United States District Court, D. Vermont
ESTATE OF EVA C. PUPPOLO, CELESTE PUPPOLO, Executor, Plaintiff,
JOHN J. WELCH, JR., J. WELCH, JR., LTD., Defendants.
CHRISTINA REISS, CHIEF JUDGE UNITED STATES DISTRICT COURT
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)
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.
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.
is represented by R. Peter Decato, Esq. Defendant is
represented by David L. Cleary, Esq.
The Undisputed Facts.
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).
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.) 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.
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.
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").
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.
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.
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.
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).
The Undated Opinion.
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
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.
The September 10, 2015 Opinion.
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.
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 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).
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.").
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.").
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.
Attorney O'Toole's December 9, 2015
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.
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.)
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
Attorney O' Toole's August 15, 2016 Opinion.
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
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:
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.
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
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).
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.
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.
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.
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 ...