Justia Civil Procedure Opinion Summaries

The Fifth Circuit affirmed the district court's dismissal of plaintiffs' claims against defendant as premature. Plaintiffs alleged that Eisner, seeking to maintain its relationship with Leveraged and some related funds, participated in a scheme to trick plaintiffs into waiving their redemption rights. Louisiana has established a public accountant review panel to review claims against certified public accountants and accounting firms, and plaintiffs conceded that they did not seek panel review before filing suit. The court held that the district court dismissed plaintiffs' suit as premature because they failed to seek pre-suit review by the Louisiana public accountant review panel pursuant to Louisiana Revised Statutes 37:105. Accordingly, the court remanded for the district court to decide in the first instance whether defendants were entitled to dismissal with prejudice. View "Firefighters' Retirement System v. EisnerAmper, LLP" on Justia Law

The law firm of Crowell & Moring (Crowell) was vicariously disqualified from this insurance coverage action based on a newly-hired, but disqualified discovery associate in a geographically distant office. Then, while the disqualification appeal was pending with the California Court of Appeal, the associate left Crowell. At that point, Kirk v. First American Title Ins. Co., 183 Cal.App.4th 776 (2010) became the controlling authority. "Kirk" also involved a disqualified attorney who left a vicariously disqualified law firm during the pendency of an appeal, and the result was that the order of disqualification had to be reversed and remanded back for reconsideration by the trial court. In the process Kirk outlined a number of factors that controlled the case on remand with regard to the efficacy of what is called an ethical screen in retroactively deciding whether any of a former client’s confidential communications had been actually disclosed. Following Kirk, the Court of Appeal reversed the disqualification order and returned the case to the trial court with directions to reevaluate its disqualification decision in light of Kirk – specifically the Kirk factors as to whether any confidential information has actually been disclosed. View "Fluidmaster v. Fireman's Fund Ins. Co." on Justia Law

At issue was the claim and issue preclusive significance in future litigation of a conclusion relied on by the trial court and challenged on appeal but not addressed by the appellate court. The Supreme Court overruled People v. Skidmore, 27 Cal. 287 (1865), holding that Skidmore reflects a flawed view of preclusion and that stare decisis does not compel continued adherence to Skidmore.Plaintiff sued both Dr. Haitham Matar and Dr. Stephen Nahigian for professional negligence and alleged that Matar was vicariously liable for Nahigian’s alleged tort. The trial court granted summary judgment for both defendants in two successive judgments. In the first judgment with respect to Nahigian, the trial court concluded that the suit was untimely and that there was no genuine issue regarding causation. In the second judgment, the trial court concluded that the court’s earlier no-causation determination precluded holding Matar liable for Nahigian’s conduct. The court of appeals affirmed the first judgment on statute of limitations grounds without reaching the no-causation ground. As to Matar, the court of appeal reversed, concluding that claim preclusion was unavailable because Plaintiff sued both defendants in a single lawsuit and that Skidmore was inapplicable to issue preclusion. The Supreme Court held that Skidmore must be overruled and that Matar was not entitled to summary judgment on preclusion grounds. View "Samara v. Matar" on Justia Law

Dr. Solman performed arthroscopic surgery on Grussing’s knee in June 2014. At her July 9 appointment, Grussing reported swelling in her knee to a physician's assistant, who recommended physical therapy. Dr. Solman did not examine Grussing. Grussing returned to Dr. Solman’s office on July 18, again reporting pain and swelling. Dr. Solman aspirated Grussing’s knee, observed that the synovial fluid looked normal, and did not test the fluid for infection. Grussing continued to experience pain and swelling. In October, a different physician aspirated Grussing’s knee and sent the fluid for analysis. The knee was chronically infected. Grussing underwent a total knee replacement. The primary issue in Grussing’s malpractice suit was whether Dr. Solman breached the standard of care when he decided not to test the synovial fluid aspirated during her July 18, appointment. Grussing opened her case with Dr. Solman’s deposition testimony; he acknowledged that fluid that does not appear cloudy can test positive for bacterial infection. The defense’s expert, Dr. Matava testified that there was no way to confirm that Grussing’s knee was infected on July 18. The Eighth Circuit affirmed a defense verdict, rejecting arguments that the district court erroneously limited Grussing’s cross-examination of Matava during an attempt to elicit testimony that fluid that is not cloudy can test positive for bacterial infection and that it failed to correct defense counsel’s misstatement of law during closing argument. The correct burden of proof was properly emphasized throughout trial. View "Grussing v. Orthopedic and Sports Medicine, Inc." on Justia Law

