defendants attorneys who all refer to collectively as perry the case where the legal malpractise cause their client to accept a settlement that was inadequate now  deny his malpractise did not deny that that caused was doctor long to accept the settlement instead they just claimed that parrot that dr long could not prove as a matter of law that he could have received the higher settlement or a higher result the trial than the four million dollars he received now the problem with that art element now practice it's effectively saying if you're not decision in boy's first is sound view that the parties agree on this appeal that the only element to prove is whether there was any damage at all from the malpractise not how much the speculative  four million dollars might have been obtained the jury might be able to find a reasonable jury could find that the settlement might have been higher with the result of a trial might it might mean yes there was some space between speculative might have been real might have here is there and the boys versus sound view makes it absolutely clear that that issue of speculative this once there is an understanding that any amount of damage could have been obtained the burden of speculation falls on the shoulders of the wrong so it is not dr long's requirement to prove how much he would have obtained just the thing might have offered more now on this malpractise itself your honor the fact that dr make charges give the report that jarvis wasn't retained and it produced a report earlier that perry law made according to the evidence before the court to his client about the availability of dr nichols his report presumably would have reached much the same result that the perry lied to dr long about his ability to obtain a report from dr jarvis that perry committed mt practice by not seeking that report and getting that report earlier now dr jarvis's report is an extraordinary game changing event it proves if the jury were to accept it and on this motion for summary judgment the court must accept  in the record it is a little unclear dr long did not pay dr dr s but that people he expected to receive a bill from him for a conversation they had before the settlement occurred he did not review the files he was not given the documents that's part of the malpractise he did not render an opinion and his opinion shows that for him to the anti microbial sensitivity analysis you said you didn't mention an opinion and you say his opinion he wended an opinion later subsequently dr long had additional ongoing proceedings so it from drug to jarvis an opinion and was surprised to find that dr jarvis was able to trace the infectious bacteria to the specific bacteria the hospital had wired itself supposedly for quality control purposes and dr germ has his report makes absolutely clear you can read it in the record of the four million dollars settlement was in two thousand and eight january two thousand years later that's correct after the malpractise action have been filed that's correct you are his report was filed right that's correct it was after the the seven in two thousand and twelve the now practice action was commenced when dr long began to find that there was that there was evidence that he had been lied to by his attorneys and that his attorneys had failed to develop important the driver says formal report was obtained in two thousand much later but dr driver says formal report was obtained in connection with other proceedings that dr long was engaged in in  of that report with the problem your honor the problem with the decision below is that under rule fifty six and longstanding authority by this court it's absolutely clear that the move in must prove the that there is sessoms claimed it found that it was not voluntary that dr wong didn't really have a choice he was offered a choice of immediate suspension he was he was it was clear that he was going to be reported to the national practitioner data bank one way or another that the it was clear that the investigation by the medical executive committee was take him was a sham proceeding and worst of all they were insisting that if he stayed at the hospital even opinion you're saying it's it's attached to your brief yes the special appendix in accordance with the court i have the actual opinion what's it's at the same page forty three i have the opinion not not as published in your  is a small three small lines adequate notice in here and procedures thank you this immediate suspension yes yes well your honor and the reality here is  resigned under pressure even signed because he felt he had no choice the evidence would you please find me another point where the district court determines that it was an involuntary he didn't say the words involuntary he said that he was facing he was faced with he didn't have a choice it was the effectively he was suspended by the m e c immediately different your honor but what i what i do intend to impress on the court is that there is substantial evidence that dr long under vermont was faced with no choice either to resign and voluntary resignation doesn't change very much in this case we have tortious interference claims which can be a result of the wrongful acts that were committed by the defendants under for mark morley fair how do you find an injury and that act interferes with the prospective advantage of the doctor with his future patients and getting a reputation for having patients be infected with bacteria during operations is that kind of fact if you commit that actually are entitled to sue for damages resulting from that and we think the damages did result from even the damages resulting from that bruce flow out of a voluntary resignation or usual saying you know what  i i stopped out of the business of practicing medicine no he was not out of the business of practicing medicine he was out of the business of practicing medicine at northwestern medical center only that's only resign from that time northwestern medical center a place where his patients were intentionally poisoned but when i'm afraid i'm not making clear your honor is that the burden on this motion was for the defendants to prove the absence of any evidence from which a jury could conclude that let's just take phone terry resignation that dr long was faced with a choice and didn't have a choice and was compelled to resign but the wrongful acts of the hospital that a jury could conclude that there would be no that they didn't provide evidence that there was no chance of getting a