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A lawyer’s attempt to save a time-barred malpractice suit by wrapping it up as a federal Racketeer Influenced Corrupt Organizations Act (RICO) and civil rights case has drawn an unorthodox sanction: Rather than dock the lawyer for fees, the judge ordered him to take courses in federal practice and procedure, professionalism and legal ethics. U.S. District Court Judge Stephen Orlofsky noted in his recent ruling that he imposed sanctions only after giving the lawyer written notice of a potential violation of Fed. R. Civ. P. 11 (b)(2), which requires lawyers to ascertain that their claims are “well-grounded in fact and law.” Frank Branella, a Marlton, N.J., solo practitioner, allegedly botched a state-court medical malpractice suit on behalf of Enez Balthazar of Ocean City, N.J., whose ureter was severed during a hysterectomy. Atlantic County Superior Court Judge Carol Higbee dismissed the suit in May 2001 for failure to submit a timely affidavit of merit. The Appellate Division affirmed last March and the Supreme Court denied certification in June. In 2002, Branella filed the federal suit, Balthazar v. Atlantic City Medical Center, No. 02-1136, charging the hospital and three doctors with covering up their negligence, falsifying records and conspiring to deny the plaintiff’s rights in violation of federal and state RICO laws. Orlofsky spotted the ploy. He dismissed the federal suit on March 30 for failure to state a claim. He granted Branella leave to amend his complaint. The second attempt was no better, as Branella’s amended complaint contained “essentially the same federal claims” as the original and its “rambling narrative…is organized and drafted so poorly that it is often difficult to comprehend.” Branella declined comment on the case other than to say he will appeal the dismissal of the district court case and the imposition of sanctions.

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