In consolidated appeals, an executor of an estate sued the clinic and physician's assistant who treated the decedent for wrongful death. The trial court dismissed the case because plaintiff failed to file a certificate of merit, as was required by statute. The refiled case was dismissed as untimely. The executor appealed to the Vermont Supreme Court, which reviewed the trial court's dismissals and found that dismissal was proper in both cases. View "Quinlan v. Five-Town Health Alliance, Inc., dba Mountain Health Center" on Justia Law

Defendants Peter Holt, Holt Law Firm, and Bethany Holt (collectively Holt) appealed the denial of their special motion to strike (also known as an anti-SLAPP--Strategic Lawsuit Against Public Participation--motion). Peter Holt and his law firm briefly represented Charles and Victoria Yeager and successfully sued Victoria Yeager to obtain his fees in an action known as Holt v. Yeager (Super. Ct. Nevada County, No. L76533). Yeager then sued Holt, alleging professional negligence, misappropriation of name, and other claims. Holt moved to declare Yeager’s suit to be a SLAPP suit. The trial court found this suit did not chill protected expressive conduct or free speech on an issue of public interest. The Court of Appeal agreed and affirmed. View "Yeager v. Holt" on Justia Law

The Board of Ethics (“Board”) filed formal charges against respondents, Walter Monsour and Jordan Monsour. Respondents filed separate motions for summary judgment with the Ethics Adjudicatory Board (“EAB”), seeking dismissal of the charges and attaching exhibits in support of their motions for summary judgment. The Board opposed the motions and attached exhibits in support of its opposition. Respondents filed a reply memorandum, arguing the exhibits attached to the Board’s opposition did not constitute competent evidence because they were unsworn, unverified, and not self-proving. The EAB denied respondents’ objections to the Board’s exhibits and admitted them into evidence. At the end of the hearing, the EAB took the motion for summary judgment under advisement. Respondents sought supervisory review of the ruling admitting the exhibits into evidence. The court of appeal found the EAB erred in admitting the Board's exhibits, because these exhibits did not meet the requirements of La. Code Civ. P. arts. 966 and 967. Accordingly, the court reversed the EAB’s ruling and remanded for further proceedings. Two judges dissented in part, and would have allowed the Board, on remand, to submit competent evidence prior to a ruling on the motion for summary judgment. The Louisiana Supreme Court concluded the evidence produced in connection with motions for summary judgment in these administrative proceedings had to conform to the same requirements applicable to civil proceedings. Accordingly, the Court affirmed the judgment of the court of appeal and remanded the case to the EAB for further proceedings. View "Board of Ethics in the Matter of Jordan Monsour & Walter Monsour" on Justia Law

The Board of Ethics (“Board”) filed formal charges against respondents, Walter Monsour and Jordan Monsour. Respondents filed separate motions for summary judgment with the Ethics Adjudicatory Board (“EAB”), seeking dismissal of the charges and attaching exhibits in support of their motions for summary judgment. The Board opposed the motions and attached exhibits in support of its opposition. Respondents filed a reply memorandum, arguing the exhibits attached to the Board’s opposition did not constitute competent evidence because they were unsworn, unverified, and not self-proving. The EAB denied respondents’ objections to the Board’s exhibits and admitted them into evidence. At the end of the hearing, the EAB took the motion for summary judgment under advisement. Respondents sought supervisory review of the ruling admitting the exhibits into evidence. The court of appeal found the EAB erred in admitting the Board's exhibits, because these exhibits did not meet the requirements of La. Code Civ. P. arts. 966 and 967. Accordingly, the court reversed the EAB’s ruling and remanded for further proceedings. Two judges dissented in part, and would have allowed the Board, on remand, to submit competent evidence prior to a ruling on the motion for summary judgment. The Louisiana Supreme Court concluded the evidence produced in connection with motions for summary judgment in these administrative proceedings had to conform to the same requirements applicable to civil proceedings. Accordingly, the Court affirmed the judgment of the court of appeal and remanded the case to the EAB for further proceedings. View "Board of Ethics in the Matter of Jordan Monsour & Walter Monsour" on Justia Law

