and good morning everyone judge ferrites and i are delighted to welcome judge strickland from the northern district of illinois who is sitting with us by designation this morning thank you for answering our phone call all right with that we'll begin with  first case this morning which is gallo versus mayo clinic health system it's tomorrow of a grave injustice both by the behavior of the mayo clinic and as a result of the wrongful decision of the trial court in two thousand and ten dr gallo was a  young attending physician at mayo clinic in the western area of wisconsin she was highly regarded highly were viewed as you know from reading the briefs that was an incident that occurred in two thousand and ten and unfair an untruthful incident but the result of it was that not dr gallo decided it was in her best interest to to leave the employ of the mayo clinic and to move on in her career with employment elsewhere but she was afraid as a result of this incident that my clinic and personnel at mayo clinic going forward might say things about her about her performance and said bad things it wasn't fair and it wasn't right but she felt that she needed to negotiate a separation agreement with the clinic and she did so she hired counsel and she negotiated a separation agreement a very a very fair one but a very very broad one it said out of page four of my reply brief prevent mayo clinic from saying anything about dr gallo's performance of the clinic and certainly saying anything bad about well any anything to potential employers to potential employers  unlimited agreement well i guess i had to yes second ploy or so it was more limited perhaps than if she got it from if they got a question from somebody who couldn't possibly be harmful or the potential is a very broad word as it turned out she was recruited by mount sinai hospital a large hospital in manhattan actually she wasn't recruited by the hospital she was recruited by a clinic and i know that inquiry from the hospital had to do with the credentialing decision  to mount sinai the doctor who recruited her doctor mark leibovit was the head of the department of dermatology after mount sinai and it wasn't for a position at mount sinai it was not dr gallo they thought she was a good fit for this particular position and when they did recruiter she talked to dr lee ball about it she talked to a doctor many many after a fool what about it and she concluded that it was a good position for her and she would like the job there was discussions over a variety of months a number of months she decided she wanted the job and therefore she applied for and got her license to practice medicine in new york  that she had her license center a written employment offer but because her position was dependent on her being an attending physician monitoring the activities of residents from mount sinai it was mt sinai affiliation verification form the council many testified where you have this affidavit in any event saying that the reason she was not hired was not the credentialing decision but rather the difficulty in the negotiation of the contract yes there's there's evidence from dr meet that's what she says in the declaration she was never to posed she made that declaration two years after the facts she claimed she was able to focus in on the dates may sixth to may fifteenth interesting lee though far as i'm responding to your question she didn't tell anybody she didn't tell dr gallo in the midst of their contract negotiations and she'd rescinded the offer she didn't even tell anybody at mt sinai who was doing the credential she didn't tell dr he decided not to advance the application he made that decision he says i mean as in his testimony there is no mention of her food or doctor and as soon as he made he says that in his own  dr gallo on may fifteenth just a day or two after he had made the decision that he would not advance your credentials he said your application was not adequate for credentialing no mention of or few of your application was not adequate for credentialing by the mt sinai credentialing committee and are a fool what is there for not waiting to offer you the job he didn't say were foolish decided not to give you the job he said because we've been that's plain english because we've decided doesn't meet the standards of mt sinai reform was not going to wait there to give you the job the council he's not the decision maker on whether or not to give the job that refusal and the decision maker said she didn't take into account it was even unaware of the bad rating of the fair rating while he is in part the decision maker because if she didn't meet the credentialing requirements of mt sinai then she could not possibly get the job they were for you never got that far though the the we don't want to hire those wants as of difficulties in contract it was all due respect your honor it's not a question of it not getting that far there is no evidence that anybody other than mt sinai knew that this occurred a doctor many didn't tell anybody this declaration without a deposition came two years later she focused in on a period of eight or nine days of dr lee ball according to dr gallo who called dr leave while immediately after he said you're not going to get this position because you're credentialing isn't good enough told her that it was all the fault of the affiliation verification form that was sent by the mayo clinic and that it was the fair ratings that cost her the position i was in a deposition taken to post so it was her lonely declaration and i think her memory might well have dimmed i'm not saying absolutely positively that her testimony was not worthwhile what i'm saying is is that the combination of stressed money combined with dr gallo's testimony as to what dr lee ball told her makes it absolutely clear that the decision not to give her the job was made by mt sinai and they have the right  ability to do that because if she did not meet their credentialing requirements that would be the end of it and the fee just to get