Corruption, Incompetence, Discrimination & Cheating Health Care: A Civil Rights Case Goes to Trial
After a season of public vitriol invoking race, gender and other discrimination, there is good news. Wallace v. Eckert Seamans et al. (D.C. Super. Ct no.2008 ca 5606 B), the civil lawsuit pending in the Superior Court of the District of Columbia against one of Pennsylvania’s top law firms, that alleges corruption, stealing from clients, fraud, broken contracts, and yes, even discrimination, is going to be argued in front of a D.C. jury. While the country has endured the public manifestation of systemic discrimination, based on race, gender, age, disability and all things other, lawyers in the tradition of Thurgood Marshall, take that battle to the country’s courts. The lawsuit against the national law firm of Eckert Seamans Cherin and Mellott LLC, involves its Washington, D.C. office, located literally a half block from the White House, and is a microcosm of our country’s current afflictions: corruption, incompetence, complicated by discriminatory animus with a bit of cheating the health care system in the mix. The most recent ruling of the Superior Court of the District of Columbia will put the case before a D.C. jury. As much as I would like to claim that the court’s decision is due to my legal brilliance, I cannot. The truth is that, the judge has cleared this case to go to a jury because of the corruption and gross incompetence of Eckert Seamans itself. But more about that later.
The facts underlying the lawsuit are found in the Complaint which I urge you to read. The central issue in the case is whether my former employer, the law firm of Eckert Seamans, terminated my services for refusing to do illegal and unethical acts, i.e. steal from the client, Bayer (of Bayer aspirin), by pretending to review and assess foreign language documents at a pace that rendered actually doing so impossible. As an Eckert Seamans’ attorney representing Bayer, I was required to make critical legal decisions about each document, which necessitated reading it in German, French, Spanish, Italian or Portuguese, recognizing and recording numerous pertinent legal issues, determining if any of Bayer’s hundreds of lawyers was a sender/recipient of the document, translating into English, composing and typing a summary of the document’s contents, recognizing and redacting privileged or irrelevant material, and making note of significant individuals mentioned in the document.
The assigned documents ranged in length from several pages to thousands of pages. Working at the pace Eckert Seamans requested on a 30 page document, for example, would have required me to spend just 8 seconds per page, with approximately one second per critical task. Bayer needed a thorough review; my former employer, Eckert Seamans, wanted to give Bayer no review. After the lawsuit Wallace v. Eckert Seamans et al. was filed, Bayer terminated its relationship with Eckert Seamans and 100 or more attorneys were laid off, including virtually all those working in the Washington, D.C. office who were exclusively assigned to foreign language documents.
Did the law firm of Eckert Seamans also fraudulently billed Bayer for work supposedly performed by attorneys, which was in fact performed by unqualified persons? It would seem so. Eckert Seamans admitted to invoicing Bayer for attorney’s fees for work performed by non-attorneys. Did my objection to that practice contribute to my termination? That is a question for the jury. A separate question is whether the termination was motivated by illegal discrimination based on race, gender, age or disability. Not only was I the only black attorney in the Washington, D.C. office (and the only attorney responsible for five languages),with consistently excellent performance reviews, but many of my “attorney” colleagues were in fact not licensed to practice law in Washington, D.C., including my supervisor, who was a German national with no U.S. legal training and no license whatsoever.
Being able to put these facts before a jury is not just a significant step forward. It is a major civil rights victory, and an increasingly rare one. Litigation can be long and costly. Civil rights litigation against an employer is especially fact intensive and the employer controls nearly all the facts, and usually all or most of the money. With the employer controlling most of the facts and the potential witnesses being other employees beholden to the employer for their paychecks, summary judgment is often the result, before any facts reach a jury. Add to that, the appointment of conservative judges on the federal and state levels beginning in the Nixon era, which has eroded the original intent of Title VII and many of its state counter-parts, and it is no wonder so few of these cases make it to trial.
A motion for summary judgment asks the judge to render a judgment without a trial, in a summary or abbreviated fashion. It can be put forth by either a defendant (in this case, Eckert Seamans) or a plaintiff (me), but is usually filed by the defendant. In that case, it asks the judge to declare that there is insufficient evidence to take to the jury and that no reasonable jury could decide in favor of the plaintiff. In short, it argues that there is no factual dispute. In the hands of the defendant, the motion for summary judgment is a powerful litigation tool. Winning such a motion can dismiss the case entirely or limit the issues presented to a jury.