In 2010, Dr. Menendez treated 15-year-old Garber for a fever, constipation, and back pain. Garber became a paraplegic. The state court dismissed Garber’s initial lawsuit because he failed to file an affidavit from an expert witness in support of his claim. In his second lawsuit, Garber tried to serve Menendez at his Ohio office, but (unbeknownst to him) Menendez had retired to Florida. Garber voluntarily dismissed the lawsuit. Garber sued Menendez a third time in May 2017 and properly served him. Ohio provides a one-year statute of limitations for medical malpractice claims, Ohio Rev. Code 2305.113, which began running on August 5, 2013, when Garber turned 18. Garber argued that Ohio tolls the statute of limitations when the defendant “departs from the state.” The Sixth Circuit reversed the dismissal of the suit. The court rejected an argument that the statute’s differential treatment of residents and non-residents violates the dormant Commerce Clause by disincentivizing individuals from leaving Ohio and offering their services (or retirement spending) in other states. The Ohio tolling provision does not discriminate against out-of-state commerce any more than many other policy benefits reserved for residents of a given state, including the existence of an estate tax for Ohioans but not for Floridians. View "Garber v. Menendez" on Justia Law

The Board of Directors (the Board) of Bear Valley Community Hospital (Bear Valley) refused to promote Dr. Robert O. Powell from provisional to active staff membership and reappointment to Bear Valley's medical staff. Dr. Powell appealed the superior court judgment denying his petition for writ of mandate to void the Board's decision and for reinstatement of his medical staff privileges. Dr. Powell practiced medicine in both Texas and California as a general surgeon. In 2000, the medical executive committee of Brownwood Regional Medical Center (Brownwood), in Texas, found that Dr. Powell failed to advise a young boy's parents that he severed the boy's vas deferens during a hernia procedure or of the ensuing implications. Further, the committee found that Dr. Powell falsely represented to Brownwood's medical staff, on at least two occasions, that he fully disclosed the circumstances to the parents, behavior which the committee considered to be dishonest, obstructive, and which prevented appropriate follow-up care. Based on the committee's findings, Brownwood terminated Dr. Powell's staff membership and clinical privileges. In subsequent years, Dr. Powell obtained staff privileges at other medical facilities. In October 2011, Dr. Powell applied for appointment to the medical staff at Bear Valley. On his initial application form, Dr. Powell was given an opportunity to disclose whether his clinical privileges had ever been revoked by any medical facility. In administrative hearings generated by the Bear Valley Board’s decision, there was a revelation that Dr. Powell had not been completely forthcoming about the Brownwood termination, and alleged the doctor mislead the judicial review committee (“JRC”) about the circumstances leading to that termination. Under Bear Valley's bylaws, Dr. Powell had the right to an administrative appeal of the JRC's decision; he chose, however, to bypass an administrative appeal and directly petition the superior court for a writ of mandamus. In superior court, Dr. Powell filed a petition for writ of mandate under Code of Civil Procedure sections 1094.5 and 1094.6, seeking to void the JRC's/Board's decision and to have his medical privileges reinstated. The trial court denied the petition, and this appeal followed. On appeal of the superior court’s denial, Dr. Powell argued he was entitled to a hearing before the lapse of his provisional staff privileges: that the Board surreptitiously terminated his staff privileges, presumably for a medical disciplinary cause, by allowing his privileges to lapse and failing to act. The Court of Appeal determined the Bear Valley Board had little to no insight into the true circumstances of Dr. Powell’s termination at Brownwood or the extent of his misrepresentations, thus the Board properly exercised independent judgment based on the information presented. In summary, the Court of Appeal concluded Bear Valley provided Dr. Powell a fair procedure in denying his request for active staff privileges and reappointment to the medical staff. View "Powell v. Bear Valley Community Hospital" on Justia Law