Free Reply to Response to Motion - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT Andrew Ordon, M.D. : Plaintiff, : Civil Action No. : 301CV1951 (AHN) vs. : : Karen L. Karpie and : Murphy & Karpie, LLC, : Defendants. : May 12, 2006 REPLY RE MOTION FOR RECONSIDERATION Defendants' opposition to this motion contends that plaintiff lacks proper basis for the requested reconsideration (Memorandum, pages 1-3 et al). Thus, defendants

characterize this counsel as having the "disingenuous intention" (Memorandum, footnote 1) of presenting a "grossly distorted and unsupported characterization of this case" (Memorandum, page 2) in order to "relitigate an issue already decided" (Memorandum, page 4) though the improper presentation of "new argument" and "new evidence" that could have been earlier raised (Memorandum, page 3). Plaintiff submits that defendants'

characterization and argument ignore what the record clearly shows. Plaintiff Meets the Standard for Reconsideration The subject Motion for Reconsideration specifically invokes local Rule 7(c) but follows from Federal Rules 59 and 60. Reconsideration is therefore expressly permitted by a plethora of grounds including "equity" and "additional testimony" (FRCP 59) as well as "mistake, inadvertence, surprise or excusable neglect" and "any other reason justifying relief" (FRCP 60). It is also supported by "the need to correct a clear error or prevent manifest injustice" - - Virgin Atl. Airways Ltd v. Nat'l Mediation Bd., 956 F. 2d. 1245,

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1255 (2d Cir. 1992) - - because the record herein shows "decisions or data that the Court overlooked - - matters, in other words, that might reasonably be expected to alter the conclusion reached by the Court". Shrader v. CSX Transport, 70 F. 3d 355, 257 (2d Cir. 1995). In the subject context of a summary judgment motion, the above-stated standard of "might reasonably be expected to alter the conclusion reached by the Court [emphasis added]" is low. This is because the burden on plaintiff to defeat summary judgment is "any evidence in the record based on any source from which a reasonable inference in the nonmoving party's favor may be drawn [emphasis added]" (Decision, page 5). Plaintiff's actual showing is therefore more than sufficient. The cornerstone for plaintiff's Motion for Reconsideration is difficult to deny. Dr. Ordon is a disclosed expert (Exhibit 10) whose sworn testimony (Exhibit 7) goes directly to the critical issue of how he would have fared if defendant's negligence had not "denied [him] a defense in the Connecticut [CMEB] proceeding" (Complaint, Count Two, Paragraph 12). He not only explains why, but specifically asserts, he "would have won" had his case proceeded to hearing before the CMEB. (Exhibit 7, pages 165-213, see especially page 165 as well as pages 178, 212 and 213). Nowhere in the subject Decision was the testimony of this designated expert even discussed! Dr. Ordon's original evidence directly rebuts the Court's finding (Decision,
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1. See also Ordon v. Karpie, 223 FRD 33, 35-36 (D. Conn. 2004).
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page 12) that: none of the expert witnesses that Dr. Ordon has designated have testified that Dr. Ordon would have been successful if he had proceeded to a full CMEB hearing. The inescapable conclusion is that both controlling law and critical data were improperly "overlooked" by the Court in granting summary judgment to defendants. Virgin Atl. Airways Ltd., supra. Compounding the foregoing is the element of "surprise"evident on the record. FRCP 60 (b)(1). Both this Court and this counsel perceived defendants' Summary Judgment Motion as framing one simple issue : the dispute here is whether you have to use a lawyer as your expert witness or a doctor as your expert witness. That was the focus of this counsel's attention. unanticipated areas, briefed by no one. In its largely independent analysis of the Complaint, the Court lacked and/or overlooked critical data. As a result, it misunderstood the history of this case and misconstrued the scope of plaintiff's pleadings. Such "surprise" issues should be
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The Court, however, shifted into

2. See defendants' Memorandum, page 20 of the hearing transcript in the Affidavit of Kevin M. Godbout. 3. It is unclear whether the Decision embraces any of defendants' new argument concerning the "special" nature of a CMEB proceeding. (infra pages 4-6). If so, the absence of its mention in any summary judgment briefs similarly justifies plaintiff's surprise.
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reconsidered and redetermined on a more complete record, including the present arguments and evidence presented by counsel. It is therefore proper to seek reconsider based on an expanded record. In re Salem Mortgage Co., 791 F 2d 456, 459-460 (6th Cir. 1986). This is necessary to "correct a clear error of law" and "to prevent manifest injustice" resultant from "data the Court overlooked". Schrader, supra. Reply to Defendants' Arguments 1. Dr. Ordon's Opinion Defendants' current attack on the previously overlooked opinion of Dr. Ordon is disingenuous in asserting that plaintiff "failed to properly raise that argument". (Memorandum, pages 15-17). Dr. Ordon's opinion was by far the most extensive of the eight (8) exhibits supporting plaintiff's original Memorandum and it was the only exhibit there cited (pages 15-17) to rebut every alleged failure to meet the "standards of care" at issue before the CMEB. His opinion also constitutes three (3) of the five (5) page discussion of "causation" in that nineteen (19) page memorandum opposing summary judgment. This does not suggest that plaintiff was improperly asking the Court "to scour the record" (Memorandum, page 16). Defendants also make the new assertion that Dr. Ordon was not "familiar with CMEB proceedings" and therefore cannot be proven "qualified" to opine on how that Board would have ruled on the single pertinent issue of whether Dr. Ordon's conduct met the "standard of care" (Memorandum, pages 18-19, et al). They conclude that the Court should ignore his proffered evidence, including the opinion that he "would have won"! (Exhibit 7, page 165).