higher settlement or verdict the fit if we understand your  you want to reserve time for rebuttal yes please dr long's departure from northwestern medical center as such there is a fairly involved factual record but for purposes of this appeal the critical facts are really relatively few and there are these in the spring of two thousand and four dr long was going around claiming that he was the victim of a conspiracy intended to force him from the practice of medicine at northwestern medical center by those cities hospital and it was being carried out by intentionally infecting his patients inducing dangerous bacterial infections in the hospitals patients for the purposes of ruining his career that's a remarkable accusation he did not have any evidence and still does not that any particular people at the hospital were responsible he jumped to the conclusion that this was a conspiracy target him in the hospital took a very reasonable step in response we convened an ad hoc committee to look at these allegations to interview staff who worked with him to look at his history with the hospital that committee made recommendations to the medical executive committee at the hospital which then proposed a very modest corrective action they said we will bring in outside experts to look at these infections dr long's patients and we'll ask dr long to voluntarily abstain from conducting a further surgeries undergo a psychiatric  refuses his privileges will be suspended not terminate just suspended until the hospital can figure out what's going on instead of it i mean dr long had two options that point you could have complied he could've said i won't conduct any further surgeries i will undergo psychiatric evaluation he could have asked for a fair hearing and i was offered to him in the letter communicate in the hospital's decision to him he was offered the chance for a fair hearing he did neither of those two things instead he resigned think the important thing is that what he was claiming the damage he was claiming for the two interests interference was the loss of his earning capacity lost to the chance to continue to practice because he'd been forced from practice by the hospital's x the fact that he made a choice to resign when the only thing pending was a very preliminary action against him cuts off the theory of harm he could not show on a torturous interference claim on other claims that his predicament was caused by the hospital it was a self inflicted wound i think his argument because we are obliged to view the facts in the light most favorable to him is that he resigned and there and had a cloud on him certainly his former hospital was not about to say anything positive about him and that that was that impeded his ability to practice medicine thereafter so why don't you tell me why that claim if successful could not be worth more than four million dollars i think it's we've to assume that there's some something here you paid four million dollars right reach to settle this dispute so what does the jury get to do if if this case were to go forward retry the whole saga you've just talked about and decide whether you whether he was damaged more than four million dollars although we have to consider the circumstances not as you put them but in the light most favorable to the doctor and then we have to decide whether a jury could think that this injury to his reputation this interference with his contract rights such as they are tortious interference was could have resulted in it is one of more than four million i agree your honor except that these claims i think are barred as a matter of law because no reasonable jury could have found that his resignation was anything but voluntary the judge sessions thoroughly analyzed this issue in his opinion and i think reached the correct result which is based upon undisputed that no jury could have could have found that the resignation was affectively compound well yes your honor on that aspect of our defense and i think that no reasonable jury could find it given that nelson applied under vermont law and under the law that's that's been applied by other circuit courts is based upon a number of factors that evaluate voluntariness the chief of which is whether there are reasonable alternatives that's something that judges can and do decide on summary judgment here judge sessions looked at the options available to dr long which undisputed he says well i couldn't have gone back to practice because i was concerned about my patients you know there were these infections that had yet to be result well that's exactly why the medical executive committee asked him to stop conducting surgeries and recommended that outside experts be brought in so there was no he could not his claim has been that this is a black mark on his record the resignation and particularly the adverse action report on the claim there was no there's no evidence your honor that is correct regular tour terms no evidence of an really infecting irrigation solutions of his patients causing them to be sick that was his principal claim many years ago and now we have this jarvis report which which says yeah i think it happened to that were the hospital do a book they say really we have people working in our hospital who are because they hated this doctor so much they were putting bacteria in innocent people solutions that the results of of those reviews or they were disclosed in the underlying case under the protective order so i don't have access to them we have destroyed all those documents but i think accreditation and there is no indication that any of them found any basis to believe that there was improper criminal behavior the attorney general's office issued a statement to the press it some point after several years after the events that gave rise to this lawsuit and said that there was no indication of any wrongdoing or criminal behavior but i think it's important understand the jarvis report does say  that the most likely cause of these infections in dr long's patients was intentional contamination it doesn't say who of our defenses here would would have been one of the hospitals that sort of post talk expert analysis is irrelevant to the question immunity because the age requires that you look at what was before the hospital at the time and the steps that it took in determine whether they're reasonable they don't have to be have been right it's you know courts have said that a hospital can get the facts wrong and still be entitled to  dressed definition the patient