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Long v. Parry

United States District Court, D. Vermont

February 29, 2016

RAYMOND A. LONG, M.D., Plaintiff,



Dr. Raymond Long brings the present action against his former attorney, Lloyd George Parry, Esq., and the law firm of Davis, Parry & Tyler, P.C. (collectively “Parry”). In his amended complaint, filed on November 20, 2014, Dr. Long asserts six causes of action. Specifically, he alleges professional negligence, breach of contract, breach of fiduciary duty, violation of consumer protection laws, abuse of process, and malicious prosecution.

Now before the Court are (1) Parry’s motion for summary judgment (ECF No. 102); (2) Dr. Long’s cross-motion for partial summary judgment (ECF No. 142); (3) Dr. Long’s second cross-motion for partial summary judgment (ECF No. 154);[1] (4) Dr. Long’s motion for leave to file a second amended complaint (ECF No. 97); (5) Parry’s motion to file documents under seal (ECF No. 137); (6) Parry’s motion to seal exhibits to Dr. Long’s opposition to summary judgment (ECF No. 138); (7) Parry’s motion to seal exhibits to Dr. Long’s second motion for partial summary judgment (ECF No. 156); (8) Parry’s motion for sanctions (ECF No. 123); (9) Parry’s motion to strike and to exclude the report and opinions of William Jarvis, M.D. (ECF No. 107); and (10) a motion to quash subpoenas to testify at a deposition filed by non-parties Steven Sobel, M.D. and Kathryn Kirkland, M.D. (ECF No. 111). For the reasons explained below, the Court grants Parry’s motion for summary judgment, and denies Dr. Long’s cross-motions for partial summary judgment and motion to amend. The Court also grants in part and denies in part all three of Parry’s motions to seal. The case is therefore dismissed, and the remaining motions are denied as moot.


The case at bar arises out of Parry’s representation of Dr. Long in a lawsuit regarding the termination of Dr. Long’s employment as a member of the medical staff at Northwestern Medical Center (“NMC”) in St. Albans, Vermont. See Long v. Triad Hosps. Inc., No. 2:05-cv-21 (D. Vt. Filed Jan. 24, 2005) (“Triad”). Because the Court’s ruling in the present matter requires a thorough understanding of Triad, a detailed account of that case is presented below.

I. Dr. Long’s Tenure at Northwestern Medical Center

In September 2001, Dr. Long obtained privileges to conduct his practice as an orthopedic surgeon at NMC for a provisional period of one year. By all accounts, Dr. Long’s relationship with the staff at NMC immediately became contentious. Dr. Long had frequent relational issues with both the staff in the operating room and NMC CEO Peter Hofstetter. As a result, at the end of Dr. Long’s provisional period, NMC’s Chair of Surgical Services, Michael Burfoot, wrote a letter to the Chair of the Credentialing Committee recommending that the hospital maintain Dr. Long’s privileges on a provisional basis for an additional six months. Although the hospital did not accept Dr. Burfoot’s recommendation, it did postpone its decision of whether to grant Dr. Long active privileges until NMC’s Surgical Service Subcommittee for Quality Assurance completed its review of Dr. Long’s surgical cases.

In December 2002, shortly after learning that NMC had delayed its decision regarding his privileges, Dr. Long retained Attorney Gary McQuesten of Valsangiacomo, Detora & McQuesten, P.C. to represent him in his dealings with the hospital. Dr. Long met with NMC’s Medical Executive Committee the following month, and on February 25, 2003, the hospital granted Dr. Long his active-status privileges. Nonetheless, the troubles between Dr. Long and NMC persisted. In March 2003, Attorney McQuesten sent a letter to counsel for NMC requesting that the hospital remove Dr. Burfoot’s letter to the Credentialing Committee from Dr. Long’s peer review file, and alleging that Dr. Long was aware of “no fewer than four serious incidents that . . . could have potentially impacted patient care, ” that were “motivated by some effort on the part of the staff to retaliate against Dr. Long for his success in gaining privileges.” ECF No. 102-2 Ex. G. Dr. Long later filed a formal complaint with NMC and sent at least two additional letters to the hospital’s counsel, each of which included accusations that certain staff at NMC had intentionally interfered with Dr. Long’s ability to practice medicine. See, e.g., ECF No. 102-2 Ex. I (letter from Attorney McQuesten to counsel for NMC alleging “an orchestrated effort by CEO Hofstetter and others to interfere with the ability of [Dr. Long] to practice medicine, interfere with his right to do so both at the hospital and with patients, and to attempt to disrupt his practice of medicine, disrupt the care of his patients, and adversely affect his career.”). Counsel for NMC responded to Dr. Long’s accusations with a letter addressing each of his expressed concerns and explaining that the hospital had not treated Dr. Long differently than any other physician.

