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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN DELAWARE WORKERS’ COMPENSATION IN 2025

What’s Hot in Workers’ Comp, Vol. 29, No. 12, December 2025

December 1, 2025

by Linda L. Wilson and Alexander C. Landolfi

1.    Industrial Accident Board grants continuance but suspends temporary total disability benefits pending rescheduled hearing
Fortt v. Delaware Brick Company, IAB No. 1542958 (Dec. 12, 2024)

The claimant was injured in a work accident on January 16, 2024. On June 7, 2024, the employer filed a Petition for Review (PFR) to terminate the claimant’s ongoing total disability (TTD) benefits, which the Second Injury Fund began paying under 19 Del. C. § 2347(k). 

At the claimant’s request, the October 21, 2024, hearing was continued to December 16, 2024, due to scheduling issues with his medical expert. In November 2024, the claimant’s medical expert’s cancelled a December 12, 2024, deposition for personal reasons. The employer’s medical expert was deposed as scheduled on December 4, 2024. On December 5, 2024, the claimant sought a second continuance, arguing his expert’s testimony was essential and the cancellation beyond his control. 

The employer opposed, citing prejudice from delay, ongoing TTD payments, and risk of “stale” testimony. While the Second Injury Fund was currently paying those benefits, the employer was concerned they may have to repay those benefits once the petition was resolved. The Fund supported these arguments. 

Although the Industrial Accident Board granted the claimant’s request for a continuance, it also suspended TTD benefits and froze the evidentiary record. The Board relied on Section 2348 (c) and (h) of the Workers’ Compensation Act, which states that petitions must be heard within 120 days of the Pre-Trial Conference notice, with extensions granted only for “good cause” and/or “extraordinary circumstances.” Accordingly, a doctor’s voluntary unavailability raises the question as to whether it qualifies as an unforeseen circumstance. Ultimately, the Board found that, although the doctor’s choice was not out of his control, the claimant had no influence over the matter, making the continuance appropriate.

In response to the employer’s concerns about prejudice, the Board deemed it reasonable to freeze the evidentiary record in consideration of case management procedures and to ensure the integrity of the employer’s testimony as if the hearing occurred on the original date. The Board determined that remedial action was necessary to minimize harm to both the employer and the Fund. Consequently, the Board ordered that claimant’s receipt of TTD benefits be suspended from the date of the rescheduled hearing on December 16, 2024, until the new hearing date, which was approximately 60 days later.
 

2.    Industrial Accident Board finds that claimant acted in self-defense; did not forfeit right to workers’ compensation benefits based on standards established by 19 Del. C. § 2353(b)
Liriano v. Delaware Transit Company (DART), IAB No. 1550708 (Feb. 24, 2025)

While working as a bus driver for the employer, an altercation transpired between the claimant and a drunk bystander, which was captured on video footage with limited audio. The footage showed the bystander leaning against a pole next to the claimant and asking for information. Unsatisfied with the claimant’s response, the bystander separated himself for a brief period and followed a second bus driver, Wayne Gardner. During this exchange, the bystander touched Mr. Gardner on the arm, prompting Mr. Gardner to swat the bystander’s hand away before continuing on his way. 

The bystander then reapproached the claimant, at which point the claimant is seen backing away from him with his hands in the air. The bystander is then seen standing chest to chest with the claimant, which led the claimant to push the individual away three times, resulting in a physical altercation. Another bus driver intervened to break up the altercation. The claimant reported the incident to the dispatch, stating that it would likely be held against him. The bystander later approached the bus to apologize, and he admitted that he was intoxicated. 

The employer argued that the claimant forfeited his workers’ compensation benefits under Section 2353(b) of the Workers’ Compensation Act because he was the aggressor in the altercation. The employer claimed that the claimant acted with deliberate and reckless indifference to the danger inherent in such a physical altercation. The employer cited the video footage, directives that instruct drivers to walk away/retreat from conflict and the claimant’s acknowledgement that he might be held responsible for the event. 

