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Walter F. Kawalec III

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WFKawalec@mdwcg.com

Portrait of Walter F. Kawalec III

Walt focuses the majority of his practice on post-trial appellate advocacy with particular emphasis in the areas of public entity liability and civil rights, insurance coverage/bad faith litigation and professional liability. He has handled several hundred appeals to date, many of which have been in representation of physicians and attorneys, in appeals connected with malpractice litigation.

In his capacity as an appellate attorney, Walt has developed extensive experience briefing and arguing cases before the Third Circuit Court of Appeals, the Supreme Courts of Pennsylvania and New Jersey, Pennsylvania's intermediate appellate courts, the Superior Court and Commonwealth Court, and New Jersey's intermediate court, the Appellate Division. As well, Walt has experience, thus far, up to the petition stage before the United States Supreme Court.

In addition to Walt's involvement in the appellate courts, he has also briefed and argued cases and motions before the Pennsylvania Board of Finance and Revenue, the Pennsylvania Courts of Common Pleas, and the New Jersey Superior Court Law Division.

Walt is a graduate of Glassboro State College and the University of Pittsburgh School of Law, where he earned his juris doctor, cum laude, in 1998. He was the recipient of the Dean's Scholarship for three years, first year moot court competition award for "Best Brief," and served as an officer in Phi Alpha Delta legal fraternity.

In 1999 Walt joined Marshall Dennehey as a member of the Appellate Group. Since that time, he has developed an proficiency in all aspects of appellate law, from legal research, brief writing and other written advocacy to oral argument, and appellate-level motion practice.

Walt's published opinions in New Jersey, Pennsylvania and the Third Circuit Court of Appeals have established and clarified important legal principles on subjects ranging from insurance coverage and remittitur, to informed consent claims in medical malpractice actions, and contributory negligence in accountant malpractice cases.

From 2002 to 2011, Walt also worked as the editor of Defense Digest—Marshall Dennehey's quarterly newsletter that updates our clients on important legal cases and issues of the day.

