A New York man who sued a Houston fertility clinic in 2011, alleging the clinic obtained his sperm without his consent or knowledge and impregnated his ex-girlfriend through in vitro fertilization, has now filed a negligence suit against his former lawyers.
Joseph Pressil alleges in a petition he filed in the 55th District Court that Jason A. Gibson and his firm, Jason A. Gibson PC of Houston, and two lawyers at the firm, Clifford D. Peel II and Andrew C. Smith, were negligent by failing to serve the medical defendants with an expert report within a statutory deadline. As a result, 157th District Judge Randy Wilson granted a defense motion dismissing the suit. [See " Man Alleges IVF Done With His Sperm, Without His Consent," Texas Lawyer, Nov. 28, 2011, page 1.]
"This case will readily be dismissed. I'm not in the least bit worried about it," Gibson says.
Pressil, who lives in Allegany County, NY., alleges in the petition filed on Aug. 30 that Gibson additionally dissuaded him from filing an appeal of the dismissal order, and he was "forever left without a remedy for his injuries." Pressil alleges Gibson "improperly" advised him that he would have to pay attorney fees for the medical defendants if he appealed and also told him an appeal would be "futile" because the defendants did not have insurance to cover his claims.
Gibson says it's true he recommended against an appeal, but it was Pressil's decision to forgo an appeal.
"There was zero insurance in place to cover any claim, and there were no assets to go after, and I provided that information to him. If we went up on appeal and we won, there was nothing to go after," Gibson says.
Gibson says the defendants did not miss a filing deadline because Pressil filed a "theft case, a negligence case," not a medical-malpractice suit that would require the expert report.
Gibson says he's offended Pressil sued him, after "begging" him to take on the suit.
"I specifically told the guy he would have trouble getting damages," Gibson says.
Smith and Peel each did not return a telephone message. The petition alleges Smith and Peel both worked with Gibson on the Pressil litigation.
Pressil brings negligence and gross negligence causes of action against the defendants. He alleges they violated Texas Disciplinary Rules of Professional Conduct requiring competent and diligent representation and barring misconduct. He seeks unspecified actual and punitive damages from the defendants.
An attorney for Pressil, David Kassab, an associate with Kassab Law Firm of Houston, says the damages would be the value of the underlying case.
Suit Against Lawyers
As alleged in the petition in Joseph Pressil v. Jason A. Gibson, et al., Pressil signed a contract with Gibson's firm on Nov. 21, 2011, and Gibson filed the original petition in Pressil v. Advanced Fertility CTR-Texas, et al. on that day. In the Advanced Fertility petition,Pressil alleged the fertility clinic performed in-vitro on a woman "Purporting to be his wife when she, in fact, was not," and it resulted in the birth of twins in 2007. Pressil alleged in the petition that he didn't discover that his sperm was used for in-vitro until February 2011.
The defendants, Advanced Fertility CTR-Texas and Omni-Med Laboratories LLC, both of Houston, denied the allegations. Their attorney, Danny Sheena, of Sheena Law Firm of Houston, did not return a telephone message seeking comment.
Pressil alleges in the petition against the Gibson defendants that Texas Civil Practices & Remedies Code §74.351(a) required his lawyers to serve the medical defendants in Advanced Fertility with an expert report by March 20, 2012, but they failed to do so and his lawsuit was dismissed.
"At the hands of Gibson and these 'seasoned trial lawyers," Pressil's case was dismissed for failing to comply with one of the most simplest and well known procedures in the medical malpractice industry — the serving of an expert report," he alleges.
Pressil alleges that, "to add insult to injury," after Gibson learned that he was going to file a negligence suit, "he threatened and admonished Pressil, stating: 'I just got some random letter from a nobody lawyer in Hou[ston]stating you are going to sue me. . . I hope that's wrong, for your sake.' "