Why do businesses need lawyers? Examine the Medfusion vs. Allscripts case.

Taking on an industry giant like AllScripts, Triangle-based Medfusion already is the “David” in a multi-million-dollar lawsuit over revenues it says are due from patient portal medical information services.

But the deciding factor may be a comma, not a smooth stone.

The N.C. Business Court in Greensboro, founded to handle complex business cases, is now all wrapped up in the meaning of commas. As in the “Oxford Comma.”

A former editor of the UNC-Chapel Hill Law Review examined what’s at stake in the multi-million-dollar lawsuit Medfusion filed against AllScripts, a case that could turn on a comma.

In a ruling issued on March 31 by the Business Court and first reported by lawyer Mack Sperling of the firm Brooks Pierce in the National Law Review on Friday, Sperling notes:

“The contractual language at issue was in an agreement between the Plaintiff and Defendant to market an ‘online patient portal.’ … It said that ‘in no event shall either party be liable for any loss or damage to revenues, profits, or goodwill or other special, incidental, indirect, or consequential damages of any kind, resulting from its performance or failure to perform under this agreement. . . .’ 

“Medfusion then sued Allscripts for $4 million of lost profits and revenues notwithstanding that provision, and the parties offered different interpretations of the limitation of liability (LOL) provision.  As Judge McGuire described those interpretations, the Defendant’s contention was:

“that the comma before ‘or goodwill’ is an Oxford, or serial, comma that sets apart three independent categories of damages barred by the agreement. . . . [U]nder this interpretation, lost revenues are barred.

“The Plaintiff’s argument was that:

“the ‘or other . . . consequential damages’ language modifies ‘revenues, profits, or goodwill’ to make clear that these categories of damages are only excluded to the extent that they are considered consequential.”

“So, who prevailed in this tussle over the effect of the Oxford Comma? Neither party, as the Court ruled that the provision was susceptible to either interpretation, and therefore ambiguous. “


Here’s how Oxford Dictionaries defines the Oxford Comma:

“The ‘Oxford comma’ is an optional comma before the word ‘and’ at the end of a list:

“We sell books, videos, and magazines.”

“It’s known as the Oxford comma because it was traditionally used by printers, readers, and editors at Oxford University Press.  Not all writers and publishers use it, but it can clarify the meaning of a sentence when the items in a list are not single words.”

So will a jury trial over the meaning of the Oxford Comma sentence be next?

Read more from Sperling at: http://www.natlawreview.com/article/nc-business-court-takes-oxford-comma

Read the entire court filing at: http://www.ncbusinesslitigationreport.com/uploads/file/2015NCBC31.pdf

Sperling, by the way, graduated from UNC’s law school with honors in 1983.