Between November and December 2003, as the letters went back and forth between the attorneys for Dr. Long and the hospital, Dr. Long conducted three shoulder surgeries in which his patients subsequently contracted infections with staphylococcus aureus bacteria. In addition, Dr. Long performed two surgeries in late December 2003 that also resulted in infections--one by the water-borne bacteria serratia marcescens and the other by pseudomonas aeruginosa. Dr. Long quickly hypothesized that the latter two infections had resulted from intentional contamination of a solution he had used during the surgeries, and to test his theory, he instructed a nurse to draw a sample from a bag of solution that had been prepared for his use in a later surgery. Dr. Long then submitted the sample for testing to Fletcher Allen Health Care, which reported that the solution was heavily contaminated with staphylococcus aureus bacteria.[2]

In February 2004, after receiving the test results from Fletcher Allen, Dr. Long reported his theory of intentional contamination to the Vermont Attorney General’s Office, the U.S. Attorney’s Office in Vermont, the Vermont Medical Board, and the Joint Commission on Accreditation of Healthcare Organizations. None of those agencies found NMC or any individual associated with the hospital to be criminally or civilly liable for the infections at issue. Moreover, the following month, Attorney McQuesten wrote a letter to NMC’s attorney explaining Dr. Long’s theory that individuals at the hospital had intentionally contaminated Dr. Long’s surgeries in order to achieve a number of goals, including destroying Dr. Long’s reputation and career by “causing serious injury or death to his patients.” ECF No. 102-2 Ex. L at 4. The letter indicated that Dr. Long had consulted with an infectious disease expert who confirmed that the relevant infections “could only take place as a result of outside introduction to the operating room setting.” ECF No. 102-2 Ex. L at 2. It concluded by asking the hospital to utilize a polygraph machine and an expert on corporate psychopaths to determine the root cause of the infections.

Several days later, on April 4, 2004, Attorney McQuesten issued a press release describing the infections suffered by Dr. Long’s patients and indicating that NMC was under a criminal investigation for intentional contamination. The press release suggested that individuals associated with the hospital deliberately caused the contamination as a means to retaliate against Dr. Long for his inquiry into NMC’s anesthesia complication rates. Simultaneous to the press release, Dr. Long participated in an interview with a local television news program. During the interview, Dr. Long reiterated his belief that the hospital intentionally contaminated the solution he used in the relevant surgeries “as part of a plot to harm his patients and ruin his career.” ECF No. 102-2 Ex. V.

The following day, on April 5, 2004, Dr. Long and Attorney McQuesten met with NMC’s Medical Executive Committee regarding a peer review of Dr. Long. In light of Dr. Long’s repeated disputes with hospital staff and administration, as well as his strong conviction that employees of NMC were conspiring against him, a request for a corrective action review had previously been submitted to the Medical Executive Committee. The Medical Executive Committee had referred the matter for investigation to the Ad Hoc Committee of the Surgical Service, which issued a report on March 16, 2004. Immediately following its meeting with Dr. Long and Attorney McQuesten, the Medical Executive Committee released a decision recommending that NMC’s Board take corrective action against Dr. Long.

