`
`
`
`Joseph D. Garrity, Esq.
`101 N.E. THIRD AVENUE, SUITE 1800
`FORT LAUDERDALE, FLORIDA 33301
`Main : (954) 462-8000
`Direct: (954) 331-1294
`Cell: (954) 821-7204
`www.loriumlaw.com
`
`
`
`
`July 16, 2024
`
`Hon. Jessica S. Allen, U.S.M.J.
`U.S. District Court for the District of New Jersey
`Martin Luther King Building & U.S. Courthouse
`50 Walnut Street
`Newark, NJ 07101
`
`Re: Zirvi v. Illumina, Inc., et al., 2:23-cv-01997 (MCA) (JSA)
`
`
`Dear Judge Allen:
`
` I
`
` write on behalf of Plaintiff Dr. Monib Zirvi in response to Mr. Haefner's letter dated July
`15, 2024, concerning the attendance of Defendants Rip Finst and Sean Boyle at the
`upcoming settlement conference.
`
`Opposing counsel has consistently infused filings with this Court with vitriol towards the
`Plaintiff and the undersigned counsel. For example, opposing counsel writes, "… charges
`premised on the absurd notion that these Thermo Fisher in-house counsel formerly
`represented Mr. Zirvi, even though he was not a Thermo Fisher employee and never
`retained them."
`
`Rip Finst and Sean Boyle were not just in-house counsel for Thermo Fisher, they actively
`participated in the Cornell litigation on behalf of all parties of interest in the claims against
`Illumina, including Dr. Zirvi. Rip Finst and Sean Boyle had conferences with Dr. Zirvi and
`exchanged information under the guise of attorney client confidentiality. Dr. Zirvi was not
`an agent or employee of any Plaintiff making a claim against Illumina. Dr. Zirvi, inventor,
`was a known third-party beneficiary of the damages being sought against Illumina.
`
`In Rathblott v. Levin, 697 F.Supp. 817 (DNJ 1988) this court answered in the negative the
`question: Should a lawyer be able to use lack of privity as a defense to beneficiary damaged
`by negligence of the lawyer? The Rathblott Court found:
`
`
`The question of privity in the context of attorney/beneficiary suits
`was first addressed in New Jersey in Stewart v. Sbarro, 142
`N.J.Super. 581, 362 A.2d 581 (App. Div.), cert. denied, 72 N.J.
`459, 371 A.2d 63 (1976). The negligence in that case was that of
`
`LORIUM LAW
`
`ATLANTA BOCA RATON CHICAGO FT. LAUDERDALE
`
`
`
`
`
`Case 2:23-cv-01997-MCA-JSA Document 135 Filed 07/16/24 Page 2 of 3 PageID: 3819
`
`an attorney for a buyer who had failed to obtain the needed
`signatures to execute a mortgage, and been sued by the seller.
`The Sbarro court stated that while it was "true that generally an
`attorney is not liable to third persons for negligence in the
`performance of his professional duties ..., this rule is not all
`encompassing." Id. at 593, 362 A.2d at 588. Therefore, when "an
`attorney undertakes a duty to one other than his client, he may
`be liable for damage caused by a breach of that duty to a person
`intended to be benefited by his performance." Id.
`
`
`***
`Finally, in R.J. Longo Construction Co., Inc. v. Schragger, 218
`N.J. Super. 206, 527 A.2d 480 (App.Div.1987), an attorney who
`had negligently
`failed to obtain easement rights
`for a
`municipality was held
`liable to a successful bidder for
`construction of a sewer facility. The Schragger court simplified
`the test for surmounting the privity requirement through
`reliance:
`
`(1) the extent to which [the attorney/client relationship] was
`intended to affect the plaintiff; (2) the foreseeability of reliance by
`the plaintiff and the harm it could thereby suffer; (3) the degree
`of certainty that plaintiff has been harmed; and (4) the need from
`a public policy standpoint of preventing future harm without
`unduly burdening the profession.
`
`Rathblott v. Levin at 819.
`
`
`The Rathblott Court recognized that there was a possibility of privity through reliance,
`which would need to be determined in a trial. A lawyer must take all reasonable measures
`to avoid the risk of causing economic harm to any person he has a reason to know may
`suffer as a result of his actions. Being in-house counsel does not shield Rip Finst and Sean
`Boyle from the duties described in Rathblott.
`
`Opposing counsel incorrectly argues the Court’s Order on July 9, 2024 (ECF No. 129),
`provided "similarly situated defendants" the right to participate by phone. The Order does
`not provide the same. The Order specifically allowed Defendant Akin Gump’s primary
`representative, Robert B. Humphreys, Esq., to participate telephonically, contingent upon
`another Akin Gump representative attending in person.
`
`Opposing counsel argues, "…common sense dictates that forcing individual defendants
`(especially those that are being indemnified and thus have no true personal liability in the
`matter) to travel across the country for the sake of their alleged “firsthand perspectives
`and immediate decision-making capabilities” has a greater likelihood of alienating these
`defendants (and their indemnifying corporate employer) than of providing any real
`
`LORIUM LAW
`
`ATLANTA BOCA RATON CHICAGO FT. LAUDERDALE
`
`
`
`
`
`
`Case 2:23-cv-01997-MCA-JSA Document 135 Filed 07/16/24 Page 3 of 3 PageID: 3820
`
`benefit." Here, opposing counsel appears to take issue with the common sense of the Court's
`Order itself requiring in-person attendance of all parties.
`
`Opposing counsel implies that requiring Rip Finst and Sean Boyle to attend in-person
`would alienate the individuals and Thermo Fisher. Any party to a lawsuit could claim in-
`person attendance at a settlement conference would alienate them, which assumable
`means anger them, thereby rendering the requirement to in-person attendance
`meaningless.
`
`While I understand the logistical challenges and inconvenience posed by their in-person
`attendance, the same is true for the undersigned counsel. Of course we defer to the Court’s
`discretion regarding this matter.
`
`
`Respectfully submitted,
`
`/s/ Joseph D. Garrity
`JOSEPH D. GARRITY, ESQ.
`Florida Bar No. 87531
`jgarrity@loriumlaw.com
`GLTService@loriumlaw.co
`
`LORIUM LAW
`Counsel for Plaintiff
`101 NE 3rd Ave, Ste 1800
`Fort Lauderdale, FL 33301
`Telephone: (954) 462-8000
`Facsimile: (954) 462-4300
`
`
`EISENBERG, GOLD & AGRAWAL, P.C
`Amar Agrawal.
`Counsel for Plaintiff
`1040 Kings Hwy North, Ste 200
`Cherry Hill, NJ 08034
`Telephone: (856) 330-6200
`Facsimile: (856) 330-6207
`aagrawal@egalawfirm.com
`
`
`cc: All Counsel of Record (via CM/ECF)
`
`
`LORIUM LAW
`
`ATLANTA BOCA RATON CHICAGO FT. LAUDERDALE
`
`
`
`
`
![](/site_media/img/document_icon.png)
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ ChargeStill Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
![](/site_media/img/error_icon.png)
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
![](/site_media/img/error_icon.png)
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
![](/site_media/img/error_icon.png)
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
![](/site_media/img/document_icon.png)
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
![](/site_media/img/document_icon.png)
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
![](/site_media/img/error_icon.png)
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site