    • University of Pittsburgh School of Law (J.D., cum laude, 1998)
    • Rowan University (B.A., 1991)
    • Pennsylvania, 1998
    • U.S. Court of Appeals 3rd Circuit, 1999
    • New Jersey, 2002
    • Supreme Court of the United States, 2002
    • U.S. District Court Eastern District of Pennsylvania, 2002
    • U.S. District Court District of New Jersey, 2002
    • U.S. Court of Appeals 4th Circuit, 2017
    • “Reconsidering Reconsideration,” Defense Digest, Vol. 27, No. 5, December 2021
    • “Walters v. YMCA, Putting Some Limitations on Stelluti v. Casapenn,” Defense Digest, Vol. 20, No. 4, December 2014
    • "De Facto Appeals Eliminate Federal Jurisdiction," Defense Digest, Vol. 10, No. 4, 2004
    • "Pennsylvania Superior Court Rejects Request To Void Stacked Coverage," Defense Digest, Vol. 10, No. 3, 2004
    • "'Advertising Injury' in the Third Circuit: A Frog Switch and a Green Machine," Defense Digest, Vol. 9, No. 1, 2003
    • "An Injury Is Not An 'Injury' If The Pain Is Non-Compensable," Defense Digest, Vol. 8, No. 2, 2002
    • "Superior Court, S.I.R.'s and the Direct Action Statute: Contracts Rule, Penna. Bar Ass'n, Civil Litigation Newsletter," orig. published in the Defense Digest, 2002
    • "Pennsylvania Appellate News," Defense Digest, Vol. 7, No. 1, 2001
    • "Appellate Courts Refine Pennsylvania Settlement Law," Defense Digest, Vol. 6, No.1, 2000
    • "Pennsylvania Appellate News," Defense Digest, Vol. 5, No. 4, 1999
    • Obtained summary judgment on behalf of an obstetrician in a medical malpractice action. The plaintiff alleged that our client did not obtain the requisite informed consent from our client to undergo a trial of labor after having two prior cesarean section deliveries (“TOLAC x2”). The court found that the plaintiff’s lack of informed consent claim was without foundation as she had an awareness of the risks of TOLAC x2. Rather, the court found that her claim was premised on the assertion that the physician performing the TOLAC x2 failed to convert the TOLAC to a C-section quickly enough when complications arose. The court held that as matter of law our client had no obligation to discuss the risk that the doctor in the delivery room may wait too long to pivot to a C-section, which was the actual cause of the plaintiff’s alleged harm.
    • Successfully defended a grant of summary judgment in the New Jersey Appellate Division that resulted in a published opinion. Our clients were the owner and manager of an apartment complex for seniors. The plaintiff resident had returned from walking her dog and alleged she received injuries entering the elevator. She had allowed the dog to enter first, when the doors began to close. She alleged injuries occurring when the right door struck her arm, and when she used her left arm and left side of her body to slow the doors from closing while she leapt into the elevator.  
    • She sued our clients and the company hired to maintain the elevator, but was unable to establish any proof of negligence. The trial judge dismissed the case, declining to apply the doctrine of res ipsa loquitur, in part, because the plaintiff could not establish the third element of the doctrine: that the injury did not result from the plaintiff’s own voluntary act or neglect. On appeal, the plaintiff argued that the Appellate Division should eliminate this third element. The Appellate Division, in a published opinion, concluded that the third element is a well-established law in New Jersey and only the New Jersey Supreme Court could eliminate it, and that court has shown no inclination to do so. Because the plaintiff could not demonstrate the third prong, res ipsa was not applicable and the failure of the plaintiff to establish negligence resulted in summary judgment in the defendants’ favor.
    • Successfully argued to the New Jersey Supreme Court that the grant of a new trial by the Appellate Division in medical malpractice action was erroneous, as the plaintiff failed to object to the matter at trial and could not establish plain error.
    • Successfully argued to the US District Court and Third Circuit Court of Appeals that a municipalities decision close a property to the public during the removal of a significant amount of buried military ordinance did not constitute a constitutional violation or takings.
    • Successfully argued that the represented municipality enacted a valid regulatory ordinance and not an improper licensing ordinance notwithstanding the use of the term “license” in the ordinance.
    • Successfully briefed arbitration argument and achieved a defense result in multi-million dollar binding arbitration in construction defect case.
    • Successfully persuaded the Appellate Division to reinstate multi-million dollar complaint dismissed in the Law Division.
    • Successfully argued for the reversal of a dismissal of the insurance carrier's fraud complaint, which clarified the operation of the entire controversy doctrine in New Jersey.
    • Successfully argued that a minor deviation on the form for rejecting the stacked limits for UIM coverage was not enough to vitiate the policy-holder's rejection of stacked coverage.
    • Successfully argued that a trial court committed reversible error when, after the Appellate Division found the verdict to be excessive and remanded the case for remittitur, remitted the verdict by one cent.
    • Successfully argued that parties who were found guilty of criminal tax evasion were estopped from denying their contributory negligence in a civil suit against their accountant, stemming from the preparation of those income tax returns.
    • Successfully argued that the term "advertising injury" in policy was limited to claims arising out of the misappropriation of advertising ideas or style of doing business.
    • Successfully argued that a plaintiff who was successful against a carrier's policyholder has no claim against the carrier for the amount of the self-insured retention of the policyholder.
    • T.L. v. Goldberg, N.J., A-11-18 (N.J. 2019)
    • Cona v. Tp. of Wash., 456 N.J. Super. 197, 201 (N.J. App. Div. 2018)
    • Estate of  Brust v. ACF Industries, LLC, 443 N.J. Super. 103 (N.J. App. Div. 2015)
    • Bermudez v. Kessler Institute for Rehabilitation , 439 N.J. Super. 45 (N.J. App. Div. 2015) 
    • Nat'l Amusements, Inc. v. Borough of Palmyra, 716 F.3d 57 (3d Cir. 2013)
    • Manahawkin Convalescent v. O'Neill, 217 N.J. 99 (N.J. 2014)
    • EEOC v. Geo Group, Inc., 616 F.3d 265 (3rd Cir. 2010)
    • Biber Partnership, P.C. v. Diamond Hill Joint Venture, LLC, 404 N.J. Super. 96 (App. Div. 2008)  
    • Allstate New Jersey Ins. Co. v. Cherry Hill Pain & Rehab. Institute, 389 N.J. Super. 130 (App.Div 2006)
    • Marran v. Marran, 376 F.3d 143 (3d Cir. 2004)
    • Vosk v. Encompass Ins. Co., 851 A.2d 162 (Pa. Super. 2004)
    • Columbia Med. Group, Inc. v. Herring & Roll, P.C., 829 A.2d 1184 (Pa. Super. 2003)
    • Tomaino v. Burman, 364 N.J. Super. 224 (App. Div. 2003)
    • Green Machine v. Zurich-American Ins. Co., 313 F.3d 837 (3d Cir. 2002)
    • Hohns v. Gain, 806 A.2d 16 (Pa. Super. 2002)
    • Kleban v. National Union Fire Insurance Co., 771 A.2d 39 (Pa. Super. 2001)
    • Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000)