The claimant contended that he acted in self-defense. He relied on the video evidence, asserting that he would not have been able to safely retreat. 

The Industrial Accident Board determined that the claimant had indeed acted in self defense. The Board mentioned that their review of the video contradicted the employer’s narrative and supported the claimant’s testimony that he tried to avoid confrontation. They noted that self-defense was justified because the unknown male continued to pursue the claimant and ultimately stood “chest to chest” with him. The Board further noted that the employer had not disciplined the claimant for misconduct or violations of the workplace violence policy following the incident, which was interpreted as an indication that they also recognized the claimant had acted in self-defense. As such, the employer’s petition was denied. 

 

3.    Superior Court reverses Industrial Accident Board, holding sole proprietor properly elected workers’ compensation coverage 
Bayly v. Red House Motors, 2025 WL 1305851 (Del. Super. May 6, 2025)

The claimant, the owner of Red House Motors, the employer, was assaulted by an employee on June 16, 2021, resulting in serious injuries. At the time of the assault, a workers’ compensation policy covered workplace injuries for the employer’s employees. The claimant had asked to be covered by the policy, but the policy and annual audits conducted by the insurance carrier did not inform the claimant that he was uninsured for his own workplace injuries. Despite this, when the claimant reported the assault, the insurer informed him that he was not covered under the policy, issued a partial refund for his premiums, and subsequently canceled his policy. 

The claimant filed a petition for benefits, which was denied by the Industrial Accident Board, which concluded that the claimant, as an experienced businessperson, was aware that he needed to elect workers’ compensation coverage for himself but had not done so. While not directly stated, the Board seemed to believe that the claimant needed to elect workers’ compensation coverage either in writing or on the insurer’s prescribed form. 

The Superior Court identified two flaws in the Board’s reasoning. First, regarding the workers’ compensation policy, the court noted that the policy included a section entitled “Who Is Insured” and the Extension of Information Page, which specifically listed the claimant as a “Named Insured.” Second, concerning the claimant’s status as an experienced businessperson, the court found that the expertise in insurance matters rested with the insurer, not the claimant. 

The court also found it concerning that the insurer had not informed the Board that, although a sole proprietor must affirmatively elect personal coverage under a workers’ compensation policy, this does not need to be done in writing or on a prescribed form. The court believed the Board had incorrectly assumed that the claimant needed to make his election in writing or using a prescribed form. According to the court’s interpretation of 19 Del. C. § 2306(b) and 19 Del. C. § 2308(b), the claimant was not required to request coverage in writing or on a specific form. Furthermore, neither party disputed that the claimant had requested to be covered. As a result, the court determined that, under these statutes and the insurer’s own procedures, the claimant properly elected coverage. The Superior Court reversed the Board’s decision and instructed the Board to find that the claimant was covered under the workers’ compensation policy. 

 

4.    Superior Court dismisses negligence claims but allows intentional tort action to proceed in electrical explosion case 
McGuckin v. PBF Energy, Inc., 2025 WL 2223109 (Del. Super. Aug. 5, 2025)

On January 24, 2023, the claimant was instructed by his manager to manually reset a circuit breaker for a machine that controls the speed and torque of an electric motor by varying frequency and voltage of its power supply. While doing so, an electrical explosion occurred, resulting in injuries to the claimant. After receiving benefits under the Workers’ Compensation Act, the claimant filed several claims against the employer, including negligence, recklessness, intentional tortious conduct, strict products liability and loss of consortium. The employer moved to dismiss the complaint, asserting the Industrial Accident Board has exclusive jurisdiction over all claims that involve work-related injuries. 

