Puppolo v. Welch et al
OPINION 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 and 76 ). Signed by Chief Judge Christina Reiss on 9/12/2017. (pac)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
ESTATE OF EVA C. PUPPOLO,
CELESTE PUPPOLO, Executor,
JOHN J. WELCH, JR.,
J. WELCH, JR., LTD.,
1811 SEP 12 PH 2: 00
Case No. 5:14-cv-95
OPINION 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
(Docs. 42 & 76)
The 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 Plaintiffs
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.
On April4, 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.
Plaintiff is represented by R. Peter Decato, Esq. Defendant is represented by
David L. Cleary, Esq.
The Undisputed Facts.
In this 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).
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, ,-r 55.) 1 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 Plaintiffs claims against him.
Plaintiff 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.
At the 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
Attorney 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
Plaintiff alleges that Eva Puppolo executed a Living Will providing that she not be
administered opiate analgesics or other "drugs that alter mind." (Doc. 1 at 3, ~ 19.) Plaintiff
contends that her aunt's medication regimen violated those express wishes.
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.
Attorney 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 0 '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 of2014, 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
In 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.
Defendant 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.
On June 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 expenses.
!d. at 1 n.1 (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.
The September 10, 2015 Opinion includes the information set forth in the Undated
Opinion, except that Attorney O'Toole opines that "to a reasonable degree oflegal
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.
First, 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. 2 Attorney O'Toole opines this was
a breach of the standard of care for the following reasons:
The testimony Plaintiff expected Dr. Totonelly to provide at trial is reflected in an August 12,
2005 email in which Dr. Totonelly opined that "the actual cause of death at the time of arrest is
without question the administration of the lethal fentanyl dosage administered by nursing staff
of' Crescent Manor. (Doc. 74, Ex. 4 at 5.) Defendant points out that Plaintiffhas produced
another version of this email bearing an identical date and time but which contains typographical
discrepancies that allegedly call into question the document's authenticity. Plaintiff filed an
affidavit signed by Dr. Totonelly on January 3, 2017 wherein Dr. Totonelly explains how he sent
two different emails seconds apart.
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.1 (spelling in original).
Second, 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.").
Third, 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.").
Fourth, Attorney O'Toole criticizes Defendant's decision to elicit Attorney
Dodig's opinions regarding the merits of Plaintiffs medical malpractice claim against
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 Deposition.
Defendant 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. !d. at 2.
The day 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.)
Attorney 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 produced.
Attorney O'Toole's August 15, 2016 Opinion.
On 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 ofthe action and the preclusion of further
opinions by Attorney O'Toole.
One 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:
Having 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
In a 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, ,-r 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 judgment.
It is 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).
Even 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.
In his 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
I 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
ofthe underlying medical malpractice case.
I am concerned by the fact that Mr. Welch represented to the trial court that
he chose not to use Dr. T otonelly 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 was
going to call Dr. Totonelly as a witness and that he recalls promising to call
Dr. Totonelly as a rebuttal witness.
In his deposition, Mr. Welch admitted to knowing of Dr. Totonelly and he
knew that Dr. Totonelly had strong opinions. Mr. Welch knew that Dr.
Totonelly had the opinion that the Crescent Manor health care providers
had negligently or intentionally overdosed Eva Puppolo with fentanyl in
extreme quantities which caused her death. This is very strong evidence
establishing negligence, especially considering that there was a claim for
Mr. Welch admitted in his deposition that he had initially planned on using
Dr. Totonelly as a witness. Dr. Totonelly was listed as an expert witness in
the 26(b)(4) disclosures. I have reviewed Dr. Totonelly's written opinion,
and there is nothing in Dr. Totonelly's written opinion that should give
pause to any reasonable attorney trying to establish negligence and get
punitive damages. During his deposition, Mr. Welch suggested that Dr.
Totonelly would have been impeached by his prior opinion(s) as to
[Crescent Manor's] role in causing Eva Puppolo's death. However, this
was not the reason he represented to the trial court as to why he was not
using Dr. Totonelly. He represented to the trial court that he tried to
contact Dr. Totonelly, but was unsuccessful and left to rely on Dr. Glick.
Mr. Welch admitted in his deposition having a discussion with Celeste
Puppolo about using Dr. Totonelly as a rebuttal witness. This
representation to Celeste Puppolo is concerning because he represented to
the trial court that he was unable to contact Dr. Totonelly. In addition, Dr.
Totonelly advised me that Mr. Welch had not contacted him in connection
with this case. However, even if Mr. Welch really intended to call Dr.
Totonelly on rebuttal, during his deposition, he questioned the wisdom of
using Dr. Totonelly in this manner. In my opinion, Dr. Totonelly's vastly
superior clinical background mandated that he be utilized in the Estate's
case in chief to establish negligence and get beyond a motion for a directed
verdict on the issue of punitive damages. Ultimately, Judge Suntag set
aside the request for punitive damages. In my opinion, if Mr. Welch had
called Dr. Totonelly to testifY in the Estate's case in chief, Judge Suntag
would have decided otherwise.
In my opinion, Brianne DiMaggio and some of her fellow nurses should
have been called to testifY. Mr. Welch was aware that Brianne told the
Bennington Police she thought someone at Crescent Manor had
intentionally given an overdose of fentanyl to bring about Eva Puppolo's
death. Ms. DiMaggio indicated she had provided care for Eva Puppolo and
she was of the following belief: (1) Crescent Manor had killed Eva
Puppolo; (2) Crescent Manor tore Eva's coccyx with a bedpan and failed to
take care of the tear on Eva's backside; and (3) Crescent Manor had
"redone" Eva's medical records immediately after Eva's death. This
evidence goes directly to punitive damages, and it was ignored. Ignoring
this evidence shows, in my opinion, a lack of professional care and skill.
There was evidence that the nurses were holding a lottery of sorts in to
guess when Eva would die from the fentanyl. This evidence would go
directly to the issue of malice and to the issue of punitive damages.
Excluding this evidence shows a lack of professional care and skill. If this
evidence was presented, along with the evidence of the altered medical
records and the evidence from Dr. Totonelly, Brianne DiMaggio and some
of the other nurses, then the Estate's claims of negligence and for punitive
damages would likely have succeeded.
