by Mike Donoghue, Vermont News First, Vermont Business Magazine
Dartmouth Health in Lebanon, N.H. is being asked to pay more than $2 million in legal fees and interest after a Windsor County fertility doctor successfully sued over her disability discrimination firing in 2017.
A federal court jury in Burlington awarded $1 million in economic damages to Dr. Misty Blanchette Porter of Norwich on April 10 for lost income and expenses. The jury also said Porter was entitled to an additional $125,000 in non-economic damages for the loss of enjoyment in life, mental anguish or pain and suffering.
Now Porter’s lawyers have filed to recover their lawsuit-related costs in the contentious legal battle which has ricocheted through Federal District Court in Vermont and the U.S. Court of Appeals for the Second Circuit in New York City over the past eight years.
The request is for $1,742,650 in legal fees to be split between the law firms of Vitt & Nunan in Norwich and Langrock Sperry & Wool in Burlington, who represent the doctor. The request is under the Vermont Fair Employment Practices Act.
Dartmouth Health has not filed a written response to the request by Dr. Porter, who was laid off June 3, 2017.
Dartmouth Hitchcock Medical Center, Dartmouth Hitchcock Clinic, Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock Health were all named as defendants in the civil lawsuit filed in October 2017. They are known collectively as "Dartmouth Health," court papers said.
Dr. Porter also claimed in her lawsuit that Dartmouth Health had retained two doctors in her division that provided medical care below an acceptable standard and did nothing about it.
In a separate new filing, the lawyers for Dr. Porter want Magistrate Judge Kevin J. Doyle also to assess $341,429 in pre-judgement interest for the $1 million verdict for economic damages.
The request is 1 percent per month (12 percent per year) as allowed by the Vermont statutory rate, attorney Geoffrey J. Vitt wrote.
Doyle, who presided at the 3-week trial, had told the jurors not to worry about determining any possible financial interest for the damages in the case.
Doyle instructed them to “not add any sum for interest to the damages awarded in this case. The court will make such award if appropriate,” according to the motion by Vitt, the lead lawyer on the doctor’s legal team.
“Dr. Porter now asks the Court to award pre-judgement interest,” the plaintiff’s motion noted.
The defense team, headed locally by Burlington attorney Tristram J. Coffin, has filed a 15-page objection to the request for interest and asks for discretion.
“The Court should exercise that discretion and either award no prejudgment interest or apply a significantly reduced pre-judgement interest rate to Plaintiff’s backpay award,” Coffin wrote.
He said there were several factors to consider including “the facts and circumstances underlying the case’s protracted procedural history, plaintiff’s legal theories, the evidence at trial, how the jury ultimately ruled and the continuing ambiguity in calculating these damages...”
The fight over the interest and legal fees are just the latest in an eight-year highly contentious legal battle. There has been very little the two sides have agreed upon in the case since it began.
Vitt, in his motion for interest, had warned “Dr. Porter is also preparing a Bill of Costs and a Motion for an Award of Attorneys’ Fees, which will be filed in due course.”
That motion for $1.7 million in legal fees was subsequently filed by Vitt, his law partner, Sarah Nunan and co-counsel Eric D. Jones of Langrock Sperry & Wool in Burlington.
The fight is sure to continue. Judge Doyle provided both sides until Tuesday May 27 to file any post-trial motions and appeals are possible.
Vitt wrote the hours and rates were reasonable in light of the case and he cited some earlier fees awarded in Vermont.
He also claimed the contentious nature by the defense helped drive up the costs in the long-running case.
After an adverse pre-trial ruling against Dr. Porter, the case was eventually appealed on Nov. 4, 2020 to the U.S. Court of Appeals for the Second Circuit in New York City where it remained for over three years.
A three-judge appeals panel heard arguments and eventually reversed the summary judgement approved by then-Chief Judge Geoffrey W. Crawford of Vermont. The appeals court, in a 100-page complex decision, affirmed Crawford in part and vacated the rest of his pre-trial ruling. The court remanded the case back to Burlington on Feb. 27, 2024 for a possible trial.
Doyle was assigned to take over the case from Crawford on April 2, 2024.
"Several factors contributed to the amount of time involved. Document discovery was protracted due to Dartmouth Health's aggressive discovery tactics, which resulted in requiring Plaintiff to file and litigate eight motions to compel (which were granted,)" Vitt wrote.
"Wrongful termination cases are necessarily highly fact intensive, and discovery was extensive. The case extended over almost eight years, including summary judgement, an appeal to the Second Circuit, two mediations, numerous hearings, and a three-week trial," he wrote.
Vitt noted the plaintiff had only three lawyers, while the defense had four lawyers and a paralegal at the trial.
"Shortly after Dr. Porter filed her complaint, Dartmouth Health made it clear it intended to mount an aggressive defense," Vitt said in an affidavit. They retained Downs Rachlin Martin in Burlington and the Foley Lardner firm in Boston.
Discovery was time consuming with Dartmouth Hitchcock producing about 32,000 documents and Dr. Porter with about 1,200, he said.
Twice mediation was unsuccessfully tried, the first with Mediator Gregory Slayton.
"Dartmouth Heath made it clear that it had no intention to settle the case and the mediation ended quickly," Vitt wrote.
A second attempt after the case returned from the appeals court in New York also was unsuccessful.
The jurors also ruled Dr. Porter was entitled to $125,000 in non-economic damages for the loss of enjoyment in life, mental anguish or pain and suffering. However that money is not subject to an interest payment.
The jury of six men and six women deliberated for about 17 hours over three days.
At least one Dartmouth Health top official was apparently satisfied with the verdict.
"We feel very happy," Dr. Edward Merrens, DH's chief clinical officer, said after exiting a post-verdict meeting with the defense team at the courthouse.
The jury verdict was below the estimated $1.8 million in lost wages that Economist Robert Bancroft of Westford testified Dr. Porter would lose by the time she plans to retire in 2033 at age 70.
Bancroft, a former state legislator, testified at both a pre-trial hearing and the trial about the financial losses Dr. Porter had and will sustain due to her firing by Dartmouth Health.
Following her dismissal, the University of Vermont Medical Center in Burlington recruited Dr. Porter, where she remains employed.
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