Second Filing of Same Suit Precluded as Res Judicata
It Doesn’t Pay to Sue Twice
Post number 5379
Posted on June 24, 2026 by Barry Zalma
In Susan Cheung & another v. Thomas B. Puschak & another, No. 24-P-1451, Appeals Court of Massachusetts (June 12, 2026) the plaintiffs, Susan Cheung and Christopher Cheung, filed an initial complaint against Dr. Thomas Puschak and Carol Puschak in December 2022. The complaint alleged that Dr. Puschak committed malpractice, sexually assaulted the plaintiffs, attempted to poison Christopher, and engaged in insurance fraud.
The Superior Court ordered the plaintiffs to provide a more definite statement, and when they failed to comply, the first action was involuntarily dismissed in March 2023. The dismissal was with prejudice, and the plaintiffs did not appeal.
About six months later, the plaintiffs filed a second complaint asserting the same allegations against the same defendants. A second judge entered summary judgment for the defendants on res judicata grounds.
Law
Claim preclusion, or res judicata, bars relitigation of claims that were or could have been adjudicated in a prior proceeding where there has been a valid final judgment. Under Massachusetts law, claim preclusion requires three elements: identity or privity of the parties, identity of the cause of action, and a prior final judgment on the merits. A dismissal with prejudice under Mass. R. Civ. P. 41 (b) generally operates as an adjudication on the merits unless an exception applies or the judgment specifies otherwise.
Discussion / Analysis
The Appeals Court concluded that all three elements of claim preclusion were satisfied. The identity of the parties was not disputed because both actions involved the same plaintiffs and defendants. The causes of action were also identical because both complaints arose from the same alleged conduct: malpractice, sexual assault, attempted poisoning, and insurance fraud. Finally, the first action had ended in a dismissal with prejudice after the plaintiffs failed to comply with a court order requiring a more definite statement. Because Rule 41 (b) treats such a dismissal as an adjudication on the merits, and because no exception applied, the prior dismissal was a final judgment for claim preclusion purposes.
In the first matter, the plaintiffs argued, as they did in the second matter, that Dr. Puschak committed malpractice, sexually assaulted the plaintiffs, attempted to poison Christopher, and engaged in insurance fraud. The claims are identical.
Last, the Superior Court’s dismissal with prejudice of the first matter is a final judgment on the merits and satisfies the third element. Dismissal of a complaint, other than a dismissal for lack of jurisdiction, improper venue, failure to join a necessary party, or improper damages, operates as an adjudication upon the merits unless either the dismissal is pursuant to statute or the judgment of dismissal specifies otherwise. None of those exceptions applies here, and thus the prior judgment operates as a final adjudication upon the merits.
Conclusion
The Appeals Court affirmed the summary judgment for the defendants. The plaintiffs’ second lawsuit was barred by res judicata because it involved
ZALMA OPINION
Failure to provide a definite statement in a lawsuit resulting in dismissal with prejudice is a final judgement that precludes the same allegations again brings into play res judicata which defeats the new suit. If the plaintiffs were serious about their suit against Dr. Thomas Puschak they needed to comply with the original court orders. That failure caused a dismissal with prejudice to the original suit and the next try.
(c) 2026 Barry Zalma & ClaimSchool, Inc.
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The Largest Residential Burglary of All Time
Post 5407
Fraud & the Fear of Bad Faith Suits
Posted on July 22, 2026 by Barry Zalma
See the full video at https://lnkd.in/gWQQEySW and at https://lnkd.in/gyhdK6wv
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
After ...
Chutzpah is not Enough
Post 5397
Posted on July 20, 2026 by Barry Zalma
See the video and at https://lnkd.in/gNUs2XzT and at https://lnkd.in/g2MawyzX
Magistrate Issues a Search Warrant if there is a Fair Probability that Contraband or Evidence of a Crime will be Found in a Particular Place.
In United States Of America v. Frank Suess, et al., CRIMINAL No. 3:24-308, United States District Court, M.D. Pennsylvania (July 16, 2026) a federal grand jury indicted Frank Suess, Melissa Driscoll, and others in a 55-count health care fraud and anti-kickback prosecution arising from an alleged scheme involving medically unnecessary prescription “foot baths.”
