November 7, 2011

Doctor’s lawyers ask for sanctions

Claim class action suit violates statute of limitations

By Nita Johnson
Staff Writer

LAUREL COUNTY, Ky. — Attorneys for Dr. Jackie Maxey have filed a motion to impose sanctions against the attorney handling a class action lawsuit against the London physician.  

The motion was filed Oct. 14 and a hearing date for Friday, Nov. 11 has been scheduled. The motion was filed by Maxey’s attorneys, Tracy S. Prewitt of O’Bryan, Brown and Toner PLLC of Louisville and William E. Johnson of Johnson, True and Guarnieri of Frankfort.

The motion is targeted against Liddell Vaughn, the Louisville attorney who filed a class action lawsuit against Maxey in March 2010. The original complaint against Maxey named six women who claimed Maxey had performed unnecessary pelvic and breast exams as well as making sexually inappropriate comments or actions, but within two months the list increased to 21 women.

The motion filed on Maxey’s behalf claims that Vaughn filed the class action lawsuit without fully investigating the claims by the women named in the suit, which violates Kentucky Rule of Civil Procedure 11.

“The very nature of the allegations against Dr. Maxey and his practice should have caused Mr. Vaughn to proceed with extreme caution to ensure that the claims were timely filed and factually correct. Instead he recklessly and wrongfully filed a large number of inflammatory claims that turned out to be time-barred, untrue, and in some cases, on behalf of women he did not represent,” the motion states. “Such conduct fits squarely within the spirit and the letter of Rule 11 and warrants mandatory sanctions.”

“In large part due to Mr. Vaughn’s irresponsible and improper conduct in pursuing baseless claims, Dr. Maxey’s reputation as a medical provider in his hometown has been forever and irreplaceably damaged,” the motion states.

To further support the attorneys’ case,  the document — which was signed by Prewitt — argues the 13 claims stated in the lawsuit do not apply to all the women involved. The claims include assault, battery, breach of fiduciary duty, intentional infliction of emotional distress, medical malpractice, fraud, breach of contract, violation of the Consumer Protection Act, violation of Kentucky Revised Statute (KRS) 311.597 which charges vicarious liability, negligent hiring, negligent retention and violation by Parkway Medical Associates.

Another issue named against Vaughn is his posting on Facebook where he was seeking clients who had been affected by similar acts by Maxey. “Mr. Vaughn himself took to the Internet to solicit potential clients on Facebook, incorrectly reporting that Dr. Maxey’s medical license had been ‘revoked’ for ‘inappropriate speech and contact with female patients,’” the motion reads.

Each time another women joined the class action lawsuit, Vaughn filed an Amended Complaint, adding their names. However, his failure to remove the names of several women who withdrew from the lawsuit, either voluntarily or by retaining another attorney, is another facet of the request for sanctions against Vaughn. The motion lists a specific letter dated Aug. 6, 2010 in which one woman stated she did not wish to pursue a claim against Maxey. She also stated in the letter that she “did not consider you (Vaughn) my attorney and never have.”

The motion to impose sanctions against Vaughn is due to the discovery responses to a form Vaughn mailed out to the women involved in the civil lawsuit.

One woman dismissed her claim against Maxey after testifying before the Kentucky Board of Medical Licensure that she could not identify Maxey and could not recall him. Another woman said she received documents asking for answers to specific questions but when she did not answer all of them, “Mr. Vaughn’s office had advised her they would answer any questions she had not answered,” the motion states.

Additionally, the claims filed against Maxey by several women exceed the time frame allowed by Kentucky state law. For example, claims of assault, battery, medical malpractice and breach of contract must have action filed within one year of the event. Vicarious liability, named against Parkway Medical Associates, must be filed within one to five years. Violation of the Consumer Protection Act must be filed within two years of the alleged injury, with breach of fiduciary duty, intention infliction of emotional distress, fraud, and violation of KRS 311.597 are all listed with a five-year maximum.

“In some circumstances, the plaintiffs did not file suit until six or more years after they last saw Dr. Maxey,” the motion claims. “In total, 125 of the 273 total claims filed on behalf of the 21 plaintiffs currently represented by Mr. Vaughn, or 46 percent, are time-barred by the applicable statutes of limitations. Mr. Vaughn’s attempt to advance these claims represents a complete lack of adequate investigation to form a reasonable belief that the claims were warranted by existing law, as required by Rule 11.”

Several calls to Prewitt were not returned and Vaughn said he could make no comment about the case “at this time.” He did say that imposing sanctions on an attorney usually occurs after a case has been resolved.