United States District Court, D. Vermont
ESTATE OF EVA C. PUPPOLO, CELESTE PUPPOLO, Executor, Plaintiff,
JOHN J. WELCH, JR., J. WELCH, JR., LTD., Defendants.
ORDER ON MOTION FOR RECUSAL AND ON MOTION TO
SUPPLEMENT (DOCS. 94, 99)
GEOFFREY W. CRAWFORD, CHIEF JUDGE UNITED STATES DISTRICT
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.
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.)
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.).
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.
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
• 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.)
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.)
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.
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
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.)
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.
September 12, 2017, Judge Reiss issued a 34-page decision
(Doc. 84) in which she made the ...