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Texas Justices Pass On Friedman & Feiger Malpractice Row

August 14, 2015 – Media Coverage
Law360

Law360, Dallas (August 14, 2015, 7:22 PM EDT) -- The Texas Supreme Court on Friday declined to hear two former Friedman & Feiger LLP clients' bid to revive malpractice allegations that the firm caused them mental anguish in representing them in personal injury litigation against Hoffman-LaRoche Inc.

Without comment, the high court denied a petition for review filed July 6 by Karen and Rickey Holland. They had argued that the Dallas County trial judge who dismissed their claims was biased because of the law firm's campaign contributions. The Hollands have a long-running dispute with the firm, dating back to a 2005 suit against Roche and the University of Texas Southwestern Medical Center that spawned three other lawsuits, including one from partner Larry Friedman claiming the Hollands were trying to extort and coerce money from him.

In the instant suit, then-Dallas County District Judge Carlos Cortez, who has since left the bench, dismissed the Hollands’ case against the firm, Friedman and partner Marla Pittman, saying there was no evidence of wrongdoing. The Fifth Court of Appeals in Dallas upheld that ruling in December but said the judge had dismissed a claim against Pittman — for intentional infliction of emotional distress — for the wrong legal reason.

The intermediate appeals court said the trial judge erred in determining the emotional distress 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 unavailable 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.

In their bid for high court review, the Hollands suggested judicial bias was a factor in the dismissal of their claims and argued the high court should clarify the standard for evaluating when a trial judge’s impartiality can reasonably be questioned. They said a judge who accepts campaign funds from a party in a pending lawsuit in his court and who allows the party to host a political fundraiser on his behalf should be recused from that case.

The Hollands also sought review of whether a party is required to disclose that he is seeking mental anguish damages in the request for disclosures set out in Rule 194 of the Texas Rules of Civil Procedure. They argued the failure to make that disclosure should not implicate the automatic sanction that those damages are excluded.

The firm waived its right to file a response to the petition two days later.

Attorneys for the parties did not immediately respond to a request for comment on the court’s decision to not hear the appeal.

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 could not file an expert report supporting their claims, and lost their case against Roche at the summary judgment stage.

The Hollands said that after consulting with an appellate attorney, they learned Friedman & Feiger had not filed a response to Roche’s summary judgment motion. They subsequently sent a demand letter to the firm, prompting 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.”

The Hollands were represented by Mark A. Ticer of the Law Office of Mark A. Ticer and Matthew Kita.

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

The case is Holland et al. v. Friedman & Feiger LLP et al., case number 15-0439, in the Supreme Court of the State of Texas.