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A ruling handed down in another case two days before the close of evidence in the bitter trial of three Yale University Medical School radiologists, suing the university under Connecticut’s workplace free speech law, was not the legal death ray Yale hoped it would be. Ruling Nov. 22, Waterbury Complex Litigation Docket Judge Carl J. Schuman deflated Yale’s bid to use the state Supreme Court decision in Nieman v. Yale to wipe out the radiologists’ suit retroactively. Nieman appeared on the Judicial Branch Web site July 14 just as Yale’s Wiggin & Dana defenders in the trial against the radiologists were on the verge of being handed a $5.5 million loss on every issue before the jury, plus lawyers’ fees and punitive damages. Wiggin & Dana also represented Yale against philosophy professor Susan Nieman, and secured a resounding victory before the Supreme Court. It denied Nieman any legal grounds to sue in court over being denied tenure, because she’d failed to exhaust the remedies listed in the Yale employee handbook. Nieman, represented by New London attorney Jacques Parenteau, cited the handbook as part of her employment deal when she sued for breach of contract. The Supreme Court reasoned that Nieman could therefore not deny the handbook was contractual, and that its procedures governed. The Nieman decision was a home run for Wiggin’s appellate slugger Aaron S. Bayer, a longtime deputy attorney general, who came on board last year after appellate ace Mark R. Kravitz left Wiggin for the federal bench. It was Bayer’s first high court at-bat for the New Haven-based firm. It was also a bitter loss for Parenteau, who also represents two of the three Yale doctors, Morton Burrell and Robert Smith. New Haven plaintiffs employment lawyer Joseph D. Garrison represents the third, Arthur Rosenfield. Yale’s trial lawyers, William J. Doyle and Kenneth D. Heath, were quick to brandish the Nieman case against the radiologists. They argued for a directed verdict, contending that, due to Nieman, Schuman lacked jurisdiction to even be hearing the doctors’ case. If Schuman was truly convinced he had no jurisdiction, he could have halted the trial right there, dismissing the case and the jury on the eve of closing arguments on the grounds that, even after four years of costly struggle, Burrell v. Yale had never had a legal right to be in court. Instead, the judge allowed the trial to play out. On July 23, the jury found for the doctors on all counts of free speech and contract violations. In his Nov. 22 ruling, Schuman concluded that, while Nieman had to be recognized, it was not the savior Yale wanted it to be. In fact, the judge took the Wiggin lawyers to the woodshed. “Yale has no valid excuse for not raising exhaustion earlier,” he wrote. The university, Schuman said wryly, “surely does not claim ignorance of the law [and] there is no dispute that the same law firm represented Yale in both Nieman and this case.” His displeasure evident, Schuman declared that a civil suit, “especially one as long and expensive as this one, is not some sort of card game in which a player can withhold a trump card until it is too late for his opponent to respond.” Because failure to exhaust remedies could destroy subject matter jurisdiction — the very grounds for any ruling but dismissal — Schuman felt he couldn’t find that Yale’s delay waived its exhaustion argument, or that it could be barred from raising such a threshold question at the last moment. The judge called Yale’s argument “harsh” — that the doctors’ failure to precisely follow handbook procedures within 45 days destroyed their right to any academic or legal redress. But Schuman admitted Nieman gave Yale every right to raise it. Unlike Susan Nieman, the doctors sued under the state workplace free speech statute. The law doesn’t say whether exhaustion of remedies is necessary. It is, however, a “remedial statute” that deserves a “generous construction” to protect important workplace rights, Schuman ruled. He declined to read an “unexpressed exhaustion rule” into the statute. Schuman then examined the actual measures the doctors had taken to express grievances, and found them in substantial compliance with the handbook procedures. Parenteau, of Hartford-based Madsen, Prestley & Parenteau, described Schuman’s solution as “elegant.” Bayer said it was narrow: “I think the judge ultimately accepts Nieman, as he must, and has to accept the fact that it’s jurisdictional in nature, but says that exhaustion doesn’t apply to this particular statutory claim. We disagree with that obviously, but whether and to what extent that will be part of an appeal remains to be seen.” Yale’s post-trial motions were effective in shaving $100,000 from Smith’s $125,000 emotional distress award, and reducing Burrell’s interest by $24,520 and Rosenfield’s interest by $82,687. Rosenfield’s lawyer, Garrison, practices at New Haven’s Garrison, Levin-Epstein, Chimes & Richardson. In an interview, he said universities and corporations have typically disclaimed that handbooks create contractual rights. However, Nieman illustrates a way to radically shrink the effective statute of limitations, if the handbook is concededly a contract. By statute, contract claims have a six-year limitations period, Garrison noted, while Yale’s handbook set a 45-day do-or-die deadline. “What’s to keep them from making it a 15-day period?” he asked.

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