Kenyon: Dartmouth Health asks judge to reconsider in fertility doctor’s lawsuit

The people — in this case the 12 members of a U.S. District Court jury — have spoken. But that’s not good enough for Dartmouth Hitchcock Medical Center.

After losing a $1.125 million verdict in a federal wrongful termination lawsuit filed by one of its former fertility doctors, DHMC wants a second opinion, and then some.

DHMC and its parent organization, Dartmouth Health, have asked Judge Kevin J. Doyle for a do-over.

Or even better than a new trial, they’d like Doyle, who presided over the 14-day trial this spring in Burlington, to “alter or amend the judgment.” After deliberating for more than 20 hours, the jury awarded Dr. Misty Blanchette Porter, of Norwich, more than $1 million in damages, plus attorneys’ fees, for her unlawful firing in 2017.

The argument for overruling the jury?

The judge goofed in his instructions to the jury before deliberations began, the defendants maintain.

“A judgment should be reversed where the erroneous instruction ‘was prejudicial or the charge was highly confusing,’ ” state DHMC’s attorneys, citing a 2021 federal employment discrimination case (Ashley v. City of New York) in a post-trial filing.

If the judge doesn’t agree, and as a double whammy denies the request for new trial, DHMC plans to take the case to the U.S. Court of Appeals in New York, court records show.

At the very least, DHMC is likely buying itself a couple of years before having to pay up while the case winds through the appeals process. Meanwhile the meter continues to run on legal fees.

Donald Schroeder, a big-time Boston labor lawyer, heads DHMC’s outside legal team. Other attorneys from the Boston office of Foley & Lardner, where Schroeder is a partner, and Burlington attorney Tristram Coffin are also working the case.

How much has been spent litigating a case that’s gone on for nearly eight years?

Dartmouth Health isn’t saying. A spokeswoman told me Thursday the organization “won’t be issuing a comment on this,” or any of the court motions filed in recent months that keep the case in play.

Dartmouth Health’s refusal to release basic financial information speaks to the arrogance of CEO Joanne Conroy and her lieutenants. As a nonprofit, Dartmouth Health enjoys huge tax breaks every year. In exchange for its tax-exempt status, however, the academic health system with nine hospitals and clinics in New Hampshire and Vermont apparently doesn’t view public accountability as a priority.

It should. The public has a right to know whether the money — and it’s likely in the millions — being spent on outside attorneys is coming at the expense of patient care and employees’ paychecks.

DH’s disdain for transparency is not new.

In May 2017, DHMC suddenly announced it was closing its division of reproductive endocrinology and infertility, or REI, after serving thousands of patients over 30 years.

Dr. Ed Merrens, DHMC’s chief clinical officer, stated publicly that a nursing shortage was behind the decision. After Blanchette Porter filed her lawsuit, Merrens’ story began to unravel. The public has since learned that Blanchette Porter had lodged complaints about “improper, incompetent and harmful conduct” by DHMC’s two other fertility doctors.

The jury barely had time to leave the courthouse in early April before Dartmouth Health began spinning the verdict as a win. It’s true, the jury found in DHMC’s favor in five of Blanchette Porter’s six claims, ranging from the New Hampshire Whistleblowers’ Protection Act to the Americans with Disabilities Act.

Dartmouth Health, however, glossed over the fact that the jury found DHMC had failed to meet Vermont’s law regarding fair employment practices. Blanchette Porter’s disability stemmed from a 2015 a cerebral spinal fluid leak that required multiple surgeries and two lengthy leaves of absence from work.

A “preponderance of the evidence” showed Blanchette Porter’s disability was a “motivating factor” in her firing, the jury determined. (Since Blanchette Porter lives in Norwich, she could file her federal lawsuit in Vermont.)

If DHMC is granted a new trial, it only wants the claim it lost to be heard again. I’m not sure how DHMC gets away with treating the judicial system like a restaurant menu, picking and choosing what the jury gets to decide.

This week, I called Jared Carter, a professor at Vermont Law and Graduate School who is well-versed in appellate law. I wanted his take on a legal strategy that appears to hinge on a judge overruling himself.

“It does give you a second bite of the apple,” said Carter, who is not involved in the case. “It’s rarely successful, but it does happen.”

DHMC could also just be covering its bases. “Generally speaking, these requests are more procedural,” Carter said. Filing a motion for an amended judgment or seeking a new trial can put a defendant in a better position when the case is heard on appeal.

I also wonder if DHMC’s strategy involves getting Blanchette Porter and her lawyers to settle for less than what the jury awarded. Norwich attorney Geoffrey Vitt, who has represented Blanchette Porter from the start, has asked Judge Doyle to approve a payment of $1.7 million in legal fees for his team.

Not wanting to wait years for their money and potentially losing it all on appeal, plaintiffs sometimes accept a lesser amount in an out-of-court settlement. In a case that’s stretched out this long, however, “settlement negotiations may have run their course” Carter said.

I emailed Blanchette Porter to ask if she was open to making a deal. “We won a significant award in a jury trial. I am not interested in an out-of-court settlement,” she responded.

So the saga continues. Lawyers will keep racking up billable hours and Dartmouth Health will do everything it can to make sure the public doesn’t know the cost.

Jim Kenyon can be reached at jkenyon@vnews.com.