Preview
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT, C.A. Oy
5¢e VIIS9
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ZV
HARVARD BIOSCIENCE, INC. &
HARVARD APPARATUS
REGENERATIVE
TECHNOLOGY, INC.
a
i| eg
Fr
1 Plaintiffs, Be
vs.
ECKERT SEAMANS
CHERIN & MELLOTT, LLC |&
nr
WILLIAM BREEN,
,
Defendants.
COMPLAINT & JURY DEMAND
1 This is an action) by Plaintiff Harvard Bioscience, Inc. and Harvard Apparatus
Regenerative Technology, Inc. for legal malpractice, professional negligence, breach of contract,
breach of fiduciary duty, fraud and/or negligent misrepresentation, violation of M.G.L. c. 93A and
other malfeasance against Defendant Eckert Seamans Cherin & Mellott, LLC and Defendant
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William Breen.
PARTIES
2. Plaintiff Harvard Bioscience, Inc. (“Harvard Bioscience”) is a Delaware
Corporation with a principal office located in Holliston, Middlesex County, Massachusetts.
3 Plaintiff Harvard Apparatus Regenerative Technology, Inc., formerly known as
Biostage, Inc. (“Biostage”), is a Delaware Corporation with a principal office located in Holliston,
Middlesex County, Massachusetts.
4 Defendant Eckert Seamans Cherin & Mellott, LLC (“Eckert Seamans”) at all times
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relevant to this matter was a limited liability company organized under the law of Pennsylvania
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with a principal place of business at 2 International Place, Boston, MA 02110, Suffolk County,
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Massachusetts
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: 5 Defendant William Breen (“Breen”) at all times: relevant to this matter was an
attomey with a principal place of business at Eckert Seamans 2 International Place, Boston, MA
02110, Suffolk County, Massachusetts. Defendant Breen’s residential address is also in
Massachusetts
Ii 6 At all times relevant to this matter, Defendant Breen was an employee, agent or
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servant of Defendant Eckert Seamans acting with the scope of his employment, agency and/or
servitude
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At all times relevant to this matter, Defendant Breen was also a member or owner
of Defendant Eckert Seamans acting withing the scope of his duties and responsibilities as a
member or owner of that company.
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\ BACKGROUND FACTS
iI 8 Plaintiff Harvard Bioscience is a publicly traded global developer, manufacturer,
and marketer of life sciences equipment, which supports research: and drug discovery.
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9. Founded in 1901, Harvard Bioscience is a forerunner in the field of life sciences
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equipment. Its products and services enable fundamental advances in life science applications,
including research, pharmaceutical and therapy discovery, bioproduction and preclinical testing
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for' pharmaceutical and therapy development. Its products and services are used by leading
academic institutions and government laboratories, and pharmaceutical, biotechnology and
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contract research organizations
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10. __ Biostage is a publicly traded clinical-stage biotechnology company focused on the
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development of regenerative medicine treatments for disorders of the gastro-intestinal system and
other organs that result from cancer, trauma, or birth defects. The Company believes that its
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technology represents a next generation solution for restoring organ function because it allows the
patient to regenerate their own organ, thus eliminating the need for human donor or animal
transplants, the sacrificing of another of the patient’s own organs or permanent artificial implants.
1 11. On or about April/14, 2017, Husamettin Akkus and Perry Ganz as Representatives
of the Estate of Yesim Cetir, filed a lawsuit (hereinafter “the underlying lawsuit”) in the Superior
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Court of Massachusetts, against|Harvard Bioscience and Biostage alleging a number of claims
arising out of the death of Yesim Cetir including that Ms. Cetir sustained terminal injuries allegedly
caused by products provided by certain of the named defendants’ and utilized in connection with
surgeries performed by third-parties in Europe in 2012 and 2013.:
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i 12. The claims alleged by the plaintiffs in the underlying lawsuit were denied by
Harvard Bioscience and Biostage.
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13. Medmarc Casualty Insurance Company (“Medmare”), the insurer for Plaintiffs
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Harvard Bioscience and Biostage, retained Defendant Eckert Séamans and Defendant Breen to
represent Plaintiff Harvard Bioscience and its co-defendant Biostage with respect to the claims in
the underlying lawsuit.
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i 14. At all times reley ant to the complaint, Eckert Seamans held itself out as a full-
service national law firm with over 300 lawyers spread across 15 offices and through a partnership
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with SCG Legal, having a glo! al network of over 119 independent law firms with more than
12,000 attorneys to assist in the representation of its’ clients in cross-border transactions and
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disputes with this network also offering it access to evolving legislation and real-time business
developments anywhere in the world. t
i 15, On June 19, 2017, Defendant William Breen filed an appearance in the underlying
lawsuit as attorney for Harvard Bioscience and Biostage.
i On June 11, 2021) approximately four (4) years later, Defendant Breen withdrew
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his appearance for both Harvard Bioscience and Biostage.
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17. At the time Defendant Breen filed an Appearance for Harvard Bioscience and
Biostage in the underlying lawsuit, he had attorney-client relationship with Harvard Bioscience
and Biostage.
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1 18 As such, Defendant Breen owed a duty to his clients to exercise the standard of care
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and skill of the average qualified jattorney representing clients at that time under the circumstances
of the underlying lawsuit
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19. Defendant Eckert|Seamans through its employees, agents, servants, managers, and
owners, including Defendant Breen, owed a duty to its clients to exercise the standard of care and
skill of the average qualified law firm representing clients at that time under the circumstances of
the underlying lawsuit. }i
20. The duty of care ahd skill owed by Defendant Eckert Seamans and Defendant Breen
included a duty of competence to exercise the requisite legal knowledge, skill, thoroughness, and
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preparation reasonably necessary for the representation.
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21 The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen
included a duty of reasonable diligence and promptness in representing the clients and to represent
the'clients zealously within the bounds of the law.
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22. The duty of care and skill owned by Defendant Eckert Seamans and Defendant
Breen included a duty of communication to promptly inform ‘the clients of any decision or
circumstance with respect to which the clients" informed consent was required, to reasonably
consult with the clients about the|means by which the client’s objectives are to be accomplished,
to keep the client reasonably informed about the status of the matter and to promptly and accurately
respond to reasonable requests for information from Harvard Bioscience and Biostage.
23. The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen
included a duty of loyalty to their clients and to their clients’ interests.
| 24. The duty of care and skill owed by Defendant Bckeit Seamans and Defendant Breen
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included a duty of full and fair disclosure of facts material to the clients’ interests.
25. The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen
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included a duty of honesty, candor, and independent professional judgment with respect to their
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clients and candor to the tribunalland third parties.
1 The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen
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included a duty to withdraw from the representation if the lawyer’s physical or mental condition
materially impaired the lawyer’s|ability to represent the client.
i 27. The duty of care and skill owed by Defendant Eckett Seamans and Defendant Breen
included a duty not to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
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28. The duty of care and skill owed by Defendant Bekert Seamans and Defendant Breen
included a duty to make reasonable efforts to ensure that lawyers acting as employees, members,
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owners, or agents of the defendant while representing Harvard Bioscience and Biostage conformed
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to the Rules of Professional Conduct. This duty requires lawyers with managerial authority to
make reasonable efforts to establish internal policies and procedures designed to provide
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reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct.
