Estate of Puppolo v. Welch

          CHRISTINA REISS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO ADMIT AUDIO RECORDINGS, DENYING DEFENDANT'S MOTION TO DISMISS, GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR EXPENSES, GRANTING DEFENDANT'S MOTION TO EXCLUDE THE OPINIONS OF THOMAS O'TOOLE, AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING PLAINTIFF'S LEGAL MALPRACTICE CLAIM (Docs. 42 & 76)

         The Estate of Eva C. Puppolo, Celeste Puppolo, Executor ("Plaintiff) brings this action against Defendants John J. Welch, Jr. and J. Welch, Jr., Ltd. (collectively, "Defendant"), alleging four state-law causes of action: legal malpractice (Count I), negligent misrepresentation (Count II), and two counts of breach of contract (Counts III and IV). Pending before the court is Defendant's "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, or in the Alternative, Motion to Preclude Further Opinions, and Motion for Expenses." (Doc. 42.) Defendant seeks dismissal of the action pursuant to Fed.R.Civ.P. 37 and the exclusion of the opinions of Plaintiff s legal malpractice expert, Thomas O'Toole, Esq. pursuant to Fed.R.Evid. 702. Defendant further contends that judgment as a matter of law is warranted because Plaintiff will be unable to establish the essential elements of her legal malpractice claim. Plaintiff opposes Defendant's motions.

         On April 4, 2017, Attorney O'Toole testified at an evidentiary hearing held pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny (the "Daubert hearing"), whereupon the court took the pending motions under advisement. Thereafter, Plaintiff moved to admit certain audio recordings of telephone communications, which she contends are relevant to the issue raised by Defendant's motions (Doc. 76) (the "motion to admit audio recordings"). Defendant opposes admission, arguing that the recordings are irrelevant, are not authenticated, and may have been produced in violation of applicable law. The court took the motion to admit audio recordings under advisement on May 15, 2017.

         Plaintiff is represented by R. Peter Decato, Esq. Defendant is represented by David L. Cleary, Esq.

         I. The Undisputed Facts.

         In this case, isolating the undisputed facts is no easy task. Defendant's Statement of Undisputed Facts is confined to Attorney O'Toole's opinions and does not address the factual allegations underlying Plaintiffs legal malpractice claim. Plaintiffs Statement of Disputed Facts, in turn, fails to respond directly to Defendant's Statement of Undisputed Facts. Both statements contain impermissible legal argument. As a result, the court has confined its recitation of the facts to only those which are supported by admissible evidence as required by Fed.R.Civ.P. 56(c).

         Plaintiff is the niece of Eva Puppolo, who passed away in 2003 while residing at Crescent Manor Care Centers ("Crescent Manor"), a nursing facility and healthcare provider located in Bennington, Vermont. Plaintiff alleges that the administration of a lethal amount of fentanyl caused her aunt's death and maintains that this and other treatment were, "at a minimum, grossly negligent and reckless, and consequently brought about what prudent health practitioners would have known to be certain death." (Doc. 1 at 8, ¶ 55.)^[1] At the time of her death, Eva Puppolo was eighty-two years old (Doc. 56-1) and weighed sixty-eight pounds (Doc. 75 at 58:14-15). Plaintiff retained Christopher S. Dodig, Esq. to prosecute survival and wrongful death claims against Crescent Manor. Attorney Dodig allegedly failed to commence a timely action and his noncompliance with the applicable statute of limitations is the fulcrum of Plaintiff s claims against him.

         Plaintiff thereafter retained Defendant to bring a legal malpractice action against Attorney Dodig and his law firm in the Vermont Superior Court (the "Dodig malpractice action"). The Dodig malpractice action resulted in a defense verdict in January 2010. The Vermont Supreme Court upheld the verdict the following year. See Puppolo v. Donovan & O'Connor, LLC, 2011 VT 119, 191 Vt. 535, 35 A.3d 166. On May 7, 2014, Plaintiff filed the instant action, alleging that Defendant's legal representation breached the applicable standard of care and that he breached several promises to her regarding how the Dodig malpractice action would be prosecuted.

