CAN WE PLEASE HAVE APPEARANCES OF COUNSEL. (APPEARANCES TENDERED.)
THE COURT: WELCOME, COUNSEL. WE'RE FWOEG TO GO ROUGHLY TO 12:30, WE WILL
GET THROUGH MR. PORRINO'S ARGUMENT AN SEE WHERE THINGS STAND AND THEN LIKELY TAKE A BREAK.
MR. PORRINO, PLEASE GO AHEAD. CHRISTOPHER S. PORRINO: CHIEF
JUSTICE IF I CAN RESERVE A FEW MINUTES FOR REBUTTAL, I WOULD BE GRATEFUL. IN
THE HEALTHCARE AREA, OUR JURISPRUDENCE CAUTIONSES AGAINST THE SECOND GUESSING OF MANAGERIAL
DECISIONS OF A HOSPITAL. THE REASON FOR THIS IS SIMPLE. COURTS JUST AREN'T EQUIPPED
TO WEIGH THE INTRINSIC COMPLEXITIES THAT HOSPITALS CONFRONT EVERYDAY IN ADVANCING
PATIENT CARE. SO IN A HOSPITAL'S DECISION IS REASONABLY RELATED TO A PUBLIC
HEALTH OBJECTIVE, THAT DECISION IS ACCORDED DEFERENCE AND SHOULD BE ALLOWED TO STAND.
IN THE ABSENCE OF SUCH DEFERENCE, HOSPITALS WILL BE DETERRED FROM MAKING IN
NOVATIVE POLICY DECISIONS TO I'M PROOIF HEALTHCARE IN FEAR OF FACING RUIN IN HOUSE LAWSUITS.
I HAVE THREE KEY POENTS THAT I WILL ADDRESS AND I WILL DO MY BEST TO ADDRESS
THEM BRIEFLY, WITHIN FIVE MINUTES. FIRST, THE CONTRACT CLAIMS IN THIS CASE
SHOULD HAVE BEEN DISMISSED ON SUMMARY JUDGMENT BASED ON THE DEFERENTIAL STANDARD I JUST
MENTIONED. TRIAL COURT MADE A NUMBER OF KEY FINDINGS ON SUMMARY JUDGMENT THAT
MAKE THIS CONCLUSION INCHES SKAP ABLE. THE COURT FOUND, QUOTE, THERE IS NOTHING IN THE
RECORD TO SUPPORT THE NOTION THAT EITHER THE BOARD OR THE HOSPITAL'S PRESIDENT, MEYERS,
MADE THEIR DECISIONS REGARDING EXCLUSIVITY FWRAEMENT IN AN UNREASONABLE MANNER.
THE COURT FOUND THAT VALLY, THAT NOT JUST THE BOARD OR THE BOARD PRESIDENT, BUT VAL
LY HOSPITAL, QUOTE, UNDERTOOK A RATIONAL AN ROUTINE COURSE OF ACTION TO FURTHER VALLY'S
LONG STANDING ALIGNMENT STAT JEE TO IMPROVE PATIENT CARE AN ECONOMIC EFFICIENCY.
THE COURT FOUND THAT PLAINTIFFS, QUOTING AGAIN, HAD NO CONTRACTUAL TIELT MENT, NO CONTRACTUAL
TIELT MENT OR EXPECTATION OF THE AR KOLS AT VALLEY, THE PLAINTIFF, COURT FOUND EVEN IF
THE PLAINTIFF HELD SUCH. BASED ON THOSE FINDINGS AS WE KNOW SUMMARY YUMENT
WAS COMBRANTD IN FAIR OF VALLY'S BOARD AND IT'S PRESIDENT, BUT VALLY IS A CORPORATE ENTITY
THAT CAN ONLY ACT THROUGH THE DECISIONS OF ITS OFFICERS AN AGENTS. THE CLAIMS WERE
DISMISSED AGAINST THOSE OFFICERS AN AGENTS AND SHOULD HAVE BEEN DISMISSED AGAINST VALLEY
ON SUMMARY JUDGMENT AT THE SAME TIME. THE SECOND POINT, WITH REGARD TO THE
TRIAL ITSELF, THE DECEPTIVE APPEND MISLEADING COMMENTS MADE BY PLAINTIFF'S COUNSEL IN
SUMMATION REQUIRE REVERSAL. AFTER SUCCESSFULLY KEEPING TESTIMONY FROM THE JURY
THAT PLAINTIFFS TRANSFERRED 60 PATIENTS FROM VALLEY EASE E R TO HACKENSACK, PLAINTIFF
'S COUNSEL TOLD THE YIR THAT THERE WAS ONLY EVIDENCE OF TWO TRANSFERS AND THAT IF
ADDITIONAL EVIDENCE OF TRANSFERS EXISTED, IT WOVEN PRESENTED BY VALLY'S COUNSEL.