Results

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Successfully Overturned $1.8 Million Judgment on Appeal in New Jersey

We successfully overturned a $1.8 million judgment on appeal in a case that involved the Laidlow exclusion in a workers’ compensation/employers liability policy. The decedent succumbed to heat exhaustion while at work, and the plaintiff alleged the death was due to working conditions the employer knew were substantially certain to lead to injury. Our client, the insurer, offered to defend the employer, but only to the extent of obtaining dismissal of the workers’ compensation claim, which was filed in the wrong forum. The insured rejected the offer, and suit for the injury and coverage claims commenced. At summary judgment, the trial court refused to apply the policy’s clear and prominent Laidlow exclusion barring all coverage for claims in the Superior Court whether alleged as negligent or intentional. The trial court entered judgment in the amount of the arbitration award and awarded defense costs for the Laidlow suit, costs of the declaratory judgment action and interest. The matter went up on appeal. After briefing, but before argument, the New Jersey Supreme Court released the Rodriguez decision, which validated our client’s position on application of the Laidlow exclusion and went even further to hold that the employer’s liability carrier has no obligation to provide a defense for the common law negligence claims filed in the Superior Court. The trial court refused to apply the principles enunciated by the appellate division in the Rodriguez decision and refused to apply the reasoning of a second unpublished appellate court decision directly on point. The trial court simply ignored the cases, reasoning they were unpublished. Prior to oral argument in our matter, the Rodriguez decision was published, and the plaintiffs abandoned the case, settling for nuisance value.

Favorable Decision Obtained from the Court of Appeals for the Third Circuit

We received a favorable decision from the Court of Appeals for the Third Circuit in a First Amendment case. The circuit court affirmed the District of New Jersey’s denial of a preliminary injunction in which the plaintiff claimed that federal and local officials violated her First Amendment rights through censorship and retaliation after she posted comments on Facebook. In a published decision, the Third Circuit agreed with our arguments that the plaintiff lacked standing since she could not demonstrate a substantial risk of future harm specific to our client, the former chief of police of North Hanover, NJ, as well as the other co-defendants.   

