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Wendy H. Smith

Senior Counsel

WHSmith@mdwcg.com

Portrait of Wendy H. Smith

Wendy has practiced in the area of construction defect/architects and engineers litigation for more than 30 years, representing general contractors, subcontractors and design professionals. She is an experienced litigator who has tried matters in state and federal courts and has handled innumerable mediation and arbitration proceedings. Wendy has also handled numerous multi-party construction defect/architects and engineers and complex product liability actions, including class actions.

In 1978 Wendy graduated from Smith College with an A.B. in economics and received her juris doctor from Boston University School of Law in 1981. She served as law secretary to the Honorable Charles R. DiGisi, J.S.C., during the 1981-1982 court term.

Wendy was admitted to New Jersey and the United States District Court for the District of New Jersey in 1981 and was admitted to the U.S. Court of Appeals, Third Circuit, and the United States Supreme Court in 1985. She is a member of the Bergen County, Essex County, New Jersey and American Bar Associations.

    • Boston University School of Law (J.D., 1981)
    • Smith College (A.B., 1978)
    • New Jersey, 1981
    • U.S. District Court District of New Jersey, 1981
    • U.S. Court of Appeals 3rd Circuit, 1985
    • U.S. Supreme Court, 1985
    • AV® Preeminent™ by Martindale-Hubbell®
      The Martindale Hubbell rated attorney list is issued by Internet Brands, Inc. A description of the selection methodology can be found here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
    • New Jersey Super Lawyer (2006-2009, 2018; Top 50 Female Lawyers, 2006-2007 )
      The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
    • New Jersey Top Rated Lawyer (2012-2013 )
    • New Jersey's Women Leaders in the Law (2013 )
    • American Bar Association
    • Bergen County Bar Association
    • Essex County Bar Association
    • New Jersey Bar Association
    • New Jersey Defense Association
    • Obtained a directed verdict on behalf of my client, an engineering firm in a breach of contract action. Plaintiff, a construction company, sought damages for additional unit price work performed during the construction of an airport parking apron. The project was 95% funded by a grant from the New Jersey DOT. Plaintiff performed the additional work without submitting written requests for Change Orders and without receiving written authorization to proceed. Plaintiff contended that the engineer verbally authorized them to proceed with the additional work and that they relied upon that authorization to their detriment. The airport contended that it relied upon the engineer to determine that the work was done properly. The Judge denied Motions for Summary Judgment. At trial, I established that the terms of the Contract required the Plaintiff to submit a written request for a Change Order prior to performing unit price work that would increase the contract price; that Plaintiff's failure to submit the written request for a Change Order prior to doing the work deprived the airport and the DOT of the opportunity to decrease the scope of the project; and that as a result the Plaintiff's failure to comply with the terms of its contract, the DOT denied the request for additional funding. At the end of Plaintiff's case, the Judge granted the motion for a directed verdict dismissing all claims with prejudice.
    • Successfully represented an engineering firm in defense of a suit alleging improper design/construction of improvements to a town park resulting in flooding of plaintiffs' commercial property. I tendered the defense to the contractor; their carrier assumed the defense of my client and resolved the matter, reimbursing my client's costs and counsel fees.
    • Successfully represented a manufacturer of a truss system in defense of a suit alleging multiple construction defects. The matter resolved with no payment by my client.
    • Successfully represented a commercial property owner in a complex construction/fire loss matter in which claimants contended that improper design of a standpipe and a failure to test the standpipe following repairs by my client's contractor, resulted in the loss of two yachts. The matter resolved with no payment by my client.
    • Achieved a defense verdict in a wrongful death case. Plaintiffs' decedent committed suicide by jumping off of the roof of Rahway Hospital. Plaintiffs' claims included negligent security against our client, the contracted security company, along with psychiatric and nursing malpractice. Plaintiff appealed; the Appellate Division unanimously affirmed the Trial Court verdict; plaintiff then filed a Petition for Certification. The Supreme Court granted certification. Following briefing and oral argument, the Supreme Court agreed that Certification had been improvidently granted and dismissed the appeal, which resulted in affirmance of the Trial Court victory.
    • Obtained Summary Judgment on behalf of an Engineering Firm dismissing a wrongful death claim based upon the plaintiffs' failure to provide an Affidavit of Merit.
    • Successfully resolved, through mediation, a complex products liability/construction defect claim in which plaintiffs sought $13.5 million in damages following an explosion of a large, commercial boiler during the commissioning process. I was able to persuade the parties and the court to permit limited, sharply focused discovery, providing enough information for the parties to intelligently participate in mediation, and avoiding the potential for hundreds of days of depositions. As a result, I was able to achieve a global resolution of the case for less than a third of plaintiffs' alleged damages and to significantly limit my client's contribution.
    • Successfully handled a class action construction defect/architectural malpractice claim on behalf of an architectural firm, obtaining a dismissal of all claims against them with no payment.
    • Successfully resolved, during trial, a construction defect claim against the general contractor, architect and engineer arising out of the design of a funeral home. The architect and engineer settled before trial. Plaintiff demanded approximately $1 million in damages from my client. I defended on the grounds that the contractor was justified in relying upon the signed and sealed plans of the licensed architect and engineer. At the close of plaintiffs' case, plaintiff accepted $75,000 in settlement.
    • Obtained Summary Judgment in a case involving a construction worksite accident. The general contractor sued my client, the plaintiff's employer, seeking defense, indemnification and additional insured status pursuant to a contract between the parties. I successfully argued that the plaintiff's claims against the general contractor arose out of the general contractor's active fault and not out of any vicarious liability on the part of my client. I successfully defeated the general contractor's motion for leave to appeal.
    • Achieved a defense verdict following a six-month trial in a $65 million construction case by establishing that the cause of water infiltration was differential movement, not client's work. In the same action, successfully defeated the developer/general contractor's post-trial motion for contractual defense and indemnity.
    • Obtained Summary Judgment in a construction/product liability case in which the demand was in excess of $10 million by establishing that the design of the system was doomed to failure prior to construction; therefore, any deficiency in the ductwork was not a proximate cause of the HVAC system's failure to meet specifications.
    • Successfully resolved through mediation, on behalf of the initial developer/project sponsor of a condominium project, a construction defect claim where the demand was in excess of $23 million by joining appropriate subcontractors, tendering client's defense to and demanding additional insured status from multiple subcontractors/carriers and retaining the appropriate engineering and architectural experts. As a result of these efforts, able to resolve plaintiff's claims for $7.8 million, limit client's contribution to $1.8 million, and obtain contribution in excess of 75% from the subsequent developer/project sponsor, architect and various subcontractors.
    • Obtained a $30,000 verdict following trial of a personal injury matter in which a young, diabetic woman claimed to have tripped and fallen on a defectively designed staircase, sustaining a trimalleolar fracture requiring open reduction with internal fixation. Plaintiff claimed to have sustained post-traumatic arthritis. Her expert testified that she would require subsequent surgery, most likely ankle fusion. Her pre-trial demand had been $1 million.
    • Obtained Summary Judgment dismissing plaintiff's complaint against client, a product supplier, in a product liability case in which the demand was in excess of $1 million based upon the Statute of Limitations. In the same action, obtained Summary Judgment dismissing the purchaser's cross claims for defense and indemnification based upon their failure to perfect their cross claims and upon the fact that once plaintiff's claims were dismissed, any verdict against them would be as a result of their active fault. I successfully defeated the purchaser's appeal of the Order granting Summary Judgment as to the cross claims.

Firm Highlights

News

John J. Hare Featured in Pennsylvania & Delaware Super Lawyers Magazine

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.

News

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

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

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. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.

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

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.