         At the court's Daubert hearing, nineteen exhibits were introduced into evidence, including Attorney O'Toole's expert witness opinions, his deposition transcript, and Defendant's deposition transcript. Attorney O'Toole's opinions are reflected in three documents: an undated opinion served on June 10, 2015 (the "Undated Opinion"), a second opinion dated and served September 10, 2015 (the "September 10, 2015 Opinion"), and a third opinion dated and served August 15, 2016 (the "August 15, 2016 Opinion").

         Attorney O'Toole is currently a named partner in the firm Baroody & O'Toole located in Baltimore, Maryland, and is admitted to practice law in New York, Maryland, and the District of Columbia. Prior to his engagement in this case, Attorney O'Toole has not served as an expert witness. He has practiced law since 1986 and began handling litigation matters in approximately 1995 or 1996, concentrating mainly on personal injury cases and other civil disputes. In approximately the last ten years, Attorney O'Toole has litigated several medical malpractice cases, trying three cases unsuccessfully to verdict. He has handled between five and ten legal malpractice cases over the past five years, although none to verdict. Attorney O'Toole acknowledged that in 2003 the Bar of Maryland suspended him for thirty days for failing to file state and federal income tax returns over a three-year period.

         Attorney O'Toole has known Plaintiff for approximately the past five years. Over four years ago, they discussed the possibility of his representation of Plaintiff in this action. In early 2014, Plaintiff engaged Attorney O'Toole to represent her in multiple medical malpractice actions brought in Maryland and Washington, D.C. arising out of the deaths of her parents. In May of 2014, Plaintiff discharged Attorney O'Toole in three of those actions, accusing him of "running the legal clock in these cases without representing the Plaintiffs best interests[, ]" withholding critical procedural information from her, and failing to communicate with her regularly. (Doc. 74 at 2, Ex. M.) Attorney O'Toole still represents Plaintiff in two of those actions. In his testimony, Attorney O'Toole conceded that this arrangement creates the appearance of a conflict of interest that might impact his credibility, presumably because he has an incentive to offer favorable opinions in exchange for Plaintiff foregoing a legal malpractice action against him.

         In January 2015, Plaintiff disclosed Attorney O'Toole as her legal malpractice expert in this case. Attorney O'Toole and Plaintiff have not entered into a written agreement governing his expert witness services. He is not being compensated on a contingency basis, but rather plans to charge Plaintiff a fee of $300 per hour. Prior to his deposition in this action, Attorney O'Toole maintained no records regarding the hours he spent on this case. Since his deposition, he has recorded his time but has not billed for it. Although Plaintiff gave him several checks for small amounts in partial payment for his services, Attorney O'Toole destroyed them because he believed Plaintiff could not afford to pay him.

         Defendant has not directly challenged Attorney O'Toole's qualifications as an expert witness or asked the court to strike his opinions on that basis. For the purposes of the pending motions, the court assumes without deciding that Attorney O'Toole is qualified to serve as an expert witness on legal and medical malpractice under Vermont law. See In re Exec. Telecard, Ltd. Sec. Litig., 979 F.Supp. 1021, 1024 (S.D.N.Y. 1997) (observing that an expert witness must "at least have a reliable basis in the knowledge and experience of the particular discipline involved") (internal quotation marks omitted).

