Attorney from Maryland Office Secure Summary Judgment Dismissal

Eileen Ford of Marks, O’Neill, O’Brien, Doherty & Kelly, P.C. secured summary judgment dismissal, on the merits, of a legal malpractice claim in the Superior Court of the District of Columbia.  Plaintiffs asserted the lawyer/client committed legal malpractice during the preparation and execution of a last will and testament of the decedent, naming her grand-daughter as sole beneficiary of her estate, thus negating a prior bequest by decedent to Plaintiffs (son and grandson of decedent) bequeathing them her estate, under a prior will. The alleged damages arose when the grand-daughter violated a court order and expended assets of the estate during the pendency of a will contest matter, not involving the lawyer/client. Lawyer/client was not the estate attorney.

Plaintiffs alleged malpractice because it was in the will contest matter that the decedent, having suffered a medical emergency the night before, lacked mental competency on the day her new last will and testament was executed (lawyer/client, pursuant to statute, affixed testratrix’s signature because she could not raise her arm to sign the document). The Judge in the will contest case, did rule that Plaintiff lacked competence on the day the new will was executed, however, also ruled that decedent was mentally competent when decedent engaged of the lawyer/client and issued directives as to the changes she wanted in the new will. The defense stressed that the individual plaintiffs lacked standing to sue lawyer/client because they were not “direct intended beneficiaries” of the engagement for which the decedent (while mentally competent) engaged his services. Plaintiffs attempted an end run around their lack of standing, by claiming that the “Estate” has a claim of malpractice. However, the malpractice case Judge agreed that since the Estate stepped into the shoes of the decedent, its claims are limited to only what the decedent could make.  Since the decedent was deemed competent on the day she gave lawyer/client instructions to change her will, the Estate had no standing to make a claim that malpractice was committed, because the decedent would not have been able to make such a claim, had she lived, inasmuch as the execution of the will (although later revoked) accomplished the task that the decedent requested.

The defense also stressed, and the court agreed, that the District of Columbia does not recognize the tort of “intentional interference hereith expected inheritance”. Finally, the claim for punitive damages was also challenged, on the basis of collateral estoppel, as the Judge in the will contest case determined that he did not find any collusion or bad motives between the new beneficiary and lawyer/client related to his retention and his preparation of the new will. Other collateral estoppel defenses related to damages were raised in the malpractice case, however, as the Judge agreed with the defense on all of the main claims, as a matter of law, the court did not need to issue a ruling on the other defenses.  

 

Healthcare Team Presents Nursing Home Seminar

Members of Marks, O’Neill, O’Brien, Doherty & Kelly, P.C.’s Healthcare Practice Group presented a seminar addressing various aspects of nursing home litigation. Mark Merlini participated in a symposium and provided a multi-jurisdictional overview of various strategic considerations in defending claims against nursing homes and other long term care facilities.   Topics included regulatory considerations and particular challenges arising from record keeping irregularities.  

Attorney from Philadelphia Office Secures Transfer of Motor Vehicle Accident Case

Benjamin Tursi of Marks, O’Neill’s Philadelphia office recently secured transfer of a very serious motor vehicle accident case, where one passenger was ejected and died and another claimed permanent injuries.  After aggressively pursuing additional venue discovery and depositions, the case was transferred more than one year into the litigation out of Philadelphia to Cumberland County, a more conservative venue, following the filing of our Motion to Transfer Venue based on Forum Non Conveniens.  The Court granted our Motion only days before the mediation in this case, which provided significant leverage to the defendants to obtain a reasonable resolution prior to trial, minimizing exposure to our client.   

 

Attorney from New Jersey Office Wins Motion to Dismiss New Jersey Federal Court Action

Sean X. Kelly of Marks, O’Neill’s New Jersey office recently won a motion to dismiss in a New Jersey federal court action asserting  FDCPA and fraud claims against a law firm brought by a defendant in a foreclosure action.  Our team argued that the state law claims were barred by the litigation privilege because the defendant firm represented the foreclosing bank in the underlying foreclosure proceeding.  We also argued that the FDCPA claim was barred on federal abstention grounds because the plaintiff had the opportunity to raise it in the underlying state foreclosure proceedings, but failed to do so.  The Court agreed with both arguments and dismissed the matter before any discovery was necessitated.

Attorney from New Jersey Office Obtain Summary Judgment in Attorney Malpractice Case

Sean X. Kelly of Marks, O’Neill’s New Jersey office recently obtained summary judgment in a New Jersey attorney malpractice case. Our client represented a plaintiff in a medical malpractice action and obtained a substantial settlement on the client’s behalf. However, the underlying client failed to repay a worker’s compensation lien asserted against the settlement. The workers compensation carrier filed suit seeking to recover the unpaid lien from our client, the attorney. We filed summary judgment arguing, in part, that our client had no duty to a workers comp carrier to protect or repay the lien.  The trial court agreed with our argument and dismissed all claims.