Such policies and procedures include thdse designed to detect and resolve conflicts of interest,
identify dates by which actions must be taken in pending matters and ensure that inexperienced
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lawyers are properly supervised
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' 29. The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen
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included a duty when dealing with colleagues whose mental, emotional or physical abilities have
declined to the point of impairing their ability to provide competent representation and shall put in
place procedures such as auditing the lawyer’s past work and limiting or monitoring future work
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as reasonably necessary to protect clients.
30. During the approximately four (4) years Defendant Eckert Seamans and Defendant
Breen and represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants
violated the duty of care and skill they owed to Harvard Bioscience and Biostage.
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31 During the approximately four (4) years Defendant Eckert Seamans and Defendant
Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants
negligently misrepresented material information to their clients that was relied upon by their clients
to tei clients’ detriment. '
32. During the eee four (4) years Defendant Eckert Seamans and Defendant
Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants
intentionally misrepresented material information to their clients that was relied upon by their
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clients to their clients’ detriment.
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1 33 During the approximately four (4) years Defenden| Eckert Seamans and Defendant
Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants
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negligently failed to properly investigate the factual and legal basis of the claims in the underlying
lawsuit and provide an informed assessment of these claims to Harvard Bioscience and Biostage.
34 During the approximately four (4) years Defendant Eckert Seamans and Defendant
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Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants did not
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adequately investigate the factual allegations in the underlying lawsuit, substantially all of which
occurred in Sweden and Turkey.
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35 During the approximately four (4) years Defendant Eckert Seamans and Defendant
Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, the plaintiff and the
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decedent’s family were never deposed.
36. During the approximately four (4) years Defendant Eckert Seamans and Defendant
Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, the Defendants did
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not depose anyone
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37. During the approximately four (4) years Defendant Eckert Seamans and Defendant
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Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants did not
retain any experts on their client’s behalf to consult with or to evaluate the allegations in underlying
lawsuit.
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{ 38. During the appr ‘oximately four (4) years Defendant Eckert Seamans and Defendant
Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants failed
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to assert viable legal defenses available to Harvard Bioscience and Biostage.
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| 39 On August 19, 2017, Defendant Breen and Defendant Eckert Seamans sent to
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Medmarc a “Law Firm Request| for Reconsideration of Adjustments Made to Invoice Submitted
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to Medmare. i
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i 40. In the Request fo: Reconsideration and in an effort to avoid a reduction to their
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legal bills, on August 19, 2017, ie Defendants described the litigation to Medmare, as follows:
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1 “This is a very complex, high profile and high exposure case in which the plaintiffs
allege Medmarc’s insureds conspired and collaborated with an international
thoracic surgeon to perform unapproved, experimental surgery to implant an
unregistered, unapproved, artificial trachea in their decedent twice.;”
“The Complaint seeks damages of $10 Million and presents an existential threat
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to the clients. [emphasis added] The case requires the individual attention of
experienced lead counsel| and could not prudently be del gated to an associate.;”
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“This is an exceptional case requiring focused, individual effort and attention by
experienced counsel.”
! 41. On June 11, ” Defendant Breen and Defendant Eckert Seamans prepared an
iii written case evaluation for Medmare, stating:
1 “Based upon reasonably! limited facts known at this time, we would assess the
insureds’ chance of prevailing at trial at approximately 60% to 65%. The estimate
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| is subject to change as we obtain additional information.;”
“Tt is not possible to estimate the verdict potential from a reasonably informed
perspective based on thel limited facts presently known. However, based on what
we presently know, we would estimate potential verdict exposure as against a liable
defendant as within the $1.2 to 1.8 range. The estimate is subject to change as we
obtain additional information.;” and
“It'is not possible to estimate the reasonable settlement value of this case from a
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reasonably informed perspec tive based on the limited ; facts presently known.
However, based on what we presently know, we would estimate potential
reasonable settlement value as within the $350,000 to $550,000 range. This
estimate is subject to change as we obtain additional information.”
42. On April 12, 2019, the parties to the underlying litigation filed a joint motion to
extend the tracking order deadlines.
43. On April 22, 2019, the motion was allowed in part and denied in part.
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44. The Court extended discovery until November 2, 2019, and ordered the parties to
appear for a Rule 16 Conference in early October 2019 prepared to explain to the Court in detail
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what, if any, additional tracking dates are appropriate and that no further extensions of discovery
date in 2017 absent good cause shown to the session judge.
|i 45. On October 1, 2019, Defendant Eckert Seamans and Defendant Breen, and Harvard
Bioscience and Biostage, were ordered to produce discovery in the underlying lawsuit.
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46. Defendant Eckert Seamans and Defendant Breen did not inform their client Harvard
Bioscience or Biostage of the|October 1, 2019 Discovery Order, which required Harvard
Bioscience and Biostage to provide full and complete responses'to the plaintiff's interrogatories
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and requests for the production of documents within 30 days, to produce the last known addresses
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for any witness not being produced and/or represented by defendant’s counsel within 14 days and
that defendants produce witnesses under their control for depositions within 45 days of the
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completion of the document production provided for in the order.
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47. Defendant Eckert|Seamans and Defendant Breen did not comply with the October
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1, 2018, Discovery Order.
48. Defendant Eckert Seamans and Defendant Breen did not inform Harvard
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Bioscience or Biostage that it failed to comply with the October I 2019, Discovery Order.
49. Defendant Ecke: Seamans and Defendant Breen did not inform Harvard
Bioscience or Biostage that they were unable to comply with the Discovery Order or request
assistance from Harvard Bioscience or Biostage to comply with the order.
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50. On or about January 6, 2020, the plaintiffs in the underlying action served a Motion
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for'Sanctions on Defendants Eckert Seamans and Defendant Breen for their failure to comply with
October 1, 2019, Discovery Order.
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1 51. Defendant Eckert Seamans and Defendant Breen ifailed to inform their clients of
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the, Motion for Sanctions that it had received on January 6, 2020.;
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| 52. Defendant Eckert Seamans and Defendant Breen failed to oppose the Motion for
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Sanctions 5
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53 Defendant Eckert Seamans and Defendant Breen failed to inform their clients that
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they did not oppose the Motion for Sanctions.
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' 54 On January 24, 2020, the plaintiffs in the underlying lawsuit filed without
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opposition the Motion for Sanctions against Harvard Bioscience and Biostage for failing to comply
with the October 1, 2019, Order.
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{ 35. On February 4, 2020, the Court allowed the plaintiffs’ unopposed Motion for
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Sanctions against Harvard Bioscience and Biostage, which included the sanction that liability was
established and the case would proceed to trial on damages only.
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56. Defendant Eckert;Seamans and Defendant Breen did not at that time, or any time,
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thereafter, inform their clients, Harvard Bioscience or Biostage; of the October 1, 2019, Order
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compelling discovery or the February 4, 2020, Order imposing sanctions for failure to comply with
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the Court ordered discovery.
\ 37 On March 5, 2021, Defendant Eckert Seamans and Defendant Breen made
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statements of material facts in) an email to Harvard Bioscience and Biostage including the
following
“We continue to Peony defend this case.”