PLAINTIFF'S COUNSEL THEN WENT ON TO SPECIFICALLY AN UNEE KWIF PROVOCATIVE KAMLY DECLARE,
I AM QUOTING, THERE ISN'T ANY EVIDENCE OF IT AT ALL. THERE ISN'T ANY EVIDENCE OF IT AT ALL.
ZEALOUS ADVOCACY IS ENCOURAGED. DECEIVING THE JURY IS NOT. THAT WAS THE
HOLDING IN CHRIS GARRENGER ON BEHALF OF SEE AN A CRIMINAL CASE AN IN BENDER A CIVIL CASE.
THE COURT HAS PUT ATTORNEYS ON NOTICE THAT WE CANNOT EXPLOIT TRIAL COURT RULINGS THAT
EX SCLUT, THE MISLEADING STATEMENT HERE WENT TO THE VERY HEART OF PLAINTIFF'S CASE AN
CLEARLY HAVE THE CAPACITY TO CAUSE AN UNJUST RESULT. THE THIRD AND FINAL
POINT, THE TRIAL COURT ALLOWED PLAINTIFF'S TO EXPLOIT IN ADD VERT TEPTLY DISCLOSED
PRIVILEGED E-MAILS BETWEEN VALLEY AND IT'S GENERAL COUNSEL. COUNSEL WAS CALLED TO THE
STAND IN A HIGHLY IMPROPER ATTEMPT TO EMBARRASS AN DISCREDIT HER ON THE MISTAKEN GROUND
THAT VALLEY HAD PLACED ITS COUNSEL ADVICE IN ISSUE. BUT IN-HOUSE COUNSEL HERE DID WHAT
ALL SMART LAWYERS DO IN ADVISING CLIENTS ABOUT POTENTIAL LITIGATION. SHE OUTLINED A
STRATEGY WHICH INCLUDED THE PREPARATION OF A WRITTEN REPORT; THAT'S WHAT WE ALL DO, WEEK
AFTER WEEK. SHE DIDN'T WRITE THE REPORT. SHE DIDN'T DO AN INVESTIGATION. SHE DIDN'T
PROVIDE THE DATA RELIED UPON IN THE REPORT. VALLEY WAS DENIED A FAIR TRIAL BECAUSE THE
E-MAILS WERE USED UNFAIRLY TO SPIN CONSPIRACY THEORIES AN TO POISON THE JURY.
IF ALLOWED TO STAND THE APPELLATE DIVISION DECISION WILL CHILL THE FREE FLOW OF
INFORMATION BETWEEN ATTORNEYS AN THEIR CLIENTS. WE ASK THIS COURT TO DO WHAT
SHOULD HAVE BEEN DONE ON SUMMARY JUDGMENT, DISMISS THE REMAINING CONTRACT CLAIMS OR A
LTERNATIVELY GRANT A NEW TRIAL BECAUSE OF COUNSEL'S IMPROPER SUMMATION AN THE ERRONEOUS
DISCLOSURE AN USE OF ATTORNEY/CLIENT E-MAILS. I AM DMRAD TO TAKE YOUR QUESTIONS. GLAD
TO TAKE YOUR E-MAILS. JUSTICE FASCIALE: I HAD A COUPLE QUESTIONS ABOUT
QUESTIONS 4 AND 5 ON THE VERDICT SHEET AN ALSO THE SUMMARY ZUMENT RECORD. AND
FOR MY QUESTIONS, JUST ASSUME FOR THE SAKE OF THIS DISCUSSION THAT THE BIE LAWS DO NOT
CONSTITUTE AN UNDERLYING CONTRACT ON WHICH AN IMPLIED COVENANT OF GOOD FAITH AN FAIR
DEALING COULD BE BASED. WE KNOW, IN THE AEMDED COMPLAINT, PLAINTIFFS ALLEGE
THAT BY VIRTUE OF THE PARTIES' FWRAEMENT AND THE OBLIGATIONS SENT FORTH IN THE BYLAWS
AN WE KNOW THE JUDGE CHARGED THE JURY SEPARATELY ON CONTRACT FORMATION PRINCIPLES AN THE
THEORY OF THE IMPLIED COVENANT CLAIM. MY QUESTION FOR YOU AS TO QUESTION NO.
4 ON THE VERDICT SHEET AND QUESTION NO. 4 IS: DO YOU FIND BY A PREPONDERANCE
OF THE EVIDENCE THAT THE VALLEY HOSPITAL COMPREHENSIVE NEUROSURGICAL PC ENTERED INTO A
CONTRACT? THE QUESTION IS, IS THAT, QUOTE, CONTRACT, BYLAWS, THIS SEPARATE
AGREEMENT THAT DR. ROTH TESTIFIED ABOUT DURING THE TRIAL OR A COMBINATION?
CHRISTOPHER S. PORRINO: SO WE OBVIOUSLY DON'T KNOW WHAT WAS IN THE MINDS OF THE JURORS.
