SCRANTON - A plaintiff lawyer will have a punishment hanging over his head as he pursues a lawsuit that alleges man was discharged from a senior living facility and sent on a three-hour Uber drive, during which he experienced a medical emergency and later died.
U.S. Magistrate Judge Martin Carlson in Scranton on Nov. 8 granted a Rule 11 motion for sanctions against attorney Timothy McIlwain at McIlwain Law Firm in New Jersey.
Defendants like Twin Cedar Senior Living in Shohola have claimed those lawyers pursued a theory that defendants were fraudulently transferring assets to other entities. Carlson and District Judge Karoline Mehalchick have already ruled the plaintiffs failed to support this theory despite continuing to chase it.
Meanwhile, negligence claims persist as the litigation, now in its fifth year, has often been sidetracked. Carlson wrote in his recent order that he'd rather hold off on determining what amount of the other side's attorneys fees the plaintiff lawyer will be required to pay.
"(T)he parties' pursuit of sanctions in this case has, on occasion, delayed resolution of the important issues relating to the underlying merits of the plaintiff's claims, claims that involve a fatality," Carlson wrote.
"We have previously decried the degree to which these sanctions disputes have delayed the progress of this case."
So, Carlson set aside the month after a final ruling on the merits to determine how much money McIlwain must fork over.
The case involves the death of Eugene Hamill, a resident of Twin Cedar who was discharged in 2018 despite severe medical conditions that required him to wear a cardiac life vest.
Twin Cedar's Tamara Singer ordered an Uber to take him home to Toms River, N.J., despite allegedly being told this was an unsafe discharge plan. During the ride, he began vomiting and became unresponsive, the lawsuit says.
He ended up at the Intensive Care Unit at Barnabas Health Community Center, where he suffered a stroke and heart attack, the suit says. He was discharged to another nursing facility and died about a year later, leading his widow Jeanne to file a wrongful death suit.
But the suit included a host of defendants like a realty company under the theory assets were being transferred to avoid being paid to the plaintiff, should Twin Cedar be found liable.
Through the litigation, plaintiff lawyers were found to have defaulted on discovery obligations and failed to make timely disclosures of expert witnesses, drawing a sanctions motion from Twin Cedar.
The court refused a sanction of preclusion of evidence in favor of paying the defendants' attorneys fees.
"Thus, our prior rulings have foreshadowed that monetary sanctions may well be appropriate for this series of significant discovery defaults," Carlson wrote.
A second amended complaint sought to void the 2019 sale of Twin Cedar's facility to Little Walker Holdings. And the plaintiff wanted an accounting of the proceeds of any transfers.
McIlwain attempted to link his settlement demand of $15 million to the sale of Twin Cedar as proof assets were being fraudulently transferred. This was rejected, as the sale process had begun before the settlement demand.
The claim was determined to be "factually bankrupt," while lawyers were found to have engaged in "virtually no discovery to support these claims, despite having been put on notice by the court that there was a paucity of proof with respect to these fraudulent transfer of asset claims."
Carlson wrote that by the time that second amended complaint was filed, the fraudulent transfer claim had been completely undermined.
"Therefore, before he filed this thoroughly discredited claim once again in the face of evidence rebutting the claim, counsel had a legal and ethical obligation to conduct a reasonable inquiry into the continued viability of this claim," Carlson wrote.
"This counsel failed to do."