Case Summaries
Professional Malpractice
[12/08]
Creekmore v. Maryview Hospital
Medical malpractice judgment is affirmed where the plaintiff's expert witness is found to be qualified to testify as to the standard of care under state law because he performs the same procedure in the same context at issue.
[11/15]
Khodayari v. Mashburn
In an appeal from a judgment of the district court dismissing appellant's tort complaint against his former counsel in postconviction proceedings, judgment is affirmed where the complaints sounds in legal malpractice such that appellant's failure to show actual innocence of the concerned probation violations and to obtain post-violation exoneration of those violations support the trial court's dismissal.
[10/20]
Simon v. Usher
In an appeal from a judgment of the appellate division reversing the trial court's grant of defendant's motion to change venue in a medical malpractice action, judgment is reversed where the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) when a defendant serves its demand for change of venue by mail.
[10/18]
Smith v. Cimmet
In an appeal from a judgment of the trial court dismissing a legal malpractice action brought by a successive estate representative on the ground that the representative lacked standing because he was never a client of the defendant-attorneys, judgment is reversed where: 1) an Oregon representative lacks capacity to sue in California because his authority does not extend beyond Oregon but may seek relief through an ancillary appointment by the California courts; and 2) under both California and Oregon statutory law, plaintiff has standing to sue attorneys who were retained by his predecessor to act on the estate's behalf.
[10/04]
Liggon-Redding v. Estate of Sugarman
In a suit by pro se plaintiff alleging that defendant committed legal malpractice while representing her in a medical malpractice case in state court by failing to retain an expert, the District Court's dismissal of the complaint is reversed where: 1) Pennsylvania Rule of Civil Procedure 1042.3, requiring the filing of a Certificate of Merit in malpractice cases, is substantive law that federal courts must apply under Erie v. Tompkins, 304 U.S. 64 (1938); and 2) appellant did comply with this substantive law.
[09/22]
Shugart v. Regents of U.C.
In an appeal from a judgment of the trial court granting summary adjudication in favor of the defendants in an action for medical negligence, judgment is affirmed where trial court correctly entered judgment in favor of the Regents because plaintiffs failed to raise a triable issue of fact as to the claims against these defendants, but reversed with respect to defendant-doctor because plaintiffs' expert declaration was admissible and raised triable issues as to defendant's alleged medical negligence.
[06/02]
Collins v. Sutter Memorial Hospital
In an action for medical malpractice, judgment of the trial court granting plaintiff a new trial after vacating a defense summary judgment is affirmed, where order was timely under Code of Civil Procedure section 660 and based on proper grounds.
[05/26]
Simke, Chodos, Silberfeld and Anteau, Inc. v. Athans
In a dispute arising from an action for breach of a contingency fee agreement, judgment of the trial court awarding attorney fees after entry of a default judgment for discovery violations is affirmed because a complaint does not have to specify, by dollar amount, the attorney fees that will be incurred and sought in a case ultimately resolved by a default judgment entered as a discovery sanction.
[05/05]
In Re: Teligent, Incorporated
In a dispute arising from an action for legal malpractice, judgment of the district court denying motion to lift bankruptcy protective orders and cross-motion for injunctive relief barring defendant from attacking the validity of a settlement agreement on the grounds of waiver is affirmed where: 1) defendant-law firm failed to make the requisite showing to lift orders; and 2) it was not a party in interest with standing such that its failure to contest the validity of settlement agreement constituted waiver.
[04/19]
Callahan v. Gibson, Dunn and Crutcher
In a dispute alleging professional malpractice arising from the drafting of a deficient partnership agreement by the defendant, summary judgment on the ground that action was time-barred is reversed because placement of actual injury upon the execution of the defective agreement was erroneous where CCP section 340.6 (a)(1), tolled the limitations period until plaintiff could establish a cause of action for legal malpractice.
[03/22]
In re. Paul E. Warburgh
In an attorney disciplinary matter, the recommendation of discipline by Committee of Admissions and Grievances is adopted where an attorney who is the subject of a disciplinary proceeding may only resign from the bar upon obtaining leave of the Court.
[02/23]
Rodriguez-Diaz v. Seguros Triple-S, Inc.
In a tort action alleging medical malpractice under Article 1802 of the Puerto Rico Civil Code, summary judgment in favor of defendant is affirmed where plaintiffs could not establish a prima facie claim because they offer no expert evidence establishing the relevant standard of care.
[01/18]
Parmalat Capital Fin. Ltd. v. Bank of Am. Corp.
In an action against an accounting firm for professional malpractice and fraud, which was removed from Illinois state court, the district court's dismissal of the action based on pending bankruptcy proceedings is affirmed in part where: 1) an 11 U.S.C. section 304 proceeding is a case for the purposes of subject matter jurisdiction under 28 U.S.C. section 1334(b); and 2) so long as the estate at issue in a section 304 proceeding, wherever located, may conceivably be affected by the state law actions, those state law actions are "related to" the section 304 case. However, the judgment is vacated in part where the district court needed to consider whether abstention was mandatory.
