Law Firm Can’t Toss Woman’s $25M Fraud Suit

A Manhattan federal judge refused Friday to toss a $25 million fraud suit targeting Weitz & Luxenberg brought by a woman who says the plaintiffs firm took on her 20-year-old breast implant injury case against Bristol-Myers Squibb but allowed it to be dismissed without telling her.

U.S. District Judge Alvin K. Hellerstein set up a briefing schedule that would allow counsel for Beverly J. Ezra to amend her claims against the law firm, the $99 billion pharmaceutical giant and its Medical Engineering Corp. subsidiary, already named as defendants in a related case.

The judge indicated he was inclined to let Bristol-Myers out of the case after a new round of briefing, but gave no such forecast for the defendant law firm.

“It seems to me it’s Weitz & Luxenberg that screwed up,” Judge Hellerstein told the law firm’s counsel Shannon M. Pennock. “Your motion is going to be denied.”

Ezra’s July suit against the firm, which alleges fraud, breach of contract and infliction of emotional distress, claims Weitz took over her Brooklyn federal court personal injury suit in 2000 from another lawyer and told her that her claims against Bristol-Myers would be tolled so they could be withdrawn “without prejudice” and later refiled.

Later that year, according to the lawsuit, Weitz and Bristol-Myers purposefully had the lawsuit dismissed without leave to refile. The suit said Ezra did not learn of the alleged fraud until 2015, when her current lawyer, Alan S. Levin, attempted to reinstate her case.

“These deceitful and unauthorized acts … denied Ezra the opportunity to reinstate her case and to pursue her entitlements for the injuries,” the suit said. Ezra first retained counsel in 1997 to pursue claims that toxic chemicals used by Bristol-Myers in its breast implants severely injured her.

In its September motion to dismiss, Weitz said Ezra’s breach of contract and fraud claims over the tolling agreement are barred by six-year statutes of limitations in New York. The emotional distress claim was also untimely, the firm said. It also asserted Ezra’s allegation of intentional fraud was not pled with sufficient particularity.

But in open court Friday, Judge Hellerstein disagreed, saying there were enough facts in dispute for Ezra to proceed.

Counsel for the drug company indicated it would also pursue a timeliness defense among other defenses during coming briefs.

Counsel for the parties declined to comment after the hearing.

Ezra is represented by Alan S. Levin PC.

Weitz is represented by Shannon M. Pennock of the Pennock Law Firm LLC.

Bristol-Meyers Squibb is represented by Elie Honig of Lowenstein Sandler LLP.

The case is Ezra v. Weitz & Luxenberg, case number 1:18-cv-06802, in the U.S. District Court for the Southern District of New York.

By Pete Brush [Law360]