Clinmicro Immunology Ctr., LLC v. Primemed, P.C., Civil No. 3:11-CV-2213

• Decision Date: 07 July 2016
• Docket Number: Civil No. 3:11-CV-2213
• Parties: CLINMICRO IMMUNOLOGY CENTER, LLC, Plaintiff v. PRIMEMED, P.C., et al., Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

CLINMICRO IMMUNOLOGY CENTER, LLC, Plaintiff
v.
PRIMEMED, P.C., et al., Defendants

Civil No. 3:11-CV-2213

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

July 7, 2016

(Judge Caputo)

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION

I. Introduction

This case involves mutual allegations of wrongdoing arising out of the dissolution of a commercial relationship between a health services provider, PrimeMed, and a laboratory employed by PrimeMed to perform various tests and manage PrimeMed's own laboratory operations, ClinMicro. The case now comes before the Court for consideration of four separate motions for partial summary judgment filed by PrimeMed.

A reasoned assessment of these motions is complicated by the dissolution of another commercial arrangement. The plaintiff, who initially brought this matter as a counseled complaint, has parted ways with its counsel and is representing itself, pro se. Self-representation if often a perilous practice, and the perils of self-

Page 2

representation are highlighted here, where the plaintiff's responses to these various summary judgment motions are often non-responsive, and fail to comply with the requirements set by the law, or the rules of this Court. Notwithstanding these hurdles to an informed judgment of the parties' claims, we have reviewed these motions and for the reasons set forth below, recommend that these motions be granted, in part, and denied, in part.

II. Statement of Facts and Procedural History

A. Factual Background

The background of this acrimonious dispute is as follows: PrimeMed is a licensed medical provider, founded in 1998, which built and staffed treatment and diagnostic centers in the Scranton area. By 2006, PrimeMed maintained an extensive physician and health care provider network. In the course of providing these health care services PrimeMed routinely collected blood and other samples from patients, which it referred to outside laboratories for testing and analysis.

ClinMicro was a company formed by Hasan Namdari in 2006 for the purpose of providing laboratory services, primarily in the field of microbiology and immunology. While ClinMicro provided these laboratory testing services, it did not have infrastructure in place to collect samples from patients. Thus, ClinMicro relied upon third-party health-care providers to forward samples to it for testing and analysis.

Page 3

The defendant, Joan Salijko is a registered medical technologist with some 37 years of clinical laboratory experience. In 2006, Ms. Salijko was hired by Dr. Namdari to serve as the laboratory manager for ClinMicro. At the time that Ms. Salijko was hired, her employment agreement with ClinMicro was an employment-at-will arrangement. Thus, either party was free to terminate the employment arrangement at any time. Further, when she was first employed by ClinMicro Ms. Salijko signed confidentiality agreements, agreeing to keep ClinMicro proprietary information and patient data confidential.

Beginning in 2007 PrimeMed sought to expand its medical services to include an enhanced ability to perform laboratory testing for its patients. As part of this effort, PrimeMed, ClinMicro and Dr. Namdari engaged in protracted negotiations which culminated in 2009 in two separate contractual arrangements between these parties: a laboratory management agreement (LMA) and a laboratory services agreement. (LSA).

Under the laboratory services agreement: "ClinMicro desired to provide Microbiology Laboratory Services, defined by the agreement as 'infectious disease diagnostic laboratory tests, molecular diagnostic laboratory tests, immunology services, and any laboratory services provided by [ClinMicro] as of the Effective Date,' to PrimeMed's patients. Similarly, PrimeMed desired under the LSA to obtain Microbiology Laboratory Services from ClinMicro for its patients and contracted and

Page 4

referring providers." ClinMicro Immunology Ctr., LLC v. PrimeMed, P.C., No. 3:CV-11-2213, 2014 WL 1515709, at *1 (M.D. Pa. Apr. 15, 2014). However, by its terms this laboratory services agreement provided that: "Each party shall be permitted to refer any individual for any item or service to any other provider or supplier of that item or service. (LSA, ¶ 3.4 (emphasis added).) [Therefore] [b]oth parties, under the final sentence of Section 3.4, expressly reserve[d] the right to refer any tests or services to any provider or supplier." ClinMicro Immunology Ctr., LLC v. PrimeMed, P.C., No. 3:CV-11-2213, 2014 WL 1515709, at *7 (M.D. Pa. Apr. 15, 2014).¹

PrimeMed and ClinMicro also entered into a laboratory management agreement, albeit an agreement whose meaning is still disputed in some respects by the parties. While some elements of this laboratory management agreement are contested by the parties, PrimeMed and ClinMicro agreed in broad terms that this laboratory management agreement provided that ClinMicro, through Dr. Namdari and Ms. Salijko, would manage PrimeMed's fledgling laboratory operation. In return for an agreed-upon fee ClinMicro would staff and manage PrimeMed's lab, and would design and build, at Prime Med's expense, a clinical laboratory for PrimeMed.

