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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

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

Thought Leadership

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

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

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

Thought Leadership

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

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

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

News

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

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.