WE DO KNOW WHAT WAS PLED IN THE AMENDED COMPLAINT. WHAT WAS PLED IN THE AMENDED
COMPLAPT WAS A BREACH OF CONTRACT ACTION BASED ON THE BYLAWS AND A BREACH OF THE IMPLIED
COVENANT BASED -- ARISING OUT OF THE BYLAWS. JUSTICE FASCIALE: THAT WAS
MY QUESTION BECAUSE I AM LOOKING AT YOUR SUPPLEMENTAL BRIEF ON PAGE 28 AND,
SPECIFICALLY, THE QUOTE TO THE AMENDED -- TO THE LANGUAGE IN THE AMENDED COMPLAINT IS:
BY VIRTUE OF THE PARTIES AGREEMENT AND THE OBLIGATION TO SET FORTH IN THE BY-LAWS A
SPECIAL RELATIONSHIP EXISTED WHEREBY THE HOSPITAL WAS OBLIGATED TO DEAL FAIRLY AND HONESTLY
WITH RESPECT TO ALL MATTERS OBTAINING TO THE BYLAWS. WAS IT A SEPARATE
AGREEMENT OR THE BYLAWS. CHRISTOPHER S. PORRINO: WHAT WAS PLED IN THE COMPLAINT
IS THE BYLAWS; THAT'S THE ONLY AGREEMENT ALLEGED AND IT'S THE ONLY AGREEMENT THAT IS PLED.
THERE IS -- THERE ARE ALLEGATIONS IN THE COMPLAINT ABOUT, YOU KNOW, HOW THE
ARRANGEMENT CAME TO PASS AND ATMOSPHERE I CANS WITH RESPECT TO BACK AN FORTH THAT LED TO
THE PLAINTIFFS COMING TO VALLY. WHAT HAPPENS NEXT, AS YOUR HONOR, KNOWS IS
THERE IS A MOTION FOR SUMMARY WRUMENT BASED ON THE PLEADINGS THAT THEN EXISTED, THE
DEPOSITION TRANSCRIPTS, THE FULL RECORD IN THE CASE AND THE TRIAL COURT MAKES THE FINDINGS
THAT I JUST REFERENCED IN MY OPENING. THEREAFTER, AT TRIAL, BUT MORE FRANKLY,
ON APPEAL AND BY THE TRIAL COURT JUDGE ON THE MOTION FOR JUDGMENT, NOTWITHSTANDING THE
VERDICT, THERE IS THIS DISCUSSION ABOUT SOMETHING BEYOND THE BYLAWS. THOSE ARE THE WORDS
THAT THE TRIAL JUDGE USES. IS IT SOMETHING BEYOND THE BY LAWS. AGAIN IT WASN'T PLED,
THE CASE WASN'T REALLY TRIED ON THAT BASIS. TO THAT POINT, EVEN, ASSUMING
FOR A MOMENT, THAT THE NOTION HERE WAS THAT THERE WAS, I GUESS, AN ORAL AGREEMENT OR A
DIFFERENT, ADDITIONAL AGREEMENT THAT WAS ENTERED INTO, PUTTING ASIDE FOR THE MOMENT THAT
THESE PARTIES KNOW HOW TO ENTER INTO A CONTRACT. THEY KNOW TASH DASH DR. ROTH FROM THE
PLAINTIFFS DID IT AT HACKENSACK WHEN HE SIGNED UP TO EARN AN EXTRA $250,000 A YEAR. THEY
KNOW HOW TO PAPER A CONTRACT. PUTTING THAT ASIDE, EVEN, THE PLAINTIFFS ARE
NOW SAYING THAT THERE WAS THIS AGREEMENT WHICH EFFECTIVELY GRANTED THEM FOREVER PRIVILEGES,
JUST AS THEY HAD BACK BEFORE THIS CASE CAME TO PASS. THAT POSITION NOW AND
THE DIFFICULTY WITH IT AND THE POINT THAT WE WOULD BE GRATEFUL IF YOUR HONORS WOULD TAKE
INTO CONSIDERATION, IS THAT THAT ARGUMENT IS FRANKLY THAT THAT AGREEMENT THAT THEY WOULD
HAVE FOREVER PRIVILEGES WAS BREACHED WHEN VALLEY TOOK THE STEPS IT TOOK TO ENTER INTO AN
EXCLUSIVE ARRANGEMENT WITH COLUMBIA. THAT CLAIM, THAT ARGUMENT IS A BREACH
OF CONTRACT ARGUMENT. IT'S NOT A BLAECH OF THE IMPLIED COVENANT AN GOOD FAITH AN FAIR
DEALING. IT IS A BREACH IN WHAT THEY CLAIM IS AN EXPRESS PROVISION OF THE CONTRACT AN
UNDER WADE V KES LER, IT'S NOT PERMITTED. YOU CAN'T HAVE A BREACH OF COVENANT
AN FAIR FAITH DEALING CLAIM THAT IS A CLAIM THAT ALLEGES A BREACH OF THE TERM OF THE CONTRACT.
