PSD Wins Summary Judgment in Healthcare Case

On June 21,2017, PSD’s healthcare litigation partner Phillip Rakhunov won a rare summary judgment ruling despite a battle of experts, resulting in the dismissal of negligence claims against a New York physician and his urology practice group. Plaintiff had sought more than $2 million in damages, alleging that defendants were negligent in failing to address complaints of abnormal bleeding, which allegedly developed into a massive bleeding episode while plaintiff rode the subway later that evening. Mr. Rakhunov argued that the objective medical evidence, including reports from the first responders, proved as a matter of law that plaintiff’s version of the facts was medically impossible, that the defendants did not depart from the standard of care and that plaintiff’s bleeding episode could not have been proximately caused by the actions or inaction of PSD’s clients. The Honorable Ellen M. Spodek, a Justice of the Supreme Court for Kings County, ruled after oral argument, granting summary judgment in the defendants’ favor.

A Suffolk County judge dismissed counterclaims that the Court determined to constitute SLAPP claims, essentially retaliatory claims based on nothing substantial beyond constitutionally-protected petitioning activity. In the 21-page memorandum of decision, the Court dismissed a breach of contract counterclaim and misrepresentation counterclaims. Previously the Court had denied in its entirety the defendants’ motion to dismiss Dr. Carr’s claims. The case has been expedited at the request of Dr. Carr for trial as early as the fall.

On Friday, March 24, 2017, a federal judge in the Southern District of Florida awarded $422,433 in fees and costs to EDCare Management, Inc., a PSD client in an employment dispute. A former employee had sued EDCare in two lawsuits, claiming a wrongful termination and alleged violations of the Fair Labor Standards Act. Discovery and investigative efforts revealed that the plaintiff had certain documents in her possess that she should not have taken or kept from the company. Eventually, EDCare resolved the claims with the plaintiff, partially in return for her waiver of attorney-client privilege. Additional discovery revealed the role of her lawyers at Amlong & Amlong, P.A. in receiving a copy of folders from the laptop belonging to the CEO of EDCare. The court conducted an evidentiary hearing on a sanctions motion against plaintiff’s firm, rejected testimony by two of its lawyers, and found that plaintiff’s firm violated federal law prohibiting bad faith actions by attorneys that protract or multiply a proceeding. After additional rounds of briefing and another hearing, the federal judge rejected an argument by the Amlong firm that less than $200,000 in fees would be the outer limit for an award against it. Instead the court applied a much more modest discount and awarded $422,433 in fees and costs against the Amlong firm. Barry Pollack and Joshua Solomon have served as the lead counsel on the underlying matters.

On March 7, 2017, a 12-person Suffolk County jury returned a verdict in favor of a PSD client on her contract and breach of fiduciary duty claims.Peter Duffy served as lead trial counsel on behalf of a widow against a manager of a family business who claimed she owned the company after PSD client’s husband passed away. The jury deliberated for less than a half day. Judgment entered in favor of the PSD client in the amount of $514,369.

The SJC handed down a unanimous decision on November 15, 2016, affirming a single justice’s grant of summary judgment in favor of PSD client Quincy Historical Society. A new trustee (who replaced the City of Quincy in overseeing assets devised by President Adams) had attacked a lease of the Adams Academy to the Quincy Historical Society. In the decision, the SJC found that a prior decree from 1972 approving the lease precluded the new trustee from pursuing his attack. Barry Pollack argued the appeal for the Quincy Historical Society.

A judge in the Business Litigation Session in Massachusetts Superior Court granted summary judgment dismissing all claims brought against Fraen Corporation and certain affiliates. In the October 12, 2016 decision, the court found that the plaintiff lacked a reasonable expectation of proving contract-based claims or of showing that the defendants ever conducted themselves in bad faith. The dispute arose from a Patent Purchase Agreement and a Sales Representative Agreement concerning an electric torque motor. Barry Pollack and Phil Rakhunov represented Fraen in the matter.

In a 20-page written Memorandum of Decision and Order, PSD won a federal trial under the Hague Convention on the Civil Aspects of International Child Abduction. The Order reunites a 13-year old girl with her mother in Brazil. The federal judge found that PSD’s client proved that the child’s father had retained the girl in breach of the mother’s custody rights under Brazilian law and that the father failed to prove any applicable defense. The Court has invited PSD to submit an application for an award of fees and costs, including attorneys’ fees, incurred pursuing recovery of the child.
PSD partners Peter Duffy and Phil Rakhunov served as lead counsel on the matter at trial.

One of the first claims under the Defense of Trade Secrets Act of 2016 has been filed in the United States District Court for the Western District of Pennsylvania (Case No. 2:16-cv-00762-DSC) earlier this month. CNX Gas Company LLC has claimed that another party obtained certain of its trade secrets through a limited license but has made improvements to them and allegedly filed a provisional patent application using CNX’s alleged trade secrets. The Complaint is vague as to whether and what actions have been taken on the provisional patent application since last month’s effective date of the DTSA, making it unclear how prospective application of the new law will affect the case, which apparently involves pertinent events both before and after the effective date of the DTSA.

PSD partner Barry Pollack earned ranking honors again from Chambers USA for 2016:

“Clients consider Barry Pollack of Pollack Solomon Duffy LLP to be a ‘brilliant strategist’ and an ‘extremely thorough’ practitioner. He is recognized for his handling of white collar criminal matters.”

For more information, see: http://www.chambersandpartners.com/12703/395/editorial/5/1