         A. The Undated Opinion.

         On June 10, 2015, Plaintiff served Attorney O'Toole's Undated Opinion which states as follows:

I have been asked to review certain documents relating to the legal representation rendered by John J. Welch, Jr. ("Mr. Welch") to the Estate of Eva C. Puppolo in its action against Christopher S. Dodig and Donovan & O'Connor, LLC. I have reviewed certain trial transcripts, pleadings, motions, discovery materials, and medical records. Based upon my review and based upon my education, training, experience, and knowledge of the facts of this case, it is my opinion to a reasonable degree of legal probability, that Mr. Welch breached the standard of care in his representation of the Estate in the following ways: failed to call as an expert witness Philip Totonelli, M.D., especially as it pertains to the standard of care relating to the dosing of fentanyl in treating Ms. Puppolo; failed to call witnesses with material information, such as Brianne Dimaggio; failed to present evidence demonstrating that the increase in the size of the wound was due to a tear; failed to challenge the medical testimony of defendants' expert with available scientific information, e.g., Disposition of Toxic Drugs and Chemicals in Man, which was known by and discussed with Mr. Welch; failed to present evidence of the alteration by the medical providers of certain medical records; and elicited testimony from defendant Christopher Dodig regarding defendant Christopher Dodig's opinions about the merits of the underlying medical mal practice case. It is also my opinion to a reasonable degree of legal probability that but for such breaches in the standard of care, the outcome achieved by the Estate would have been different. I reserve the right to amend and/or supplement this report should additional information become available, including, e.g., reviewing the discovery deposition of defendant Welch after it is taken.

(Id., Ex. 13) (spelling in original). A footnote recites Attorney O'Toole's educational background and employment history as follows:

I graduated from law school in 1986 from the Columbus School of Law in Washington, DC. I worked for Mudge Rose Guthrie Alexander & Ferdon in New York for approximately three years[.] . .. Since that time, I have been in private practice, principally with Neal C. Baroody. A portion of my practice involves medical mal practice claims and legal mal practice claims. I have no prior testimony in the last four years. I am to be compensated at $300.00 per hour plus expenses.

Id. at 1 n.l (spelling in original). After the Undated Opinion was served, the parties amended the discovery schedule to provide Plaintiff the opportunity to serve another expert opinion on or before September 10, 2015.

         B. The September 10, 2015 Opinion.

         The September 10, 2015 Opinion includes the information set forth in the Undated Opinion, except that Attorney O'Toole opines that "to a reasonable degree of legal probability . .. but for such breaches in the standard of care, the Estate would have prevailed at trial on its claims." (Id., Ex. 12 at 2.) The September 10, 2015 Opinion adds four footnotes which address Defendant's alleged breaches of the standard of care.

         First, Attorney O'Toole opines that Defendant should not have called Benjamin Glick, M.D. to testify as to Eva Puppolo's cause of death, and should instead have called Plaintiffs preferred expert witness, Philip Totonelly, M.D., who is acting as an expert witness in at least one other case brought by Plaintiff^[2] Attorney O'Toole opines this was a breach of the standard of care for the following reasons:

Mr. Welsh represented to the Court during a pretrial hearing that he could not get in touch with Dr. Totonelli. As a result, he used Dr. Glick. However, Dr. Totonelli has informed the undersigned that Mr. Welsh never attempted to contact him in connection with this matter. Dr. Totonelli is a clinician, with years of experience treating patients, including those suffering from pain. Dr. Glick, on the other hand, is a medical examiner with no experience treating patients. Choosing a medical examiner with no personal experience treating patients is not reasonable under the circumstances, especially when an experience clinician was available. Dr. Totonelli is also a cardiology specialist who would have explained how the manner in which Ms. Puppolo passed was consistent with a fentanyl overdose. The decision to use Dr. Glick instead was not in good faith.

Id. at 1 n.l (spelling in original).

         Second, Attorney O'Toole opines that Defendant should have cross-examined Attorney Dodig's medical witnesses with the textbook Disposition of Toxic Drugs and Chemicals in Man. See Id. at 1-2 n.2 (stating "Plaintiff has evidence where Mr. Welch promised to use the text in the case. In furtherance of the promise, [Plaintiff] acquired at great expense a copy of the book for trial.").