The evidence I've seen suggests that Mr. Welch made promises to try the
claim against Attorney Dodig a certain way and then Mr. Welch reneged on
the promises. He agreed at one time to call Dr. Totonelly, Brianne
DiMaggio and some of the other nurses, but didn't. He agreed at one time
to use the report from Joan McCann about the altered medical records and
didn't. In my opinion, the refusal to use this and the other evidence shows
poor judgment and lack of good faith.
An attorney is not infallible when he makes choices about what experts to
call and what exhibits to put in. However, he still has to use professional
care and skill and Mr. Welch failed to do so. Mr. Welch's judgments were
not the honest exercise of professional judgment.
In my opinion, Mr. Welch's failure to use available evidence and his
broken promises to his client constitutes a breach of Mr. Welch's duties to
use professional skill and care. It is also my opinion, based upon a
reasonable degree oflegal probability, that but for Mr. Welch's failures, a
jury would more likely than not have returned a verdict for the Estate and
have awarded general and punitive damages. I believe Mr. Welch's breach
of the standard of care was the proximate cause of the Estate's failure to
succeed with ... Judge Sontag and the jury.
A solemn relationship of trust and confidence exists between an attorney
and his client. It was violated in this case. The failure ofMr. Welch to call
Dr. Totonelly; to deal credibly with Dr. Glick; to call Brianne DiMaggio
and many of the other nurses; and to use evidence of altered medical
records all caused the Estate to lose its case and lose its claims of
negligence and for punitive damages. Mr. Welch failed to use the
competent evidence, all of which tended to support the Estates' claims for
compensatory and punitive damages. According to Mr. Welch, "It is well
established that 'an attorney's decision to pursue one of several reasonable
courses of action does not constitute malpractice."' In light of his
obligations and representations to the client and the trial court, Mr. Welch
failed to act reasonably. Therefore, it is my opinion, held to a reasonable
legal probability, that Mr. Welch committed legal malpractice and caused
the Estate harm.
(Doc. 74, Ex. 7 at 1-4) (spelling in original).
Attorney O'Toole testified that Plaintiffs counsel provided him with a draft of the
August 15, 2016 expert witness opinion to which he made certain minor edits. He then
converted the document into letter format, and Plaintiff served it on Defendant. Attorney
O'Toole acknowledged that he did not perform the legal research that is reflected in his
August 15, 2016 Opinion. A comparison ofthe opinion drafted by Plaintiffs counsel and
Attorney O'Toole's August 15, 2016 Opinion reveals that they are substantially identical
with minor revisions.
Attorney O'Toole's Testimony Regarding the Extent of His Reliance
on Plaintiff's Audio Recordings and the Transcriptions Thereof.
On April2, 2017, Plaintiff moved in limine to admit uncertified transcripts of
seven audio recordings she surreptitiously made of telephone conversations with
Defendant in 2008-10 and with certain fact witnesses. Plaintiff contends that these
materials "may have some bearing on the parties' Daubert hearing to be held on Tuesday,
April4, 2017[.]" (Doc. 72 at 3, ,-r 14.) Plaintiff also filed seven supporting affidavits, in
which she described the circumstances, timing, and manner in which she created the
audio recordings, which include material unrelated to this action. See, e.g., Doc. 72-1 at
3, ,-r 8 (Plaintiffs affidavit noting that "[v]oices unrelated to this litigation, and in the
order in which they occur, are Dr. Bier, Dr. Mamo, Patrick, Marcia, and John").
Plaintiffs own affidavit states that she read the uncertified transcripts of the audio
recordings and opines that they had been accurately transcribed.
At the Daubert hearing, the court denied Plaintiffs motion to admit the uncertified
transcripts of the audio recordings without prejudice, and stated as follows:
THE COURT: ... What [Plaintiff] has asked me to do is to rely on a
transcript in lieu of the audiotapes. That's the problem, because I would
typically have an unbiased third party certify that this is a true and accurate
copy of the audiotape. . . . I am going to deny the motion without
prejudice. If you give me the audiotapes, that's the best evidence. The
Court can listen to them ... and determine whether or not they should be
MR. DECATO: We will do that if you give us leave to go get them and
give them to the Court.
THE COURT: Sure. You don't have to do it right now. I am just saying
that I can't accept the evidence in the form that you proffered[.]
(Doc. 75 at 7:19-8:7.)
Attorney O'Toole was thereafter examined regarding the facts and data he
considered in forming his expert opinions. His August 15, 2016 Opinion is the only
opinion that arguably references the audio recordings, stating only that he "read the
transcript of telephonic conversations pertaining to this matter[.]" (!d., Ex. 7 at 1.) In his
testimony both at deposition and at the court's Daubert hearing, Attorney O'Toole drew
no connection between the audio recordings and his opinions. At his December 9, 2015
deposition, Attorney O'Toole testified: "Well, I don't know whether I read a transcript,
listened to a tape. I'm not sure." (Doc. 81-1 at 151:13-14.)
At the Daubert hearing, Attorney O'Toole testified that he read the transcripts of
Plaintiffs audio recordings, but had not listened to the recordings themselves:
Q. I'm talking about transcriptions of telephone calls.
A. Oh. I read some of the transcriptions, yes ....
Q. All right. Did you ever listen to the tapes?
A. No, I don't think I listened to those tapes, but I don't know.
Q. Did you ever inquire as to whether or not the recordings were made
A. I was told that they were made legally.
(Doc. 75 at 187:4-15.)
At the conclusion of the Daubert hearing, the court expressed doubt regarding the
relevance of the underlying recordings:
THE COURT: ... I have already said this, but I am not going to accept
transcripts prepared by a party. And I want the best evidence, the
audiotapes. You can renew the request to admit them. I am not so sure that
they have much to do with the Daubert hearing because the witness was so
imprecise about what he had reviewed and what he hadn't reviewed. So I
have no way of telling whether they are relevant or not.
Id. at 211:4-14.