“claims made in this lawsuit are without merit” and
“As of this time, I|do not think that it is likely that this suit will result
in a substantial judgment that exceeds coverage: and is likely to
affect HBIO’s bottom line;”
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These statements were relied upon by Harvard Bioscience and Biostage and they suffered
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harm as a result. i
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38. On April 27, 2021, Defendant Eckert Seamans and Defendant Breen moved to
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vacate the February 4, 2020, Order against their clients, Harvard Bioscience and Biostage, falsely
claiming in part that they had only Jeamed of the Order from reviewing the plaintiffs’ portion of
the Pretrial Memorandum in the underlying lawsuit, even though the Order was allowed by the
Court over a year earlier
59. Defendant Eckert Seamans and Defendant Breen did not at that time, or at any time,
thereafter, inform their clients, Harvard Bioscience or Biostage, of the original motion, the October
1, 2019, Order compelling further discovery or the February 4, 2020, Order for sanctions against
Harvard Bioscience and Biostage, and they suffered harm as a result of the defendants’ failure to
inform them of these material facts, and the misrepresentation of, these material developments
60. On April 28, 202i, Defendant Eckert Seamans and Defendant Breen provided a
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written status report to Harvard Bioscience and Biostage concerning the underlying litigation
which contained false and/or misleading statements of material facts, in that it failed to disclose
the fact that no meaningful discovery had been performed by the defendants, no experts had been
retained by the defendants, that no depositions had been taken by the defendants, that the
defendants had not complied with the discovery order issued by the Court on October 1, 2019 and
that an order of sanctions had issued on February 4, 2020, for the failure of the defendant to comply
with the discovery order and — Bioscience and Biostage suffered harm as a result of the
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defendants’ failure to inform them of these material developments.
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61. On May 6, 2021, the Court denied Defendant Eckert Seamans and Defendant
Breen’s motion to vacate the February 4, 2020, Order against tin clients, Harvard Bioscience,
and Biostage without prejudice for failure to comply with Superior Court Rules 9A and 9C.
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62. On May 6, 2021, the Court Ordered inter alia that the Plaintiffs’ expert disclosures
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were to be completed by July 30, 2021, and that the Defendants’s” expert disclosures were to be
completed by October 29, 2021. i
| 63. Defendant Eckert Seamans and Defendant Breen failed to depose a single witness
in the underlying lawsuit during the approximate four (4) year period they were defending Harvard
Bioscience and Biostage. '
64. Defendant Eckert Seamans and Defendant Breen failed to inform their clients
Harvard Bioscience and Biostage that they failed to depose a single witness during the approximate
four (4) year period they were “ane Harvard Bioscience and Biostage
1 65. Defendant Eckert Seamans and Defendant Breen failed to retain a single expert in
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the underlying lawsuit during the approximate four (4) year period they were defending Harvard
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Bioscience and Biostage.
66. Defendant Eckert Seamans and Defendant Breen failed to inform their clients,
Harvard Bioscience and Biostage, of the deadline for expert witness disclosures and that they had
failed to retain a single expert ‘ing the approximate four (4) year period they were defending
Harvard Bioscience and Biostage i
1 67 During the approximate four (4) year period that ‘Defendant Eckert Seamans and
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Defendant Breen were defending Harvard Bioscience, they intentionally misrepresented the status
of the litigation to their client Harvard Bioscience and Biostage to hide their negligence.
68. On and before May 26, 2021, Medmarc, requested : updates on the status of the case
from the Defendants.
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69 In responding to| that request from the insurer, Defendant Eckert Seamans and
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Defendant Breen discussed the Pretrial Conference, the scheduling of the Trial and the schedule
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for expe disclosures, but they purposely hid and failed to report ihe fact that the Court entered an
Order for sanctions for their ut to comply with a discovery Order or that their motion to vacate
the ganction’s order had been denied.
70. In response, on June 1, 2021, the insurer wrote to Defendant Breen:
“Thanks for the update. In addition to the delayed update, it’s disappointing &
concerning that your update did not include any mention of the attached motion for
sanctions or your emergericy motion to vacate in your letter. Please transfer the file
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71. On June 1, 2021, Defendant Eckert Seamans and:Defendant Breen were fired by
their client, Medmarc, Harvard Hicience’s insurer, for their negligence, misrepresentation, and
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dishonesty.
72. Defendant Eckert Seamans and Defendant Breen still did not at that time, or at any
time thereafter, inform their client, Harvard Bioscience or Biostage of the motion to compel, the
October 1, 2019 Order compelling further discovery, the failure to comply with the October 1,
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2019, Order or the February 4, 2020, Order for sanctions against their clients, Harvard Bioscience
and Biostage, for the failure to comply with the Court ordered discovery.
73. Shortly after Defendant Eckert Seamans and Defendant Breen were fired, first
successor counsel was retained by the insurer to represent Harvard Bioscience and Biostage in the
underlying matter, and first successor counsel filed appearances on June 10, 2021.
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74. On June 11, 2021, Defendant William Breen withdrew his Appearance in the
underlying lawsuit as attorney for Harvard Bioscience, Harvard Apparatus Regenerative
Technology, Inc. and Biostage.
| 75. At the time of Defendant Breen’s withdrawal, the case was scheduled for trial on
October 11, 2022.
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76. During the approximately four (4) year period that Defendant Eckert Seamans an
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Defendant Breen represented Harvard Bioscience and Biostage in'the underlying lawsuit, they had
communicated to their clients that the case was meritless and had limited value, and Harvard
Bioscience and Biostage relied on these representations and were harmed as a result of this
reliance. '
1: 77. During the approximately four (4) year period that Defendant Eckert Seamans and
Defendant Breen represented Harvard Bioscience and Biostage ‘in the underlying lawsuit, they
filed to inform Harvard Bioscience and Biostage that the underlying lawsuit “presents an
existential threat to the clients” and Harvard Bioscience | and Biostage relied on this
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misrepresentation and were harmed as a result of this reliance.
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78. During the appro: imately four (4) year period that Defendant Eckert Seamans and
Defendant Breen represented Harvard Bioscience and Biostagelin the underlying lawsuit, they
failed to inform Harvard Bioscience or Biostage that they did not have the resources to properly
defend this action.
79. As late as March 5, 2021, Defendant Eckert Seamans and Defendant Breen stated
to Harvard Bioscience and Biostage, “As of this time. I do not think that it is likely that this suit
will result in a substantial judgment that exceeds coverage and is likely to affect HBIO’s bottom
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Hine,” which Harvard Bioscience and Biostage relied on and was harmed by as a result.
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80. After the first successor counsel retained by the insurer to represent Harvard
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Bioscience and Biostage in the underlying lawsuit performed aniinitial analysis of the case, they
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informed the insurer and their) clients, Harvard Bioscience and Biostage, that the case was
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extraordinarily serious, contrary|to the information provided to Harvard Bioscience and Biostage
by Defendant Eckert Seamans and Defendant Breen for almost four years.
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81 Until Defendant Eckert Seamans and Defendants Breen were fired by Medmarc on
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June 1, 2021, Harvard Bioscience and Biostage did not learn of their malfeasance which included
that defendants had not performed any meaningful discovery to defend the case, they had failed to
comply with Court ordered discovery, failed to oppose a motion for sanctions, failed to inform
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Harvard Bioscience and Biostage| that it was subject to a sanction that liability was established and
the case would proceed to trial on damages only, failed to assert legal defenses available to Harvard
Bioscience and Biostage and were providing inaccurate and conflicting opinions to their clients on
the tisks of the litigation and the value of the claim.
i 82. In order to vacate) the February 4, 2020, sanctions ; Order imposed on them and to
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comply with the October 1, 2019,|Order on the motion to compel, Harvard Bioscience and Biostage
and ‘first successor counsel were required to provide a voluminous amount of information in a short
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time frame, much of which would not have been discoverable otherwise.
