Bayside Oncology/Hematology Associates v. Warren H. Fong, M.D.
Published: Jul. 11, 1998 | Result Date: May 19, 1998 | Filing Date: Jan. 1, 1900 |Case number: 766241 Verdict – $1,265,500
Judge
Court
Orange Superior
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
Stanley Rubin
(medical)
Gary Joffe
(technical)
Defendant
Barry Haberman
(medical)
Michael Van-Scoy Mosher
(medical)
Charles Plows
(medical)
Facts
Plaintiff Bayside Oncology purchased the oncology practice of a retiring physician in 1994 for approximately $950,000. Bayside is owned by cross-defendant Dr. VanderMolen, an oncologist. Bayside then hired defendant Dr. Warren H. Fong, an oncologist, to treat the Bayside patients and introduced Fong to all of the patients and to referring physicians. Bayside employed . Fong pursuant to a written employment agreement containing confidentiality and non-solicitation provisions. Fong started work at Bayside on July 1, 1994. In the fall of 1995, Bayside's CPA discovered a flaw in the bonus formula in Fong's employment agreement. In December Fong was asked to agree to a revision of the bonus formula, one which would have reduced the bonus by 30 percent. The plaintiffs alleged that Fong refused to reduce the bonus formula and began to examine the possibility of opening his own practice by inquiring about office space in the same building as Bayside's office, inquiring about malpractice insurance, and a tax identification number. The plaintiffs further alleged Fong began to secretly copy the names and addresses of all of the Bayside patients he was seeing. In early January 1996, Fong was allegedly coounseled about treatment problems by Dr. VanderMolen. (Fong contended that the problems were fabricated to justify his termination because he would not renegotiate his bonus.) Following counseling, the problems continued. The defendant was terminated on June 13, 1996, at about 5:00 p.m. It was alleged that the same night, Fong called the patients who had appointments to see him at Bayside the following day to advise of the opening of his new office and that he had been terminated without warning for financial reasons. It was also alleged that on June 15, 1996, Fong sent out a written announcement advising of the opening of his new practice and soliciting the patients continue treatment with him; and encouranged patients he met in the building who came to Bayside for treatment to continue treatment with him. Bayside alleged that it lost at least 90 percent of its patients, and contended the value of the practice it lost was at least $1.5 million. The plaintiff brought this action against the defendant based on breach of contract, fraud, misappropriation of trade secrets and unfair competition theories of recovery.
Settlement Discussions
Per plaintiff, it demanded $320,000 with dismissal of the cross-complaint, and the defendant offered $100,000 and dismissal of the cross-complaint. The plaintiff served a C.C.P. º998 offer of $327,000 which was rejected by the defendant.
Result
(on claim for misappropriation of trade secrets and unfair competition. Defense on claim for breach of contract and fraud; $473, for cross-complaint for breach of contract, $5,000 for cross-defendant on slander claim.
Other Information
The verdict was reached approximately one year and 10 months after the case was filed. Several settlement conferences were held in 1997, before the Hon. Francisco Firmat of the Orange County Superior Court, resulting in no settlement. Per plaintiff, the jury found malice on the wrongful discharge claim, but the court granted Bayside's motion for judgment notwithstanding the verdict, so there was no punitive damage phase.
Deliberation
two days
Length
13 days
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