On April25, 2017, Plaintiff filed the motion to admit audio recordings, contending
that "[l]istening to the audiotape evidence has a bearing on the parties' Daubert hearing
held on Tuesday, April4, 2017[,] as F.R.E. Rule 703 states that an expert may base an
opinion on facts or data in the case that the expert has been made aware of or personally
observed. Attorney O'Toole is aware of the audiotape evidence and the evidence that
bears on the issue of [Defendant's] deceit." (Doc. 76 at 2, ,-r 3.) Plaintiff did not address
Attorney O'Toole's equivocal testimony regarding whether he actually listened to the
audio recordings or reviewed the transcripts of them. In a May 23, 20 17 filing, Plaintiff
represented that "Mr. O'Toole has not listened to the recordings since 2012" but that
"[t]he recordings had made a permanent impression on him when he first did his research
on this case, and he remembers the intensity ofthe dialog[ue]." (Doc. 79 at 2-3, ,-r 4.)
Plaintiff attached an affidavit signed by Attorney O'Toole dated May 23, 2017, wherein
he averred that "[l]istening to the tapes and reading the trial transcript provided me with
the background information and facts I needed to form my opinions regarding legal
malpractice." (Doc. 79-1 at 1, ,-r 3.)
Conclusions of Law and Analysis.
Whether to Grant Plaintiff's Motion to Admit Audio Recordings.
The audio recordings Plaintiff seeks to admit are relevant only to the extent that
Attorney O'Toole relied upon them in forming his opinions. See Fed. R. Evid. 702(b).
In both his December 9, 2015 deposition and at the Daubert hearing, Attorney O'Toole
testified that he either did not listen to the audio recordings or, at best, that he did not
know whether he had listened to them. None of his expert opinions indicate that he relied
on the audio recordings, despite his obligation to disclose "the facts or data [he]
considered ... in forming" his opinions. Fed. R. Civ. P. 26(a)(2)(B)(ii); see also id.,
advisory committee's note to 2010 amendment (noting "the intention is that 'facts or
data' be interpreted broadly to require disclosure of any material considered by the
expert, from whatever source, that contains factual ingredients"). The strongest evidence
of his reliance on the recordings is his August 15, 2016 Opinion which reflects that he
reviewed an unspecified "transcript of telephonic conversations pertaining to this matter."
(Doc. 74, Ex. 7.)
Attorney O'Toole's post-hearing affidavit seeks to alter the record by stating that
he relied on both the audio recordings and the transcripts in forming his opinions. His
affidavit does not identify when he undertook those tasks. The court declines to allow
him to "correct" his testimony in this post hoc manner. 3 As Plaintiff has failed to satisfy
her obligation to show that the audio recordings are relevant, Plaintiffs motion to admit
audio recordings (Doc. 76) is DENIED. See Amorgianos v. Nat'! R.R. Passenger Corp.,
303 F .3d 256, 265 (2d Cir. 2002) (stating that "in analyzing the admissibility of expert
evidence, the district court has broad discretion in determining what method is
appropriate for evaluating reliability under the circumstances of each case").
Whether Defendant Is Entitled to Rule 37 Sanctions.
- Whether Plaintiff's Untimely Service of the August 15,2016
Opinion Warrants Dismissal of the Action.
Defendant argues that Plaintiffs failure to timely serve the August 15, 2016
Opinion is inexcusable and justifies dismissal of the action. "If a party ... fails to obey
See In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193-94 (2d Cir. 2013) (holding that the
district court was "entitled to disregard [expert's] new testimony ... where the relevant
contradictions between the first and second depositions are unequivocal and inescapable,
unexplained, arose after the motion for summary judgment was filed, and are central to the claim
at issue"); Carbotrade, S.p.A. v. Bureau Veritas, 1999 WL 714126, at *15 (S.D.N.Y. Sept. 14,
1999) (concluding an expert's "prior inconsistent statements undercut the credibility of his
recently formulated opinion at trial").
an order to provide or permit discovery, ... the court where the action is pending may ...
dismiss the action or proceeding in whole or in part[.]" Fed. R. Civ. P. 37(b)(2)(A)(v).
The sanction of dismissal is appropriate only in "extreme situations," such as "when a
court finds willfulness, bad faith, or any fault on the part of the" non-compliant party.
Guggenheim Cap., LLC v. Birnbaum, 722 F .3d 444, 451 (2d Cir. 20 13) (quoting Bobal v.
Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990)) (internal quotation marks
omitted). The court is guided by the following factors in evaluating whether this sanction
is warranted: "( 1) the willfulness of the non-compliant party or the reason for
noncompliance; (2) the efficacy oflesser sanctions; (3) the duration of the period of
noncompliance; and (4) whether the non-compliant party had been warned of the
consequences of ... noncompliance." World Wide Polymers, Inc. v. Shinkong Synthetic
Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012) (internal quotation marks omitted).
Here, although Plaintiff's noncompliance was willful and the period of
noncompliance was inexcusable, the extreme sanction of dismissal of the case is not
warranted. "Parties must be given notice and an opportunity to respond before a cause of
action, or potential remedy, is dismissed as a sanction for failure to comply with court
orders." !d. at 160. No notice was provided in this case. In addition, while the degree of
prejudice to Defendant is substantial, the consequences to Plaintiff are far greater and
border on draconian. Lesser sanctions will appropriately address the untimely disclosure
of Attorney O'Toole's opinions, remedy the prejudice to Defendant, and still allow
Plaintiff to have her claims considered on their merits. See Dodson v. Runyon, 86 F.3d
37, 39 (2d Cir. 1996) (stating that "[t]he remedy [of dismissal] is pungent, rarely used,
and conclusive. A district judge should employ it only when he is sure of the impotence
of lesser sanctions.") (internal quotation marks omitted) (alteration in original).
For the foregoing reasons, Defendant's motion to dismiss the action as a Rule 37
sanction is DENIED.
Whether Plaintiff's Untimely Service of the August 15, 2016
Opinion Precludes Its Admissibility.
In the alternative, Defendant argues that Attorney O'Toole's August 15, 2016
Opinion should be precluded as a sanction for its untimely disclosure without
justification. This would leave the Undated Opinion and the September 10, 2015
Opinion as Plaintiffs only expert witness disclosures. In determining an appropriate
response, the court is guided by Fed. R. Civ. P. 37, which provides, in pertinent part, that
"[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at trial, unless the failure was substantially justified or is
harmless." Fed. R. Civ. P. 37(c)(l).
