Professional Malpractice
[11/16]
Montalvo v. Gonzalez-Amparo
In an action alleging malpractice by plaintiff's deceased mother's medical care providers, dismissal of the suit as time-barred is vacated and remanded where: 1) the date of accrual for plaintiff's personal claim was within the one-year statute of limitations; and 2) under 32 L.P.R.A. section 255, plaintiff is entitled to bring her mother's medical malpractice claim because it was brought within one year of her mother's death.
[11/12]
Berry & Murphy, P.C. v. Carolina Cas. Ins. Co.
In an action for insurance coverage for a malpractice lawsuit, summary judgment for defendant is affirmed where: 1) the alleged acts of malpractice in a letter sent to the malpractice defendant and the lawsuit were "connected by an inevitable or predictable interrelation or sequence of events" for purposes of the policy; 2) the insurance policy treated as one claim all "related wrongful acts"; and 3) because defendant had no legally cognizable duty to defend or indemnify a claim, plaintiffs' bad faith claim could not survive.
[11/12]
Cassel v. Sup. Ct.
In plaintiff's legal malpractice suit, his request for writ of relief from two orders excluding evidence in favor of his former attorneys is granted and the orders vacated as the communications are a client and his attorney, outside the presence of, and not otherwise communicated to, any opposing party or the mediator, and reveal nothing said or done in the mediation discussion.
[10/28]
James River Ins. Co. v. Kemper Cas. Ins. Co.
In plaintiff-insurer's case seeking a declaration that it had no duty to defend or indemnify two lawyers who were sued for malpractice, district court's grant of summary judgment in favor of defendant-insurer is reversed with instructions to enter the declaratory judgment requested by plaintiff as its policy does not apply since it excludes coverage of conduct covered by a prior insurer, and all the wrongful acts alleged in the malpractice suit arose from events that took place in defendant's policy period.
[10/23]
Kamelgard v. Macura
In plaintiff-surgeon's case against defendant, another surgeon, for defamation, district court's dismissal of the case without prejudice is affirmed, but the judgment is modified to make the dismissal with prejudice, as the suit was time-barred.
[10/21]
Walsh v. Chez
In plaintiffs' medical malpractice suit against their deceased son's doctor and his clinic, district court's dismissal and rejection of their Rule 59(e) motion and a motion for leave to file a new set of supplemental reports is reversed and remanded as the district court erred in concluding that whatever flaws existed in the expert reports that the plaintiffs submitted went to their admissibility, as opposed to their weight.
[10/16]
Nordwind v. Rowland
In an action for legal malpractice, summary judgment for defendants is affirmed where plaintiffs failed to show actual injury because, under German law, they would have only been entitled to 50% of the subject inheritance regardless of any malpractice on the part of their counsel.
[10/15]
Executive Risk Indemn. Inc. v. Pepper Hamilton LLP
In an action by insurers seeking a declaration that the policy at issue did not cover certain legal malpractice claims, the appellate division's order denying summary judgment is affirmed in part where one plaintiff was not entitled to judgment on the basis of rescission. However, the order is modified in part where the prior knowledge exclusion did not require the known act, error, omission or circumstance to be "wrongful conduct on the part of the insured."
[09/23]
Hylton v. Frank E. Rogozienski, Inc.
In plaintiff's legal malpractice action against his former attorney seeking damages and rescission of a contingency fee contract, trial court's denial of defendant's anti-SLAPP motion is affirmed as: 1) the trial court correctly ruled that defendant had not met his threshold burden of showing that plaintiff's claims arise from petitioning activity within the purview of the anti-SLAPP statute; and 2) this rendered unnecessary any consideration of defendant's arguments that plaintiff failed to show probable success on the merits.
[09/23]
Hearn v. Howard
In a claim for legal malpractice, trial court's denial of defendant's motion to vacate entry of default and a default judgment against her on the complaint filed by the plaintiffs is affirmed as there is no basis to conclude that the trial court abused its discretion. However, the judgment is modified to omit $15,000 in attorney fees because that amount was not specified in the complaint.
[08/17]
Eskridge v. Cook County
In a medical malpractice action, denial of plaintiffs' motion for relief from a voluntary dismissal order under Fed. R. Civ. P. 60(b) is affirmed where the district court did not abuse its discretion in finding that plaintiffs' actions were voluntary and their counsel's actions did not amount to mistake, inadvertence, surprise, or excusable neglect in order to obtain relief.
[08/11]
Wilson v. Big Sandy Health Care, Inc.
