Estate of Puppolo v. Welch

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 88)

          Christina Reiss, United States District Court District Judge

         Plaintiff Estate of Eva C. Puppolo (the "Estate"), Celeste Puppolo, Executor brings this action against Defendants John J. Welch, Jr. and John J. Welch, Jr., Ltd. (collectively, "Defendants"), 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). On September 12, 2017, the court granted partial summary judgment in Defendants' favor and dismissed Count I.

         Pending before the court is Defendants' motion for summary judgment on the remaining counts. With respect to Counts II and III, Defendants argue that Plaintiff alleges claims duplicative of her dismissed legal malpractice claim and which are not cognizable as separate claims under Vermont law. With regard to Count IV, Defendants contend that Plaintiff consented to the actions which she now claims constitute a breach of contract.

         Plaintiff agrees that summary judgment with respect to Count II may be granted. Summary judgment with respect to Count II is therefore GRANTED and that claim is hereby DISMISSED. She opposes summary judgment, however, with respect to Count III, arguing that the promises made to her by Defendant Welch during his representation are distinct from her legal malpractice claim. In Count IV, she alleges that Defendant Welch disbursed funds belonging to the Estate without her authorization or consent and contends that this claim "[s]tands on its [o]wn[.]" (Doc. 103 at 7.) The court took the pending motion under advisement on April 9, 2018.

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

         I. The Undisputed Facts.

         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.) 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.

         Plaintiff thereafter retained Defendants 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 Welch'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. In her Complaint, Plaintiff identifies a number of these alleged acts and omissions. For example, in Count I, she alleges that "[f]ailing to call [Brianna] DiMaggio as a witness" "violated .. . acceptable standards of care[, ]" and in Count III she alleges that "Mr. Welch promised and agreed to call Ms. DiMaggio as a witness[.]" (Doc. 1 at 14-15, 17, ¶¶ 93, 116.)

         Count I alleges that "[f]ailing to call Dr. Totonelly as a witness" "violated .. . acceptable standards of care[, ]" while Count III alleges that "Mr. Welch promised ... that he would call Dr. Totonelly as an expert witness, first in the case in chief, and then in rebuttal." Id. at ¶¶ 93, 115.

         Counts I and III both allege other acts and omissions by Defendants including: the failure to use a police report at trial; the failure to use hair sample forensics; the failure to introduce evidence that Eva Puppolo's healthcare providers falsified records; the failure to use audio tapes to impeach defense witnesses; and the failure to introduce Eva Puppolo's will at trial.

         Count IV alleges that, during the Dodig malpractice action, Defendant Welch improperly disbursed $7, 223.10 from his client trust account to Attorney Dodig from $31, 000 in funds which were intended to compensate an expert witnesses.^[1] On January 22, 2010, before the jury was instructed, Plaintiff and Attorney Dodig stipulated on the record to payment of the $7, 223.10 in resolution of Attorney Dodig's counterclaim. Defendant Welch informed the court that he intended to provide Attorney Dodig with a check in satisfaction of the agreed upon amount the following business day and requested that it be "stipulated fact that they had been paid, so that the jury's not in there wondering[.]" (Doc. 88-6 at 9.) The court declined to rule on Defendant Welch's request at that time.

         On the following business day, Monday, January 25, 2010, Attorney Dodig's counsel represented to the court that he "did get a check from Mr. Welch today but, you know, it hasn't cleared." (Doc. 88-7 at 3.) Counsel requested that Defendant Welch be precluded from arguing the Estate's payment of the stipulated amount to the jury. The trial court agreed, noting that "[t]here is no evidence in this case that anything's been paid." Id. The jury was thus not instructed on the counterclaim and made no findings with regards to payments owed by the Estate to Attorney Dodig and his firm.

         According to Christopher D. Ekman, Esq., trial counsel for Attorney Dodig, Plaintiff was present in the courtroom for both the January 22 and January 25, 2010 discussions regarding the $7, 223.10 payment to resolve Attorney Dodig's counterclaim. Attorney Ekman further avers that "I have no recollection, and I see nothing in the exhibits attached, that suggests that Celeste Puppolo, as Executor of the Estate of Eva Puppolo, ever objected to the payment made by Mr. Welch to us as attorneys for the defendants." (Doc. 88-4 at 2.)

         II. The Disputed Facts.

         A. Plaintiffs Statement of Disputed Facts.

         Plaintiff submitted a Statement of Disputed Material Facts as follows:

I. Count [III]

1. Whether the parties entered into a binding contract.

2. Whether, when defendants entered into the contract, it was the honest exercise on their part of professional judgment.