In determining whether a party's violation is "substantially justified or harmless,"
courts in the Second Circuit consider: "(1) the party's explanation for the failure to
comply with the discovery order; (2) the importance of the testimony of the precluded
witness; (3) the prejudice suffered by the opposing party as a result of having to prepare
to meet the new testimony; and (4) the possibility of a continuance." Sofie!, Inc. v.
Dragon Med. & Sci. Commc 'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997) (citing Outley v.
City ofNew York, 837 F.2d 587, 590-91 (2d Cir. 1988)).
It is undisputed that Plaintiff served Attorney O'Toole's August 15, 2016 Opinion
over one month after the court-ordered deadline to do so. Plaintiff neither sought leave of
court to extend that deadline, nor requested an extension from Defendant. See Beyer v.
Anchor Insulation Co., 2016 WL 3676091, at *4 (D. Conn. July 6, 2016) (finding no
adequate explanation for the party's failure to comply with a discovery order and noting
that "plaintiffs continued to conduct expert discovery after their deadline without notice
to the defendants or leave from the court"). Plaintiff proffers no explanation for failing to
comply with the court's discovery deadline. Because she has initiated and pursued at
least three lawsuits, each alleging some form of professional malpractice, she is not a
neophyte in the requirements of litigation. Throughout this proceeding she has been
represented by counsel. There is thus no reasonable justification for her noncompliance
with the court's discovery deadlines.
Regarding the opinion's importance, prior to the late service of the August 15,
2016 Opinion, Plaintiffhad disclosed two opinions by Attorney O'Toole, which were
required to set forth "a complete statement of all" of his opinions. Fed. R. Civ. P.
26(a)(2)(B)(i). Attorney O'Toole's August 15, 2016 Opinion purports to materially alter
those opinions. Accordingly, permitting Plaintiff to rely on Attorney O'Toole's August
15, 2016 Opinion would prejudice Defendant because it would require Defendant to
confront a new opinion after a summary judgment motion has been filed. A continuance
may remedy some of the prejudice to Defendant, but would not avoid a waste party and
judicial resources. See Advanced Analytics, Inc. v. Citigroup Glob. Mkts., Inc., 301
F.R.D. 31, 41 (S.D.N.Y. 2014) (holding that "a continuance is not appropriate, given the
age of this case and the fact that discovery has long been closed"); see also Sofie/, 118
F .3d at 963 (stating that "the enormous length of every step of the proceedings in this
case militate[ s] against any more continuances"). As one court has observed:
Defendants are entitled to make summary judgment motions on the basis of
the discovery record compiled in accordance with the federal rules and the
court's orders. [A party's] new expert theory cannot be presented without
giving [the opposing party] an opportunity to depose his experts, thus
reopening discovery and rendering [that party's] motion, addressed in good
faith to the theories and evidence that had been disclosed, an expensive
waste of effort.
Every v. Makita USA., Inc., 2005 WL 2757952, at *6 (S.D.N.Y. Oct. 24, 2005).
Viewing the relevant factors collectively, the court concludes that Plaintiffs
untimely service of Attorney O'Toole's August 15, 2016 Opinion is neither harmless, nor
excusable. See In re Omeprazole Patent Litig., 2002 WL 287785, at *5 (S.D.N.Y. Feb.
27, 2002) (precluding improperly disclosed expert testimony where "not one of [the]
factors weighs in favor of permitting the new opinions in this case"). On this basis alone,
the opinion is subject to exclusion. The court nonetheless proceeds to evaluate the merits
ofthe August 15, 2016 Opinion to determine whether it is otherwise admissible. If it is,
the sanction of exclusion may be too harsh. If it is inadmissible, Plaintiff will suffer no
prejudice as a result of its exclusion. The court thus DEFERS ruling on Defendant's
motion to exclude until the admissibility of the August 15, 2016 Opinion is determined.
Whether Defendant Is Entitled to Costs Occasioned by the
Untimely Disclosure of the August 15, 2016 Opinion.
Pursuant to Rule 37, "[i]n addition to or instead of[the sanction of preclusion], the
court, on motion and after giving an opportunity to be heard ... may order payment of
the reasonable expenses, including attorney's fees, caused by" a party's untimely
disclosure. Fed. R. Civ. P. 37(c)(l)(A). This court "has wide discretion to impose
sanctions, including severe sanctions, under Federal Rule of Civil Procedure 37, and its
ruling will be reversed only if it constitutes an abuse of discretion." Design Strategy, Inc.
v. Davis, 469 F.3d 284, 294 (2d Cir. 2006). In exercising its discretion, "the court may
draw upon its first hand familiarity with all the pertinent circumstances of the particular
case." Mayo-Coleman v. Am. Sugar Holding, Inc., 2016 WL 7378767, at *1 (S.D.N.Y.
Nov. 16, 2016) (internal quotation marks omitted).
In seeking exclusion of the August 15, 2016 Opinion, Defendant requests "all
costs associated with bringing this motion, and the activities leading up to the motion,
including all attorneys' fees[.]" (Doc. 42 at 25.) In his July 14, 2016 affidavit,
Defendant's counsel identifies four categories covered by this request: (1) the expense
associated with preparing for and attending Defendant's deposition ($10,019.50); (2) the
expense associated with the production of files in response to Attorney O'Toole's
deposition ($1 ,267 .00); (3) unspecified additional costs associated with the prior two
categories ($1,713.75); and (4) fees and costs associated with preparing and filing the
instant motions ($3,872.00).
Because Defendant's motion was precipitated, at least in part, by the late
disclosure of the August 15, 2016 Opinion which the court has found both unjustified and
prejudicial, an award of costs is appropriate. However, because Defendant's motion
seeks relief on several other grounds that do not stem from Plaintiffs late expert witness
disclosure, those costs must be excluded. For example, Defendant has not shown why he
should recover costs and fees for preparing for and attending his own deposition. While
he asserts that Plaintiff requested to depose him so that Attorney O'Toole could amend
his opinions, the parties jointly moved to amend the discovery schedule to allow
Defendant's deposition without any provision that Plaintiff bear the costs thereof.
In addition to attorney's fees and expenses associated with the motion to exclude,
Defendant seeks an award of costs in the amount of$1,267.00 for the production ofhis
files to Attorney O'Toole after his December 9, 2015 deposition. Because Plaintiff was
entitled to production of Defendant's file, Defendant may recover only photocopying
On balance, the court attributes $500 of Defendant's expenses of$3,872.00
incurred in filing the pending motions to Plaintiffs untimely expert disclosure, and
attributes the remaining amounts to unrelated issues. In the absence of a more
particularized statement, the court has no other means of segregating the expenses
incurred by the untimely disclosure. Even without this information, however, the court
has little difficulty in concluding that at least $500 in attorney's fees are attributable to
Defendant's motion to exclude. In the event Defendant contends that additional fees and
expenses were incurred in responding to Plaintiffs untimely disclosure, he may renew
his application supported by a particularized statement as to the tasks involved, the fees
and costs incurred, and his counsel's hours expended and hourly rate.
For the reasons stated above, the court GRANTS IN PART AND DENIES IN
PART Defendant's request for expenses and ORDERS Plaintiffto pay Defendant the
sum of $500.00, together with Defendant's costs, if any, incurred in photocopying his file
for production to Plaintiff.
Whether to Exclude Attorney O'Toole's Opinions Pursuant to
The admissibility of Attorney O'Toole's opinions is governed by Fed. R. Evid.
702, which provides that "[a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testifY in the form of an opinion or otherwise if:"
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
Fed. R. Evid. 702.
The Federal Rules of Evidence "assign to the trial judge the task of ensuring that
an expert's testimony both rests on a reliable foundation and is relevant to the task at
hand." Daubert, 509 U.S. at 597. The court therefore assumes a "gatekeeping" role "to
make certain that an expert, whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field." Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999). This gatekeeping obligation "applies to all expert
testimony" and not simply to "scientific" testimony. !d. at 14 7. The party proffering
expert testimony bears the burden of establishing its admissibility "by a preponderance of
proof." Daubert, 509 U.S. at 592 n.10.
In Daubert, the Court identified several factors to be considered in determining
whether an expert's opinion is admissible: whether the expert's theory or technique "can
be (and has been) tested," whether it has been subjected to peer review or publication, its
known or potential rate of error, and its '"general acceptance'" within the particular
discipline. !d. at 593-94. "Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence." !d. at 596.
The trial court's inquiry is "a flexible one" whose "overarching subject" is the
"evidentiary relevance and reliability ... of the principles that underlie a proposed
submission." !d. at 594-95. The court therefore has "considerable leeway in deciding in
a particular case how to go about determining whether particular expert testimony is
reliable." Kumho, 526 U.S. at 152; see also Amorgianos, 303 F.3d at 266 (observing that
"the Daubert inquiry is fluid and will necessarily vary from case to case"). "The flexible
Daubert inquiry gives the district court the discretion needed to ensure that the courtroom
door remains closed to junk science while admitting reliable expert testimony that will
assist the trier of fact." Amorgianos, 303 F.3d at 267. The court's "focus ... must be
solely on principles and methodology, not on the conclusions that they generate."
Daubert, 509 U.S. at 595.
Defendant contends Attorney O'Toole's opinions are inadmissible because they
are unreliable. Expert testimony in a legal malpractice action "does not lend itself to the
scientific and technical concerns expressed by Daubert." Tokio Marine & Nichido Fire
Ins. Co. v. Calabrese, 2011 WL 5976076, at* 12 (E.D.N.Y. Nov. 28, 2011) (quoting LNC
Invs. Inc. v. First Fidelity Bank, 2000 WL 1024717, at *4 (S.D.N.Y. July 25, 2000)).
Nonetheless, a legal malpractice expert "must do more than aver conclusorily that his
experience led to his opinion[.]" 523 IP LLC v. CureMD.com, 48 F. Supp. 3d 600, 643
(S.D.N.Y. 2014). In addition to Rule 702 and Daubert and its progeny, the court must
consider whether an opinion's tendency to assist "the trier of fact to understand the
evidence or to determine a fact in issue[,]" Fed. R. Evid. 702(a), is outweighed by other
considerations such as unfair prejudice and the possibility of misleading and confusing
the jury. Fed. R. Evid. 403.
The Undated and September 10, 2015 Opinions.
With regard to the Undated and September 10, 2015 Opinions, Attorney O'Toole
states that he "reviewed certain trial transcripts, pleadings, motions, discovery materials,
and medical records" in forming his opinions. (Doc. 74, Ex. 14 at 1.) These "cursory
reference[s] to the sources of his opinion[s] do not enable the [c]ourt to determine that"
his opinions are "based on sufficient facts or data." Kellogg v. Wyeth, 2012 WL
2970621, at *5 (D. Vt. July 20, 2012); see also Fed. R. Civ. P. 26(a)(2)(B)(ii) (requiring
that an expert report disclose "the facts or data considered by the witness in forming" his
or her opinions). From the proceedings in this case, the court is aware that Attorney
O'Toole did not review Defendant's complete file or have the benefit of Defendant's
deposition before he rendered the Undated Opinion and the September 10, 2015 Opinion.
Attorney O'Toole could therefore only speculate regarding the factual and legal
underpinning of Defendant's strategic decisions. See Ryan v. Nat'! Union Fire Ins. Co. of
Pittsburgh, 2010 WL 2232670, at *8 (D. Conn. June 2, 2010) (excluding testimony of
expert who was unaware of alternative explanations for the outcome of an arbitration
proceeding and holding that the expert's "failure to consider these other factors renders
her opinion unreliable").
Moreover, both the Undated Opinion and the September 10, 2015 Opinion consist
of a litany of strategic decisions made by Defendant without tying those decisions to the
applicable law. The court thus has no means of determining whether Attorney O'Toole
applied the correct standard of care under Vermont law in reaching his opinions.
Because Attorney O'Toole has never practiced in Vermont and is not licensed in this
jurisdiction, and because neither the Undated Opinion nor the September 10, 2015
Opinion disclose any legal research, the court cannot assume he consulted Vermont law
prior to rendering his opinions. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)
(observing that "nothing in either Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to existing data only by the ipse
dixit of the expert").
