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Estate of Puppolo v. Welch

United States District Court, D. Vermont

January 31, 2018

JOHN J. WELCH, JR., J. WELCH, JR., LTD., Defendants.



         Plaintiff filed this lawsuit for legal malpractice in May 2014. (Doc. 1.) It is a diversity action. Since filing, it has been assigned to the Hon. Christina Reiss.

         Plaintiff has filed a motion under 28 U.S.C. §§ 144 and 455 seeking to disqualify Judge Reiss from sitting on this case. (Doc. 94.) The defendant has filed an opposition (Doc. 96) and Plaintiff has filed a reply (Doc. 98). Judge Reiss has referred the recusal motion to the undersigned judge for decision. (Doc. 97.)


         Plaintiff Celeste Puppolo is the personal representative of the estate of her late aunt Eva Puppolo. (Aff. of Celeste Puppolo, Doc. 94-8.) Eva Puppolo died in 2003 at the Crescent Manor nursing home in Bennington, Vermont. (Id. ¶ 5.) Plaintiff attributes her aunt's death to an overdose of fentanyl applied through a transdermal patch. (Id.) Following an autopsy, the Chief Medical Examiner concluded that Eva Puppolo died from heart disease. See Puppolo v. Donovan & O'Connor, LLC, 2011 VT 119, ¶ 3, 191 Vt. 535, 35 A.3d 166 (mem.).

         In 2006, Plaintiff filed a medical malpractice action against Crescent Manor. She was represented in that case by attorney Christopher Dodig. (See Doc. 94-8 ¶ 2.) The case was filed too late and dismissed on statute of limitations grounds. (See id, ¶ 3.) In 2008, Plaintiff filed suit against attorney Dodig and his law firm Donovan & O'Connor claiming legal malpractice. She was represented by attorney John J. Welch, Jr. The 2008 case was tried to a defendant's verdict which was upheld on appeal. See Puppolo, 2011 VT 119.

         In the present action, Plaintiff-now represented by attorney R. Peter Decato-has brought suit against attorney Welch for legal malpractice. She alleges that Mr. Welch was negligent in failing to:

• Conduct sufficient discovery;
• Call two important witnesses to testify at trial;
• Introduce certain evidence at trial;
• Take appropriate measures to rebut or impeach the defense witnesses;
• Employ modern forensic hair analysis to document her aunt's low tolerance for fentanyl;
• Avoid the use of an initial, unsigned version of her expert's affidavit; and
• Object to certain testimony.

(See Doc. 1 ¶ 93.) Plaintiff also makes a claim of negligent misrepresentation and two claims of breach of contract. (Id., at 16-18.)

         In support of her negligence claim, Plaintiff identified attorney Thomas O'Toole as her expert witness. Attorney O'Toole practices in Maryland. He previously represented Plaintiff in a medical malpractice action concerning the death of her mother. (Doc. 42-6.)

         Mr. O'Toole provided his expert opinion in stages. In an initial, undated letter, he adopted in conclusory fashion the claims made in the complaint. (Doc. 43-16.) In an opinion letter dated September 15, 2015, Mr. O'Toole supplemented his original disclosure by clarifying that it was his opinion "to a reasonable degree of legal probability that but for such breaches in the standard of care, the Estate would have prevailed at trial on its claims." (Doc. 43-17 at 2.) The letter contains four footnotes which provide supporting detail for the legal malpractice opinion. Note 1 criticizes Mr. Welch for failing to call Dr. Philip Totonelly as an expert witness. Dr. Totonelly is a New York City cardiologist who had previously reviewed the case. Note 2 criticizes Mr. Welch for failing to use a toxicology text purchased by Plaintiff in the course of the trial. Note 3 criticizes Mr. Welch for failing to follow through on the investigation of possible alteration of medical records. Note 4 criticizes Mr. Welch for failing to prevent attorney Dodig from explaining at trial the reasons why he did not pursue the medical malpractice claim in a timely fashion.

         In a third opinion letter dated August 15, 2016, Mr. O'Toole provided a more detailed critique of Mr. Welch's performance. (Doc. 43-12.) Over the course of four pages, he reviewed the black letter law of Vermont relating to legal malpractice and then turned to specific actions taken by Mr. Welch. He criticized Mr. Welch for not developing evidence of misconduct by attorney Dodig which would support a claim for punitive damages. He returned to the issue of the failure to call Dr. Totonelly. He stated that Mr. Welch should have called Brianne DiMaggio and other nurses to testify. On the basis of these shortcomings, Mr. O' Toole concluded that Mr. Welch had caused the estate to lose its case against attorney Dodig.

         Defendant Welch filed a motion seeking dismissal, summary judgment or, in the alternative, an order to exclude the testimony of Mr. O'Toole. (Doc. 42.) Plaintiff filed an opposition. (Doc. 43.) Defendant filed a reply. (Doc. 46.)

         On April 4, 2017, the court held a Daubert hearing concerning the admissibility of attorney O'Toole's testimony. Mr. O'Toole was the only witness. Judge Reiss presided over the hearing. (See Hr'g Tr., Doc. 75.)

         On September 12, 2017, Judge Reiss issued a 34-page decision (Doc. 84) in which she made the ...

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