Zostavax shingles vaccine. Courtesy photo

A federal judge has rejected efforts by Manhattan firm Marc J. Bern & Partners to dismiss legal malpractice claims alleging that the firm failed to perform adequate discovery in a lawsuit over the shingles vaccine Zostavax, which was later dismissed.

The plaintiffs, Chris and Pat Juday, had sued Merck over the shingles vaccine, which is currently the subject of a consolidated multidistrict litigation in the U.S. District Court for the Eastern District of Pennsylvania. Their case, however, was dismissed after the district court determined the suit had been filed one month outside the statute of limitations, and because it rejected arguments that the time period for filing the suit should be tolled because of allegations Merck fraudulently concealed the connection between Zostavax and severe chickenpox.

According to U.S. District Judge Harvey Bartle of the Eastern District of Pennsylvania, the fraudulent concealment argument may have been successful in delaying the statute of limitations if the attorneys handling their claims had conducted any discovery on the issue.

"Had their attorneys taken any discovery, the Judays may have been able to support their belated fraudulent concealment argument with admissible evidence," Bartle said. "Because their action was brought less than one month after the statute of limitations had expired, even a brief tolling period would have made their complaint timely."

Bartle, however, also granted requests by defendants to dismiss the Judays' claims for contract-related legal malpractice and unjust enrichment.

The Judays also sued the law firms of The Law Offices of Sadaka Associates, which has offices in New Jersey and New York, and Lopez McHugh, which has offices in Philadelphia, California and New Jersey, on similar legal malpractice claims. The Sadaka firm and Lopez McHugh both did not seek to have the legal malpractice tort claim dismissed, so, with Bartle's decision on Aug. 30, those claims are proceeding against all defendants.

According to Bartle, Chris Juday received a Zostavax vaccine in early March 2014, and was diagnosed with severe chickenpox 10 days later. The Judays, Bartle said, contacted Mark Sadaka about suing in September 2015. At the time, Sadaka was not licensed to practice in Pennsylvania. But, according to Bartle, he promised to work with another firm if he did not obtain a Pennsylvania license in time to file the complaint, and assured the plaintiffs he would be the lawyer on their case, including drafting the complaint.

In April 2016, the Lopez McHugh defendants signed and filed the underlying complaint against Merck, but, according to Bartle, Sadaka's firm did not advise the Judays that he had not personally filed the action, and the Judays, who, Bartle said, had not had any direct contact with the Lopez McHugh defendants, contended they did not notice that Lopez McHugh had filed the complaint.

In July 2016, the Lopez McHugh defendants withdrew and attorney Joseph Cappelli of Marc J. Bern & Partners entered an appearance. Cappelli and attorney Thomas Joyce represented the Judays during discovery, but, Bartle noted, the Judays contended they were unaware of Marc J. Bern & Partners' appearance until September 2016.

Bartle said Merck took discovery, including depositions of the Judays, but the plaintiffs' attorneys, Bartle said, did not notice any depositions or provide any interrogatories or discovery requests. Merck filed a motion for summary judgment due to the statute of limitations, and the district court granted the request.

At oral arguments, Joyce argued, for the first time, the fraudulent concealment issue, contending the statute of limitations should be tolled because Pat Juday said during deposition that her husband's doctor said Merck informed his office that chickenpox was not a known reaction to Zostavax. The court rejected the argument because it relied on inadmissible hearsay.

The U.S. Court of Appeals for the Third Circuit upheld the summary judgment.

The Judays sued the three firms, on legal malpractice and unjust enrichment claims. Regarding the Marc J. Bern & Partners lawyers, the Judays argued that had the firm performed adequate discovery, the case would not have been dismissed.

Bartle agreed.

"While this court did not find any evidence in the record in the underlying action to support a claim for fraudulent concealment, and the court of appeals affirmed, that does not mean that no such evidence exists," Bartle said. "At their depositions, Pat Juday was not asked if she had ever relayed the conversation to her husband, nor was he questioned about it."

Cappelli said he was happy Bartle dismissed the other two counts in the complaint, but disagreed on allowing the tort-based legal malpractice claim to proceed. He further said he believes that, since the Judays indicated in their pleadings they had been aware of the two-year statute of limitations when they retained Sadaka, the firm has good grounds to be dismissed from the case.

"We are very optimistic that, at the summary judgment stage, we will be dismissed out of this lawsuit," Cappelli said.

Randi Wolf, of Spector Gadon Rosen Vinci, who represented Marc J. Bern & Partners, declined to comment on the matter. Matthew Major, of Wilson Elser Moskowitz Edelman & Dicker, who represented the Sadaka defendants, noted that they did not file any papers on behalf of their clients regarding dismissing the claims and declined to comment further. Patricia Fecile-Moreland of Marks, O'Neill, O'Brien, Doherty & Kelly, who represented the Lopez McHugh defendants, did not return a call seeking comment.