Both parties referenced Segura v. M Cubed Tech., Inc., 2019 WL 1504048, to support their arguments. In Segura, an employee was injured when a transformer switchbox exploded. After receiving workers’ compensation benefits, the employee filed suit against the employer, alleging negligence and/or intentional conduct. The employer moved for a dismissal, and the court dismissed the negligence claim but allowed the intentional conduct claim to proceed. The court explained that while the workers’ compensation exclusivity doctrine bars suits by employees against their employers for work-related injuries based on negligence, it does not preclude claims involving intentional conduct by the employer. 

Here, the employer argued that the claimant had merely “repackaged” negligence allegations with labels of intentional conduct; however, the court disagreed and found that the claimant provided adequate facts to support his intentional tort claims. Therefore, the court dismissed the negligence claims against the employer but allowed the intentional tort claim to proceed. 

 

5.    Delaware Supreme Court allows workers’ compensation insurer to pursue subrogation against employee’s UIM recovery, subject to Horizon Services v. Henry, 304 A.3d 552 (Del. 2023) (Henry II)
ProAssurance Grp. d/b/a Eastern Alliance Ins. Co. v. Manz, 2025 WL 3124822 (Del. Nov. 7, 2025)

After the claimant was involved in a work-related motor vehicle accident, she filed a workers’ compensation claim. Ultimately, the claimant received a total of $454,070.72 from the workers’ compensation carrier, which included payments for medical expenses, lost wages and a lump sum intended to waive future entitlements to workers’ compensation benefits. The settlement documents included a clause granting ProAssurance, the workers’ compensation carrier, a lien against any recovery the claimant might receive from any entity, including an insurance carrier, as a result of the work accident. 

In addition to pursuing workers’ compensation benefits, the claimant sought compensation from the driver responsible for her injuries and pursed a claim against her employer’s Underinsured Motorist policy (UIM). The UIM policy contained a non-duplication provision, stating that it would not cover any element of loss for which a person is entitled to receive payment through workers’ compensation benefits. An arbitrator awarded the claimant $215,000 for her UIM claim, and ProAssurance then asserted a lien against the UIM award pursuant to 21 Del. C. § 2326(e). 

The claimant filed a declaratory judgment action in Superior Court, seeking an order that would exempt her UIM award from ProAssurance’s lien. She argued that the non-duplicative clause in the UIM policy entitled her to funds that were not already compensated by ProAssurance for her workers’ compensation claim. ProAssurance countered that it was entitled to the claimant’s subsequent UIM recovery. The Superior Court ruled in favor of the claimant. 

The Delaware Supreme Court discussed workers’ compensation carriers’ right to subrogation under 21 Del. C. § 2326(e) for boardable damages and found that non-boardable damages, which include but are not limited to those covered by Personal Injury Protection (PIP) policies, are not subject to subrogation. The Supreme Court then reversed and remanded the case with instructions to determine what amount of the claimant’s UIM award is “boardable” and subject to subrogation.

 

6.    Revised Workers’ Compensation Act: direct deposit
19 Del. C. § 2344.
    
Amendments to 19 Del. C. § 2344, which went into effect on June 30, 2025, reflect current practices and technology, including enabling workers’ compensation payments to be made by direct deposit. 

 

7.    Revised Workers’ Compensation Act: penalties, including incarceration
19 Del. C. § 2386(b)

Section § 2386 of the Workers’ Compensation Act is titled “Violations by Insurers or Self-Insurers; Penalties.” Amendments to 19 Del. C. §2386(b), which went into effect on June 30, 2025, provide for mandatory fines and/or imprisonment for not more than 90 days. Section 2386(b) now reads: 

(b) Whoever in this State does any of the following shall be fined not less than $100 nor more than $1,000 or imprisoned for not more than 90 days, or both. 
(1) Acts or assumes to act as an agent in any capacity whatsoever for any insurance corporation, mutual association or company or interinsurance exchange, which is not authorized to do business in this State, or if such authority to do business in this State has been suspended, so acts or assumes to act while such suspension is in force. 
(2) Neglects or refuses to comply with any obligatory provisions of this section. 
(3) Willfully makes any false or fraudulent statement of the business or condition of any such insurance carrier or false or fraudulent return, shall be fined not less than $100 nor more than $1,000 or imprisoned for not more than 90 days, or both.