As part of the investigation, the FBI obtained an August 19, 2022 warrant to search Driscoll’s Sterling Pharmacy Yahoo email account for emails from January 1, 2018 through December 31, 2020. Driscoll moved to suppress the resulting evidence, arguing that the warrant lacked probable cause, was overbroad, and rested on material misstatements and omissions.
LAW:
The ...
Fraud Shouldn’t Pay
Post 5396
See the video and at https://rumble.com/v7ctgmq-the-great-jewel-theft.html at https://youtu.be/aRbQ2sJfGwA
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the ¬¬¬Perpetrators than any Other Crime.
The Insured purchased, for the first time in his life, a policy of Personal Articles Floater Insurance (PAF) scheduling $125,000 worth of ladies jewelry. He advised the insurer that the jewelry was always kept in a class E safe at his residence. He also told the insurer that he was employed full time as the owner of a gasoline service station and that he had never been canceled or suffered a previous loss.
One month after the policy was ...
Specific Jurisdiction is Related to an Activity Conducted Within the Forum State.
Post 5408
Posted on July 23, 2026 by Barry Zalma
In New Jersey Manufacturers Insurance Company v. Changan Chu, No. 14-25-00965-CV, Court of Appeals of Texas, Fourteenth District (July 21, 2026) NJM issued an automobile insurance policy in New Jersey to Changan Chu while Chu was a New Jersey resident.
Chu was injured in an auto-pedestrian collision in Harris County, Texas, allegedly caused by an uninsured driver. Chu sued the driver and NJM, seeking a declaration that his UM/UIM coverage was in force and provided $300,000 in limits. NJM filed a special appearance supported by affidavit evidence showing it was a New Jersey corporation with its principal place of business in New Jersey, had no offices, agents, employees, advertising, registration, or insurance business in Texas, and did not insure any person, property, or risk located in Texas. Chu did not file evidence opposing the special appearance.
LAW
A Texas court may exercise ...
Victims of Fraud Should Always Fight Back Proactively
Post 5398
Posted on July 21, 2026 by Barry Zalma
Cross-Claim Against Fraudsters Successful
In Dual Diagnosis Treatment Center, Inc., et al. v. Health Net, Inc., et al., Health Net Life Insurance Company, B331260, California Court of Appeals, Second District, Third Division (July 16, 2026) a trial verdict in favor of Health Net and against Sovereign, a network of mental health and substance use disorder treatment centers, and Health Net, Inc., Health Net of California, Inc., Health Net Life Insurance Company, and Managed Health Network, Inc. (collectively, Health Net) was appealed to the California Court of Appeals.
FACTUAL BACKGROUND
Between 2014 and 2016, Sovereign submitted claims to Health Net for medical care provided to more than 400 patients. Health Net paid some claims but rejected many others. Sovereign, as the patients' assignee, sued Health Net for breach of contract, insurance bad faith, and breach of the Employee Retirement Income Security Act of 1974 (ERISA)....
The Only Solution to Fraud is to Take the Profit Out of the Crime
It Takes Courage to Fight the Fraudster
Post number 5395
Posted on July 16, 2026 by Barry Zalma
In Vivian Maritza Triana Marin, Sebastian Arroyave Penagos, and Daniel Arroyave Penagos v. Marc J. Paynter and Transport Marc Paynter Inc., No. 23-CV-6498, United States District Court, E.D. New York (July 10, 2026) Plaintiffs sued Defendants in diversity after a rear-end collision on the Whitestone Expressway in Queens, New York. Plaintiffs were in a Subaru driven by Vivian Maritza Triana Marin, while Defendant Marc J. Paynter drove a Transport Marc Paynter Inc. tractor-trailer.
Facts:
Dashcam footage from Defendants’ vehicle showed Plaintiffs’ vehicle braking suddenly in the left lane despite an open roadway ahead. Marin could not identify a specific reason for braking, the passenger plaintiffs did not know why she braked, and a non-party witness testified that Plaintiffs’ vehicle stopped abruptly for no apparent reason.
The Accident occurred when ...