In a medical malpractice action against doctors at a federally funded health care center, dismissal of the complaint is affirmed where the Federal Tort Claims Act required plaintiffs to seek administrative relief as a prerequisite to federal court proceedings.
[08/03]
Touchcom, Inc. v. Bereskin & Parr
District court judgment dismissing plaintiff's action is reversed where the act of filing an application for a patent at the USPTO was sufficient to subject defendant to personal jurisdiction in a malpractice claim based upon that filing and brought in federal court, as defendant's contacts with the United States were sufficient to meet the minimum contacts standard and the exercise of personal jurisdiction over defendants does not offend traditional notions of fair play and substantial justice. The act of filing an application for a U.S. patent at the USPTO is sufficient to subject the filing attorney to personal jurisdiction in a malpractice claim that is based upon that filing and is brought in federal court.
[07/31]
McMahon v. Craig
In an action for veterinary malpractice and intentional infliction of emotional distress, trial court judgment sustaining defendants' demurrer to plaintiff's cause of action is affirmed where: 1) emotional distress damages for negligence are not available to plaintiff because she was neither a witness nor a direct victim of defendant's negligent acts; 2) the court did not err in sustaining demurrers to plaintiff's claims for intentional infliction for emotional distress as none of defendant's alleged acts were done in her presence or directed at her, and the alleged conduct was not so extreme or outrageous to support a cause of action; and 3) the court did not err in striking plaintiff's loss of companionship allegations as California law does not allow a pet owner to recover for loss of the companionship of a pet.
[07/31]
Rivera v. Centro Médico de Turabo, Inc.
In a medical malpractice action, district court judgment is affirmed where the forum selection clause contained in two preoperative consent forms signed by plaintiff was mandatory and thus the Commonwealth Court of First Instance was the exclusive venue for any claims against the hospital. The nature of the instant action does not preclude enforcement of the forum selection clause, nor is the clause invalid for fraud, overreaching, or violating public policy.
[07/23]
Gonzalez-Droz v. Gonzalez-Colon
District court judgment denying plaintiff's request for preliminary injunctive relief is affirmed where: 1) plaintiff's appeal from the court's denial of the first request for a preliminary injunction is moot as there is no live controversy to adjudicate with respect to the first request; 2) plaintiff failed to make the requisite showing of irreparable injury in his second motion for injunctive relief, as he did not demonstrate the prospect of future harm or that the suspension of his license inflicted a serious continuing reputational injury.
[07/15]
Gicla v. US
In a medical malpractice action brought under the Federal Tort Claims Act, district court judgment is affirmed where: 1) the court did not abuse its decision in allowing certain expert testimony as there was no evidence that plaintiff was unduly prejudiced by an unannounced review of x-rays by the expert; and 2) the court did not err in its evaluation of witness credibility and in crediting the witness' opinions as to the propriety of the care that plaintiff received.
[07/14]
Amalfitano v. Rosenberg
District court judgment is affirmed where: 1) the New York Court of Appeals determined that N.Y. Jud. Law sec. 487 permits the award of treble damages for an attempted deceit of the New York courts; 2) thus, the district court correctly assumed that defendant committed actionable fraud for purposes of sec. 487 from the commencement of the litigation at which time defendant was merely attempting to deceive and had not yet successfully deceived the Appellate Division into reversing a default judgment, and correctly assumed that the fraud was a proximate cause of the defendants' incurring legal fees to defend against the entire litigation.
[07/01]
Martorana v. Marlin & Saltzman
Trial court judgment sustaining the demurrers of Class Counsel is affirmed where: 1) plaintiff is collaterally estopped from pursuing a malpractice claim against Class Counsel based on the theory that counsel breached their duty of care to the class by failing to negotiate a different settlement notice procedure than that approved by the trial court in the prior action; and 2) plaintiff's argument that Class Counsel breached their duty of care by failing to contact him specifically once they knew or should have known that he had not submitted a timely claim form fails, as there is no authority imposing such an obligation on counsel in a class action suit. The court's award of sanctions to plaintiff's former employer Allstate under Code of Civil Procedure sec. 128.7 is reversed where Allstate did not satisfy the safe harbor requirements of the statute in seeking monetary sanctions against plaintiff and his counsel.
[06/29]
Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc.
District court order denying plaintiff's motion to vacate the default judgment against it is affirmed where plaintiff's claim for relief under Fed. R. Civ. P. 60(b)(6) based on the misconduct of its counsel fails as the counsel's actions, even with plaintiff's purported diligence, do not fall within the exceptions to the rule and do not rise to the level of exceptional to warrant such extraordinary relief.
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