Thought Leadership

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Defense Digest

Reconsidering Reconsideration

December 1, 2021

Key Points: The standards applicable to reconsideration vary depending on whether it is a motion from an interlocutory order or a final order. Reconsideration of final orders is a much harder standard, whereas reconsideration of interlocutory orders only requires consideration of the court’s “sound discretion” and the “interest of justice.” Parties who want to seek interlocutory appeal after requesting reconsideration should take special care to file a timely motion for reconsideration so as not to miss the time limit for petition for interlocutory appeal. Let us take a moment to reconsider reconsideration. In a recent case before the New Jersey Appellate Division, Lawson v. Dewar, 256 A.3d 388 (N.J. Super. App. Div. 2021), the court took the opportunity to clarify the different standards that apply to reconsideration. In Lawson, the plaintiff filed suit against a municipality and a number of police officers, alleging the officers used excessive force when arresting him. After a case management conference, the plaintiff moved for an additional extension of discovery, the right to take certain depositions, reconsideration of an order barring a witness from testifying after the witness failed to appear for a subpoenaed deposition, leave to file an amended complaint, and for the defendant to turn over all use-of-force reports. On May 14, 2020, the court denied most of the relief sought, and the plaintiff filed a motion for reconsideration. While the reconsideration motion was pending, the venue of the case was changed from Somerset to Middlesex County. The parties argued the reconsideration motion, and the Middlesex County judge denied it. The plaintiff filed a petition for leave to appeal, which the Appellate Division granted.  On appeal, the Appellate Division first set out the legal principles that the Middlesex County judge invoked, including the coordinate-jurisdiction rule, which cautions against reversing the decisions of coequal members of the judiciary, and the law-of-the-case doctrine, that cautions against reconsidering decisions that have already been determined in the case. It also noted that the Middlesex County judge found that the reconsideration motion presented no new facts; that the plaintiff failed to show that the Somerset County judge acted in an arbitrary, capricious or unreasonable manner; that the initial decision was not based on a palpably incorrect or irrational basis; and that the previous judge did not fail to appreciate the significance of probative, competent evidence. The Appellate Division then took the opportunity to clarify the rules that apply to the two general species of reconsideration: reconsideration of an interlocutory order and reconsideration of a final order or judgment. The New Jersey Rules of Court and case law treat each differently, but they are often confused. The court noted that the principles the Middlesex County judge discussed apply to a motion for reconsideration from a final order. In that situation, Rule 4:49-2 applies, and a party must file within 20 days. Further, the standard that the Middlesex Court described—usually credited to the case of Cummings v. Bahr, 685 A.2d 60 (N.J. Super. App. Div. 1996)—applies. In motions for reconsideration after a final order, a party must demonstrate that the judge who issued the order sought to be reconsidered decided it in an arbitrary, capricious or unreasonable manner; that the decision was based on a palpably incorrect or irrational basis; or that the judge failed to appreciate the significance of probative, competent evidence. However, on motions for reconsideration of interlocutory orders, by contrast, the same standard does not apply. Rule 4:42-2 governs reconsideration of interlocutory orders and provides a far more liberal approach. Until a final order is issued, the “interest of justice” and the judge’s “sound discretion” guide reconsideration of an interlocutory order. Moreover, there is no time limit to reconsider interlocutory orders. Additionally, the Appellate Division restated that neither the coordinate-jurisdiction rule nor law-of-the-case doctrine apply to interlocutory reconsideration motions and should correct errors made by other judges when justice requires. The Lawson court, however, did not address an important consideration regarding reconsideration. While there is no time limit to petition for reconsideration of an interlocutory order, if a party wants to seek an immediate appeal of an interlocutory order, a 20-day time limit applies. A motion for reconsideration tolls that time limit, but only if the reconsideration motion is filed within 20 days. Therefore, while there is no time limit for filing a reconsideration motion on an interlocutory order, a party wishing to file a motion for interlocutory appeal after filing for reconsideration must file the reconsideration motion within 20 days or they may be out of time to seek interlocutory appeal. *Walt is a shareholder in our Mount Laurel, New Jersey, office and is a member of our Appellate Advocacy and Post-Trial Practice Group. He can be reached at 856.414.6024 or wfkawalec@mdwcg.com.   Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2021 Marshall Dennehey Warner Coleman & Goggin. 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

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.

Congratulations To Our 2026 Ohio Super Lawyers & Rising Stars! Super Lawyers: Thomas F. Glassman Personal Injury, General Defense. Rising Stars: Micheal A. Roberts Personal Injury, Medical Malpractice Defense, Gabriella M. Wittbrod Personal Injury, Medical Malpractice Defense

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

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

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

Result

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.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

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

News

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

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

Best Lawyers in America Recognition

We are proud of the firm’s 16 medical malpractice attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Special congratulations to Justin F. Johnson who was recognized as 2027 “Lawyer of the Year” in his jurisdiction for Medical Malpractice Law – Defendants. Best Lawyers: Ones to Watch • Holli K. Archer Best Lawyers in America: • Robert T. Evers • Jason P. Ferrante • Maria R. Granaudo • Joseph L. Hoynoski III • Leslie M. Jenny • Matthew P. Keris • Julia A. Klubenspies • Lynne N. Nahmani • John R. Ninosky • Gary M. Samms • Victoria Crawshaw Scanlon • Brett C. Shear • Joel M. Snavely • Robin B. Snyder

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial