Nicholas Malfitano May 27, 2016, 12:34pm


ORLANDO, Fla. – A Philadelphia-based law firm that was recently sued by a urogynecologist from Melbourne, Fla., for two forms of breach of contract and unjust enrichment is seeking to dismiss the claims associated with that complaint.

On May 17, Elizabeth H. Faiella, counsel for defendant Kline & Specter, filed a motion to dismiss the lawsuit filed by plaintiff Ralph Zipper M.D for failure to state a claim – based on Zipper’s supposedly not being able to “proceed under both breach of contract and quasi-contract unjust enrichment and quantum meruit theories of liability.”

“Under Pennsylvania law, quantum meruit and unjust enrichment cannot be predicated on an express contract,” Faiella said. “Plaintiff’s unjust enrichment and quantum meruit claims must therefore fail as a matter of Pennsylvania law, and should be dismissed.”

Though the U.S. District Court for the Middle District of Florida has subject matter jurisdiction in the suit, Faiella further argued substantive Pennsylvania law should apply in this matter, as the substance of Zipper’s claims took place in Pennsylvania.

“In disputes over performance of a contract, the law that applies is that of the state where the contract was to be performed – the so-called lex loci solutionis rule,” Faiella said.

Faiella charged Zipper with performing “excessive and unauthorized” work associated with several vaginal mesh trials he was hired to consult on, and wrote Kline & Specter was “unwilling” to reimburse Zipper for those unnecessary services totaling $250,150, over the course of three submitted invoices.

Back on April 27, Zipper (doing business as Zipper Urogynecology Associates) filed a lawsuit against Kline & Specter, alleging the firm breached its contract with him by failing to pay him fully for services rendered as an expert witness and consultant in Philadelphia-based vaginal mesh trials.

Zipper’s practice specializes in urogynecology, which is “the treatment of pelvic floor dysfunction in women which includes, but is not limited to, the treatment of stress urinary incontinence and pelvic floor prolapse and care for complications from vaginal mesh procedures.”

Zipper asserts his longtime experience in training doctors on the use of vaginal mesh and treatment of patients with urogynecological health issues has caused him to be tapped as an expert physician witness in numerous vaginal mesh trials. Zipper claims he has written more than 20 specific case opinions and four general opinions on vaginal mesh litigation.

Kline & Specter represents women who suffered injuries as a result of vaginal mesh products in litigation against the mesh manufacturers.

Prior to May 2015, Zipper says Kline & Specter contacted him to act as a consultant and expert witness in a case it brought in the Philadelphia County Court of Common Pleas on behalf of client Patricia Hammons against Ethicon, Inc., and to perform work related to the cases of three other female plaintiffs who filed vaginal mesh product-related claims.

Per their oral agreement, Kline & Specter reportedly agreed to pay Zipper a rate of $700 per hour for services to assist with the Hammons case, and $2,500 for each medical examination performed on Kline & Specter’s clients who filed similar litigation.

Later, counsel for Kline & Specter says it agreed on flat fees with Zipper of $10,000 for depositions, and $5,950 per day for trial testimony.

Zipper says he was instructed to submit invoices for these costs to the Florida firm of Aylstock Witkin Kreis & Overholtz.

Zipper began his expert consulting in May 2015 and participated in a deposition for the Hammons case at his office that September, which proceeded to trial in December. Over the course of these proceedings, Zipper avers he continually submitted invoices for payments for his services.

Lead counsel on the Hammons case and Kline & Specter senior partner, Shanin Specter, wrote Zipper an e-mail in December where he described Zipper's trial preparation as both “extraordinary” and “well beyond anything I’ve seen in the 32 years I’ve practiced law.”

On Dec. 23, a jury entered a verdict in Hammons’ favor for $12.5 million.

According to Faiella, Kline & Specter withdrew its appearance for each of the three other separate plaintiffs aside from Hammons.

Zipper argued Kline & Specter paid him a total of $147,900 for his services and $608.27 for his expenses associated with the Hammons case, with an alleged amount of $250,150 plus interest from Dec. 15 of last year still outstanding from his work on the Hammons case and that of the three other female plaintiffs.

Zipper filed suit for breach of oral contract, unjust enrichment, quantum meruit and breach of implied-in-fact contract against Kline & Specter.

The plaintiff is seeking damages for services rendered of $250,150, plus interest from Dec. 15 to the present, court costs and other relief in this case.

Attorneys from Kline & Specter had no comment regarding Zipper’s litigation.

The plaintiff is represented by Bradley Jacob Anderson and J. Timothy Schulte of Zimmerman Kiser & Sutcliffe in Orlando, Fla.

The defendant is represented by James J. Waldenberger of Kline & Specter in Philadelphia, and Faiella of Faiella & Gulden in Winter Park, Fla.

U.S. District Court for the Middle District of Florida case 6:16-cv-00712

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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