The Supreme Court has "clarified that, whether a witness's area of expertise was
technical, scientific, or more generally 'experience-based,' Rule 702 requires the district
court to fulfill the 'gatekeeping' function of 'mak[ing] certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field." Nimely v. City ofNew York, 414 F.3d 381, 396 (2d Cir. 2005)
(citations and footnote omitted). In the case ofthe Undated Opinion and the September
10, 2015 Opinion, that intellectual rigor is lacking. See Sheehan v. Daily Racing Form,
Inc., 104 F.3d 940, 942 (7th Cir. 1997) (concluding that Daubert "requires the district
judge to satisfy [herself] that the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting").
The Undated Opinion and the September 10, 2015 Opinion suffer from the
additional deficiency that they assert that Plaintiff would have prevailed in the Dodig
malpractice action if some or all of Defendant's strategic decisions had not been made.
These statements are conclusory in nature and do not account for countervailing facts.
See Vale v. United States, 673 F. App'x 114, 116 (2d Cir. 2016) (holding that expert
testimony is "inadmissible as umeliable where it consists of conclusory and speculative
opinions" and that the expert's medical malpractice opinions "provided conclusory and
speculative statements" regarding the defendant's negligence); S.E. C. v. Badian, 822 F.
Supp. 2d 352, 357 (S.D.N.Y. 2011) (excluding expert testimony that is "replete with
inadmissible generalized statements of law, legal conclusions and conclusory
statements"). For example, neither opinion addresses Dr. Totonelly's provision of a prior
inconsistent written opinion regarding the cause of Eva Puppolo's death, 4 or the fact that
Eva Puppolo was elderly and severely underweight at the time of her death. Choosing an
unequivocal cause of death opinion from a medical examiner such as Dr. Glick over the
inconsistent opinions of Dr. Totonelly, a clinician who presumably neither treated nor
examined Eva Puppolo, is not an error so patently obvious that analysis is unnecessary.
Contrary to his August 12, 2005 opinion that Eva Puppolo's death was caused by a lethal dose
of fentanyl, according to a June 1, 2005 disclosure, Dr. Totonelly opined as follows:
[B]y providing Ms. Puppolo with Glyburide instead ofEnalapril Ms. Puppolo was
caused to go into a hypoglycemic shock. He will testifY that attempts to treat this
resulted in a fluid overload causing congestive heart failure and considerable
shock and damage to her kidneys. This precipitated a downward course for Ms.
Puppolo and hastened the progression of her underlying cardiac conditions.
(Doc. 74, Ex. Gat 1.)
Similarly, neither opinion addresses the fact that lay witness Brianne Dimaggio
was investigated by the police for her alleged role in Eva Puppolo's death. On that basis,
the credibility of her allegations that the nurses conducted a lottery regarding the timing
of Eva Puppolo's death, that Crescent Manor "killed" her, and that Crescent Manor hired
an outside firm to alter its own medical records are subject to impeachment. Defendant
was entitled to consider those countervailing facts in deciding whether to call her as a
As for Defendant's eliciting Attorney Dodig's opinions regarding the merits of the
medical malpractice action, neither the Undated Opinion nor the September 10, 2015
Opinion indicate whether this was the sole evidence on that point or whether it was
merely cumulative. Taking into consideration the defense verdict in the Dodig
malpractice action, evidence that the Estate's medical malpractice claim lacked merit was
likely presented to the jury by the defense.
Finally, both the Undated Opinion and the September 10, 2015 Opinion assert a
number of legal conclusions. "Although testimony that embraces an ultimate issue to be
decided by the jury is not inadmissible per se, Fed. R. Evid. 704, it should not be received
if it is based on 'inadequately explored legal criteria."' Andrews v. Metro N Commuter
R.R. Co., 882 F.2d 705, 709 (2d Cir. 1989) (citation omitted). Here, both opinions assert
opinions regarding causation without explaining the law and the facts that support those
In light of the significant analytical gap between Attorney O'Toole's opinions and
the facts and law upon which they are premised, the failure to sufficiently identity the
facts and data upon which they are based, and the fact that Attorney O'Toole rendered his
opinions without the benefit of Defendant's complete file or deposition, the Undated
Opinion and the September 10, 2015 opinion would not assist the jury in determining
whether Defendant committed legal malpractice. See Joiner, 522 U.S. at 146 ("A court
may conclude that there is simply too great an analytical gap between the data and the
opinion proffered."); Amorgianos, 303 F.3d at 270 ("In light ofthe defects in the
methodologies employed by plaintiffs' experts and the district court's reasonable
determination that there was a significant 'analytical gap' between the experts' opinions
and the studies on which they relied in reaching their conclusions, the district court's
exclusion of plaintiffs' experts' testimony because it was not grounded in science was
well within its discretion."). When coupled with the Plaintiff's noncompliance with Fed.
R. Civ. P. 26(a)(2) and Fed. R. Evid. 702(b) in disclosing the opinions despite ample time
and opportunity to do so, there are no grounds on which they should be admitted. For the
foregoing reasons, the Undated Opinion and the September 10, 2015 Opinion are hereby
The August 15, 2016 Opinion.
The August 15, 2016 Opinion consists of a narrative prefaced by a statement that
"[h]aving 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." (Doc. 74, Ex. 7 at 1.)
This vague statement fails to cure the deficits in the Undated Opinion and the September
10, 2015 Opinion in identifying the facts and data upon which Attorney O'Toole's
opinions are based. See Fed. R. Civ. P. 26(a)(2); Fed. R. Evid. 702(b). On that basis
alone, the August 15, 2016 Opinion is subject to exclusion. See Amorgianos, 303 F.3d at
267 ("To warrant admissibility ... it is critical that an expert's analysis be reliable at
Although the August 15, 2016 Opinion sets forth substantially more facts and
legal analysis than the Undated Opinion and the September 10, 2015 Opinion, it is merely
a conduit for the opinions of Plaintiff and her counsel. See Gary Price Studios, Inc. v.
Randolph Rose Collection, Inc., 2006 WL 1319543, at *8 (S.D.N.Y. May 11, 2006)
(precluding expert testimony that "would in large measure simply parrot the testimony
that [plaintiff! may be expected to give at the trial"); King-Ind. Forge, Inc. v. Millennium
Forge, Inc., 2009 WL 3187685, at *2 (S.D. Ind. Sept. 29, 2009) ("When an expert's
proffered opinion merely parrots information provided to him by a party, that opinion is
generally excluded."). Attorney O'Toole acknowledged at the court's Daubert hearing
that he performed none of the legal research presented in the August 15, 20 16 Opinion
and merely made minor revisions to the expert witness opinion prepared for him by
Plaintiffs counsel. Because the August 15, 2016 Opinion is not "the product of
[Attorney O'Toole's] independent analysis[,]" it is inadmissible. Arista Records LLC v.
Usenet.com, Inc., 608 F. Supp. 2d 409, 428 (S.D.N.Y. 2009); see also Toole v. Toshin
Co., 2004 WL 2202580, at *3 (W.D.N.Y. Sept. 29, 2004) ("In assessing the reliability of
an expert's methodology, the court should also consider whether the expert's opinion
emanates from his own independent research[.]").
Attorney O'Toole's August 15, 2016 Opinion is inadmissible for the further
reason that it is based on an erroneous assumption that dishonesty to a court or to a client,
a lack of good faith, or a breach of promise to call a witness or present evidence, are
sufficient to sustain a claim of legal malpractice under Vermont law. The Vermont
Supreme Court has expressly held that the failure to call Dr. Totonelly was a "strategy
disagreement" for which Plaintiffs wishes must give way to her attorney's exercise of
She also complained of her attorney's choice of expert witness. While
plaintiff conceded that both her preferred expert and the expert her attorney
eventually hired came to the same conclusion-that her aunt had died of a
Fentanyl overdose-she felt her expert was "more definitive," "not wimpy,"
and "very staunch in his opinion." Her attorney explained that he had made
a "plurality of attempts" to contact plaintiffs preferred expert, but having
received no response, retained another whom he considered ')ust as
competent" and capable of providing "everything" he needed for expert
As the trial court correctly stated, "[t]he decision regarding which expert, or
how many experts, to retain is a classic strategy decision within the
discretion of the attorney." . . . A disagreement on strategy does not rise to
the level of"good cause" sufficient to support a motion to withdraw ....
The trial court thoroughly examined these strategy disagreements, and its
determination that counsel made reasonable decisions within the purview of
his professional discretion is firmly rooted in the record. The primary
conflict was over the way in which the case would be tried, and plaintiff
points to little more than her disagreement with these decisions to support
her motion. . . . The choices at issue were well within the discretion of
plaintiffs counsel, and the trial court did not abuse its discretion in denying
Puppolo, 2011 VT 119, ~~ 9, 17 (internal citations omitted). Rather than squarely
address the Vermont Supreme Court's Puppolo decision, the August 15, 2016 Opinion
does not even mention it.
It is well-established that violations of professional responsibility do not per se
constitute legal malpractice. See, e.g., Davis v. Findley, 422 S.E.2d 859, 860 (Ga. 1992)
(collecting cases and holding that an alleged violation of the Code ofProfessional
Responsibility, "standing alone, cannot serve as a legal basis" for a legal malpractice
action) (internal quotation marks omitted) (emphasis in original). Moreover, even if
Defendant had been truthful with Plaintiff and the trial court, the August 15, 20 16
Opinion fails to adequately explain why this would have produced a favorable outcome
for the Estate. In other words, had Defendant been honest in explaining to both Plaintiff
and the trial court why he chose not to call certain witnesses, use certain textbooks and
treatises, or ask certain questions, it is not clear how this would have produced a different
result. The jurors in the Dodig malpractice action were not privy to the reasons for his
strategic decisions, nor should they have been.
Finally, the August 15, 2016 Opinion is inadmissible because it purports to
instruct the jury as to the relevant law and the conclusions it must reach regarding the
credibility of witnesses and the persuasiveness of their testimony. '"The problem with
testimony containing a legal conclusion is in conveying the witness' unexpressed, and
perhaps erroneous, legal standards to the jury."' Andrews, 882 F.2d at 709 (quoting
Torres v. Cty. of Oakland, 758 F.2d 147, 150 (6th Cir. 1985)). As the Second Circuit has
Generally, the use of expert testimony is not permitted if it will "usurp
either the role of the trial judge in instructing the jury as to the applicable
law or the role of the jury in applying that law to the facts before it." When
an expert undertakes to tell the jury what result to reach, this does not aid
the jury in making a decision, but rather attempts to substitute the expert's
judgment for the jury's. When this occurs, the expert acts outside of his
limited role of providing the groundwork in the form of an opinion to
enable the jury to make its own informed determination. In evaluating the
admissibility of expert testimony, this Court requires the exclusion of
testimony which states a legal conclusion.
United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (citations omitted); see also
414 F.3d at 398 ("Thus, this court, echoed by our sister circuits, has consistently
held that expert opinions that constitute evaluations of witness credibility, even when
such evaluations are rooted in scientific or technical expertise, are inadmissible under
While vigorous cross-examination, introduction of opposing views, and cautionary
instructions from the judge may address some of the risks posed by the August 15, 20 16
Opinion, the Second Circuit has recognized that even if a court reminds a jury that a
lawyer's views of the law are "'not binding[,]"' "such a charge cannot always cure the
trial court's error in allowing inadmissible evidence." Fiataruolo v. United States, 8 F.3d
930, 942 (2d Cir. 1993). In such circumstances, "allowing attorneys to testify to matters
oflaw would be harmful to the jury." Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir.
1997). "First, the jury would be very susceptible to adopting the expert's conclusion
rather [than] making its own decision. There is a certain mystique about the word
'expert' and once the jury hears of the attorney's experience and expertise, it might think
the witness even more reliable than the judge."' !d. "Second, if an expert witness were
allowed to testify to legal questions, each party would find an expert who would state the
law in the light most favorable to its position. Such differing opinions as to what the law
is would only confuse the jury." !d. As the Daubert Court observed: "Expert evidence
can be both powerful and quite misleading because of the difficulty in evaluating it.