In its recommendation, the Medical Executive Committee explained that it had “carefully reviewed the extensive history of Dr. Long’s disputes with hospital administration and certain members of the hospital and medical staffs.” ECF No. 102-2 Ex. W at 1. It proceeded to state that it was troubled by “Dr. Long’s apparent conviction that he is a victim of a criminal conspiracy on the part of the hospital CEO (and unidentified others), ” and that based on its observations of Dr. Long, it was “deeply concerned as to his emotional stability and psychological well being.” ECF No. 102-2 Ex. W at 1. As a result, the Committee requested that the Board require Dr. Long to “undergo a psychiatric evaluation in order to determine his present mental capacity to effectively and safely provide patient care” within 30 days of its recommendation. ECF No. 102-2 Ex. W at 1. The Committee further suggested that Dr. Long be required to provide “written notice that he will not perform any surgical procedures pending the Committee’s receipt, review, and response to the evaluation report.” ECF No. 102-2 Ex. W at 2. In the event that Dr. Long was unwilling to comply with such recommendations, the Committee indicated that it would summarily suspend his medical staff privileges. Finally, the Committee urged the hospital to retain an outside infectious disease consultant to conduct “a comprehensive quality assurance review of post-operative infection rates, causes, and remedial actions.” ECF No. 102-2 Ex. W at 2. The review was to include the post-operative shoulder infections identified by Dr. Long.

On April 6, 2004, NMC sent Dr. Long a copy of the Committee’s Memorandum Decision as well as a letter explaining his right to request a fair hearing to contest the Committee’s recommendation. Rather than request a fair hearing, however, Dr. Long decided to resign. On April 7, 2004, Dr. Long notified the hospital that he was resigning his privileges, and on April 28, 2004, the NMC Board accepted his resignation. As required by the Health Care Quality Improvement Act, the hospital proceeded to file an adverse action report with the National Practitioner Data Bank indicating that Dr. Long had resigned while a corrective action was pending.

On May 4, 2004, nearly a month after submitting his notice of resignation, Dr. Long sent a letter to NMC’s counsel demanding a fair hearing. The hospital denied Dr. Long’s request on the ground that he had voluntarily resigned his privileges.

II. The Triad Suit

In October 2004, Dr. Long contacted Attorney Lloyd George Parry to discuss the possibility of bringing a legal action against NMC. Parry met with Dr. Long in his Philadelphia office on several occasions, and prior to accepting the case, he asked Dr. Long to undergo a psychological evaluation. Dr. Long agreed to the evaluation, and the psychologist found nothing of concern. Parry subsequently agreed to take the case.

On October 28, 2004, Parry and Dr. Long signed a Contingent Fee Agreement in Parry’s office in Philadelphia. The agreement provided that Parry would represent Dr. Long “in connection with any and all legal claims which [Dr. Long] may have arising out of actions taken by Northwestern Medical Center, Inc. (“NMC”) of St. Albans, Vermont, Peter Hofstetter, Michael Burfoot and others in connection with the grant, reduction, or denial of [his] privileges at NMC and any related damage, harm or injury caused to [him].” ECF No. 102-2 Ex. HH at 1. In exchange, the contract entitled Parry to 33 1/3% of any recovery, as well as a $20, 000 non-refundable, initial fee paid by Dr. Long.[3] The contract also indicated that Dr. Long would be responsible for the costs of litigation.

In advance of filing suit, Dr. Long worked closely with Parry to draft the complaint. When finished, the pleading sought $40 million in damages on the ground that certain individuals at NMC had conspired to destroy Dr. Long’s career in order to eliminate competition and to retaliate against Dr. Long for his seeking information regarding anesthesia complication rates at the hospital. The complaint included a federal antitrust claim, as well as numerous state law claims ranging from tortious interference with business to breach of contract. Parry filed the complaint in January 2005.

Around the time the complaint was filed, Dr. Long contacted Attorney Karin Zaner of Kane, Russel, Coleman, & Logan, P.C.

The Kane firm was based in Texas and had recently achieved a substantial jury verdict on behalf of a physician in a high-profile hospital privilege suit. According to Dr. Long, Parry suggested that he contact Zaner to inquire into the firm joining his suit as co-counsel to assist with the federal antitrust claim.[4] After receiving Dr. Long’s inquiry, Zaner reviewed the facts of the case and sent Dr. Long an email indicating that there was a “very good chance” that Dr. Long would not recover any damages given the immunities frequently afforded to hospitals. ECF No. 102-2 Ex. JJ. Nevertheless, Zaner offered to accept the case provided that Dr. Long agree to a 10% contingency fee on top of Zaner’s reduced hourly rate. Dr. Long consented to that arrangement and signed a retainer with the Kane firm. At the time of signing the retention agreement, Dr. Long was aware that his obligation to pay the Kane firm was entirely separate from his obligation to pay Parry.