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83 The efforts to provide the voluminous amount of information on an emergency
basis caused Harvard Bioscience |and Biostage great expense financially and in time and resources
t After over four years of litigation, Medmarc, relying on the plaintiffs’ unchallenged
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allegations in the underlying lawsuit, and with no significant defense asserted by Defendant Eckert
Seamans and Defendant Breen, instituted a lawsuit against Harvard Bioscience and Biostage
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seeking a judgment declaring that it did not have to defend or indemnify Harvard Bioscience or
Biostage for any losses they incurred in the underlying lawsuit.
1| 85. The declaratory judgment lawsuit, which Harvard Bioscience and Biostage were
ultimately able to resolve, caused Harvard Bioscience and Biostage great expense financially and
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in time and resources.
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1I 86. In view of these facts, Harvard Bioscience and Biostage retained new and
independent successor counsel at its own expense to represent them in the underlying lawsuit, who
filed an Appearance on October 27, 2021.
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1 87. On September 27, 2021, the Court informed the parties in the underlying litigation
that the trial would begin on October 22, 2022.
| 88 This new and independent successor counsel attempted to investigate this matter
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overseas, interview witnesses, obtain background documents, retain experts, take depositions, and
otherwise accomplish all the tasks that should have been performed during the approximate four
(4) years that Defendant Eckert Seamans and Defendant Breen represented Harvard Bioscience
and, Biostage’ in the underlying |. = to prepare the case for trial ini less than one year.
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t 89. The efforts by new and independent successor counsel to perform the discovery
and pretrial preparation that should have been performed for four (4) years by Defendant Eckert
Seamans and Defendant Breen were significantly hampered and hindered by the passage of time.
i 90. Because of the failure of Defendant Eckert Seamans and Defendant Breen to
properly represent their clients and prepare the case for trial, Harvard Bioscience and Biostage
were forced to resolve the underlying lawsuit.
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It 91 In doing so, Harvard Bioscience and Biostage were caused significant financial
harm and consequential damages because of Defendant Eckert Seamans and Defendant Breen’s
numerous breaches of its duties, fraud, and misrepresentations.
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92. The statute of limitations for filing this lawsuit was tolled by an agreement between
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the'parties
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93 Moreover, Harvard Bioscience and Biostage did not learn and reasonably could not
have learned of Defendant Eckert Seamans and Defendant William Breen’s numerous breaches of
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its duties, fraud, and misrepresentations, nor the harm that they caused, until at the earliest, on or
after June 1, 2021.
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COUNT I -NEGLIGENCE
- - HARVARD BIOSCIENCE Vv.
DEFENDANT ECKERT SEAMANS AND DEFENDANT BREEN
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|1 Plaintiffs repeat, |reallege, and fully incorporate ,by reference herein the above
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Pagans of this Complaint.
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' 95. Defendant Eckert} Seamans and Defendant Breen undertook for compensation to
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provide legal advice and representation to the Plaintiffs and as such, an attorney-client relationship
existed between the Defendants d Plaintiffs.
96. In providing legal advice and representation, Defendant Eckert Seamans, by and
through its employees, agents, servants, managers, and owners, including Defendant Breen, owed
its clients a duty to exercise the degree of care and skill exercised by the average qualified attomey
providing comparable legal services at that time i
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1 97. In providing legal advice and representation, Defendant Eckert Seamans and
Defendant Breen were negligent|in failing to exercise the degree of care and skill exercised by the
average qualified attorney providing comparable legal services at that time.
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98. Among other departures from the standard of care and skill of the average qualified
attorneys providing comparable legal services at that time, Defendant Eckert Seamans and
Defendant Breen negligently failed to properly investigate the underlying lawsuit, negligently
failed to perform meaningful discovery including taking depositions, negligently failed to retain
experts to defend their clients, negligently failed to oppose significant motions including a motion
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for: sanctions, negligently failed to inform their clients of significant events in the case,
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intentionally, recklessly and/or negligently advised the clients concerning the exposure of the case.
intentionally, recklessly and/or negligently withheld from their clients material information
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condemning the case, negligently failed to P roperly supervise the case, negligently failed to properly
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staff the case, negligent failed to proper! ly calendar events in the case negligently failed to assert
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and move on meaningful defenses available to their clients and otherwise negligently failed to
properly defend their clients.
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99. As a direct and proximate result of the above-described negligence, Plaintiff
Harvard Bioscience suffered significant economic harm and consequential damages.
Wherefore, Plaintiff Harvard Bioscience demands on this Count:
a) Judgment against Defendant Eckert Seamans /Cherin & Mellott, LLC and
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Defendant William Breen, jointly and severally for its damages; including
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b) prejudgment interest at the statutory rate;
¢) statutory and discretionary costs;
1 d) the recovery/disg rgement of all legal fees paid to Defendants either directly or in
constructive trust, as their representation provided little or no vahie to Plaintiffs;
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¢) the legal fees and|costs paid to successor counsel to defend the underlying lawsuit,
which was necessary solely because of the failure of Defendants to properly represent it;
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1 fy the legal fees and'costs of legal counsel to defend the declaratory judgment action,
which was necessary solely because of the failure of Defendants to properly represent it;
8) payments made by Plaintiffs to resolve the underlying litigation, which were only
necessary because of the failure of Defendants to properly represent it; and
h) any other relief as this Court may deem just and proper.
COUNT II —- NEGLIGENCE - BIOSTAGE Vv.
DEFENDANT ECKERT SEAMANS AND DEF ENDANT BREEN
' 100. Plaintiffs repeat,| reallege, and fully incorporate by reference herein the above
Paragraphs of this Complaint. 1
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101. Defendant Eckert Seamans and Defendant Breen undertook for compensation to
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provide legal advice and representation to Plaintiffs and as such, an attorney-client relationship
existed between the Defendants and the Plaintiffs,
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' 102. In providing legal advice and representation, Defendant Eckert Seamans, by and
through its employees, agents, servants, managers, and owners, including Defendant Breen, owed
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its clients a duty to exercise the d le gree of care and skill exercised by the average qualified attorney
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providing comparable legal services at that time. |
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103. In providing legal advice and representation, Defendant Eckert Seamans and
Defendant Breen were negligent in failing to exercise the degree of care and skill exercised by the
average qualified attorney providing comparable legal services at that time.