Page 5

ClinMicro would also co-locate its operations with the nascent PrimeMed laboratory, subletting space in a facility leased by PrimeMed. This laboratory management agreement also contained a non-competition provision which stated that neither party would solicit the customers or employees of the other party for a period of three years following the termination of this management contract.

While the parties seemingly agreed to these terms of their laboratory management agreement, there was a lurking dispute between them, a dispute which would later contribute to the dissolution of this agreement. That dispute related to reimbursement to ClinMicro for any developmental expenses it incurred while helping to establish the PrimeMed lab. For its part, PrimeMed believed that this matter was not disputed, and that the parties had agreed to pay a fixed sum of $47,500 to reimburse ClinMicro for these expenses. Indeed, the initial written laboratory management agreement signed by PrimeMed contained these express provisions in paragraph 4.3 of the agreement.

When Dr. Namdari received this agreement, however, he deleted the original paragraph 4.3, and substituted an addendum. That addendum gave Namdari the right to seek greater reimbursement for these developmental expenses through a process in which a mutually selected consulting firm would set the value of those services. Namdari's alteration to this paragraph also allowed Namdari to petition the state court for an order appointing a consultant to set the value of these services.

Page 6

This was plainly a very material change in the terms of the parties' agreement, but it seems to have been undertaken by the parties in an oddly elliptical fashion. Namdari altered the agreement to add this new paragraph as an addendum, and then signed both the original agreement, and the addendum and returned them to PrimeMed without further commentary. For its part, PrimeMed received this altered agreement, but did not review the agreement with care, and, therefore, did not initially note Namdari's alteration of this contractual provision at the time the signed contract was returned to it.

With the seeds of a future dispute sown in this fashion, the parties commenced their laboratory management agreement. PrimeMed's laboratory was licensed and began operations in March of 2009, with Dr. Namdari as Medical Director and Ms. Salijko as office manager. Thus, at this time Namdari and Salijko were concurrently holding similar positions in both the ClinMicro and PrimeMed laboratories. In addition, ClinMicro hired staff for the PrimeMed laboratory, staff whose salaries were paid by PrimeMed.

Almost from the outset, however, this relationship was a troubled one from PrimeMed's perspective. The source of these troubles were largely financial. Namdari and ClinMicro neglected to pay rent on the subletted space they had agreed to occupy in PrimeMed's leased laboratory space, and over time accrued back rent debts of more than $100,000. ClinMicro also failed to make timely payments on a

Page 7

loan provided by PrimeMed for the purpose of purchasing laboratory equipment. In addition, PrimeMed was dissatisfied with Namdari's supervision and oversight of the PrimeMed lab.

In October of 2010, Alan Silverman, PrimeMed's Business Manager, met with Dr. Namdari to discuss ClinMicro's failure to make these lease and loan payments, payments that PrimeMed believed were due it under the LMA and an accompanying lease agreement. At that time, Dr. Namadri justified the failure to make these payments in part by citing PrimeMed's failure to abide by the modified developmental expense provisions of their contract, provisions which had been added to the agreement by Namdari following the receipt of a signed contract from PrimeMed with materially different developmental expense terms. According to Mr. Silverman, this was the first that he had learned of the alteration of this term of the written agreement, and he was "furious" at what he regarded as a sharp and dishonest practice by Namdari. For his part, Dr. Namdari seems to present a different factual narrative, suggesting that this revision was a matter discussed by the parties in advance of the alteration, although he provides sparse proof for this assertion, which is unsupported by any documentary evidence or sworn declarations.²

Page 8

In early 2011, the fractured relationship between PrimeMed and ClinMicro was further damaged when PrimeMed learned that a category of laboratory tests, Vitamin D tests, had been directed by Dr. Namdari from the PrimeMed laboratory to ClinMicro's labs for processing. Dr. Namdari's referral of this category of tests to the ClinMicro laboratory was regarded by PrimeMed as a violation of the laboratory services agreement, which limited...