During the next three years, Parry devoted a significant portion of his practice to Dr. Long’s suit. Parry began by focusing on motions practice, hearings, discovery, and depositions, while Zaner developed Dr. Long’s antitrust claims. Over time, Zaner came to express concerns about the antitrust claims’ viability. Specifically, she noted in a letter to Dr. Long that she was uncertain as to whether the evidence supported several elements of the claims, including (1) a concerted action between two people; (2) an unreasonable restraint of trade; and perhaps most importantly (3) an adverse effect in the relevant geographic market. As Zaner wrote in her letter, “[i]f the Court were to determine that Burlington should be included with St. Albans as part of the same geographic market, then the antitrust claims most certainly would be dismissed.” ECF No. 102-2 Ex. RR at 4.

Approximately ten months into the case, Dr. Long fell behind on his payments to the Kane firm. Zaner informed Dr. Long that she could not continue to work on his case until his bill was brought current, and after several additional months of nonpayment, Zaner transferred the antitrust work to Parry. In her transfer letter to Parry, Zaner indicated that Dr. Robert Maness, the expert she had retained to conduct the initial analysis of Dr. Long’s antitrust claims, had opined that St. Albans and Burlington are most likely too close together to be considered separate geographic markets. Accordingly, Zaner recommended that Parry consider retaining a different expert, Dr. Clifford Fry, who was “much more open to the prospect that St. Albans and Burlington could be considered separate geographic markets.” ECF No. 102-2 Ex. SS at 2.

After three years of extensive discovery, including 30 depositions and thousands of pages of documents, mediation was scheduled for January 2008. It is undisputed that at that time, Dr. Long had retained Dr. Clifford Fry to offer expert testimony supporting Dr. Long’s antitrust claim and request for damages. It is also undisputed that Dr. Long had recently spoken to Dr. William Jarvis about providing an expert opinion on the source of the infections that resulted from Dr. Long’s surgeries.[5]Moreover, despite three years of active litigation, the parties agree that although discovery provided some support for the theory that the relevant infections were intentional, it did not reveal any evidence demonstrating that the infections were caused by the Triad defendants, or that the Triad defendants acted with an anticompetitive motive.

The two-day mediation began in Philadelphia on January 4, 2008. Prior to sitting down, the Triad defendants had provided Dr. Long with a copy of their mediation statement explaining the various bases on which they intended to obtain summary judgment. Included in their list of arguments were both the voluntariness of Dr. Long’s resignation and the immunities provided by the Health Care Quality Improvement Act. According to Dr. Long, he and Parry began the mediation with a demand for $20 million.[6]The defendants countered with $50, 000, and for the remainder of the two-day period, neither side made any significant movement.

To the surprise of Dr. Long and Parry, the mediator approached them at the end of the second day and asked whether they would be interested in settling the case for $4 million. Both Dr. Long and Parry responded in the affirmative, and the mediator returned shortly thereafter to inform them that he had secured such an offer from the hospital’s insurer. Dr. Long and the insurer proceeded to sign an agreement, which provided in part that “[t]he insurers for the defendants shall pay $4 million to the plaintiff and his attorneys, ” that the case “shall be dismissed with prejudice, ” and that Dr. Long “shall deliver a general release of all claims against all defendants . . . .” ECF No. 102-2 Ex. KK. Dr. Long later reported that he was pleased with the settlement.

III. Parry’s Declaratory Judgment Action

Shortly after the settlement was reached, Dr. Long began a series of attempts to renegotiate the contracts that he had entered into with the various professionals that had assisted him with his case. Dr. Long reached an agreement with Attorney Zaner to reduce her 10% contingency fee by half. He also alleged to have negotiated a reduction in Attorney McQuesten’s fee, and he declined to pay the bill of his antitrust expert, Dr. Fry. In addition, Dr. Long engaged in a fee dispute with Parry. According to Dr. Long, upon his request, Parry agreed to cover the unpaid costs of litigation, which amounted to $30, 070. Parry disputes Dr. Long’s assertion, indicating that although he told Dr. Long he would address the matter with his partners, ultimately he declined to relieve Dr. Long of his obligation to pay the outstanding litigation costs due to the clear language in the Contingent Fee Agreement and the amount of work that he had put into the case.