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' 104, Among other departures from the standard of care and skill of the average qualified
attorneys providing somparsbl legal services at that time, Defendant Eckert Seamans and
Defendant Breen negligently failed to properly investigate the ‘underlying lawsuit, negligently
fied to perform meaningful di liscovery including taking depositions, negligently failed to retain
experts to defend their clients, | gent failed to oppose significant motions including a motion
for sanctions, negligently failed to inform their clients of significant events in the case,
intentionally, recklessly and/or negligently advised the clients concerning the exposure of the case,
intentionally, recklessly and/or! negligently withheld from their clients material information
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coricerning the case, negligently failed to properly supervise the case, negligently failed to properly
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staff the case, negligent failed to properly calendar events in the ease, negligently failed to assert
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and move on meaningful defenses available to their clients and otherwise negligently failed to
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Preview
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT, C.A. Oy 5¢e VIIS9 | | | ZV HARVARD BIOSCIENCE, INC. & HARVARD APPARATUS REGENERATIVE TECHNOLOGY, INC. a i| eg Fr 1 Plaintiffs, Be vs. ECKERT SEAMANS CHERIN & MELLOTT, LLC |& nr WILLIAM BREEN, , Defendants. COMPLAINT & JURY DEMAND 1 This is an action) by Plaintiff Harvard Bioscience, Inc. and Harvard Apparatus Regenerative Technology, Inc. for legal malpractice, professional negligence, breach of contract, breach of fiduciary duty, fraud and/or negligent misrepresentation, violation of M.G.L. c. 93A and other malfeasance against Defendant Eckert Seamans Cherin & Mellott, LLC and Defendant i William Breen. PARTIES 2. Plaintiff Harvard Bioscience, Inc. (“Harvard Bioscience”) is a Delaware Corporation with a principal office located in Holliston, Middlesex County, Massachusetts. 3 Plaintiff Harvard Apparatus Regenerative Technology, Inc., formerly known as Biostage, Inc. (“Biostage”), is a Delaware Corporation with a principal office located in Holliston, Middlesex County, Massachusetts. 4 Defendant Eckert Seamans Cherin & Mellott, LLC (“Eckert Seamans”) at all times ' relevant to this matter was a limited liability company organized under the law of Pennsylvania i with a principal place of business at 2 International Place, Boston, MA 02110, Suffolk County, | I Massachusetts 1 : 5 Defendant William Breen (“Breen”) at all times: relevant to this matter was an attomey with a principal place of business at Eckert Seamans 2 International Place, Boston, MA 02110, Suffolk County, Massachusetts. Defendant Breen’s residential address is also in Massachusetts Ii 6 At all times relevant to this matter, Defendant Breen was an employee, agent or i servant of Defendant Eckert Seamans acting with the scope of his employment, agency and/or servitude 4 | 7 At all times relevant to this matter, Defendant Breen was also a member or owner of Defendant Eckert Seamans acting withing the scope of his duties and responsibilities as a member or owner of that company. 1 \ BACKGROUND FACTS iI 8 Plaintiff Harvard Bioscience is a publicly traded global developer, manufacturer, and marketer of life sciences equipment, which supports research: and drug discovery. | 9. Founded in 1901, Harvard Bioscience is a forerunner in the field of life sciences 1 equipment. Its products and services enable fundamental advances in life science applications, including research, pharmaceutical and therapy discovery, bioproduction and preclinical testing | for' pharmaceutical and therapy development. Its products and services are used by leading academic institutions and government laboratories, and pharmaceutical, biotechnology and | contract research organizations 1 i ' 10. __ Biostage is a publicly traded clinical-stage biotechnology company focused on the | development of regenerative medicine treatments for disorders of the gastro-intestinal system and other organs that result from cancer, trauma, or birth defects. The Company believes that its | technology represents a next generation solution for restoring organ function because it allows the patient to regenerate their own organ, thus eliminating the need for human donor or animal transplants, the sacrificing of another of the patient’s own organs or permanent artificial implants. 1 11. On or about April/14, 2017, Husamettin Akkus and Perry Ganz as Representatives of the Estate of Yesim Cetir, filed a lawsuit (hereinafter “the underlying lawsuit”) in the Superior 1 Court of Massachusetts, against|Harvard Bioscience and Biostage alleging a number of claims arising out of the death of Yesim Cetir including that Ms. Cetir sustained terminal injuries allegedly caused by products provided by certain of the named defendants’ and utilized in connection with surgeries performed by third-parties in Europe in 2012 and 2013.: | } i 12. The claims alleged by the plaintiffs in the underlying lawsuit were denied by Harvard Bioscience and Biostage. |{ | 13. Medmarc Casualty Insurance Company (“Medmare”), the insurer for Plaintiffs i Harvard Bioscience and Biostage, retained Defendant Eckert Séamans and Defendant Breen to represent Plaintiff Harvard Bioscience and its co-defendant Biostage with respect to the claims in the underlying lawsuit. i i 14. At all times reley ant to the complaint, Eckert Seamans held itself out as a full- service national law firm with over 300 lawyers spread across 15 offices and through a partnership | ! with SCG Legal, having a glo! al network of over 119 independent law firms with more than 12,000 attorneys to assist in the representation of its’ clients in cross-border transactions and || I 1 I i disputes with this network also offering it access to evolving legislation and real-time business developments anywhere in the world. t i 15, On June 19, 2017, Defendant William Breen filed an appearance in the underlying lawsuit as attorney for Harvard Bioscience and Biostage. i On June 11, 2021) approximately four (4) years later, Defendant Breen withdrew 1 16. { his appearance for both Harvard Bioscience and Biostage. | 17. At the time Defendant Breen filed an Appearance for Harvard Bioscience and Biostage in the underlying lawsuit, he had attorney-client relationship with Harvard Bioscience and Biostage. ' 1 18 As such, Defendant Breen owed a duty to his clients to exercise the standard of care | and skill of the average qualified jattorney representing clients at that time under the circumstances of the underlying lawsuit 1 19. Defendant Eckert|Seamans through its employees, agents, servants, managers, and owners, including Defendant Breen, owed a duty to its clients to exercise the standard of care and skill of the average qualified law firm representing clients at that time under the circumstances of the underlying lawsuit. }i 20. The duty of care ahd skill owed by Defendant Eckert Seamans and Defendant Breen included a duty of competence to exercise the requisite legal knowledge, skill, thoroughness, and |i preparation reasonably necessary for the representation. | 21 The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen included a duty of reasonable diligence and promptness in representing the clients and to represent the'clients zealously within the bounds of the law. 1 ' 22. The duty of care and skill owned by Defendant Eckert Seamans and Defendant Breen included a duty of communication to promptly inform ‘the clients of any decision or circumstance with respect to which the clients" informed consent was required, to reasonably consult with the clients about the|means by which the client’s objectives are to be accomplished, to keep the client reasonably informed about the status of the matter and to promptly and accurately respond to reasonable requests for information from Harvard Bioscience and Biostage. 23. The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen included a duty of loyalty to their clients and to their clients’ interests. | 24. The duty of care and skill owed by Defendant Bckeit Seamans and Defendant Breen 1 included a duty of full and fair disclosure of facts material to the clients’ interests. 25. The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen | included a duty of honesty, candor, and independent professional judgment with respect to their 1 clients and candor to the tribunalland third parties. 