3. Whether the defendants breached that contract.

4. Whether the plaintiff sustained damage as a result of the breach.

II. Count [IV]

1. Whether the release of trust funds was made with the consent of the Estate.

(Doc. 103-2 at 1.)

         B. The Totonelly Affidavit.

         In addition to her Statement of Disputed Material Facts, Plaintiff submitted the affidavit of Philip R. Totonelly, M.D., although she neither cites to it nor appears to directly rely on it to support her remaining claims. Because the Totonelly affidavit is the only new evidence submitted by Plaintiff in opposing summary judgment, the court reproduces it in its entirety:

1. I am a licensed physician and surgeon with a practice in cardiovascular disease and internal medicine. I am board certified in cardiology and internal medicine and currently practice in the State of New York.

2. On[] April 21, 2005, 1 was retained as a medical expert witness in the case of the Estate of Eva C. Puppolo that was to be brought as a wrongful death action against Crescent Manor Care Centers in Bennington, VT and the medical practitioners caring for Eva C. Puppolo. I rendered an opinion on Eva Puppolo's death. A copy of my opinion is attached to my affidavit and is incorporated herein by reference, ^[2]

3. Prior to rendering my opinion, I examined two toxicology reports. One was dated July 20, 2003 and the other, dated February 10, 2005. I noted that in the February 10, 2005 assay no norfentanyl was found. This indicated to me that the dosage of fentanyl was acutely administered (given just prior to Eva's death) on February 25, 2003. I opined that the cause of death was fentanyl poisoning. I became committed to offering my services in rendering a formal opinion stating that fentanyl intoxication was the proximate cause of death.

4. In my written opinion, I addressed a prior issue where Eva was wrongly administered medication at Crescent Manor. The wrong medication was Glyburide and it was my opinion that this event (misadministratton of Glyburide) led to a downfall in Eva's health during August, 2003; however, the cause of death, evidenced by Eva's lethal fentanyl levels, was fentanyl poisoning by the administration of a massive dose of fentanyl, ordered by John Hearst, M.D. via fax and administered by Crescent Manor nursing staff.

5. I informed Celeste, executor of Eva Puppolo's estate of my findings. I had received a note mailed to me by Celeste, that was penned by Mr. Dodig, attorney for Eva's estate, addressed by Mr. Dodig specifically to me. It read:

"Crescent Manor criminal question for Dr. T. → do the liver tissue lab values demonstrate that the most likely cause of Eva's death was through overdose by opiates?"

6. At first I responded by phone to Mr. Dodig with my opinion, which was, without question, that Eva died by acute fentanyl poisoning. As stated in paragraph 3 above, I knew this to be an absolute when I reviewed the Vermont Medical Examiner's toxicology result and the latter NMS toxicology report, assays that revealed lethal values of fentanyl in Eva's liver. The range for fentanyl fatalities in nanograms per gram, liver tissue, is easily ascertained by referring to the medical examiner's authority, Disposition of Toxic Drugs and Chemicals In Man.

7. I then informed Celeste as follows: "I am extremely bothered by the levels of drug found and firmly believe, that even on a compassionate basis, no such dosage would be administered - not even to a dying patient, unless either by negligent action or intentional administration to bring about certain death." 8. Mr. Dodig was silent as to my opinion, and instead wanted to know how I knew Celeste. He seemed disinclined to discuss the pertinent toxicological facts as correlated with Eva's clinical findings and the actual fentanyl doses in meg administered by the nursing home that were responsible for inducing severe hypoventilation and death. In answering Mr. Dodig's question, I told him that I had never met Celeste, but I had spoken with her over the phone. Since I was also learning directly from Mr. Dodig himself that he had relegated to Celeste the duty to contact and secure me as a medical expert witness, I was perplexed and found his practice to be highly unusual. But because all medical records between September 8, 2002 to February 3, 2003 were missing, I had felt that it might be useful to be able to ask questions of Eva's relative.

9. I remained puzzled by this situation because a short time later Celeste phoned me to say that Mr. Dodig no longer wanted her to communicate with me. I had told him and her that in no manner had she influenced my medical expert opinion.

10. I began to receive phone calls from Mr. Dodig's associates at Flynn & Dagnoli Funeral Home in Massachusetts, along with representatives from the mayor's office, asking me to contact Celeste personally and attempt to persuade her to bury Eva's body before the Massachusetts medical examiner, Benjamin Glick, M.D., would be conducting a second autopsy. I remember emailing Celeste that she ought to think about retaining a different attorney because something was not right. I found these events to be deeply disturbing. Celeste phoned me on the heels of my cautionary email to her and stated to me that Mr. Dodig nevertheless still wanted an opinion from me. I recall having the impression that Celeste held him to his original penned note to me.