SO IN A LONG WAY OF ANSWERING YOUR QUESTION, I THINK THAT'S HOW WE FWOT TO
THIS POINT. MY SUGGESTION TO YOUR HONOR IS THE WAY IT ENDS IS WITH A FINDING THAT EVEN
IF THERE WAS THIS AMORPHOUS ARRANGEMENT BEYOND THE BYLAWS IT'S NOT AN IMPLIED COVENANT
CLAIM, BUT A BREACH OF CONTRACT CLAIM AN THAT CLAIM WAS DISMISSED FAB FASH THAT'S NOT
HOW THE JUDGE CHARGED THE JURY CORRECTLY TO YOUR POINT. I THINK THERE WERE TWO CLAIMS,
BREACH OF CONTRACT, MEANING, THEY DIDN'T GET A HEARING UNDER THE BYLAWS AND BREACH OF
AN IMPLIED COVENANT CLAIM WHICH DEALT WITH SOMETHING BEYOND THE BYLAWS WHICH BRINGS ME
TO A SECOND QUESTION AND THAT IS THE SUMMARY JUDGMENT RECORD. I DIDN'T SEE
ANYTHING IN THE RECORD THAT DEALT WITH ANYTHING BEYOND THE BYLAWS. EVERYTHING AT THE
SUMMARY JUDGMENT RECORD DEALT WITH ONLY THE BY-LAWS, I THINK. I'M NOT SURE MANY.
AM I INCORRECT ABOUT THAT? CHRISTOPHER S. PORRINO: YOU ARE ABSOLUTELY
CORRECT, JUSTICE; THAT'S THE WAY THIS CASE WAS PLED. AS I SAID BEFORE, THAT'S
THE WAY THE CASE WAS REALLY TRIED. THE REASON FOR THAT, OF COURSE IS HAVING
DIRECTLY ALLEGED THIS AGREEMENT BEYOND THE BYLAWS IT WOULD HAVE BEEN ATTACKED IN DISCOVERY,
A DISCUSSION IN A MOTION FOR SUMMARY ZUMENT AN WOULD HAVE BEEN DEALT WITH HEAD ON. INSTEAD,
WE HAD SORT OF THIS, YOU KNOW, SCOPE CREEP AS IT RELATED TO THE WAY THE CASE WAS ULTIMATE
LY PRESENTED AND ARGUED ON APPEAL SO YOU'RE ONE HUNDRED PERCENT CORRECT, YOUR HONOR.
JUSTICE FASCIALE: IF I REMEMBER CORRECTLY, THE TESTIMONY THAT TRCHLT ROTH DR. ROTH
GAVE IN HIS TESTIMONY THAT WAS REFERENCED AT THE SUMMARY JUDGMENT STAGE WAS UNLIKE HIS
TRIAL TESTIMONY IN THAT AT TRIAL HE TESTIFIED ABOUT THIS SPECIAL ARRANGEMENT, THIS SPECIAL
AGREEMENT WHERE HE HAD BEEN ENCOURAGED ON BEHALF OF THE PLAINTIFFS TO SKWHOIN THE MEDICAL
STAFF AND THEN TAKE OVER AND INVEST TIME AN ETC. TO BUILD A PRACTICE OF NEUROSURGERY IN
VALLEY. CHRISTOPHER S. PORRINO: YES. AND NEVER IS THERE THE DIRECT
CONTENTION THAT THERE WAS AN AGREEMENT REACHED ON THIS POINT. IT WAS OURS TO LOSE. WE
CAME AND DID A LOT IN TERMS OF GETTING THE PROGRAM UP AND RUNNING AND WE EXPECTED, BASED
ON THAT FACT, THAT WE WOULD HAVE PRIVILEGES FOREVER. BASED ON THE SUMMARY
JUDGMENT RECORD, WE KNOW WHAT THE COURT'S VIEW OF THOSE ALLEGATIONS WERE, AS THEY EXISTED
AT THE TIME SUMMARY JUDGMENT WAS DECIDED AN WE KNOW FROM THIS COURT'S OPINIONS IN GEE
AFTER FALL LOW, IF THAT'S HOW YOU SAY IT AN LOM BARRED DOE, THE RECORD TO BE CONSIDERED
HERE WITH RESPECT TO THIS PETITION IS THE RECORD THAT EXISTED ON SUMMARY JUDGMENT.
