Jessica M. Karmasek Feb. 19, 2015, 3:18pm


CINCINNATI (Legal Newsline) - Attorneys for a Portsmouth, Ohio-based nursing home facility have filed a lawsuit in an Ohio state court attacking Mississippi law firm McHugh Fuller Law Group for its efforts to “encourage” tort litigation against the facility.

McHugh Fuller, which focuses its practice on nursing home abuse and neglect, already is sparking controversy in neighboring West Virginia after ABC News reported in December that partner Michael Fuller purchased a Learjet from the Charleston-based Segal Law Firm for more than $1 million in 2011. The firm is owned by West Virginia Supreme Court Chief Justice Robin Davis’ husband, Scott Segal.
 

Last year, Davis wrote the majority opinion in a case resulting in an approximate $40 million verdict against another nursing home facility operated by HCR Manorcare. The ruling upheld a jury verdict in favor of Fuller’s client.

 

Now, attorneys for Heartland of Portsmouth OH LLC -- the same attorneys seeking Davis’ recusal in another case against an HCR ManorCare-affiliated nursing home -- are asking for a temporary restraining order and injunctive relief against McHugh Fuller.
 

Heartland of Portsmouth claims the law firm, based in Hattiesburg, Miss., has engaged in “false and misleading advertising,” encouraging lawsuits against it and other similar facilities in Ohio.
 

“Defendant distributes advertisements of sensational content, which contain deliberately misleading references to certain government surveys, performed upon Heartland of Portsmouth’s facility, in order to deceive Heartland of Portsmouth’s clientele and the citizens of the surrounding community into believing that Heartland of Portsmouth is unsafe and has harmed their loved ones and community members,” attorneys with Anspach Meeks Ellenberger LLP in Toledo wrote in the complaint, originally filed in Scioto County Common Pleas Court.

 

In the complaint, the nursing home offers the wording on a full-page advertisement taken out by the McHugh Fuller in the Portsmouth Daily Times and its website.

 

It says:

 

"ATTENTION! The government has cited HEARTLAND OF PORTSMOUTH NURSING for failing to operate and provide services according to Federal, State, and local laws and professional standards.

 

"If you suspect that a loved on was NEGLECTED or ABUSED at Heartland of Portsmouth, call McHugh Fuller today!

 

"Has your loved one suffered? Bedsores, Broken Bones, Unexplained Injuries, Death. 1-800-939-5580 [McHugh Fuller Law Group]"
 

At issue is the ad's claim that the government "has cited" the nursing home.

 

"The 'has cited' language leads the reader to believe that the alleged citation has been recent," the complaint states.

 

"This is in and of itself -- quite apart from the rest of the advertisement -- false and deceptive, because Heartland of Portsmouth has not had a citation remotely similar to the advertisement's language since March of 2013, almost two years ago."

 

Since Heartland of Portsmouth's Jan. 5 filing, McHugh Fuller has requested the case be removed to federal court.
 

The firm filed its removal based on a theory of diversity jurisdiction.
 

Heartland of Portsmouth, in a motion filed Jan. 13 in the U.S. District Court for the Southern District of Ohio’s Western Division, wants the case remanded back to the state court.
 

Though it does not contest the complete diversity of the parties, lawyers for Heartland contend the facility has alleged no actual damages and McHugh Fuller has not met its burden to show by factual allegation that the combined value of the injunctive relief and statutorily permissible attorneys fees, sought by Heartland, exceeds a $75,000 threshold.
 

“Additionally, and subject now to the present challenge to the Defendant’s Notice of Removal, Defendant will be unable to meet its further burden to prove the same by a preponderance of the evidence,” attorneys J. Randall Engwert and Robert M. Anspach wrote in the motion.
 

“Based upon the face of the Complaint at the time of removal, the amount in controversy is incontrovertibly far below the statutory amount.”
 

Earlier this month, Anspach Meeks Ellenberger filed a motion for disqualification of West Virginia’s chief justice, Davis, from hearing a petition for writ of prohibition in an ongoing Kanawha County Circuit Court case against a former HCR ManorCare-affiliated nursing home in Charleston, W.Va., filed on behalf of the estate of Sharon Hanna.
 

Last week, Davis responded and refused to recuse herself from the case.
 

Anspach is the attorney for HCR in both the Hanna case and the Douglas case, which was ruled upon last year by the state Supreme Court and in which Davis authored the majority opinion.
 

According to the ABC News story, Fuller and other attorneys at the firm also had been responsible for raising more than $35,000 for Davis’ 2012 successful re-election campaign.
 

In its opposition to Heartland of Portsmouth's motion for remand, McHugh Fuller argues that it does not need to prove to a “legal certainty” that the amount in controversy requirement has been met.
 

“Plaintiff is a self-described ‘skilled nursing facility.’ There is no arguing that the value of this ‘significant reputational harm… loss of business opportunities and harm to its goodwill and contractual and business relationships,’ is in excess of $75,000 when Plaintiff alleges in its Complaint that members of the community are led to believe that Plaintiff is unsafe and has harmed their loved ones and community members,” the firm wrote in its Jan. 26 opposition.
 

“Plaintiff is alleging that members of the community may not continue to seek medical treatment from Plaintiff if the Court does not grant its injunction and that its contractual and business relationships will be harmed. It is therefore clear that the value of these lost business opportunities and significant reputational harm is in excess of $75,000.”
 

McHugh Fuller noted in its filing that it is “in no way” conceding that Heartland is entitled to the damages alleged in its complaint.
 

“The Defendant strongly disputes that the Plaintiff is entitled to any relief, injunctive or otherwise. The Defendant intends to establish in this litigation that the Plaintiff is not entitled to any damages,” the firm wrote.
 

“However, a fair reading of the complaint and other evidence of record shows that the relief and damages sought by the Plaintiff exceeds $75,000.”
 

Judge Susan J. Dlott -- wife of disgraced plaintiffs’ attorney Stanley Chesley -- is presiding over the Heartland case.
 

A separate but nearly identical case was filed against McHugh Fuller by Heartland of Urbana last month. However, it was filed in Champaign County Common Pleas Court in Ohio.
 

McHugh Fuller also has requested that case be removed to federal court. Heartland and its attorneys are fighting the move.
 

Judge Walter H. Rice of the U.S. District Court for the Southern District of Ohio’s Western Division in Dayton is presiding over that case.

 

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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