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The slender reed supporting defendants' assertion is the contention that a CMEB proceeding is so special that only an expert intimately familiar with it can opine on whether that board would have decided that: (1) Dr. Ordon prevails because his treatment of patient met the "standards of care" or (2) Dr. Ordon loses because that treatment was so "substandard" as to prove him "unable to practice medicine with reasonable skill or safety". (Decision, Footnote 3). Defendants' argument is clearly intended to distinguish the CMEB from doctors, hospital boards, professional societies, courts and other venues where these same "standards of care" issues are also commonly decided. However, the attempted distinction is baseless. Such a venue distinction is nowhere purported to be a "fact" - - see defendants' statement under Local Rule 56. It is not supported by any of defendants' expert opinions. It was not even previously argued in any summary judgment brief! Moreover, defendants' assertion is both illogical and would impute an absence of "due process" for CMEB proceedings. What would make a determination regarding the "standards of care", and hence the outcome of whether or not Dr. Ordon would have prevailed, necessarily vary between the CMEB as opposed to all other venues where that same decision is commonly decided? If it does vary, something is very wrong! Meeting the "standards of care" should ensure victory, regardless of venue. Regardless of defendants' desire to press this debate; however, the Court should not
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entertain it. Nothing beyond the bald assertions of defendants' counsel supports such a distinction. Those current assertions that the CMEB is "special"; that CMEB decisions can only be predicted only by "legal experts" who are "familiar" with it; et al are not in evidence and certainly do not obviate the evidence of record that Dr. Ordon "would have won". Accordingly, familiarity with the Connecticut Medical Examining Board should be irrelevant in this case. The proper focus is an objective one of whether Dr. Ordon's treatment met the "standards of care" or was "substandard". It is this focus which should be, and is, determinative of whether Dr. Ordon "would have prevailed in [any venue including] the CMEB proceeding."(Decision, page 11) This is a question which Dr. Ordon is qualified to answer and has answered in the affirmative. Summary Judgment should therefore have been, and should now be, denied. 2. Pleading Construction Defendants' current attempt to justify the Court's largely independent review of the complaint is essentially conclusory. Defendants offer nothing to support the critcized deviation from the normal Federal Court rule of liberal construction for such pleadings. They also address none of the peculiarities of the Decision already discussed by plaintiff. Plaintiff pointed out that the Court apparently overlooked a significant distinction in the Complaint between the references to the damage of "plaintiff" himself (Count One, Paragraph 30 and Count Two, Paragraph 15) when the Court concluded that "the Complaint identified . . . damage to Dr. Ordon's surgical practice, not his mental health". (Decision, page 8). The injury to plaintiff's "practice" is actually separately plead (Count One,
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Paragraphs 28-29; Count Two, Paragraph 29). Defendants' silence is telling. Defendants also offer no explanation for the Court's insistence that this is solely a legal malpractice case; for its distinction between such "malpractice" and "negligent infliction of emotional distress" and/or for its failure to recognize the pleading of negligent "misrepresentation" . "Legal `malpractice'" is merely a convenient label applied to any form of "negligence" committed within the legal field, the "negligent" and "negligently" expressly pled here encompass all these variations. Even in state court, with its
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comparatively strict rules of fact pleading, such multiple causes of action may be embraced within a single count. Scanlon v. Connecticut Light & Power Co., 258 Conn. 436 (2001). Likewise, defendants ignore the point that the Court does not mention, and therefore is assumed to have "overlooked", the Complaint's reference to the doctrine of or "lost chance". This too is clearly pled in the recitation that "plaintiff" (not, as discussed above, his "practice") had been "denied [the chance of] a defense in the Connecticut proceeding". (Count Two, Paragraph 12) . Again, this pleading is wholly inconsistent with the Court's sua sponte construction of the Complaint to unduly limit its scope. Defendants' limited retort on this issue is that no Connecticut case yet recognizes (or negates) this doctrine for cases other than medical malpractice. Plaintiff does not disagree,
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4. The Court similarly re-characterizes plaintiff's Count Two which is expressly based on "breach of contract". (Decision, page 9). 5. Although minor in terms of other damages, causation is obvious for the "$40,000 to $50,000" expended to correct for defendants' negligence in the ensuing Connecticut, New York and California proceedings. (Exhibit 7, page 265).