When it came time to distribute the settlement funds, Dr. Long instructed the hospital’s insurer to send him a check for $2.32 million. The insurer sent the remaining $1.68 million to Parry. Of the amount disbursed to Parry, Dr. Long requested that Parry pay $200, 000 to Attorney Zaner and $155, 000 to Attorney McQuesten. Complying with Dr. Long’s request, however, would have left Parry with $1, 325, 000--$8, 333 short of Parry’s 33% contingency fee, and without additional funds to cover the $30, 070 of unpaid litigation costs. As a result, Parry paid the full $200, 000 to Zaner and only $116, 296.49 to McQuesten. He then placed the disputed $38, 403 in escrow.

For the remainder of 2008, Dr. Long, Parry, and McQuesten attempted to reach a resolution regarding the disputed $38, 403. Their efforts proved futile, however, and in December 2008, Parry and his firm filed a declaratory judgment action seeking to establish their entitlement to the funds. Over the next sixteen months, the declaratory judgment action proceeded without resolution. Due to the costs of litigation, Parry and his firm voluntarily dismissed the suit and released the funds to Dr. Long in the spring of 2010.

IV. The Present Suit

Dr. Long initiated the present suit against Parry on April 24, 2012. In his six-count amended complaint, Dr. Long brings claims of professional negligence, breach of contract, breach of fiduciary duty, and violation of consumer protection laws arising from Parry’s performance in the Triad litigation. Dr. Long also asserts claims of abuse of process and malicious prosecution relating to Parry’s subsequent declaratory judgment action.

Parry now moves for summary judgment on all counts. Dr. Long opposes Parry’s motion and cross-moves for partial judgment in his favor. In addition, Dr. Long moves for leave to file a second amended complaint to add allegations of deceit and fraud. Several other non-dispositive motions are also pending before the Court.


I. Cross-Motions for Summary Judgment (ECF Nos. 102, 142, & 154)

A. Legal Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, when deciding a motion for summary judgment, courts must examine the evidence in the light most favorable to the nonmoving party, Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir. 2003), and “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought, ” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).

Although the moving party bears the burden of establishing the absence of any genuine issue of material fact, Anderson, 477 U.S. at 256, in defending against a motion for summary judgment, the nonmoving party may not rely on “mere conclusory allegations, speculation or conjecture, ” Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). Rather, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and must “make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial, ” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The same legal standard applies where, as here, the parties have filed cross-motions for summary judgment. Morales v. Quintel Entertainment, Inc., 249 F.3d 115, 121 (2d Cir. 2001). That is, “each party’s motion must be examined on its own merits, and in each case, all reasonable inferences must be drawn against the party whose motion is under consideration.” Id.

B. Professional Negligence (Count I)

Parry first moves for summary judgment on Dr. Long’s claim of attorney negligence. Under Vermont law, to succeed on a claim for attorney negligence, a plaintiff must prove “(1) the existence of an attorney-client relationship which establishes a duty of care; (2) the negligence of the attorney measured by his or her failure to perform in accordance with established standards of skill and care; and (3) that the negligence was the proximate cause of harm to plaintiff.” Hedges v. Durrance, 834 A.2d 1, 3 (Vt. 2003). The measure of harm in a malpractice suit is “all damages proximately caused by the wrongful act or omission.” Bloomer v. Gibson, 912 A.2d 424, 432 (Vt. 2006).

In the present case, Dr. Long’s amended complaint asserts that Parry breached his duty to Dr. Long in a number of different ways. Principally, Dr. Long submits that Parry failed to develop certain evidence, including a report from an infectious disease expert showing that someone at NMC likely contaminated Dr. Long’s operations. Had Parry advanced such evidence, Dr. Long claims that he would have received a larger settlement or a more favorable jury verdict. In addition, Dr. Long alleges several other instances in which Parry deviated from the established standards of skill and care. Those instances support alternative theories of damages, and include Parry’s purported failure to (1) provide Dr. Long with tax advice regarding the settlement of Triad; (2) advise Dr. Long that he was responsible for the costs of litigation and additional counsel; (3) obtain a fair hearing for Dr. Long; and (4) persuade NMC to void its adverse action report to the National Practitioner Data Bank. The Court will address each of Dr. Long’s allegations in turn.