i'm sure here under i would say two things about the remaining claims that would not be defeated it's a false lead in defamation and number one they have not claimed malpractise in connection with those claims they did not claim that my client erred in his preparation of the evidence regarding those claims those crimes were based on two on three specific sets of allegations one was a letter submitted by a doctor at the hospital or crunch credentialing committee another was a a sign that was posted in the hospital's diagnostic imaging library that said dr long could no longer take out images and the third were a couple statements that reached i think two patients by it one of the doctors had an mc that questioned his professional competence so our first argument on the defamation  consistent simply that there's no malpractise claim to no damages a result of the claim of malpractise the second is that no reasonable jury could possibly find that given the very limited nature of those claims a four million dollars settlement was less than what dr long could have expected thank you and because i'd ask the court to affirm the district court opinion in its entirety honor let me start with the correct answer with over spectrum i call it to the answer to the question of what did the hospital do with the infections there were five infections that occurred within a one month period of the patients of only one doctor at the time he sent out some of the fluid he was using in the surgeries to be analyzed by fletcher allen health care and it was found to be massively infected what did the hospital do absolutely nothing it didn't do anything in january didn't do anything in february didn't do anything in march and april it rendered an opinion basically saying that he had to be psychiatrically examined because because he was paranoid but they never investigated whether his concerns that his patients were being targeted was correct or foremost they never investigated at all the outside that counsel points to aren't in the record but i will tell you this much about them none of them occurred before the board acted before the board in immediately suspend the dr long and yes judge lawyer he to reproduce the result and they didn't investigate i don't know what that means your honor it could mean that and instead of eight hundred units of of staph infection it they only produced seven with the samples not just problems massive in a mess of documents i don't believe there's a dot there are documents in the record that reflect that dr long received that report from fletcher al just over the phone you know there's something wrong with this not he was not just told he was given specific results that he reported to the right i don't see in the record a written report from fletcher allen report saying there was an emanation i don't believe there is a written report from fletcher saying there is contamination i don't believe that there was ever any doubt that that report was received and there was never any the question is not whether there were issues about the dispute between the parties and that those disputes were you know of the people of could be of two minds that's why there are settlements the question is whether the failure to obtain this antitrust expert and infectious disease expert report before making as before reaching a settlement now practice so instead of you know trying to litigate the underlying dispute would you just take one moment and tell us what fact was ascertained as a result of the all they do not deny for the purpose of this motion for summary judgment they do not deny that it was malpractise or not listening to the question well let me what is it in the reports ascertained after the fact that you're saying show that the failure to ask to get those reports before hand would have never would have resulted in a larger settlement yes your honor appeared two things first of all the antitrust expert dr long was told could not support his case the un to just s said was that the case was iffy and the antitrust things would be tough to prove he know what he said was the antitrust case why the if he used the word iffy and said it might be difficult to hold on appeal right but that he could prove that he could get through a trial if if he were to succeed he could do six mil he could justify six million not the forty four million you were asking for so you know this this is party settled they w they weren't prepared to pay that just on an iffy claim reaching six million ok what's the infectious disease in the middle of the inventions disease is a much stronger piece and that's conclusive aware unchallenged at this point and very excuse me three forty five that's the two thousand and fifteen report that your honor referred to and the question here is whether when the jury looks at a report by a respected expert wormy what the statement is in here and then the additional information that appears in their skin at the very last paragraph of his letter that's pretty much more likely explanation is correct ask you this district court seeing that opinion even by someone with credentials like this would want to know what objective methodology dr jarvis used to reach a conclusion such as that i mean he it looks to me like he eliminated other possibilities but what is the what is the objective criteria for reaching this conclusion and it as an expert he might only have been able to testify to what he excluded not to offer an opinion such as  basically saying that the that the action was most was criminal yes actionable yes what's his what's his expertise in that his expertise is that he was the chief infectious disease investigator for the centers for disease control for nearly two decades he was in charge of their outbreak investigations right that has no embrace he in people's criminal malicious motives for that's not what we're talking about in his report wh things could have happened through any other cause and he found that to be statistically extraordinarily unlikely number two there were two isn't there a fifth second thing with your honor's permission is that he looked at what is the fingerprints of the bacteria that's the entire microbial sensitivity of these bacteria and showed that only the bacteria which the hospital had purchased would fit that fingerprint so he looked at that evidence and here on this record were to determine whether these defendants have proven that they are entitled to judgment as a matter of law as your honor pointed out there may be disputes