Because of this risk, the judge in weighing possible prejudice against probative force
under Rule 403 ... exercises more control over experts than over lay witnesses."
Daubert, 509 U.S. at 595 (internal quotation marks omitted).
In this case, when the inadmissible parts of the August 15, 2016 Opinion are
excluded, there is little left. In tacit recognition of this fact, Plaintiffs counsel asked
Attorney O'Toole in an email whether they should "bit[e] the bullet" because they could
not show legal malpractice. (Doc. 74, Ex. L.) When coupled with evidence that Attorney
O'Toole performed no independent legal research in rendering the August 15, 2016
Opinion, to nonetheless allow him to testifY as an expert witness before a jury would be a
derogation of the court's gatekeeping function.
Because the August 15, 2016 Opinion is untimely and inadmissible under Fed. R.
Evid. 702, Daubert and its progeny, and Fed. R. Evid. 403, Defendant's motion to
exclude Attorney O'Toole opinions is GRANTED.
Whether Defendant Is Entitled to Summary Judgment as to Plaintiff's
Legal Malpractice Claim (Count I).
Defendant contends that, in the absence of admissible expert testimony, Plaintiffs
legal malpractice claim cannot survive summary judgment. Summary judgment is
appropriate "if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a).
In federal court, where jurisdiction is premised upon diversity of citizenship, the
court applies the choice-of-law rules of the forum state. See Klaxon Co. v. Stentor Elec.
Mfg. Co., 313 U.S. 487,496 (1941). Vermont applies "the Restatement (Second) of
Conflicts for choice-of-law questions in both tort and contract cases." McKinnon v. F.H
Morgan & Co., 750 A.2d 1026, 1028 (Vt. 2000). This approach chooses the substantive
law of the state that "has the most significant relationship to the occurrence and the
parties." Amiot v. Ames, 693 A.2d 675, 677 (Vt. 1997). Because Plaintiffs claims arise
out of Defendant's representation of Plaintiff in Vermont, it is the state with the most
significant relationship to the occurrence and the parties and thus Vermont law governs
Plaintiffs legal malpractice claim.
Under Vermont law:
[a] lawsuit against an attorney for negligence generally requires: (1) the
existence of an attorney-client relationship which establishes a duty of care;
(2) the negligence of the attorney measured by his or her failure to perform
in accordance with established standards of skill and care; and (3) that the
negligence was the proximate cause of harm to plaintiff.
Hedges v. Durrance, 2003 VT 63, ,-r 6, 175 Vt. 588, 589, 834 A.2d 1, 3. "If the alleged
negligent conduct is a matter of judgment unique to that profession, the above elements
must be established by expert testimony to assist the trier of fact in determining
negligence." Estate of Fleming v. Nicholson, 724 A.2d 1026, 1028 (Vt. 1998). "The
only exception to this requirement is where the 'lack of care is so apparent that only
common knowledge and experience are needed to comprehend it."' Clayton v.
Unsworth, 2010 VT 84, ,-r 17, 188 Vt. 432, 439, 8 A.3d 1066, 1072 (quoting Estate of
Fleming, 724 A.2d at 1028). An attorney's strategic decisions, including whether to call
particular witnesses and introduce certain documentary evidence, are "matter[ s] of
judgment unique to" the legal profession. Estate ofFleming, 724 A.2d at 1028. As the
Supreme Court of Texas has explained: "[d]ecisions ofwhich witnesses to call, what
testimony to obtain or when to cross-examine almost invariably are matters of judgment.
As such, the wisdom and consequences of these kinds of tactical choices made during
litigation are generally matters beyond the ken of most jurors." Alexander v. Turtur &
Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004) (citation and internal quotation marks
In light of the Vermont Supreme Court's conclusion that Defendant's selection of
the witnesses and evidence to present at trial in the Dodig malpractice action constituted
"reasonable decisions within the purview of his professional discretion[,]" Puppolo, 2011
VT 119, ,-r 17, Plaintiff carries a heavy burden to establish that they nonetheless constitute
a deviation from the applicable standard of care which caused her damages. It is not
enough for Plaintiff to claim that Defendant promised to pursue certain strategies in the
Dodig malpractice action and failed to do so because Plaintiff cites no Vermont authority
for the proposition that a legal malpractice claim can be brought on that basis.
Correspondingly, Plaintiff proffers no facts that Eva Puppolo' s death was so
clearly caused by medical malpractice that even a lay person could conclude that
Attorney Dodig failed to timely file a meritorious lawsuit. See Corey v. Norman, Hanson
& De Troy, 742 A.2d 933, 940 (Me. 1999) (stating that in the absence of expert testimony,
"the factfinder would be compelled to speculate as to proximate causation"). In tum,
"from the perspective of a lay juror, the causal link between the [P]laintiffs allegations
of negligence" by Defendant and the adverse outcome in the Dodig malpractice action "is
far from obvious." Bozelko v. Papastavros, 147 A.3d 1023, 1030 (Conn. 2016). Expert
witness testimony is thus essential to Plaintiffs legal malpractice claim against
Defendant. See Estate ofFleming, 724 A.2d at 1025. She has not, and cannot, establish
a breach of the duty of care and causation without it.
Because Plaintiff has failed to establish the essential elements of legal malpractice
under Vermont law, Defendant's motion for partial summary judgment as to that claim is
GRANTED and Plaintiffs legal malpractice claim (Count I) is hereby DISMISSED. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (stating that the entry of summary
judgment is mandated "against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial").
For the foregoing reasons, Plaintiffs motion to admit audio recordings is hereby
DENIED. (Doc. 76.) Defendant's motion to dismiss the action is DENIED. The court
EXCLUDES the opinions of Attorney O'Toole in their entirety and GRANTS IN PART
AND DENIES IN PART Defendant's motion for expenses. Plaintiff is ORDERED to
pay Defendant the sum of$500.00, together with any photocopying costs incurred by
Defendant in producing his file. The court GRANTS Defendant's motion for partial
summary judgment as to Plaintiffs legal malpractice claim (Count I) and that count is
DISMISSED. (Doc. 42.)
Dated at Burlington, in the District of Vermont, this
day of September, 2017.
Christina Reiss, Chief Judge
United States District Court
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