1. Failure to Develop and Use Evidence

As noted above, Dr. Long’s primary claim for damages centers on the assertion that Parry’s failure to develop certain evidence deprived Dr. Long of a more favorable outcome in his underlying case. Parry now moves for summary judgment on that claim, arguing that Dr. Long has not made a sufficient showing to establish the elements of causation and damages. For the reasons explained below, the Court agrees with Parry’s contention.

Under Vermont law, a claim for attorney negligence cannot succeed where the alleged damages are based purely on speculation. Hedges, 834 A.2d at 6 (citing Fritzeen v. Gravel, 830 A.2d 49, 54 (Vt. 2003)). In his motion for summary judgment, Parry submits that Dr. Long’s alleged damages are inherently speculative, as it is precisely the uncertainty of recovery at trial--or through settlement at some point in the future--that compels a party to settle. In addition, Parry maintains that Dr. Long’s underlying case faced two dispositive defenses that would have prevented the case from proceeding past summary judgment. Namely, Parry asserts that Dr. Long’s suit would have been barred by his voluntary resignation from NMC, as well as the Triad defendants’ immunity under the Health Care Quality Improvement Act. Given those weaknesses, along with the uncertainty intrinsic to a claim for damages based on an allegedly inadequate settlement, Parry argues that summary judgment is appropriate.

In his response, Dr. Long claims that the damages he seeks--the difference between his $4 million settlement and what he alleges that he would have achieved at trial or through a subsequent settlement had the case been tried competently--are not, in fact, speculative. According to Dr. Long, the $6 million estimate of his economic losses that he received from his antitrust expert in Triad was unreliable, and he currently has a new expert who estimates that his damages were much greater. Moreover, Dr. Long disputes the assertion that he faced significant hurdles in Triad, and cross-moves for partial summary judgment on the underlying issues of whether his resignation was voluntary and whether the Triad defendants were entitled to immunity under the Health Care Quality Improvement Act. Because he claims that he would have prevailed on those issues in Triad, Dr. Long submits that Parry’s summary judgment motion should be denied.

Determining whether Dr. Long voluntarily resigned from NMC and whether the Triad defendants were entitled to immunity under the Health Care Quality Improvement Act has a significant impact on the extent to which Dr. Long’s current claim for damages is speculative. Accordingly, the Court addresses each of those issues below.

a. Dr. Long’s Departure from NMC

With respect to Dr. Long’s departure from NMC, the Court finds that Dr. Long voluntarily resigned. As this Court has previously recognized, “[a]n employee who resigns is presumed to have done so voluntarily.” Brown v. Windham Northeast Supervisory Union, No. 2:05-CV-329, 2006 WL 2548198, at *10 (D. Vt. Aug. 31, 2006) (citing Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999); Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995); Angarita v. St. Louis Cty., 981 F.2d 1537, 1544 (8th Cir. 1992)). In order to overcome that presumption, the employee must establish that his or her resignation was involuntarily extracted through either duress or deception. Id. Demonstrating a claim of involuntary resignation by means of duress requires an employee to show that he “reasonably believed that he ‘had no other choice but to quit.’” Id. (quoting Lighton v. Univ. of Utah, 209 F.3d 1213, 1222 (10th Cir. 2000)). In analyzing such a claim, courts utilize a totality-of-the-circumstances test, considering factors such as: “‘(1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee was given a reasonable time in which to choose; (4) whether the employee was permitted to select the effective date of the resignation; and (5) whether the employee had the advice of counsel.’” Id. (quoting Hargray, 57 F.3d at 1568).

Here, Dr. Long claims that his resignation was the product of duress. In support of his position, Dr. Long asserts that NMC failed to properly investigate the cause of the infections resulting from the operations he conducted in the final months of 2003. Consequently, when presented with the Medical Executive Committee’s Memorandum Decision, Dr. Long claims that his only reasonable option was to resign, for complying with the Committee’s recommendations would risk the health of his future ...

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