United States District Court, D. Vermont
ESTATE OF EVA C. PUPPOLO, CELESTE PUPPOLO, Executor, Plaintiff,
JOHN J. WELCH, JR., JOHN J. WELCH, JR., LTD., Defendants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (DOC. 88)
Christina Reiss, United States District Court District Judge
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.
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.
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,
is represented by R. Peter Decato, Esq. Defendants are
represented by David L. Cleary, Esq.
The Undisputed Facts.
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.
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
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.)
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.
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.
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. 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.
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.
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
The Disputed Facts.
Plaintiffs Statement of Disputed Facts.
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
II. Count [IV]
1. Whether the release of trust funds was made with the
consent of the Estate.
(Doc. 103-2 at 1.)
The Totonelly Affidavit.
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
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
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
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
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
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
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 ...