.

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
    • Supreme Court of the United States, 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

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

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

Thought Leadership

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

Thought Leadership

Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline

Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury.  Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998. For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer. In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability. The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline. Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter. The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant. The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing. The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations. As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer. The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements. Therefore, the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b). Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements. For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.

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. 

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.

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Thought Leadership

Congress Passes Financial Exploitation Prevention Act

On June 25, 2026, the House passed the Financial Exploitation Prevention Act of 2025 (“the Act”) by a vote of 414 to 2. The Act allows financial advisors and firms to delay suspicious transactions regarding the accounts of clients who are 65 or older, if they believe financial exploitation has occurred or is about to take place. With the advancement of technology and AI, the House’s overwhelming bipartisan passage of the Financial Exploitation Prevention Act represents an important step in strengthening the financial industry’s ability to combat the growing threat of elder financial exploitation. The Act recognizes what advisors have long known that financial professionals are often the first to detect suspicious behavior but have historically lacked clear legal authority to intervene before irreversible financial harm occurs. From the industry’s perspective, the bill accomplishes several important objectives, including the following: (1) Provides a practical “pause button” by allowing financial professionals to temporarily delay certain transaction requests when there is a reasonable belief that a senior or vulnerable adult is being financially exploited; (2) Empowers financial professionals to act by providing greater certainty that firms can act in good faith to protect clients without unnecessary legal risk; and (3) Strengthens investor protection without sacrificing client rights by allowing temporary delays based on a reasonable suspicion of exploitation, which is intended only to allow additional review and not to deny clients access to their money indefinitely. In sum, the Financial Exploitation Prevention Act will equip financial professionals with practical, carefully tailored tools to stop suspected financial exploitation before client assets are lost. By allowing firms to temporarily delay suspicious transactions under defined circumstances, Congress is recognizing the critical role advisors play as the first line of defense against increasingly sophisticated fraud schemes. The Act strikes an appropriate balance between protecting vulnerable investors and preserving individual financial autonomy, while reinforcing collaboration among advisors, families, and law enforcement to combat financial exploitation. The bill now awaits Senate action.