WE KNOW WHAT THOSE FINDINGS WERE. THEY ARE DIRECTLY ON POINT WITH RESPECT TO THE
QUESTION THAT YOUR HONOR IS RAISING. THERE IS NO CONTRACTUAL TIELT MENT OR EXPECTATION
OF E R CALLS AT VALLEY. JUSTICE FASCIALE: I NOTICED THAT AS TO WHETHER
THE BYLAWS OF THE MEDICAL STAFF CONSTITUTE A CONTRACT OR NOT, THERE IS REFERENCE TO THE
CASE OF JOSEPH VERSUS PASSAIC HOSPITAL, BURT CORRECT ME IF I AM WRONG THAT CASE DECIDED
6 FOUR YEARS AGO WA NOT AN IMPLIED COVENANT CASE. IT WAS CONSOLIDATED CHANCERY AND LAW
DIVISION CASE. AND IN CHANCERY ALL IT DID WAS REMAN FOR A HEARING WHICH ESSENTIALLY IS
EQUITABLE RELIEF WHEN BYLAWS ARE BREACHED. IS IT YOUR POSITION THAT A MEDICAL
OF THEED A MEMBER OF THE MEDICAL STAFF AT VALLEY CONTENDS THAT THE RIGHTS UNDER THE BYLAWS
HAVE BEEN BREACHED THE PROPERTY RECOMMEND MED TEE WOULD BE EQUITY RATHER THAN MONEY DAMAGES.
L. CHRISTOPHER S. PORRINO: YOU ARE CORRECT AS IT RELATES TO THE YOE SEFS
CASE BEING. THE CLAIM AGAINST THE HOSPITAL WAS SOLELY FOR EQUITABLE RELIEF AND THAT WAS
IN THE FORM OF SEEKING A HEARING WHEN A HEARING HAD NOT BEEN PROVIDED. THE
RELIEF HERE IN THIS CONTEXT, GIVEN WHAT HAS HAPPENED YEARS LATER IN DECEMBER SIGH AN VER
MAN WE KNOW WHAT THE STANDARD IS NOW AND WE KNOW WHAT STANDARD SHOULD BE APPLIED AND THE
RELIEF THAT SHOULD BE SOUGHT IN A CASE LIKE THIS AND FRANKLY WAS SOUGHT, WHICH WAS THE
RELIEF THAT THE CASE WAS BROUGHT UNDER AND THE APPLICATIONS WERE MADE IN THE CHANCERY
COURT WAS FOR EQUITABLE RELIEF, WAS FOR A HEARING AN THOSE CLAIMS, OF COURSE WERE DENIED
AT THAT STAGE OF THE CASE. THE COURT: COUNSEL, YOU BEGAN YOUR PRESENTATION
BY SAYING ONE SHOULDN'T SECOND GUESS MANAGERIAL DECISIONS, THOSE FALL WITHIN THE DISCRETION
OF THE HOSPITAL, ALLUDING TO THE BER CASE, OF COURSE, DOES THAT PRESUPPOSE THE EXISTENCE
OF GOOD FAITH? TAKE THIS CASE FOR EXAMPLE AND ASSUME FOR THIS QUESTION ONLY,
WHAT YOU OPPOSE, AND THAT IS THAT THE HOSPITAL SET OUT TO GET THESE PHYSICIANS OUT, THAT
THEY MANIPULATED DATA, THAT THEY CREATED A BIASED REPORT IN ORDER TO ACHIEVE THEIR CLAIMS
AN SO ON DOES BER MAN SHIELD THEM FROM THOSE CIRCUMSTANCES. CHRISTOPHER S.
PORRINO: OF COURSE WE HAVE ARGUMENTS WITH RESPECT TO THE TRUTH OF THOSE ALLEGATIONS.
THE ANALYSIS IN BER MAN AND DES SIGH'S REPORT IS AWARE, IF THE DECISIONS ARE RATIONAL
LY RELATED, THE DELIVERY OF HEALTHCARE, THE ADDITIONS ARE TO BE UPHELD. IF THE NOTION
AN YOUR QUESTION, I THINK IS ASKING, IF THERE WERE SOME OTHER MOTIVATIONS OUT THERE,
WHETHER THEY WERE MOTIVATIONS THAT APPOINTED TO HERE WITH RESPECT TO TRANSFER OF PATIENTS,
WITH RESPECT TO USE OF EQUIPMENT AT OTHER HOSPITALS INSTEAD OF USE OF EQUIPMENT AT VAL
LY, WHICH WOULD PROMOTE CALCULATION, FAMILIARITY AN ECONOMIC EFFICIENCY, THOSE ARE THE
BAD MOTIVES THAT PLAINTIFFS SAY WE HAD. THOSE AREN'T BAD MOTIVES. THOSE ARE PROPER
MOTIVATIONS ON THE PART OF A HOSPITAL THAT IS TRYING TO DEVELOP AND GROW A PRACTICE AND
HAVE A PRACTICE THAT IS GOING TO BENEFIT PATIENTS; THACHS THAT WAS WHY THESE
ARRANGEMENTS, THESE KINDS OF ARRANGEMENTS, COMANAGEMENT ARRANGEMENTS WERE STUDIED ALL
THE WAY BACK TO 2011 AND BEFORE AT THE HOSPITAL LEADING ULTIMATELY TO THE EXCLUSIVE
ARRANGEMENT THAT WAS ENTERED INTO WITH THE COLUMBIA GROUP AND SO, I AM NOT SURE IF I
ANSWERED YOUR QUESTION, BUT THE MOTIVATIONS -- THE OTHER MOTIVATIONS, LET'S ASSUME, HYPOTHETICAL
LY, THAT SOMEONE ON THE STAFF DIDN'T CARE FOR DR. ROTH OR ANOTHER ONE OF THE PLAINTIFFS,
THAT IS NOT ENOUGH TO OVERRIDE THE DETERMINES THAT WOULD BE MADE PURSUANT TO BER MAN AND
DECEMBER SOOI IF THE DECISION WAS RATIONALLY RELATED TO THE DELIVERY OF HEALTHCARE.