8.    Revised Workers’ Compensation Act: assessments for administrative expenses or insurance carriers
19 Del. C. § 2392(c)

Amendments to 19 Del. C. § 2392(c), which went into effect on June 30, 2025, allow the Office of Workers’ Compensation to increase the reimbursement percentage for activities from 66.6% to 100%, ensuring that the inspection and safety functions of the Division of Industrial Affairs are fully funded, as they were previously only partially covered. Insurance carriers will be responsible to pay the assessments imposed by this section. The annual budget process sets caps or spending limits on these appropriated special funds each year. 

 

9.    Amendment to increase reimbursement rates for workers’ compensation medical services
19 Del. C. § 2322B(c)

This amendment permits a permanent one-time increase of 3% in aggregate workers’ compensation medical expenses to correct Evaluation and Management Code reimbursements, which have fallen below the Center for Medicare & Medicaid Services’ rates. The amendment goes into effect on January 31, 2026.

 

10.    New workers’ compensation rates

The Department of Labor announced that the new workers’ compensation rates effective July 1, 2025, establish an average weekly wage of $1,386.46. Accordingly, the maximum weekly compensation rate is $924.31, and the minimum weekly compensation rate is $308.11. 

What’s Hot in Workers’ Comp, Vol. 29, No. 12, December 2025 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Portrait of Thomas Glassman. Text: Joining our Cincinnati Office as a Shareholder in the Casualty Department

News

Marshall Dennehey Adds Shareholder Thomas F. Glassman in Cincinnati, Expands Casualty Practice in Ohio and Kentucky

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.

Thought Leadership

Court Reaffirms That Actual Cash Value Includes Labor and Overhead, Not Just Materials

Greenaker v. Universal Prop. & Cas. Ins. Co., Case No. 2D2024-1964, (Fla. 2nd DCA May 8, 2026). The plaintiffs filed a breach of contract suit against Universal for refusal to pay for all of plaintiffs’ damages from a storm in November 2020. Universal filed a motion in limine to prevent the plaintiffs from introducing evidence concerning both actual cash value and replacement cost value of the loss. They argued that the plaintiffs did not complete repairs or incur any expenses in repairing the damaged property, thus being limited to actual cash value as their measure of damage and the plaintiffs’ submitted estimate of damages contained labor costs necessary for repair and, therefore, not an actual cash value estimate. Universal further asked for a directed verdict at the hearing because the plaintiffs would have no evidence to support the claim for damages. The trial court agreed and granted Universal’s motion, entering a final judgment in Universal’s favor.  The plaintiffs filed a motion for rehearing and reconsideration due to the court improperly converting Universal’s motion in limine to a motion for final summary judgment. The court denied plaintiffs’ motion and the plaintiffs appealed. The Second District Court of Appeal agreed with the plaintiffs and determined that the trial court improperly entered a final judgment based on a pretrial ruling in limine, advising there was recognized procedures, including summary judgment, judgment on the pleadings, and default judgment that could have been exercised. Further, the court continued that the improper procedure was not the only reason for the judgment to be reversed. They noted the insurance policy did not provide a definition of actual cash value nor how to calculate it, and the parties disputed the definition and calculation of such.  Universal argued that actual cash value is defined as the value of the property that suffered the direct physical loss less depreciation and deductible, i.e. costs of physical materials that were damaged.  The plaintiffs argued that actual cash value includes the amount of repair costs in addition to the value of the property that suffered direct physical loss because it is calculated as the replacement cost minus depreciation.  The court agreed with the plaintiffs, noting that Universal’s definition was not supported by the insurance contract, the statute governing replacement value insurance contracts, nor decisional authority.  The court noted that Universal “cherry-picked” the phrase “direct physical loss” from the perils insured against provision and applied it to the loss settlement provision, which doesn’t state “direct physical loss,” but instead states “insured loss.”  Further, the court conveyed that application of “direct physical loss” would be used on both actual cash value and replacement cost value, as they are both present in the loss settlement provision, which would mean insureds never got payments beyond costs of physically damaged material, which is contradictory to the replacement cost value definition.  The court advised that the Florida Supreme Court had approved the court’s interpretation of actual cash value as including costs other than damaged physical property, including overhead and profit, noting that these costs can be included in actual cash value to which a portion, like all other costs, could be depreciated. The court noted the difference between actual cash value and replacement cost value is not between types of costs, i.e. materials vs. labor, but between the valuation of the costs with the distinction of being a depreciated vs. undepreciated value. The court refused to exclude intangible costs such as labor, profit and overhead from actual cash value, finding these costs inclusions were consistent with statutory and contractual language as well as Florida Supreme Court precedent. The court reversed the judgment and remanded the case back to the trial court.

