Texas Court Revives Emotional Distress Claim Against Firm

December 3, 2014 – Media Coverage

Law360, Dallas (December 3, 2014, 3:03 PM EST) -- A Texas appellate court on Tuesday largely rebuffed a malpractice suit alleging Friedman & Feiger LLP botched a client’s personal injury suit against Hoffmann-La Roche Inc., but left an opening for the clients to pursue a claim for intentional infliction of emotional distress against one of the firm’s attorneys.

The Fifth Court of Appeals agreed with the trial court’s finding there was no evidence of wrongdoing by the firm or partner Larry Friedman and said a trial court had rightly dismissed claims against partner Marla Pittman for breach of fiduciary duty and the Deceptive Trade Practices Act. The firm and former clients Rickey and Karen Holland had a long-running dispute dating back to their 2005 suit against Roche and the the University of Texas Southwestern Medical Center that spawned three lawsuits, including one from Friedman claiming the Hollands were trying to extort and coerce money from him.

In this case, the Hollands claimed the firm owed them for mental anguish they suffered as a result of the firm’s failure to file a response to Roche’s motion for summary judgment, and because in the extortion suit, Friedman and Pittman allegedly revealed confidential or fabricated communications between them.

The court sent the intentional infliction of emotional distress claim against Pittman back to trial court, saying the trial judge erred in determining the tort was “inapplicable” in light of the other claims the clients had pled. According to the opinion, although intentional infliction of emotional distress claims are not available where the gravamen of a complaint is another tort, the trial judge jumped the gun in concluding the Hollands had pled other theories of recovery that knocked out their mental anguish claim.

“A plaintiff is permitted to plead claims in the alternative, regardless of consistency,” the court wrote. “Nor does the fact the Hollands pleaded other theories of recovery show that the gravamen of their complaint was really another tort.”

The case has its roots in a 2005 suit the Hollands filed against the hospital and pharmaceutical company for injuries Rickey claimed were caused by the company’s medication. The Hollands dropped their suit against the hospital because they couldn’t file an expert report supporting their claims, and lost their case against Roche at the summary judgment stage.

The Hollands say after consulting with an appellate attorney, they learned Friedman & Feiger hadn’t filed a response to Roche’s summary judgment motion and sent a demand letter to the firm. That prompted Friedman to file the extortion suit, which was later dismissed for want of prosecution.

The firm denied wrongdoing and accused the Hollands of “using the courthouse to vent their anger” with a “punitive lawsuit seeking extremely dubious mental-anguish damages.”

An attorney for the firm, Robert Gilbreath of Hawkins Parnell & Young, said Wednesday he thinks the intentional infliction of emotional distress claim was sent back to the trial court on procedural grounds, rather than for its merit. He said the firm will argue the claim should be dismissed because it was based on statements Friedman made in a court pleading, which are protected by absolute privilege.

“We are pleased with the court’s decision,” Gilbreath said. “We will be quickly moving for summary judgment on that claim based on the privilege argument we briefed in the court of appeals. Statements and allegations made in a pleading in the course of a judicial proceeding cannot serve as the basis for an intentional infliction of emotional distress claim.”

The appellate court said it could not consider the privilege argument the firm raised because it wasn’t argued at the trial court.

An attorney for the Hollands declined comment on the suit Wednesday.

The Hollands were represented by Matthew J. Kita on appeal and at trial by Mark Ticer of the Law Office of Mark A. Ticer, and by Abel A. Leal of Meckler Bulger Tilson Marick & Pearson LLP.

The firm and lawyers were represented by Robert Gilbreath of Hawkins Parnell & Young.