A bit of inside baseball. In the D.C. Superior Court, the deadline for filing such a motion is set by a Scheduling Order which is issued by the judge for every civil case. Under the court’s rules, the deadlines can be modified or extended by filing a motion. The court rules require a party to seek the other side’s consent before filing any motion. If both sides agree, an extension is automatic and the judge will issue an order immediately.
In April 2009, Eckert Seamans and I agreed to extend the schedule. Eckert Seamans prepared a Joint Extension Motion, which I approved. They told to me that it had been filed with the clerk of the court. When the judge had not approved the motion after more than 30 days, I contacted Eckert Seamans partner, Ed Longosz, the managing partner of the Washington, D.C. office and attorney of record for Eckert Seamans in the case. (Yes. Eckert Seamans is representing itself). I requested that we schedule a conference call with the judge’s chambers to discuss the extension. Eckert Seamans refused, insisting the Extension Motion was before the court, and objected to me contacting chambers alone (ex parte). I respected the objection in the spirit of cooperation.
In a meeting with Eckert Seamans on August 17, 2009, their counsel suggested that since the court still had not issued the extension order, Eckert Seamans may want to file a Motion for Leave to File a Motion for Summary Judgment. (Welcome to court: you have to file a motion to ask permission to file a motion). But, something did not smell right. Seeking such permission should have been unnecessary because the court could have simply ruled on the Extension Motion which was already before it, the one Eckert Seamans insisted had been filed.
On August 31, Eckert Seamans sought my consent to file the Motion fo Leave. Before I could respond, a Superior Court clerk notified me that Eckert Seamans’ had filed their Motion for Leave and asked me if I consented. With my newly acquired access to online filings, a capability I did not have in April, I discovered that the clerk of the court had rejected the Extension Motion in April when it was filed and it had never reached the judge. Eckert Seamans was notified of the rejection the same day they electronically filed, April 6, 2009, but failed to notify me of the rejection as required by court rules. Eckert Seamans knew the motion was not in place, knew they had failed to correct the defect, knew why the court had not issued the order, and now I know why they needed a motion for leave: because the deadline for filing the Motion for Summary Judgment had expired back in April 2009. In our August meeting, they intentionally misled me in order to gain my consent to file a Motion for Summary Judgment whose deadline had expired four months earlier. I objected and judge sided with me. Eckert Seamans’ Motion for Summary Judgment was tossed out. Ouch!
Eckert Seamans’ huge blunder resulted in the loss of their most potent weapon. Was this mere incompetence or did their deceptive scheme backfire? Well, both. I personally know of cases where law firms have charged up to $15 million to prepare such a motion. Failing to ensure that Eckert Seamans retained their right to file the Motion for Summary Judgment not only demonstrates gross incompetence, regardless of the underlying reason, but also would be grounds for malpractice if they were representing anyone other than themselves. Can Eckert Seamans, a leading Pennsylvania law firm, really be that incompetent?
Or, was there a nefarious scheme to deceive me to my ultimate disadvantage in the case? I believe so. First of all, I specifically requested that we jointly contact the judge’s chambers about the Motion for Extension months earlier. Even if they had not known about the rejection before, at that point they were on notice that there was a problem. Yet, they refused, and were adamant that the Extension Motion was properly before the court. They also objected to my contacting chambers, though it is entirely permissible to do so for these types of ministerial purposes. I relied in good faith on Eckert Seamans’ representation that the motion was properly before the court and would be ruled on any day. Since the Rules of Professional Conduct require lawyers to be candid with the Court and their opponents, I was entitled to take them at their word.
Eckert Seamans’ botched scam has them hoisted by their own petard! I am thrilled to have the opportunity to present the facts of this case to a District of Columbia jury. This incident is symptomatic and emblematic of the larger circumstances of the case: corruption, incompetence, greed, and discrimination that ultimately lost Eckert Seamans their giant client, Bayer.
And let’s not forget the cost of this corruption and incompetence to the health care system, as the country struggles with accomplishing meaningful health care reform. The patients who claim that Bayer’s products harmed them deserve to know the truth. If they were harmed, they should be compensated, and if Bayer is blameless, then let it get on with the business of manufacturing and supplying helpful medications and devices. For that, lawyers on all sides must act with competence and integrity.