OTHERWISE WE WOULD BE DOWN THAT FOXHOLE IN ANY ONE OF THESE CASES, THIS DIDN'T LIKE ME,
THEY SAID THIS ABOUT ME, WE DIDN'T GET ALONG AS WELL AS THEY WOULD HAVE LIKED US TO, ALL
KINDS OF CLAIMS ABOUT MOTIVATIONS COULD BE MADE. AS LONG AS THERE IS A DECISION
THAT IS RATIONALLY RELATED TO THE DELIVERY OF HEALTHCARE AND IT COMPORTS WITH DES SOOI
AN BER MAN, THAT'S THE END OF THE INQUIRY. JUSTICE PATTERSON: FOLLOWING
UP ON THE CHIEF'S QUESTION, LET'S LEAVE SIDE -- AS I UNDERSTAND IT, WHAT PLAINTIFF CLAIMS
WAS BAD FAITH WAS THE WHITE PAPER WAS A PRETEXT, IT WAS NOT HONESTLY APPLY THE DATA.
THE GOAL WAS TO HAVE THE WHITE PAPER SUPPLY SUPPORT THE POSITION OF THE HOSPITAL AN IT
DID IN A MANNER THAT THE SUGGESTION INVOLVED MANIPULATION OF DATA, OBVIOUSLY, ONLY THE
ALLEGATIONS OF THE PLAINTIFFS, SECONDLY, THAT THERE WAS A PERCEPTION ON THE PART OF VALLEY
THAT PLAINTIFFS WERE LOYAL TO HACKENSACK. LET'S LEAVE ASIDE THE PERSONAL
DISAGREEMENTS, THE HOSPITAL DOESN'T LIKE SOMEBODY AN LEAVE ASIDE FOR THE MOEM THAT CONCEPT
OF THESE PEOPLE WERE VIEWED BY VALLEY MANAGEMENT AS NOT LOYAL TO VALLEY AND FOCUS ON THE
ALLEGATION OF THE MANIPULATION OF DATA AN I GET THE IMPACT OF THE PRIVILEGE ISSUE ON THAT,
BUT LEAVE THAT ASIDE. IF, IN FACT, THAT WERE TO OCCUR, IF THERE WERE -- IF
A HOSPITAL WERE TO SET OUT TO ASSEMBLE A DATA SET THAT WAS MANIPULATED AND WRONG IN ORDER
TO PROVE A POINT WITH RESPECT TO A PARTICULAR SET OF DOCTORS, DOESN'T THAT GO THOROUGHLY
BEHIND -- BEYOND BER MAN AND DES SIGH, WHICH DIDN'T INVOLVE ANY ALLEGATION OF BAD FAITH
LIKE THAT? CHRISTOPHER S. PORRINO: JUSTICE, WE KNOW, AT LEAST IN THIS CASE
AN I I'M GOING TO GET TO THE HYPOTHETICAL IN ONE SECOND CHLTH. WE KNOW AT
LEAST IN THIS CASE THAT WAS NOT WHAT THE TRIAL COURT BELIEVED OR FOUND BASED ON THE SUMMARY
JUDGMENT FINDINGS THAT CLEARLY STATED THAT THE HOSPITAL UNDERTOOK A RATIONAL AND ROUTINE
COURSE OF ACTION TO FURTHER VAL EASE LONG STANDING ALIGNMENT, STRATEGY, THAT THERE IS
NOTHING IN THE RECORD TO SUPPORT THE NEGOTIATE THAT EITHER BOARD OR MEYERS MADE THE STIGS
REGARDING EXCLUSIVITY OR UNREASONABLE MANNER WE KNOW FROM REASONABLE FINDINGS.
JUSTICE PATTERSON: AT SUMMARY JUDGMENT. WE KNOW THE TRIAL COURT LEFT THAT
FOR THE COURT AN WE TONE KNOW MA THE JURY DETERMINED. I UNDERSTAND YOU'RE MAKING A
VERY STRONG ARGUMENT THAT NONE OF THAT HAPPENED, BUT IF THAT HAPPENED OR IF THE AN ALLEGATION
WAS -- A JURY CONCLUDED THAT THAT ALLEGATION WAS CORRECT, WOULDN'T THAT TAKE THIS CASE
SIGNIFICANTLY TASH DASH A SIGNIFICANT DISTANCE FROM BER MAN. CHRISTOPHER S.