         Third, Attorney O'Toole opines that Defendant failed to present evidence that Crescent Manor employees had altered Eva Puppolo's medical records. See Id. at 2 n.3 (stating Defendant "encouraged [Plaintiff] to pursue evidence of alteration and agreed to use such evidence if discovered. [Plaintiff] retained a company to examine the records. It was determined that certain records had been altered. He breached that promise when he failed to present such evidence during trial.").

         Fourth, Attorney O'Toole criticizes Defendant's decision to elicit Attorney Dodig's opinions regarding the merits of Plaintiff s medical malpractice claim against Crescent Manor:

Mr. Dodig's reasons for not pursuing the claims were not relevant to the case-only his failure to properly advise the client as to the appropriate statute of limitations. Allowing Mr. Dodig to testify to the reasons, primarily medical, as to why he did not pursue the claims was extremely prejudicial and only served to bolster the defendants' case. Allowing such testimony was not reasonable and a breach of the standard of care.

Id. at 2 n.4.

         C. Attorney O'Toole's December 9, 2015 Deposition.

         Defendant noticed Attorney O'Toole's deposition, which was scheduled to take place on December 9, 2015 in Baltimore, Maryland. The Notice of Deposition (the "Notice") directed Attorney O'Toole to bring to the deposition "[h]is complete file" and any correspondence in connection with this action relating to his compensation, the "identification of facts or data that the plaintiffs attorney provided and that the expert considered in forming the opinions to be expressed[, ]" and the "identification of assumptions that the plaintiffs attorney provided and that the expert relied on in forming the opinions to be expressed." (Ex. C at 1.) The Notice further instructed Attorney O'Toole to bring "[a]ll invoices, bills, or other statements for services in connection with his work" in this action. Id. at 2.

         The day before Attorney O'Toole's scheduled deposition, Defendant's counsel informed the court that Plaintiff sought to reschedule Attorney O'Toole's deposition so that he could review Defendant's file, which purportedly had not yet been produced in full. At a telephone conference held on December 8, 2015, the court ordered the deposition to proceed and made the following inquiry:

THE COURT: So how is he going about and writing reports and rendering legal opinions without seeing [Defendant's file]? So he filed these reports. It's time for the deposition. It is going to go forward. If you want to take a second deposition and he changes his opinion based on the review of the files, you may ask to do so, but this is no surprise to him that he is going to be deposed, and if this possession of this file was a condition precedent to him issuing an opinion, why did he issue opinions?

MR. DECATO: I understand, your Honor.

(Doc. 39 at 8:11-21.)

         Attorney O'Toole's deposition took place as scheduled. At his deposition, Attorney O'Toole identified six acts or omissions by Defendant that allegedly breached the applicable standard of care in his handling of the Dodig malpractice action: (1) failing to call Dr. Totonelly as an expert witness; (2) failing to call Brianne Dimaggio as a fact witness; (3) failing to present evidence that Eva Puppolo's ulcer had been caused by a tear; (4) failing to introduce evidence from the textbook and other articles Plaintiff had obtained; (5) failing to present evidence that Crescent Manor employees had altered Eva Puppolo's medical records; and (6) eliciting damaging testimony from Attorney Dodig regarding the merits of the underlying medical malpractice case. Attorney O'Toole acknowledged that he did not fully read the Notice and, as a result, he did not bring to the deposition the documents required to be produced.

         D. Attorney O' Toole's August 15, 2016 Opinion.

         On February 29, 2016, at the parties' joint request, the court ordered Plaintiff to file any amended expert report "within forty-five (45) days of the receipt of the transcript of the completed deposition of Defendant, which is to occur by May 15, 2016[.]" (Doc. 41.) On July 14, 2016, Defendant moved for summary judgment, noting that Plaintiff had failed to serve an amended expert report within the time period ordered by the court and arguing that Attorney O'Toole's two prior opinions failed to comply with Fed.R.Civ.P. 26. Defendant sought dismissal of the action and the preclusion of further opinions by Attorney O'Toole.