1 The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen i 26. included a duty to withdraw from the representation if the lawyer’s physical or mental condition materially impaired the lawyer’s|ability to represent the client. i 27. The duty of care and skill owed by Defendant Eckett Seamans and Defendant Breen included a duty not to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. 1 28. The duty of care and skill owed by Defendant Bekert Seamans and Defendant Breen included a duty to make reasonable efforts to ensure that lawyers acting as employees, members, | : owners, or agents of the defendant while representing Harvard Bioscience and Biostage conformed ! to the Rules of Professional Conduct. This duty requires lawyers with managerial authority to make reasonable efforts to establish internal policies and procedures designed to provide I 1 i reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include thdse designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters and ensure that inexperienced | lawyers are properly supervised 1 ' 29. The duty of care and skill owed by Defendant Eckert Seamans and Defendant Breen | included a duty when dealing with colleagues whose mental, emotional or physical abilities have declined to the point of impairing their ability to provide competent representation and shall put in place procedures such as auditing the lawyer’s past work and limiting or monitoring future work i as reasonably necessary to protect clients. 30. During the approximately four (4) years Defendant Eckert Seamans and Defendant Breen and represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants violated the duty of care and skill they owed to Harvard Bioscience and Biostage. 1 31 During the approximately four (4) years Defendant Eckert Seamans and Defendant Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants negligently misrepresented material information to their clients that was relied upon by their clients to tei clients’ detriment. ' 32. During the eee four (4) years Defendant Eckert Seamans and Defendant Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants intentionally misrepresented material information to their clients that was relied upon by their i clients to their clients’ detriment. i 1 33 During the approximately four (4) years Defenden| Eckert Seamans and Defendant Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants i | i t 1 1 ! 1 negligently failed to properly investigate the factual and legal basis of the claims in the underlying lawsuit and provide an informed assessment of these claims to Harvard Bioscience and Biostage. 34 During the approximately four (4) years Defendant Eckert Seamans and Defendant i Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants did not | adequately investigate the factual allegations in the underlying lawsuit, substantially all of which occurred in Sweden and Turkey. i 35 During the approximately four (4) years Defendant Eckert Seamans and Defendant Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, the plaintiff and the i decedent’s family were never deposed. 36. During the approximately four (4) years Defendant Eckert Seamans and Defendant Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, the Defendants did | not depose anyone 1 37. During the approximately four (4) years Defendant Eckert Seamans and Defendant t Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants did not retain any experts on their client’s behalf to consult with or to evaluate the allegations in underlying lawsuit. | I 1 { 38. During the appr ‘oximately four (4) years Defendant Eckert Seamans and Defendant Breen represented Harvard Bioscience and Biostage in the underlying lawsuit, Defendants failed i to assert viable legal defenses available to Harvard Bioscience and Biostage. | i | 39 On August 19, 2017, Defendant Breen and Defendant Eckert Seamans sent to | Medmarc a “Law Firm Request| for Reconsideration of Adjustments Made to Invoice Submitted | to Medmare. i | | i * I | I i 40. In the Request fo: Reconsideration and in an effort to avoid a reduction to their 1 legal bills, on August 19, 2017, ie Defendants described the litigation to Medmare, as follows: ! 1 “This is a very complex, high profile and high exposure case in which the plaintiffs allege Medmarc’s insureds conspired and collaborated with an international thoracic surgeon to perform unapproved, experimental surgery to implant an unregistered, unapproved, artificial trachea in their decedent twice.;” “The Complaint seeks damages of $10 Million and presents an existential threat | to the clients. [emphasis added] The case requires the individual attention of experienced lead counsel| and could not prudently be del gated to an associate.;” and “This is an exceptional case requiring focused, individual effort and attention by experienced counsel.” ! 41. On June 11, ” Defendant Breen and Defendant Eckert Seamans prepared an iii written case evaluation for Medmare, stating: 1 “Based upon reasonably! limited facts known at this time, we would assess the insureds’ chance of prevailing at trial at approximately 60% to 65%. The estimate ' | is subject to change as we obtain additional information.;” “Tt is not possible to estimate the verdict potential from a reasonably informed perspective based on thel limited facts presently known. However, based on what we presently know, we would estimate potential verdict exposure as against a liable defendant as within the $1.2 to 1.8 range. The estimate is subject to change as we obtain additional information.;” and “It'is not possible to estimate the reasonable settlement value of this case from a I reasonably informed perspec tive based on the limited ; facts presently known. However, based on what we presently know, we would estimate potential reasonable settlement value as within the $350,000 to $550,000 range. This estimate is subject to change as we obtain additional information.” 42. On April 12, 2019, the parties to the underlying litigation filed a joint motion to extend the tracking order deadlines. 43. On April 22, 2019, the motion was allowed in part and denied in part. | 44. The Court extended discovery until November 2, 2019, and ordered the parties to appear for a Rule 16 Conference in early October 2019 prepared to explain to the Court in detail i f 1 ' |' 1 ‘ what, if any, additional tracking dates are appropriate and that no further extensions of discovery date in 2017 absent good cause shown to the session judge. |i 45. On October 1, 2019, Defendant Eckert Seamans and Defendant Breen, and Harvard Bioscience and Biostage, were ordered to produce discovery in the underlying lawsuit. 1 46. Defendant Eckert Seamans and Defendant Breen did not inform their client Harvard Bioscience or Biostage of the|October 1, 2019 Discovery Order, which required Harvard Bioscience and Biostage to provide full and complete responses'to the plaintiff's interrogatories | and requests for the production of documents within 30 days, to produce the last known addresses 1 for any witness not being produced and/or represented by defendant’s counsel within 14 days and that defendants produce witnesses under their control for depositions within 45 days of the ' completion of the document production provided for in the order. | 47. Defendant Eckert|Seamans and Defendant Breen did not comply with the October 1 1, 2018, Discovery Order. 48. Defendant Eckert Seamans and Defendant Breen did not inform Harvard | Bioscience or Biostage that it failed to comply with the October I 2019, Discovery Order. 49. Defendant Ecke: Seamans and Defendant Breen did not inform Harvard Bioscience or Biostage that they were unable to comply with the Discovery Order or request assistance from Harvard Bioscience or Biostage to comply with the order. i 50. On or about January 6, 2020, the plaintiffs in the underlying action served a Motion 1 | for'Sanctions on Defendants Eckert Seamans and Defendant Breen for their failure to comply with October 1, 2019, Discovery Order. || 1 51. Defendant Eckert Seamans and Defendant Breen ifailed to inform their clients of 1 the, Motion for Sanctions that it had received on January 6, 2020.; i I | t | 52. Defendant Eckert Seamans and Defendant Breen failed to oppose the Motion for | Sanctions 5 ii 53 Defendant Eckert Seamans and Defendant Breen failed to inform their clients that i they did not oppose the Motion for Sanctions. 1 ' 54 On January 24, 2020, the plaintiffs in the underlying lawsuit filed without i opposition the Motion for Sanctions against Harvard Bioscience and Biostage for failing to comply with the October 1, 2019, Order. 