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but points out that this is a recently developing area of the law. Connecticut's partial adoption of this doctrine from other jurisdictions, so far only for medical malpractice occurred only within the last decade. Borkowski v. Sachetti, 43 Conn. App. 294 (1996). It is hardly unreasonable to extend to a doctor, the same doctrine available to his patient. Anything less would result in some plaintiffs receiving inexplicably disparate treatment, based solely on occupation . The impossibility of anticipating the Court's "surprise" reconstruction of the Complaint is obvious. In narrowing its scope, the Court effectively eliminated inter alia both several causes of action and an entire class of personal damage which were literally pled and actively supported through discovery. Reconsideration is therefore appropriate to allow the Court to reassess both the pleadings it overlooked and its deviation from the normally liberal rules for construing them. 3. Other Expert Opinions Despite opposing counsel's attempts to shade Ms. Karpie's statements, (Memorandum, page 13-14), reasonable persons might reach differing, but reasonable, conclusions as to their import. However, the test related by the Court for summary judgment calls only for "any evidence" from "any source" yielding "a reasonable inference" (Decision, page 5). Attorney Karpie's statements clearly meet this minimal standard. Indeed, a jury could reasonably ignore those shadings and conclude that, either as a party or "legal expert", her admissions alone establish that "[Dr. Ordon] would have prevailed in the CMEB hearing" (Decision, page 11).
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Defendants do not address plaintiff's arguments respecting the emphasized expert evidence of Dr. Winston (Plaintiff's Memorandum, pages 7-8). Conspicuously, it "links" both Dr. Ordon's "practice" and "personal" damages to the subject "negligence" (or "legal malpractice") of the Consent Decree for which "defendant was denied a defense". Thus, he references the resultant interference with both Dr. Ordon's "ability to complete his professional duties and just his simple activities of daily living" (Exhibit 8, page 73 et al). Therefore, irrespective of the narrowed construction of plaintiff's Complaint under the subject Decision (supra, pages 6-7), he emphasizes that the damage occurred in parallel, with both the "practice" and "plaintiff" suffering in a similar manner. Defendants' argument against the related opinion of Dr. Eagan is superficial (Memorandum, pages 20-21). It does not even specifically address the controlling law - C.G.S. §52-174(b) - - cited during summary judgment, but overlooked by the Court (Plaintiff's Memorandum, page 5). Defendants instead hurl unsupported, inaccurate and irrelevant assertions that this purely "treating physician" was required to file an expert disclosure. He was not. FRCP Rule 26(a)(2)(B) refers instead to witnesses "retained or especially employed to provide expert testimony" and this Court did not specially rule otherwise as to Dr. Eagan . (Ordon supra). Finally, defendants' arguments respecting Drs. Calabria and Moynahan are simply specious (Memorandum, page 19). While ignoring plaintiff's point that overlooked law
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6. As was the case with Dr. Roger, another disclosed treating physician, defendants did not even seek expert disclosures, presumably because of the detailed reports provided.
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makes reference to their and other cited opinions proper (Plaintiff's Memorandum, page 6), defendants falsely assert such evidence is "new" and imply these opinions were not properly disclosed. (See original Exhibit 7 and Ordon, supra). As for defendants' further question regarding why Affidavits were not obtained from these additional experts, the answer should be obvious. This was a summary judgment motion. Rather than needing to prove a disputed fact - - i.e. that he "would have won" - Dr. Ordon merely needed to provide a "reasonable inference" that a disputed fact existed. (Decision, page 5). Affidavits from these other experts (or defendant Karpie's deposition admissions) are unnecessarily cumulative to the Exhibits (and especially Dr. Ordon's testimony) originally of record. Conclusion Reconsideration and reversal of the Decision on Defendants' Motion for Summary Judgment should be granted.

The Plaintiff,

By_________________________ Philip M. French 1010 Washington Boulevard Stamford, Connecticut 06901 Telephone: (203) 357-1332 Facsimile: (203) 324-5495 Federal Bar No. CT 05920

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CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was mailed this day, by first class mail, to all counsel of record, as follows: Michael D. Neubert, Esquire Neubert, Pepe & Monteith, P.C. 195 Church Street, 13th Floor New Haven, Connecticut 06510 Telephone:(203) 821-2000 Facsimile (203) 821-2009

_______________________ Philip M. French