         One month later, Plaintiff opposed the motion to dismiss and served the August 15, 2016 Opinion. In that four-page opinion, Attorney O'Toole opines as follows:

         Having read Mr. Welch's deposition transcript and having read the transcript of telephonic conversations pertaining to this matter, I provide the following supplementation of my previous reports on the captioned matter.

         In a legal malpractice action, a plaintiff must prove that the attorney was in fact negligent and that this negligence was the proximate cause of the plaintiffs injury. (See, Fleming v. Nicholson, 168 Vt. 495, 497, 724 A.2d 1026, 1028 (1998)). In a legal malpractice action, the required standard of conduct is the exercise of professional care and skill. Hamilton v. Sommers, 2014 S.D. 76, ¶ 1, 855 N.W.2d 855, 858. Vermont appears to recognize the doctrine of judgmental immunity. Roberts v. Chimileski, 2003 VT 10, 175 Vt. 480, 820 A.2d 995. Under the doctrine of judgmental immunity, an attorney is not liable for acts and omissions in the conduct of litigation which are based on an honest exercise of professional judgment.

         It is my opinion, held to a reasonable degree of legal probability, that Mr. Welch departed from the standard of skill and care held out for the legal profession in the State of Vermont. In my opinion Mr. Welch has not exercised the professional care and skill expected of a Vermont attorney litigating a case where the main goal is to obtain punitive damages. It is further my opinion that Mr. Welch isn't or shouldn't be protected by the judgmental immunity doctrine as the evidence supports that Mr. Welch didn't act in good faith and upon an informed judgment after undertaking reasonable research of the relevant legal princip[le]s and facts of the given case. See, e.g., Smith v. Lewis, 13 Cal.3d 349, 530 P.2d 589, 595, 118 Cal.Rptr. 621 (Cal. 1975).

         Even though Mr. Welch intended to seek punitive damages, he testified that he wasn't familiar with Pion v. Bean, 2003 VT 79, 176 Vt. 1, 833 A.2d 1248. However, he conceded that Pion accurately described the law in the State of Vermont as it existed in 2010. Pion says that punitive damages are appropriate where there has been a showing of actual malice or a showing of conduct manifesting personal ill will or conduct carried out under circumstances evidencing insult or oppression, or even by conduct showing a reckless or wanton disregard of one's rights will suffice.

         In his deposition, Mr. Welch indicated that the basis of the wrongful death action would have been related to administering too much fentanyl and that he intended to get punitive damages by showing reckless and wanton behavior. If getting punitive damages was Mr. Welch's goal, he failed to pursue and utilize the available evidence to establish malice or reckless and wanton behavior.

         I mentioned the evidence Mr. Welch ignored in my earlier opinion(s): Mr. Welch failed to call as an expert Philip Totonelly, M.D., especially as it pertains to the standard of care relating to the dosing of fentanyl in treating Ms. Puppolo; failed to call witnesses with material information, such as Brianne DiMaggio; failed to present evidence demonstrating that the increase in the size of the ulcer was due to a tear; failed to challenge the medical testimony of defendants' expert with available scientific information, e.g., Disposition of Toxic Drugs and Chemicals in Man, which was known by and discussed with Mr. Welch; failed to present evidence of the alteration by the medical providers of certain medical records; and elicited testimony from defendant Christopher Dodig regarding the merits of the underlying medical malpractice case.

         I am concerned by the fact that Mr. Welch represented to the trial court that he chose not to use Dr. Totonelly because he attempted to contact him on a plurality of occasions and was unable to reach him. I called Dr. Totonelly and had no trouble reaching him. When I did reach Dr. Totonelly, he indicated that Mr. Welch had never tried to contact him. Mr. Welch testified that he could understand why Celeste Puppolo believed he ...