At the end of April, a three-judge panel of the Fifth District Court of Appeals in Dallas ordered a malpractice lawsuit against the firm of Sommerman McCaffity Quesada & Geisler and Al Ellis, of counsel at the firm, to continue. The case against the attorneys had been thrown out last year by a Dallas District Court judge, and the Court of Appeal sent the case back to that court to continue.
Lawyers for qui tam case
This case is of interest because three of Sommerman McCaffity Quesada & Geisler partners, Andrew Sommerman, Tex Quesada and Sean McCaffity, currently represent qui tam whistleblower, Joshua Lafountain, in his TMFPA lawsuit against 71 Medicaid dental entities and dentists for which he has never worked.
Case alleges bad legal advice
Per the Court of Appeal decision, the malpractice case revolves around legal advice given to a family whose home burned to the ground in late 2009 in which the wife had died. The family had hired the Sommerman firm and Ellis to bring a product liability suit against the manufacturer of the clothes dryer in the home, which was apparently the cause of the blaze.
The Sommerman attorneys hired experts, but 11 days before trial, Ellis advised the family to settle for $800,000 of which his firm got 40% because, as he told them in an email, "we cannot win an appeal because no expert can testify as to the cause of the fire and without that we don't stand a chance. I wish it were different but unfortunately the law is not on our side."
After the settlement, to give themselves some peace over the tragedy, the family hired its own expert to find the cause of the blaze. The expert was able to determine that the cause was undeniably the gas valve of the dryer.
So afterwards, in 2017, the family brought the malpractice suit against the Sommerman firm and Ellis and asserted "claims of negligence, gross negligence, breach of fiduciary duty [later non-suited], and violation of the DTPA [Deceptive Trade Practices Act]."
Unfortunately, the husband passed away after the filing leaving the son and the parental estates to pursue the claims.
For full reference, please read the Court of Appeal's decision available for download below.
Motion in qui tam case to dismiss and sanction Sommerman attorneys
In the qui tam case which is currently before a judge of the Dallas District Court, as already reported by TDMR, lawyers for one of the defendant dentists has filed a motion asking the judge presiding over the case to dismiss it and sanction the whistleblower and his lawyers, the Sommerman partners mentioned previously as well as two lawyers from Passman & Jones.
The motion calls the qui tam lawsuit "groundless, brought in bad faith and for the purpose of harassment" because Lafountain's testimony under oath in a deposition given in April "contradicts and disproves allegations in his pleadings as well as representations previously made by Relator's counsel to the Court."
Specifically, the motion states:
- Relator does not currently have any evidence to support any TMFPA claim against any Defendant;
- Relator (and his counsel) filed this lawsuit without a good faith basis, in violation of Texas law;
- Relator is using this lawsuit as a tool to investigate theoretical claims, which is beyond the qui tam authority delegated by the Texas Legislature; and
- Relator's discovery requests are fishing expeditions prohibited by Texas law.
OAG refuses to dismiss case
Despite these glaring deficiencies, the Civil Medicaid Fraud Unit of the Office of the Attorney General, which has the power to dismiss such cases, refuses to do so.
The agency had even filed a brief with the court that "there is no provision of the TMFPA that requires the qui tam relator to have "independent" "direct" or "first-hand" or "insider" knowledge of any alleged unlawful conduct."
Based on this assertion, the Office of the Attorney General will support any qui tam lawsuit against any Medicaid provider, no matter how unfounded or ridiculous the allegations, if the relator can find a law firm with the ethics to pursue a "groundless, brought in bad faith and for the purpose of harassment" legal action.
Healthcare providers deserve better
Healthcare professionals deserve better treatment from their government.
SD says
Healthcare professionals deserve better treatment from their government!!! They’re going through enough and should not be dragged through the mud based on groundless claims!!! Wasting everyone’s money that can be used to treat kids in need.
E.F. says
Knowing what the rumors are about this Lafountain character, it is no surprise that a shady law firm like this is the one to take this insane case. I guess we shouldn’t be surprised that the Attorney General who is under indictment is leading a Attorney Generals office who openly allow obvious and blatant shakedowns for money. This is absolutely disgusting. I hope it boomerangs back on them all.
Pete M says
I can not believe this case has not been dropped. The whole situation stinks and seems like the system is crooked. OAG needs to dismiss this case and go after the real crooks here which clearly are the plaintiffs and the lawyers. We need to put an end to this injustice.
Ss says
This is the ultimate representation of bad faith legal practices. The pursuit of justice and truth are what our courts are supposed to provide. Baseless claims and insufficient evidence has to be looked at and attorneys must be sanctioned. Criminal behavior
Daniel K. says
Seems like the AG just wants a win on his resume, even if it’s at the cost of innocent doctors. This is the most disgusting thing I’ve heard of, reminds me of corrupt prosecutors you see in the news. Definitely loosing hope in the “justice” system
JH says
It’s absolutely unbelievable that the attorney general allows these people to extort dentist, NOT to mention allow healthcare providers to be treated this way. Whatever happened to upholding “the oath of office”? How are crooked lawyer allowed to operate like this? Why isn’t there more community support for innocent healthcare providers dealing with situations like this?
Gloria Marr says
The level of corruption within the judicial system here is so blatantly apparent in this case. I’ve been following all the related posts on tmdr. It’s pretty clear that the Judge is in on it with the lawyers. Not only should the case be dismissed, the corrupt judge should be disbarred. Such an embarrassment for state of Texas and stain on the reputation of AG.
Lisa B says
Breaking news !
Personal Injury lawyers who pay and support judges to extort dozens of companies using a witness with no first hand knowledge are sued in another case for not being moral nor ethical …
Sadly that makes sense
I wish it didn’t so much sense in today’s climate
We deserve better
Not worse
A Giavelli says
These guys should be disbarred. Top to bottom corruption, Backdoor deal with judges and a spineless and corrupt AG. This is supposed to be the United States and Texas dammit. Where doctors and professionals and businesspeople have a fair shot and are held in high regard, not ostracized and sought after in a witch hunt. AG will be joining the unemployment statistics soon, and the lawyers will be disbarred. We won’t stand for this!
Bill H. says
It’s not surprising that Joshua Lafountain’s law firm is getting sued. The fact they are representing this crook in this cash grab shake down is appalling.
Ben says
How are these lawyers and attorney general allowing this to happen. This is a mockery of our system. The ag should be protecting dentists not conducting a witch hunt based on some guys claims with no evidence