1i { 35. On February 4, 2020, the Court allowed the plaintiffs’ unopposed Motion for i Sanctions against Harvard Bioscience and Biostage, which included the sanction that liability was established and the case would proceed to trial on damages only. i 56. Defendant Eckert;Seamans and Defendant Breen did not at that time, or any time, I thereafter, inform their clients, Harvard Bioscience or Biostage; of the October 1, 2019, Order | compelling discovery or the February 4, 2020, Order imposing sanctions for failure to comply with i the Court ordered discovery. \ 37 On March 5, 2021, Defendant Eckert Seamans and Defendant Breen made 1 statements of material facts in) an email to Harvard Bioscience and Biostage including the following “We continue to Peony defend this case.” “claims made in this lawsuit are without merit” and “As of this time, I|do not think that it is likely that this suit will result in a substantial judgment that exceeds coverage: and is likely to affect HBIO’s bottom line;” 1 i | These statements were relied upon by Harvard Bioscience and Biostage and they suffered | harm as a result. i ! 10 ' | 38. On April 27, 2021, Defendant Eckert Seamans and Defendant Breen moved to 1 ! vacate the February 4, 2020, Order against their clients, Harvard Bioscience and Biostage, falsely claiming in part that they had only Jeamed of the Order from reviewing the plaintiffs’ portion of the Pretrial Memorandum in the underlying lawsuit, even though the Order was allowed by the Court over a year earlier 59. Defendant Eckert Seamans and Defendant Breen did not at that time, or at any time, thereafter, inform their clients, Harvard Bioscience or Biostage, of the original motion, the October 1, 2019, Order compelling further discovery or the February 4, 2020, Order for sanctions against Harvard Bioscience and Biostage, and they suffered harm as a result of the defendants’ failure to inform them of these material facts, and the misrepresentation of, these material developments 60. On April 28, 202i, Defendant Eckert Seamans and Defendant Breen provided a ! 1 written status report to Harvard Bioscience and Biostage concerning the underlying litigation which contained false and/or misleading statements of material facts, in that it failed to disclose the fact that no meaningful discovery had been performed by the defendants, no experts had been retained by the defendants, that no depositions had been taken by the defendants, that the defendants had not complied with the discovery order issued by the Court on October 1, 2019 and that an order of sanctions had issued on February 4, 2020, for the failure of the defendant to comply with the discovery order and — Bioscience and Biostage suffered harm as a result of the i defendants’ failure to inform them of these material developments. I 61. On May 6, 2021, the Court denied Defendant Eckert Seamans and Defendant Breen’s motion to vacate the February 4, 2020, Order against tin clients, Harvard Bioscience, and Biostage without prejudice for failure to comply with Superior Court Rules 9A and 9C. I 11 , 62. On May 6, 2021, the Court Ordered inter alia that the Plaintiffs’ expert disclosures | were to be completed by July 30, 2021, and that the Defendants’s” expert disclosures were to be completed by October 29, 2021. i | 63. Defendant Eckert Seamans and Defendant Breen failed to depose a single witness in the underlying lawsuit during the approximate four (4) year period they were defending Harvard Bioscience and Biostage. ' 64. Defendant Eckert Seamans and Defendant Breen failed to inform their clients Harvard Bioscience and Biostage that they failed to depose a single witness during the approximate four (4) year period they were “ane Harvard Bioscience and Biostage 1 65. Defendant Eckert Seamans and Defendant Breen failed to retain a single expert in { the underlying lawsuit during the approximate four (4) year period they were defending Harvard t Bioscience and Biostage. 66. Defendant Eckert Seamans and Defendant Breen failed to inform their clients, Harvard Bioscience and Biostage, of the deadline for expert witness disclosures and that they had failed to retain a single expert ‘ing the approximate four (4) year period they were defending Harvard Bioscience and Biostage i 1 67 During the approximate four (4) year period that ‘Defendant Eckert Seamans and ! Defendant Breen were defending Harvard Bioscience, they intentionally misrepresented the status of the litigation to their client Harvard Bioscience and Biostage to hide their negligence. 68. On and before May 26, 2021, Medmarc, requested : updates on the status of the case from the Defendants. !r 69 In responding to| that request from the insurer, Defendant Eckert Seamans and { Defendant Breen discussed the Pretrial Conference, the scheduling of the Trial and the schedule 12 ! | 1 , for expe disclosures, but they purposely hid and failed to report ihe fact that the Court entered an Order for sanctions for their ut to comply with a discovery Order or that their motion to vacate the ganction’s order had been denied. 70. In response, on June 1, 2021, the insurer wrote to Defendant Breen: “Thanks for the update. In addition to the delayed update, it’s disappointing & concerning that your update did not include any mention of the attached motion for sanctions or your emergericy motion to vacate in your letter. Please transfer the file > i 71. On June 1, 2021, Defendant Eckert Seamans and:Defendant Breen were fired by their client, Medmarc, Harvard Hicience’s insurer, for their negligence, misrepresentation, and 1 dishonesty. 72. Defendant Eckert Seamans and Defendant Breen still did not at that time, or at any time thereafter, inform their client, Harvard Bioscience or Biostage of the motion to compel, the October 1, 2019 Order compelling further discovery, the failure to comply with the October 1, 1 2019, Order or the February 4, 2020, Order for sanctions against their clients, Harvard Bioscience and Biostage, for the failure to comply with the Court ordered discovery. 73. Shortly after Defendant Eckert Seamans and Defendant Breen were fired, first successor counsel was retained by the insurer to represent Harvard Bioscience and Biostage in the underlying matter, and first successor counsel filed appearances on June 10, 2021. i 74. On June 11, 2021, Defendant William Breen withdrew his Appearance in the underlying lawsuit as attorney for Harvard Bioscience, Harvard Apparatus Regenerative Technology, Inc. and Biostage. | 75. At the time of Defendant Breen’s withdrawal, the case was scheduled for trial on October 11, 2022. 13 | 76. During the approximately four (4) year period that Defendant Eckert Seamans an i Defendant Breen represented Harvard Bioscience and Biostage in'the underlying lawsuit, they had communicated to their clients that the case was meritless and had limited value, and Harvard Bioscience and Biostage relied on these representations and were harmed as a result of this reliance. ' 1: 77. During the approximately four (4) year period that Defendant Eckert Seamans and Defendant Breen represented Harvard Bioscience and Biostage ‘in the underlying lawsuit, they filed to inform Harvard Bioscience and Biostage that the underlying lawsuit “presents an existential threat to the clients” and Harvard Bioscience | and Biostage relied on this ‘ misrepresentation and were harmed as a result of this reliance. i 78. During the appro: imately four (4) year period that Defendant Eckert Seamans and Defendant Breen represented Harvard Bioscience and Biostagelin the underlying lawsuit, they failed to inform Harvard Bioscience or Biostage that they did not have the resources to properly defend this action. 79. As late as March 5, 2021, Defendant Eckert Seamans and Defendant Breen stated to Harvard Bioscience and Biostage, “As of this time. I do not think that it is likely that this suit will result in a substantial judgment that exceeds coverage and is likely to affect HBIO’s bottom 1 Hine,” which Harvard Bioscience and Biostage relied on and was harmed by as a result. 