PORRINO: I THINK, YOU KNOW, WHEN WE TALK ABOUT MOTIVE VASHGSZ AN WE TALK ABOUT WHETHER
THE WHITE PAPER WAS UNDERTAKEN IN BAD FAITH WHAT WE'RE NOT TALKING ABOUT ARE THE KIND
OF CAUSES OF ACTION THAT COULD BE PLED INDEPENDENTLY. AND IN SOME OF THE CASES THAT
ARE CITED FROM OTHER JURISDICTIONS HAVE BEEN PLED INDEPENDENTLY. THIS IS NOT,
YOU KNOW, A VIOLATION. THERE IS NO CLAIM OF A VIOLATION OF CIVIL RIGHTS. THERE IS NO
CLAIM OF A LAW AGAINST DISCRIMINATION. THERE IS NO CLAIM OF FRAUD IN THIS CASE.
WHAT THERE WAS, WAS A SUGGESTION THAT CERTAIN OF THE TAET WAS, YOU KNOW, BASED ON THE
CROSS-EXAMINATION OR WHATEVER, NOT TAILORED FAIRLY. WHAT I WOULD SAY ABOUT
THAT IS A COUPLE OF THINGS. IN THIS CASE, THE WHITE PAPER WAS BASED ON
INFORMATION THAT ALREADY EXISTED. THERE WAS ALREADY A LONG HISTORY OF STUDYING THIS
NOTION OF DOING A COMANAGEMENT ARRANGEMENT. VALLEY HOSPITAL ENTERED INTO EXCLUSIVE
ARRANGEMENTS MANY TIMES IN OTHER AREAS OF EXPERTISE. WE KNOW THAT THE
PLAINTIFFS SEFL SELECTED OUT OF THIS ARRANGEMENT. THEY DID NOT WANT A COMANAGEMENT ARRANGEMENT
AND OBVIOUSLY DID NOT WANT AN EXCLUSIVITY ARRANGEMENT. WE KNOW THAT THESE EXCLUSIVE
ARRANGEMENTS ARE FAVORED IN THE LAW AND WE CITE ALL THE CASES, NOT JUST FROM NEW JERSEY
BUT FROM AROUND THE COUNTRY ABOUT WHY THESE EK EXCLUSIVITY ARRANGEMENTS MAKE SENSE AND
ARE APPROPRIATE. SO, NEGOTIATIONS THAT WERE PRESENTED ABOUT THIS WAS REALLY
DRIVEN BY, YOU KNOW, QUOTE, UNQUOTE, LOYALTY, OUR RESPONSE TO THAT IS, THERE WERE SERIOUS
CONCERNS ABOUT -- AND WE KNOW WHAT THE NUMBERS ARE, NUMBERS THAT ARE NOT DISPUTED.
JUSTICE PATTERSON: AGAIN, LEAVING THAT ASIDE BECAUSE THAT IS SIGNIFICANTLY MORE OBJECTIVE,
I WOULD SUGGEST, THAN THE ALLEGATION OF MANIPULATION OF DATA. I AM NOT COMMENTING ON
WHETHER THAT ALLEGATION WAS UNFOUNDED OR FOUNDED OR WHATEVER, BUT IF, IN FACT, WE'RE TALKING
ABOUT, YOU KNOW, YOU BEGAN YOUR ARGUMENT BY SAYING THERE IS BROAD DISCRETION, IT'S
ESSENTIAL FOR HEALTHCARE, CITING BER MAN AND DES SOOI AS PROVIDING THE FRAMEWORK FOR THE
TYPE OF MANAGERIAL DECISIONS THAT HAVE TO BE TLIFRD BY HOSPITALS IN ORDER TO DELIVER
PATIENT CARE, THOSE CASES, CORRECT ME IF I'M WRONG, DID NOT INVOLVE ANY ALLEGATION THAT
THERE WAS A MISUSE OR MANIPULATION OF DATA. WHAT I AM ASKING YOU IS AND TELL
ME IF I AM WRONG ABOUT THAT, WHAT I AM ASKING YOU IS WHETHER YOU ARE TRULY WITHIN THE
PARAMETERS OF BER MAN AND DES SIGH IN LIGHT OF THIS ADDITIONAL ALLEGATION THAT FOR REASONS
YOU'VE OUTLINED FOUND ITS WAY TO THE JURY IN THIS CASE. CHRISTOPHER S. PORRINO:
AGAIN, JUST TO SAY IT, THERE IS NOT REALLY ALLEGATIONS ABOUT MANIPULATION OF DATA.
