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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Insurance Expert May Not Testify to Speculative and Contains Unsupported Conclusions.
Posted on September 18, 2026 by Barry Zalma
See the full video at and at https://rumble.com/v7fmifw-expert-may-only-testify-to-what-experience-supports.html
In Michele A. Over, and The Estate Of Paul R. Over v. State Farm Mutual Automobile Insurance Company, and State Farm Fire And Casualty Company, Civil Action No. 23-cv-02243-PAB-STV, United States District Court, D. Colorado (September 14, 2026) Michele and Paul Over sued State Farm Fire and State Farm Auto over hail-damage and stolen-vehicle claims.
The operative dispute concerned State Farm Auto’s motion to exclude or limit opinions from plaintiffs’ insurance-industry expert, Aaron Castillo. Castillo.
Law
The proponent of expert testimony must establish by a preponderance of the evidence that an expert is qualified and that the opinions are helpful, sufficiently grounded, and reliably derived and applied. Experience-based opinions must explain how the...
150 Months in Prison for Tax Fraud
Post 4846
Posted on September 17, 2026 by Barry Zalma
See the full video at https://lnkd.in/g8rh3JBX and https://lnkd.in/gmkdy-9C, In United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
In United States Of America v. Thomas Addaquay, United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
Thomas Addaquay controlled United Consolidated Accounting and Business Services (UC), nominally a check-cashing business.
The government proved a three-stage tax-refund scheme that converted the resulting refund checks into usable funds through ...
Major Fraud Perpetrator Asserts Fifth Amendment Privilege to Avoid Prosecution
Post 5489
Posted on September 14, 2026 by Barry Zalma
Fraudster Refuses to Answer Questions About His Alleged Fraud
See the full video at https://lnkd.in/gvicAMDr and at https://lnkd.in/gvicAMDr
In Great American Insurance Co. v. Gemstone Property Management, LLC, et al., No. 23-cv-9100 (LJL), United States District Court, S.D. New York (September 8, 2026) Great American Insurance Company alleged that it was defrauded through a scheme in which Subin Associates, LLP recruited individuals to stage construction-site injuries, arranged unnecessary medical treatment and litigation funding, and pursued fraudulent personal-injury claims.
Luis Manuel Garcia Salcedo, resulted in a $6 million settlement. Non-party Jose Hernandez allegedly worked as an assistant manager at Subin, operated Hernandez Associates, and owned litigation-funding companies that shared office space with Subin and provided services to its clients.
After Great American ...
Another Anniversary for Barry Zalma, Inc
Posted on October 1, 2026 by Barry Zalma
From October 1, 1979 – 2026
Post 4854
Read the full issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/09/ZIFL-10-01-2026.pdf Forty seven years ago today I left the world of the employed and became an entrepreneur by opening my own law firm. The law practice was incorporated shortly thereafter as Barry Zalma, Inc.
When I opened for business on October 1, 1979, I had no clients and no certainty that I would have any in the future. I had borrowed money from the bank to carry me through the first six months and was concerned about my ability to pay the loan with my third child about to be born.
Much to my surprise and pleasure, on October 1, 1979, at 8:10 a.m., the best claims handler in the London market, Alan Warboys, called from London and provided me with my first case as an independent lawyer to represent Certain Underwriters at Lloyd’s, London. He, and the Lloyd’s Underwriters he represented, showed faith in me as a lawyer and insurance expert. Alan is now, although ...
Defendants Successfully Moved for Summary Judgment
Post 4854
Posted on September 30, 2026 by Barry Zalma
In Jeffrey Wayne Phillips v. Creative Website Studios, et al., No. 5:23-CV-568-BO-BM, United States District Court, E.D. North Carolina, Western Division (September 28, 2026) the Court needed to rule on the order and memorandum and recommendation (“M&R”) of the Magistrate.
Jeffrey Wayne Phillips had contracted with Creative Website Studios and SR Telecommunications for website and hosting services. He alleged that defendants repeatedly billed him for hosting periods he had already paid for and later took down his website. Phillips claimed the outage prevented him from bidding on U.S. government security contracts and sought roughly $300 million in consequential damages.
LAW
Under North Carolina law, fraud requires a false material representation or concealment, intent and effect of deception, resulting damage, and reasonable reliance. Obtaining property by false pretenses similarly requires an ...
Accused of 17 Counts Of Fraud Attempts to Keep Out Evidence of Crimes
Post 4853
Posted on September 29, 2026 by Barry Zalma
Court Refuses to Grant Most Motions in Limine
In United States Of America v. Seth Allen Aikens, II, Criminal No. 22-119, United States District Court, W.D. Pennsylvania (September 23, 2026) Defendant Seth Allen Aikens II faces thirty federal counts. The indictment alleges that, from about June 2016 through March 2020, Aikens solicited start-up businesses seeking websites, applications, hosting, payment processing, and related services. The Government estimated aggregate losses of approximately $1.3 million involving about eight charged customers.
The Government also sought to introduce evidence involving three uncharged persons. Robert Polonsky allegedly paid about $10,000 for web development, hosting, and advertising services but did not receive the promised core deliverables. Brandon Canwright allegedly paid approximately $1,877 for a website and related services that were not delivered and received no ...
