North Haverhill
In a motion filed on Friday in Grafton Superior Court in North Haverhill, lawyers for D-H asked for the case to be dismissed, arguing that by making those claims in a lawsuit, former Norris Cotton chief Mark Israel violated a provision of a “lucrative transition agreement” that he signed nine months earlier.
That agreement, as spelled out in a letter signed by both Israel and Duane Compton, interim dean at Dartmouth College’s Geisel School of Medicine, and filed in court by D-H, called for Israel to “step down” as Norris Cotton director on Sept. 30 but retain his position as a Dartmouth professor until June 2019.
D-H argues that agreement closed the door on a courtroom as a venue for dispute resolution. D-H cited language in the filed letter calling for “any controversy or claim arising out of or relating to this contract, or the breach thereof,” to be resolved by a private arbitrator.
Federal law favors those who seek to apply such language to keep disputes out court, said Don Schroeder, a lawyer for D-H. “The presumption of arbitrability is fairly high.”
But Geoffrey Vitt, the Norwich lawyer representing Israel, rejected that line of reasoning.
“We believe that this matter is appropriate for resolution by the courts,” he said. “We expect that the underlying dispute will be resolved by a court, not by an arbitrator.”
The new filing provided some additional details about the conclusion of Israel’s 15-year tenure as head of the cancer center. The letter promises the 70-year-old Israel an annual base salary of $320,000 during his ongoing tenure as a Dartmouth professor in pediatrics, genetics and medicine. Israel had an annual salary of $517,000 as director of the cancer center, according to the document.
The letter cites Israel’s agreement, while continuing as a professor, to provide “consultative support” to Norris Cotton’s new director, including help with applications for continued financial support from the National Cancer Institute, where Israel once was an official.
The letter also notes Israel’s “many significant contributions across so many areas that are critical to the mission of the medical school, the academic medical center and to the benefit of our community at large.”
But according to Israel’s lawsuit, the letter was written after he had been told that he would no longer oversee clinical care of cancer patients at Norris Cotton. That change was humiliating and forced him to resign, his lawsuit said.
The lawsuit claims that he was forced out in retaliation for his objections to D-H’s use of $6 million raised from various donors, including $1.6 million from the Prouty, Norris Cotton’s annual fundraising centerpiece.
Israel said on Friday that he had not seen D-H’s filing but that he would be “interested to know D-H’s position on the philanthropic dollars that were (put) into operations. That’s the essence of this to me.”
But D-H’s filing did not directly address Israel’s allegation that D-H, facing a financial crunch, improperly tapped accounts funded by The Prouty and other donors to pay operating expenses. “We’ll deal with the merits separately,” either in court or in arbitration, said Schroeder, D-H’s lawyer.
D-H’s motion to dismiss pivots on two jurisdictional issues: Does the arbitration clause of the “transition agreement” Israel signed in January limit or preclude his right to a day in court to raise his claims? And if the arbitration clause applies, can D-H invoke it?
D-H’s filings argue that it should. Although the letter spelling out the deal was signed by Compton, a college dean, the health system was Israel’s “co-employer,” the D-H filing said. In addition, a copy of the letter was sent to John Birkmeyer, then D-H’s chief academic officer, according to the D-H filing.
D-H’s filing says the wording of the letter signals that it should apply to both the college and the health system: “The Transition Agreement’s use of the collective ‘we’ further memorializes the blurred lines between Dartmouth-Hitchcock and Dartmouth College.”
The attorneys for D-H also argue that even as a separate third party, the health system should be entitled to invoke arbitration because the issues raised in Israel’s lawsuit can be seen as arising out of issues covered by the letter.
Arbitration, according to the American Arbitration Association’s website, is the “submission of a dispute to one or more impartial persons for a final and binding decision, known as an ‘award.’ ”
A 1925 federal law encouraged the use of arbitration as a way to reduce the cost and time of dispute resolution. But in recent years, arbitration has become the subject of intense policy debates.
Critics say that arbitration clauses have been applied and interpreted too broadly in order to keep parties with legitimate legal claims from filing lawsuits, and that participants in arbitration proceedings lack some of the rights and protections they have in courts.
Backers say that channeling disputes into arbitration helps ease the workload of courts and eliminate unnecessary litigation costs.
Rick Jurgens can be reached at rjurgens@vnews.com or 603-727-3229.
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Posted online Friday at 3 p.m. Updated at 11:30 p.m.