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Despite winning a $5.5 million jury verdict July 23 for their three doctor clients in a free speech case against Yale University Medical School, employment lawyers Joseph D. Garrison and Jacques J. Parenteau feel they were thrown for a loss. They say Yale’s trial lawyers, veteran William J. Doyle and Kenneth D. Heath of New Haven, Conn.’s Wiggin & Dana, came up with strategies that effectively kept the doctors from proving the truth of their complaints that X-rays were processed and signed off on without a careful reading by qualified physicians. The plaintiffs’ lawyers also were unable to present their case that Yale’s internal investigations, and an outside investigation by the Washington, D.C., law firm of Hogan & Hartson, were actually cover-ups. In addition, the doctors lost their bid for a ruling that punitive damages available under a 1984 workplace free speech statute should have no upper limit. Yale’s lawyers were able to limit punitives to payment of attorneys’ fees and costs. Defense lawyer Doyle, in an interview, cracked, “Some people are awfully hard to please. Most would be pretty happy to win a $5.5 million verdict.” TRUTH IRRELEVANT Dr. Arthur Rosenfield, whose salary was cut from $200,000 to $80,000, was represented by Garrison, of New Haven’s Garrison, Chimes, Levin-Epstein & Richardson. Parenteau, of Madsen, Prestley & Parenteau, represented Dr. Morton Burrell, who’s still a Yale radiologist, and Dr. Robert C. Smith, who quit the department and is currently a student at Fordham School of Law. Yale’s lawyers worked to narrow the matter to a dispute between the plaintiffs and radiology department chairman Bruce McClennan, and not a Medicaid fraud issue whitewashed by Yale administrators above the department. On March 12, Doyle and Heath successfully moved to preclude any evidence at trial of the merits of the doctors’ complaints, any evidence of past “bad acts” by Yale that were unrelated to alleged retaliation against them, or any evidence of the adequacy of the Hogan & Hartson investigation. Yale conceded that the doctors’ complaints were made in good faith. Ruling May 10, Waterbury Complex Litigation Docket Judge Carl J. Schuman wrote that, because Yale does not dispute the doctors’ “good faith belief in the truth of their complaints about patient care and fraudulent billing at the time they made them, evidence of the truth of these complaints is not relevant and would unduly sidetrack the trial into complicated issues of medical malpractice and Medicaid regulations.” Because the underlying truth was irrelevant, Schuman added, “Evidence of the truth of plaintiffs’ complaints is therefore inadmissible to prove liability in the plaintiffs’ case in chief.” Yale claimed that the three doctors were disciplined for various reasons unrelated to their quality of care complaints. Rosenfield was called hostile and uncollegial. Smith allegedly lacked interpersonal skills. Burrell was called unavailable, not a good leader, and not a good departmental citizen. Schuman noted that the truth of Yale’s stated reasons for discipline is relevant to determine whether they were genuine or merely pretextual. In his one-page ruling on Yale’s motion, the judge said he would allow evidence about what responsible Yale officials actually knew or believed about the doctors when they were disciplined, “not for the truth of the matter, but rather as proof of motive.” The plaintiffs brought in a stream of over a dozen former radiology department colleagues, from as far away as Oregon, to testify as motive witnesses — akin to character witnesses — in order to show the falsity of the charges against them. “We could prove falsity, but in essence, we couldn’t prove truth,” said Garrison. Since department head McClennan said Rosenfield was “uncollegial” in his review of charts and personally, much of the plaintiffs’ case went to show the opposite. INVESTIGATION STYMIED With a little over a week remaining in the planned time for trial, Schuman ruled that the plaintiffs would not be allowed to impute findings from the Hogan & Hartson investigation to Yale’s top administrators, such as the president, dean and general counsel. “I just don’t think that things that the defendants didn’t know about can explain their motives, so, to that extent, I’m ruling that evidence of the investigation is not admissible, unless responsible officials at Yale knew about it,” Schuman ruled June 16. He was sympathetic to the difficulty of proving what the higher ups knew: “I agree that confessions by the other side are very rare,” the judge noted, saying the doctors might make their case with circumstantial evidence. Ultimately, Parenteau said the scheduled motive witnesses left too little time to make the case for a cover-up. Both Garrison and Parenteau say that, if the case is ordered retried, they’re confident the cover-up case could be made. Doyle said Yale is currently preparing post-trial motions challenging the size and validity of the verdict. One serious issue, he said, is an award of damages for the 20-year reduction of income for Rosenfield. “He did nothing to mitigate damages, and failed to make any effort to find another job,” said Doyle. He added that damages for loss of reputation and loss of life’s enjoyment were not proven and may not be available under the workplace speech statute, C.G.S. �31-51q. For their part, Garrison and Parenteau say they’d welcome the opportunity to cross-appeal, particularly on the issue of proving the truth of the doctors’ complaints, and to push for a broader interpretation of “punitive damages” under the statute.

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