United States District Court, E.D. Pennsylvania
CHRIS JUDAY, et al.
MARK T. SADAKA, et al.
Chris Juday and Pat Juday (“the Judays”) have
sued their attorneys who represented them in the case of
Juday, et al., v. Merck & Co., Inc., et al.,
Civil Action No. 16-1547 in this court. The defendants are
Mark T. Sadaka and Sadaka Associates LLC (collectively
“the Sadaka defendants”); Michael S. Katz, Andrew
W. Knox, and Lopez McHugh LLP (collectively “the Lopez
McHugh defendants”); and Joseph Capelli, Thomas J.
Joyce, and Marc J. Bern & Partners LLP (collectively
“the Bern defendants”). Count I of the complaint
alleges Legal Malpractice (Tort), Count II alleges Legal
Malpractice (Contract), and Count III alleges Unjust
the court are the motions of the Bern defendants and the
Lopez McHugh defendants to dismiss all or part of the
complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The Bern defendants have moved to dismiss the
complaint in its entirety, while the Lopez McHugh defendants
have moved to dismiss Counts II and III.
considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court must accept as true all
factual allegations in the complaint and draw all reasonable
inferences in the light most favorable to the plaintiff.
See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233
(3d Cir. 2008); Umland v. PLANCO Fin. Servs., Inc.,
542 F.3d 59, 64 (3d Cir. 2008). We must then determine
whether the pleading at issue “contain[s] sufficient
factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim must do more than raise a “mere
possibility of misconduct.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting
Iqbal, 556 U.S. at 679). Under this standard,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
motion to dismiss under Rule 12(b)(6), the court may consider
“allegations contained in the complaint, exhibits
attached to the complaint, and matters of public
record.” Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)
(citing 5A Charles Allen Wright & Arthur R. Miller,
Federal Practice and Procedure § 1357 (2d ed. 1990)).
The court may also consider “matters incorporated by
reference or integral to the claim, items subject to judicial
notice, matters of public record, orders, [and] items
appearing in the record of the case.” Buck v.
Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.
2006) (citing 5B Charles Allen Wright & Arthur R. Miller,
Federal Practice and Procedure § 1357 (3d ed. 2004)).
present purposes, we accept as true the allegations set forth
in the complaint. Chris Juday received Zostavax on March 2,
2014 in Indiana. Within a week, he became ill and was
diagnosed with severe chickenpox on March 12, 2014. He became
so sick that he is now no longer able to work.
Judays worked with attorneys in Indiana to make a claim
before the United States Court of Federal Claims under the
National Vaccine Injury Compensation Program. That Court
dismissed their action because Zostavax is not included in
the program. Through this process, the Judays learned that a
two-year statute of limitations would apply if they wanted to
bring a lawsuit in a federal or state court.
about September 17, 2015, the Judays contacted attorney Mark
Sadaka about filing such a suit on their
behalf.Sadaka, who held himself out on the
internet as an expert in handing cases involving Zostavax
injures, agreed to represent them. In either their initial
phone conversation or follow-up discussions soon after, the
Judays gave Sadaka information about their case and informed
him that they believed the statute of limitations would run
on March 12, 2016. This representation began in September
2015, although the Sadaka firm and the Judays did not execute
an engagement letter until a year later, on September 6,
time in Fall 2015, Sadaka told the Judays that their lawsuit
would be filed in the United States District Court for the
Eastern District of Pennsylvania. At the time, Sadaka was
licensed only in New Jersey but advised the Judays that he
was in the process of obtaining a license to practice in
Pennsylvania. He promised the Judays that if he was not
licensed to practice in Pennsylvania in time to file a
complaint in the Eastern District of Pennsylvania, he would
work with another lawyer who had the ability to do so. Sadaka
assured the Judays that he would be the attorney working on
their case, including the drafting of the complaint.
April 5, 2016, it was the Lopez McHugh defendants, not the
Sadaka firm, who signed and filed the complaint in the
underlying litigation against Merck & Co., Inc. and Merck
Sharp & Dohme Corp. (collectively “Merck”) in
this court. A paralegal from the Sadaka firm provided the
Judays with a copy of the complaint in June 2016. Sadaka did
not advise the Judays that he had not personally filed the
action. According to the Judays, they did not notice that the
Lopez McHugh defendants were the ones who had signed the
complaint on their behalf. The Judays had no direct contact
with these defendants at any time.
7, 2016, Capelli, one of the Bern defendants, entered an
appearance for the Judays in the underlying litigation, while
Katz and Knox of Lopez McHugh withdrew their appearances a
few days later, on July 11, 2016 and July 12, 2016,
respectively. Although the Judays do not know to what extent
the Lopez McHugh defendants remained involved in their case,
they believe that they remained informed as to the status of
their case because those attorneys were copied on
correspondence dated May 2, 2017 between Capelli, of the Bern
firm, and the Judays.
court held a status conference in chambers on July 12, 2016
and thereafter entered its First Scheduling Order providing
dates for discovery, motions, and trial. Capelli attended the
status conference on behalf of the Judays. The Bern firm,
including Joyce, “apparently” continued to
represent the Judays during the discovery period, although
Joyce did not enter his appearance until December 5, 2016.
Judays did not become aware that the Bern defendants were
involved in their case until they were contacted by an
associate at the Bern firm in September 2016. Sadaka then
confirmed with the Judays that he was working with the Bern
defendants but never told the Judays about the Lopez McHugh
defendants, who had filed the complaint.
Merck took discovery, including depositions of the Judays,
between August 18, 2016 and February 6, 2017. During this
time, however, attorneys for the Judays did not notice any
depositions or propound any interrogatories or discovery
requests. Merck filed a motion for summary judgment on
February 6, 2017 on the ground that the statute of
limitations had expired before the complaint was filed. The
Bern defendants filed a response in opposition on behalf of
court held argument on Merck's motion for summary
judgment on March 23, 2017 and then ordered supplemental
briefing on the issue of the statute of limitations. The Bern
defendants still represented the Judays at this time.
court entered summary judgment in favor of Merck on April 17,
2017. The court held that the statute of limitation began to
run on March 13, 2014 because Chris Juday not only had an
“‘unrebutted suspicion' that he had suffered
an injury from the Zostavax vaccine administered to him on
March 2, 2014 but also had information that there was a
‘reasonable possibility' at that time that there
was a causal connection between the vaccine and his
symptoms.” Juday v. Merck & Co., Inc., No.
16-1547, 2017 WL 1374527, at *5 (E.D. Pa. Apr. 17, 2017). A
timely lawsuit should therefore have been filed on or before
March 13, 2016. As noted above, the Lopez McHugh defendants
did not file the complaint until April 5, 2016.
first time at oral argument, Joyce of the Bern firm asserted
that Merck had engaged in fraudulent concealment, thereby
tolling the statute of limitations and making the complaint
timely. He pointed to Pat Juday's deposition testimony
that her husband's doctor had reported that Merck