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

Result

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

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

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

Appeals Court Reverses Trial Court Order Striking Complaint as Sanction for Violating Discovery Order

All Dry USA v. Savell, 2026 WL 816093 (Fla. 1st DCA 2026) The First District Court of Appeal reversed the trial court’s order denying All Dry USA’s complaint as a sanction for violating a discovery order. The appellate court found that All Dry USA’s failure to comply with the trial court’s case management order did not give the trial court the authority to strike All Dry USA’s pleadings. All Dry USA provided water mitigation, mold remediation, and a restorative tarp at the property owned by the Savells. The property had been damaged by Hurricane Sally. All Dry USA provided invoices for the three services it performed in the amount of $90,130.61. The Savells refused to pay the invoices, stating that while they had retained All Dry USA, there was no agreement reached regarding the cost of the services. All Dry USA proceeded to file a lawsuit against the Savells, alleging breach of contract and unjust enrichment. The Savells answered the lawsuit and served discovery upon All Dry USA. All Dry USA failed to respond to the discovery requests and the Savells moved for an order compelling discovery. The trial court issued an order compelling All Dry USA to respond to Savells discovery requests and comply with all outstanding discovery deadlines per the case management order. On the day its responses were due, All Dry USA filed a motion to extend the deadline to comply with the court’s order. Before the motion was ruled upon, the Savells filed a motion to have All Dry USA’s complaint stricken for violating the trial court’s order compelling All Dry USA’s responses. The trial court granted the motion to strike, and then granted the Savell’s request for entry of default final judgment, based upon there no longer being an operative complaint. The First District Court of Appeal reversed, ruling that an order striking pleadings is justified if it is found that a party has violated numerous discovery orders, or has shown a “deliberate and contumacious disregard of the court's authority.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). The appellate court stated that a trial court’s authority to strike pleadings is not unbridled and that the situation before the court did not justify the striking of All Dry USA’s pleadings. In reaching its decision, the First District focused on the fact that the trial court only addressed the potential prejudice to Savell by All Dry USA failing to respond to discovery and seeking an extension of the deadline. The appellate court stated that prejudice is not the only factor to be considered and that the trial court needed to address if All Dry USA’s behavior in failing to comply with the discovery order was willful and deliberate.  The First District also stated that nothing in rule 1.200 or 1.380 grants a trial court the authority to strike a pleading because certain case management deadlines are not met. The appellate court held that the Florida Rules of Civil Procedure allow trial courts to bring the parties in, order them to comply with the case management discovery deadlines, and then strike pleadings if the subsequent discovery orders are disobeyed. This ruling shows the importance of understanding the authority that is binding on the trial court a party is appearing in front of. The First District’s view on a trial court’s ability to strike pleadings is in contrast with other appellate court’s throughout Florida.

News

Stacey R. Gorin Installed as President of the Burlington County Bar Association