11. I believe it was the evening before August 12, 2005 that I put my medical opinion in writing. I called Celeste and read it to her. I told her I would send it to her by email and she would have it by morning. She did not seem entirely comfortable with that since Mr. Dodig had informed her that he hadn't wanted communication between her and me, but at the same time he continued to pursue indirectly a written opinion from me. I had asked Mr. Dodig to send to me the amassed two volumes of Eva's medical records, but he did not do so. In a conversation with Celeste, she agreed to overnight Eva's medical file.

12. I sent Celeste the email containing my opinion from my drafts folder and then quickly annotated it to remove any reading that Celeste could have influenced my conclusions. I recall having phoned Celeste the next day to tell her that I had annotated my phraseology, resent the email and to disregard the first message from me. I had thought better about it right after I had hit "Send" since I figured that she would be forwarding my written opinion to Mr. Dodig. I had changed nothing with respect to the medical substance of my opinion.

13. I recall also adding in my email of August 12, 2005, a legal reference about which I became at loggerheads with Mr. Dodig. I included it because I wanted to document what I had believed to be a concern of Mr. Dodig, based on an explanation he had given me that I did not find sincere. Mr. Dodig seemed disinclined to want to accept my findings on the proximate cause of death and would not dispel with a notion he continued to [perpetuate] that Glyburide had caused Eva's death. However, Mr. Dodig's geriatrician expert, Allan Ross, M.D., had proffered his expert opinion on Mr. Dodig's wrong medication case, and opined that, following administration of Glyburide to Eva, Eva had returned to her baseline (even though the medication error for two full months had compromised Eva's clinical course). Mr. Dodig seemed to want to create a divide between the torts; one, he would view only as a civil matter; the other, only criminal. He was using the latter as reason for not pursuing a wrongful death claim against Crescent Manor in spite of the categorically positive fentanyl toxicology results. At the same time, Mr. Dodig was pushing me to conclude that Crescent Manor's [G]lyburide error was contributory. I disagreed, and at one point warned Celeste that Mr. Dodig may be creating a res judicata issue. I remember explaining to Celeste what that was, shortly thereafter.

14. Roughly two weeks later, I conducted a conversation with Mr. Dodig and Celeste by telephone. I took the opportunity again to deliver to him my findings on Eva's death by fentanyl poisoning. I explained to him why I had concluded in my August 12, 2005 opinion, that the fentanyl dosage administered to Eva was not only massive, it was unheard of clinically. He remarked that he was "reeling" with the new information I had provided him. I will never forget this response of Mr. Dodig. He then assured me that he would take my expert opinion under consideration and decide how he would next proceed, but I never heard from him again. I learned later from Celeste's attorney, Mr. Welch, that Mr. Dodig had withdrawn from his representation of the estate's matter.

15. Mr. Welch informed me that Mr. Dodig would no longer be pursuing the wrong medication matter because Dr. Ross concluded that Eva's medical record did not support that Eva failed to recover from the hypoglycemic incident. Mr. Welch apprised me that he, as a consequence, was bringing a legal malpractice claim against Mr. Dodig for his negligence in pursuing Eva's fentanyl fatality. We discussed how the Defendants in this case tried to attribute Eva's death to "heart failure, " but I assured Mr. Welch that there was not one EKG performed in weeks previous to substantiate such a claim; in fact, there was evidence to the contrary, as noted by Eva's cardiologist at Southwestern Vermont Medical Center.

16. Mr. Welch stated to me that he was designating me as the case's expert witness. He stressed that my testimony would be critical since I was a cardiologist and could opine as to the mechanism of Eva's death by fentanyl. He represented to me that he needed my expertise because applying transdermal fentanyl (Duragesic) patches was part of my clinical practice in the ICU setting. He informed me that he was designating me as his premier witness on a 26(b)(4) statement that he was preparing. He mentioned that Dr. Glick had completed a second autopsy and would also be contributing expert testimony to confirm the Vermont medical examiner's forensic toxicology results. Both medical examiners had employed the same nationally based forensic toxicology lab that yielded fatal values.

17. That I am a practicing cardiologist, I was prepared to explain in court the concept of "acute subendocardial infarction, " and I was to inform that central nervous system depression from the opiate, fentanyl in massive overdose led to Eva Puppolo's cardiac arrest The fentanyl overdose caused hypoventilation which led to oxygen desaturation, hypoxia, and to respiratory failure, with the end result leading to cardiac ...