Joyner v. LIPRIE

33 So. 3d 242, 2010 La. App. LEXIS 123, 2010 WL 325919
CourtLouisiana Court of Appeal
DecidedJanuary 29, 2010
Docket44,852-CA
StatusPublished
Cited by5 cases

This text of 33 So. 3d 242 (Joyner v. LIPRIE) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joyner v. LIPRIE, 33 So. 3d 242, 2010 La. App. LEXIS 123, 2010 WL 325919 (La. Ct. App. 2010).

Opinions

PEATROSS, J.

| ,A jury found that Defendant, Samuel F. Liprie, breached an oral agreement to form a joint venture with Plaintiff, Lee Roy Joyner, M.D., for the development and potential marketing of a device invented by Liprie to administer radiation treatment to the coronary artery. The jury awarded damages to Dr. Joyner in the amount of $4.3 million, plus attorney fees. Liprie now appeals. For the reasons stated herein, we affirm.

FACTS

Liprie is a nuclear pharmacist and inventor who works primarily with radiation therapy. He developed a cutting edge technology for administering “high doses” (4 curies and above) of radiation therapy directly into the body, thereby allowing the radiation to be directed at a specific part of the body. This breakthrough technology treated the cancer from within the body. Liprie licensed this “high dose” technology to Omnitron, a company owned by Liprie.

In 1993, Liprie then began testing the technology to deliver “low doses” (below 4 curies) of radiation directly and, specifically, to the coronary artery. The procedure was to be used following angioplasty surgery to prevent re-clogging or “restenosis” of the arteries. Liprie shared the idea for this intracoronary radiation therapy (“ICRT”) with Dr. Joyner and a radiation oncologist, Dr. Mark Harrison. The three men had discussions regarding a joint venture to move forward with the development and promotion of ICRT.1

|2In the latter part of 1993, Dr. Harrison was initiating unrelated medical research projects in the Bahamas with the assistance of Bahamian oncologists (“The Bahamian project”). The record reflects that there were four distinct research projects comprising the Bahamian project, each of which involved the three men in different capacities. This suit concerns only the [245]*245fourth venture, the ICRT or “heart project.” The record further reflects that discussions regarding the heart project began among Liprie and Drs. Joyner and Harrison around February 1994, culminating in a meeting of the three in Atlanta in May 1994. Orlando Gurdiel, a Venezuelan cardiologist, among other Latin American representatives, was also at this Atlanta meeting to discuss conducting human trials of the technology in Caracas, Venezuela. The ultimate goal of the venture was to have the abstract accepted by American College of Cardiologists (“ACC”) for publication at the annual convention in New Orleans in March 1995.

According to the testimony of Dr. Joyner, it was at this Atlanta meeting, following the discussions with the Venezuelans, that the joint venture agreement was reached between Liprie, Dr. Harrison and himself. He testified that, otherwise, he would not have gone forward with the project. Dr. Joyner testified:

Q: What was the agreement?
A: The agreement was to perform a study in Caracas, Venezuela using a radioactive wire that would be placed into the coronary artery to see if, number one, it could be done and, number two, if it would prevent restenosis of an artery after it had been dilated with a balloon.

[¡^Regarding the economics of the agreement, Dr. Joyner testified that the three agreed that he and Dr. Harrison would each pay one-half of the expenses of the joint venture and one half of a monthly salary to Liprie. For this, Drs. Joyner and Harrison received 25 percent ownership interest each in the joint venture. Liprie retained 50 percent ownership and would supply all of the materials and intellectual property rights to the low-dose ICRT applications for the exclusive use of the joint venture. Dr. Joyner described his contribution to the venture as follows:

Q: What was Lee Roy Joyner required to bring to the deal to be entitled to a percentage of the profits?
A: The ability to do a clinical study with a resume documenting this has been done many times in the past by Lee Roy Joyner and that this would subsequently then be published not in just peer review literature, but in prestigious peer review literature as directed specifically to the publication of what you’re doing. And further that this new treatment or this new project turns out at least for a period of time changing the way that this disease is treated worldwide....
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I had to pay half of Sam Liprie’s salary at the same level of the salary that he was making of (sic) the time with Omnitron. A hundred and fifty thousand dollars a year. And I had to pay half of the expenses related to the completion of the study down to and including the ... acceptance of this study to be published in the cardiology literature.

At one point in his testimony, Dr. Joyner states that Liprie assured him at the meeting in Atlanta that he would not be required to provide any security. Later in his testimony, Dr. Joyner states that the first he knew of a requirement of security was by way of a letter dated July 15, 1994. There are, in fact, two versions of this July 15th letter in the record. Both letters |4bear the typed names of Lee Roy and Mark as authors. The copy relied on by Dr. Joyner (“the Joyner letter”) outlines the agreement as described above, making no mention of a $2.5 million security requirement. The Joyner letter does refer[246]*246ence efforts to “perfect the Bahamian security agreement,” but Dr. Joyner urges that that is not a reference to any independent security arrangement (for $2.5 million) as suggested by Liprie. Rather, Dr. Joyner’s testimony is to the effect that it was the intent of the three men that the Bahamian project would provide security for the heart project and that it was Dr. Harrison who was pursuing the Bahamian government for a contract. Once that contract came to fruition, it would secure any amount necessary for the heart project. In addition, we note that Dr. Joyner provided financial documents to Chris Verret, an attorney hired by Liprie, ostensibly to prove viability regarding the Bahamian contract, although it is entirely unclear from the testimony exactly what was the purpose of that disclosure.

The second version of the July 15th letter (“the Liprie letter”) is substantially the same as the first, with the addition of the following language:

We fully intend to honor our commitment of 2.5 million even if the project fails. If the project is successful and revenues are forthcoming, we would like to extend to you the option of taking the first 3 million off the top, satisfying our obligation, prior to any distribution to us.

It is this letter that Liprie cites as the first time there was an agreement reached by the three men. Liprie denies that any agreement was reached at the meeting in Atlanta. Interestingly, the Liprie letter bears a facsimile | ^notation that it was faxed from Liprie’s office on July 19, 1994. Dr. Joyner suggests that Liprie altered the letter to include the security language and that it is not the letter he authored and originally submitted to Liprie. Liprie denies this and argues that the parties modified the Joyner letter to reflect the full agreement, including the $2.5 million security requirement. Neither letter has handwritten signatures.

Dr. Joyner further testified that it was around July 13, 1994, that he became aware that Liprie was going to put a deadline on he and Dr. Harrison for providing security. The first deadline according to Dr. Joyner was “August 1994.” A thorough reading of Dr.

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Joyner v. LIPRIE
33 So. 3d 242 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
33 So. 3d 242, 2010 La. App. LEXIS 123, 2010 WL 325919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joyner-v-liprie-lactapp-2010.