policy and had a Certificate for coverage from September 25, 2019 to September 25, 2020 issued, with Dish Network listed as the Certificate Holder. A renewal policy was not in effect at the time the Certificate was issued and the agent learned on October 25, 2019 that Brickstreet was not going to renew their policy with J&S, due to an unpaid premium.    Ultimately, the WCJ found that the claimant was an employee of J&S at the time of the work injury and that J&S did not have a workers’ compensation policy in place at the time, due to their failure to pay the renewal premium to Brickstreet. The WCJ also found Dish Network was a Statutory Employer under Section 302(a) of the Act. The Claim Petition and the Guaranty Fund Claim Petition were both granted, as was the Guaranty Fund’s Petition to Join Dish Network. The WCJ also denied J&S’ Petition to Join Brickstreet, finding that neither J&S or Dish Network showed that Brickstreet was estopped from denying coverage. J&S and Dish Network appealed to the Workers’ Compensation Appeal Board (Board) and the Board affirmed. J&S and Dish Network appealed to the Commonwealth Court. The Commonwealth Court rejected J&S' argument that the claimant was an independent contractor. In doing so, the court noted that the claimant credibly testified that he worked for J&S full time, could not work for another company, and that J&S, scheduled his jobs, tracked him, and scheduled additional installations, if he finished early. Additionally, the court noted the claimant lacked discretion in the manner he performed his job, because all questions had to be referred to J&S.  As for Dish Network’s appeal, the court held that the WCJ erred in holding that Brickstreet was not estopped from denying coverage as to Dish Network. According to the court, the insurance agent was an authorized representative of Brickstreet and, at the direction of J&S, issued the Certificate of Insurance that he knew was not accurate at the time, and was aware would be presented as proof of coverage for J&S. Dish Network relied upon that information and continued to use J&S, ultimately leading to Dish Network being named as the Statutory Employer liable for payment of benefits because of J&S’ uninsured status. The court held that the Board erred in affirming the WCJ ’s conclusion that Dish Network did not establish that Brickstreet was equitably estopped from denying coverage, reversed the decision below, and remanded the case to the WCJ.