[12/23]
Bausch v. Stryker Corp.
In plaintiff's suit against manufacturers, distributors, and sellers of the Trident-brand ceramic-on-ceramic hip replacement system, claiming that she has been injured by the medical device and that the defendants violated federal law in manufacturing the device, district court's grant of defendants' motion to dismiss under Federal Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff's common law claims were preempted by federal law, is reversed and remanded as, because plaintiff's claims that she was injured by defendants' alleged violations of federal law are not preempted, her original complaint should not have been dismissed, and even if the original complaint had been defective, the district court abused its discretion by dismissing the action with prejudice and denying plaintiff leave to file an amended complaint.
[12/17]
Yamada v. Friend
In plaintiffs' suit against a doctor for the death of their daughter at a water park, claiming that the doctor negligently advised the water park about safety procedures and placement of defibrillators, judgment of the court of appeals is reversed to the extent it affirmed the trial court's order denying the doctor's motion to dismiss where: 1) when the underlying facts are encompassed by provisions of the Texas Medical Liability Act (TMLA) in regard to a defendant, then all claims against that defendant based on those facts must be brought as health care liability claims; and 2) because all the claims against the doctor were based on the same underlying facts, they must be dismissed because plaintiffs did not timely file an expert report.
[12/08]
Burton v. Cruise
In plaintiff's suit for medical malpractice against a plastic surgeon claiming that the doctor negligently perforated her viscus and small bowel during a liposuction, resulting in contamination of her abdominal wall, trial court's denial of plaintiff's arbitration demand is affirmed as substantial evidence supports the trial court's factual determination that plaintiff waived her contractual right to arbitrate her medical malpractice dispute by waiting to pursue arbitration until the virtual eve of trial, long after discovery, including expert discovery, had been completed, and the doctor suffered prejudice by losing whatever time and cost benefits could have been gained through arbitration, and by focusing his litigation efforts on a jury trial rather than an arbitration panel.
[11/04]
Florida Bar v. Irish
Referee's report recommending that the attorney be found guilty of professional misconduct and disbarred effective, nunc pro tunc, October 8, 2008, is approved where: 1) the record supports the referee's finding that the attorney was not addicted to the two steroids, which supports the referee's determination that the mitigating factor of addiction did not apply to the attorney's abuse of the steroids; 2) the record supports the referee's finding that the mitigating factor of rehabilitation does not apply in this case; 3) because the attorney was nonresponsive for portions of the proceedings and failed to demonstrate an extraordinary level of cooperation, the record supports the referee's decision not to apply this mitigating factor; and 4) based on the standards, case law, and the attorney's egregious misconduct, the referee's recommendation of disbarment is supported.
[08/27]
Garcia v. Gomez
In plaintiff's suit against a hospital and a treating physician for the death of plaintiff's mother from a pulmonary embolism following surgery, court of appeals' affirmance of trial court's dismissal of the suit and denial of defendants' motion for attorney's fees is reversed and remanded where: 1) there is some evidence of reasonable attorney's fees and some evidence that the physician incurred attorney's fees; 2) section 74.351(b) mandates an award of attorney's fees and costs, when expert reports are not served timely.
[08/27]
In re Columbia Valley Healthcare Sys. , LP
In plaintiffs' medical malpractice suit, defendant's petition for a writ of mandamus, challenging the trial court's denial of defendant's motion to disqualify plaintiffs' counsel because of its employment of a legal assistant, is conditionally granted as, because the legal assistant's employer did not take effective reasonable steps to shield the assistant from working on this case, and the assistant actually worked on the case at her employer's directive, disqualification is required and the trial court is directed to grant the defendant's motion to disqualify and recuse plaintiffs' counsel.
[08/26]
Florida Bar v. Hall
In an attorney's disciplinary proceedings, arising from forgery and fraudulent recording of a lease agreement and agreement for sale between the attorney and property owners, a referee's recommendation of a ninety-day suspension is approved in part and disapproved in part where: 1) referee's finding of fact, recommendations of guilt, and award of costs are affirmed; 2) referee's reliance on Standard 7.0 is disapproved and instead Standard 5.0 should be applied; and 3) referee's recommendation of a ninety-day suspension is unsupported, as after considering the factual findings, the totality of misconduct, case law, and the Standards, disbarment is the appropriate sanction.
[08/25]
Giacometti v. Aulla, LLC
In employees' suit for professional negligence against an accounting firm, claiming that the firm negligently or fraudulently over-reported income on their W-2 forms by including tip money taken by the restaurant managers as income to the employees, trial court's order sustaining the demurrer to the employees' second amended complaint against the firm for professional negligence without leave to amend is affirmed where: 1) there are no allegations in the charging complaint that the accountants knew that the restaurant's representation of employees' income was wrong at the time they prepared these documents, and there are no allegations that the accountants were hired to calculate, or in fact did calculate, employees' income for purposes of year-end reporting; and 2) the accountants did not owe the employees a duty of care under the negligence theory alleged in the second amended complaint.