1 80. After the first successor counsel retained by the insurer to represent Harvard i Bioscience and Biostage in the underlying lawsuit performed aniinitial analysis of the case, they | i informed the insurer and their) clients, Harvard Bioscience and Biostage, that the case was | extraordinarily serious, contrary|to the information provided to Harvard Bioscience and Biostage by Defendant Eckert Seamans and Defendant Breen for almost four years. t ' i 14 * ' 81 Until Defendant Eckert Seamans and Defendants Breen were fired by Medmarc on i June 1, 2021, Harvard Bioscience and Biostage did not learn of their malfeasance which included that defendants had not performed any meaningful discovery to defend the case, they had failed to comply with Court ordered discovery, failed to oppose a motion for sanctions, failed to inform i Harvard Bioscience and Biostage| that it was subject to a sanction that liability was established and the case would proceed to trial on damages only, failed to assert legal defenses available to Harvard Bioscience and Biostage and were providing inaccurate and conflicting opinions to their clients on the tisks of the litigation and the value of the claim. i 82. In order to vacate) the February 4, 2020, sanctions ; Order imposed on them and to ( comply with the October 1, 2019,|Order on the motion to compel, Harvard Bioscience and Biostage and ‘first successor counsel were required to provide a voluminous amount of information in a short I time frame, much of which would not have been discoverable otherwise. I! 1 83 The efforts to provide the voluminous amount of information on an emergency basis caused Harvard Bioscience |and Biostage great expense financially and in time and resources t After over four years of litigation, Medmarc, relying on the plaintiffs’ unchallenged 84. allegations in the underlying lawsuit, and with no significant defense asserted by Defendant Eckert Seamans and Defendant Breen, instituted a lawsuit against Harvard Bioscience and Biostage 1 seeking a judgment declaring that it did not have to defend or indemnify Harvard Bioscience or Biostage for any losses they incurred in the underlying lawsuit. 1| 85. The declaratory judgment lawsuit, which Harvard Bioscience and Biostage were ultimately able to resolve, caused Harvard Bioscience and Biostage great expense financially and | I in time and resources. i i 15 i 1I 86. In view of these facts, Harvard Bioscience and Biostage retained new and independent successor counsel at its own expense to represent them in the underlying lawsuit, who filed an Appearance on October 27, 2021. | | 1 87. On September 27, 2021, the Court informed the parties in the underlying litigation that the trial would begin on October 22, 2022. | 88 This new and independent successor counsel attempted to investigate this matter 1 overseas, interview witnesses, obtain background documents, retain experts, take depositions, and otherwise accomplish all the tasks that should have been performed during the approximate four (4) years that Defendant Eckert Seamans and Defendant Breen represented Harvard Bioscience and, Biostage’ in the underlying |. = to prepare the case for trial ini less than one year. | | t 89. The efforts by new and independent successor counsel to perform the discovery and pretrial preparation that should have been performed for four (4) years by Defendant Eckert Seamans and Defendant Breen were significantly hampered and hindered by the passage of time. i 90. Because of the failure of Defendant Eckert Seamans and Defendant Breen to properly represent their clients and prepare the case for trial, Harvard Bioscience and Biostage were forced to resolve the underlying lawsuit. 1 It 91 In doing so, Harvard Bioscience and Biostage were caused significant financial harm and consequential damages because of Defendant Eckert Seamans and Defendant Breen’s numerous breaches of its duties, fraud, and misrepresentations. 1 92. The statute of limitations for filing this lawsuit was tolled by an agreement between | the'parties i | 1 93 Moreover, Harvard Bioscience and Biostage did not learn and reasonably could not have learned of Defendant Eckert Seamans and Defendant William Breen’s numerous breaches of 16 1 its duties, fraud, and misrepresentations, nor the harm that they caused, until at the earliest, on or after June 1, 2021. | COUNT I -NEGLIGENCE - - HARVARD BIOSCIENCE Vv. DEFENDANT ECKERT SEAMANS AND DEFENDANT BREEN . |1 Plaintiffs repeat, |reallege, and fully incorporate ,by reference herein the above 1 94. Pagans of this Complaint. ! ' 95. Defendant Eckert} Seamans and Defendant Breen undertook for compensation to 1 provide legal advice and representation to the Plaintiffs and as such, an attorney-client relationship existed between the Defendants d Plaintiffs. 96. In providing legal advice and representation, Defendant Eckert Seamans, by and through its employees, agents, servants, managers, and owners, including Defendant Breen, owed its clients a duty to exercise the degree of care and skill exercised by the average qualified attomey providing comparable legal services at that time i 1 | 1 97. In providing legal advice and representation, Defendant Eckert Seamans and Defendant Breen were negligent|in failing to exercise the degree of care and skill exercised by the average qualified attorney providing comparable legal services at that time. I 1 i i 98. Among other departures from the standard of care and skill of the average qualified attorneys providing comparable legal services at that time, Defendant Eckert Seamans and Defendant Breen negligently failed to properly investigate the underlying lawsuit, negligently failed to perform meaningful discovery including taking depositions, negligently failed to retain experts to defend their clients, negligently failed to oppose significant motions including a motion t for: sanctions, negligently failed to inform their clients of significant events in the case, | intentionally, recklessly and/or negligently advised the clients concerning the exposure of the case. intentionally, recklessly and/or negligently withheld from their clients material information 17 |: 1 condemning the case, negligently failed to P roperly supervise the case, negligently failed to properly I staff the case, negligent failed to proper! ly calendar events in the case negligently failed to assert | and move on meaningful defenses available to their clients and otherwise negligently failed to properly defend their clients. || t 99. As a direct and proximate result of the above-described negligence, Plaintiff Harvard Bioscience suffered significant economic harm and consequential damages. Wherefore, Plaintiff Harvard Bioscience demands on this Count: a) Judgment against Defendant Eckert Seamans /Cherin & Mellott, LLC and t Defendant William Breen, jointly and severally for its damages; including 1 b) prejudgment interest at the statutory rate; ¢) statutory and discretionary costs; 1 d) the recovery/disg rgement of all legal fees paid to Defendants either directly or in constructive trust, as their representation provided little or no vahie to Plaintiffs; ' ¢) the legal fees and|costs paid to successor counsel to defend the underlying lawsuit, which was necessary solely because of the failure of Defendants to properly represent it; 1 1 fy the legal fees and'costs of legal counsel to defend the declaratory judgment action, which was necessary solely because of the failure of Defendants to properly represent it; 8) payments made by Plaintiffs to resolve the underlying litigation, which were only necessary because of the failure of Defendants to properly represent it; and h) any other relief as this Court may deem just and proper. COUNT II —- NEGLIGENCE - BIOSTAGE Vv. DEFENDANT ECKERT SEAMANS AND DEF ENDANT BREEN ' 100. Plaintiffs repeat,| reallege, and fully incorporate by reference herein the above Paragraphs of this Complaint. 1 I ' 18 1 101. Defendant Eckert Seamans and Defendant Breen undertook for compensation to ! provide legal advice and representation to Plaintiffs and as such, an attorney-client relationship existed between the Defendants and the Plaintiffs, 1 ' 102. In providing legal advice and representation, Defendant Eckert Seamans, by and through its employees, agents, servants, managers, and owners, including Defendant Breen, owed | its clients a duty to exercise the d le gree of care and skill exercised by the average qualified attorney ! providing comparable legal services at that time. | ' 103. In providing legal advice and representation, Defendant Eckert Seamans and Defendant Breen were negligent in failing to exercise the degree of care and skill exercised by the average qualified attorney providing comparable legal services at that time. i ' 104, Among other departures from the standard of care and skill of the average qualified attorneys providing somparsbl legal services at that time, Defendant Eckert Seamans and Defendant Breen negligently failed to properly investigate the ‘underlying lawsuit, negligently fied to perform meaningful di liscovery including taking depositions, negligently failed to retain experts to defend their clients, | gent failed to oppose significant motions including a motion for sanctions, negligently failed to inform their clients of significant events in the case, intentionally, recklessly and/or negligently advised the clients concerning the exposure of the case, intentionally, recklessly and/or! negligently withheld from their clients material information ! ij I coricerning the case, negligently failed to properly supervise the case, negligently failed to properly 1 staff the case, negligent failed to properly calendar events in the ease, negligently failed to assert | and move on meaningful defenses available to their clients and otherwise negligently failed to i