back one minute true to your question your honor the  agreement says nothing about prospective it says potential employer mount sinai was clearly a potential employer they were a large hospital with a large department of dermatology if they aren't doing months and i wasn't doing the responsibility to make a credentialing decision sometimes it doesn't fit within the terms of the contract if what you're complaining about is the communication from dr white to or from mayo i think he was the only one  is very i disagree with you it is very broadly drafted it talks about a potential employer it could be that this that i'm out sign i might have sent out this form to twenty different potential people to take this job without having made a decision to switch to for clair anybody or any one of them they still would have been a potential employer that's what the separation agreement calls for yes reform was the prospect of fire but there's nothing in the contract in the separation agreement that says anything about a prospective employer and furthermore we're talking about half a degree of separation here between mount sinai and  was clearly a request for a reference from a potential employer and you can say that i'm being technical but that's what the contract says it's very specific it doesn't say prospective it said prospective we wouldn't be here we'd have lost and would correct the loss but in this case he contract is being written in the book being read by the trial court in the most limited possible way it isn't what it sounds it was  sorry your time has expired thank you you please the court counsel clinic asked this court to affirm the judgment of the district court the court is got it focused on exactly what i want to talk about two issues the potential employer issue and the causation issue attention player issue i thought based on the proposed findings of fact process that our district court use that that was not an issue in this case any longer  the proposed findings and i have set forth the three key ones at page thirty four of the response brief or as follows m s h which is mount syon i had never offered dr gallo one employment the court if there's any question to look at dr walls deposition testimony where he's asked that question also multiple times and add pages ten thirty three thirty five and sixty seven sixty eight he makes clear that there was never to be a relationship between mt sinai and employment relationship between mt sinai and dr gallo that the two arguments that the plaintiffs makes is that potential has this broad meaning that it's going to potentially pick up anyone who's a hospital who dr gallo being a doctor could possibly work at the key is what the court has done is to look at the language of the agreement and the language of the agreement is the letter of reference we've provided to potential employers seeking a reference it's very specific as to  ff made in their brief in her brief was that the the language of the agreement is broad enough to cover any inquiry that's made by any third party to mail about dr gallo and clearly the language of the agreement that's unambiguous talks about potential employers so believe that and just listening to your argue meant jed say to you you asked plans council straight out whether or not they agree that the only employer potential employer was reform the answer was yes i think that's that ends all inquiries because if there's not a potential employer there cannot be a breach of the agreement but i do want looking for a position was not mt sinai looking for a position or recruiting dr gallo for a position and the causation piece that the theory plants theory is there is this affiliation verification credential  form it's a very positive form but has of thirteen categories as to fairs in those two planets as those two fairs in essence caused mt sinai to not credential her because of problems getting her deposition by all parties did a declaration in a declaration said the credentialing decisions played no role in her decision not to hire dr gayle she said there were three reasons this continuous renegotiation the making demands a at the nets this may six e mail that dr gallo sent afterward there was an employment contract agreed to by the parties asking for eighteen changes and i think dr many nice response that was telling because on the same day she writes to her legal counsel and her clinic manager saying i'm happy to rescind this offer money had bases that she set forth in her declaration those b c's are not disputed with any admissible evidence and when we look at the documents the documents also support  dr gallo was making demands that were unacceptable to reform and the email with the eighteen demands after the contract was fully negotiated confirms that i also asked the court to have a look at levels deposition because he is asked many many times about this decision to have his person dr kim be that who was available to do this position  before no longer wanted dr gallo and he he walks through that multiple times that yes that was the key that because there is somebody available in this conduct by dr gallo that that was what the decision dr lee wall at his deposition that he said yes i made the decision there were part of it was certainly the fair ratings but i also had dr kim who was not making money where she was and that was a consideration in in the decision but at the very end of his deposition counsel for dr gallo asked him one simple direct question do you remember when dr kim became part of this equation and he said really i don't we remember that i'm sorry and he had a the reasons that she decided not to share times in our declaration that she decided even though dr lee was and he made that decision one of the reasons for example was that dr galloway had too many changes she wanted in the contract all she had to do was write her back on may sixth she had those changes she never did it there is not one i don't of proof in the record that dr mini's memory is correct she never wrote d