THE NUMBERS HERE, AGAIN, THERE WAS EVIDENCE PRESENTED AT TRIAL WITH RESPECT TO VARIOUS
THINGS THAT WERE HAPPENING AT THE HOSPITAL AN WHO WAS DOING WHAT AND THE REST AND THERE WAS
CROSS-EXAMINATION WITH RESPECT TO THOSE ITEMS, MUCH OF WHICH DEALT WITH THE PRIVILEGED
E-MAILS THAT HAD BEEN IN ADD VERT DENTLY DISCLOSED. TO ANSWER YOUR
QUESTION DIRECTLY. THESE KINDS OF CREDIBILITY QUESTIONS THAT WERE RAISED WITH
RESPECT TO THE WHITE PAPER AN HOW IT WAS PREPARED DO NOT OVERRIDE THE DETERMINATION THAT IS
MADE BASED ON NORMAL COURSE OF BUSINESS, WHICH THIS WAS AS SET FORTH IN DES SIGH AND BER
MAN, ADEQUATE INFO. WHICH IS REASONABLE AS SET FORTH IN DES SIGH AN AND BER MAN, THE CLAIMS
HERE DIDN'T RISE TO STAND ALONE CAUSES OF ACTION, FOR, AS I SAID BEFORE, UNDER ANY OF THE
STATUTES THAT I MENTIONED OR FOR FRAUD. THEY WERE CHALLENGES TO THE WAY THE WHITE PAPER
WAS PREPARED. TO ME, IT WAS MUCH MORE LIKE THE SUGGESTION THAT THE MOTIVES
WERE IMPURE AND WE KNOW AN WE SUGGEST THAT BASED ON FOR EXAMPLE, THE TEN NET HEALTHCARE
CASE OUT OF TEXAS, MOTIVATIONING IS NOT SOMETHING THAT BLANK CAN CONSIDER. SFLFRMENTS
I WANT TO FOLLOW UP. LET'S. CHIEF JUSTICE RABNER: I WANT TO FOLLOW UP,
LET'S PUT THE WORDS GOOD FAITH TO ONE SIDE. HOW DID THE I GUESS, IF IT IS
BASED ON MANIPULATED DATA IN ANOTHER CASE. CHRISTOPHER S. PORRINO: IF THERE ARE
ALLEGATIONS THAT WOULD RISE TO THE LEVEL OF, YOU KNOW, FRAUD, FOR EXAMPLE, THAT WOULD
BE A SEPARATE CLAIM. THAT COULD BE PLED AND COULD BE ARGUED. I DON'T KNOW, I DON'T KNOW
KNOW THAT THERE ISN'T A SET OF CIRCUMSTANCES THAT I COULD IMAGINE WHERE THERE WOULDN'T
BE A SEPARATE CLAIM FOR FRAUD OR FOR VIOLATION OF CIVIL RIGHTS. THOSE CLAIMS HAVE BEEN
MADE IN OTHER CASES AROUND THE COUNTRY AT TIMES, BUT IN THIS CASE, AT LEAST, THERE IS
-- THERE WAS NOT A -- ANY MANIPULATION OF DATA AND THERE WAS, INSTEAD, A RATIONAL AN ROUTINE
APPROACH TAKEN TO ENTER INTO AN EXCLUSIVITY AGREEMENT. AGAIN, THERE REALLY
WASN'T A QUESTION ABOUT WITH WHOM BECAUSE THE ONLY REAL CANDIDATE WAS THE COLUMBIA GROUP.
THE REAL QUESTION AN THE REASON WHY THE WHITE PAPER WAS DONE IN THE FIRST PLACE WAS TO
MAKE SURE AND TO CONFIRM THAT ENTERING INTO THIS EXCLUSIVE ARRANGEMENT WAS NOT FWOEG TO
CREATE ANY UNINTENDED OR UNANTICIPATED NEGATIVE CONSEQUENCES. JUSTICE FASCIALE:
HOW DO WE KNOW THE ALLEGED BER MAN VIOLATION, THEY CALL IT A PRETEXT, WAS SUBSUMED IN
THE JURY'S AWARD OF DAMAGES? IN OTHER WORDS, THE DAMAGE AWARD IS PREMISED
ON THE BREACH OF IMPLIED COVENANT CLAIM AND HE PUTS THAT QUESTION TO THE JURY ABOUT WHETHER
THE EXCLUSIVITY AGREEMENT SOMEHOW WAS REASONABLY, RATIONALLY RELATED TO A HOSPITAL HEALTHCARE
RATIONAL DECISION. CHRISTOPHER S. PORRINO: IF YOUR QUESTION IS -- IS YOUR
QUESTION WAS THE JURY AWARE OF THE BER MAN AND DES SIGH CONSTRUCT? JUSTICE
FASCIALE: YES. CHRISTOPHER S. PORRINO: BASED ON THE CHARGE, IT DOESN'T
LOOK LIKE THEY WERE. JUSTICE WAINER APTER: DID YOU OBJECT TO THE JURY CHARGE?
CHRISTOPHER S. PORRINO: SO THERE WERE A NUMBER OF LONG COLLOQUY, OBVIOUS
LY, WITH RESPECT TO THE CHARGING CONFERENCE. THERE WERE CERTAIN OBJECTIONS AS IT RELATES
TO BER MAN AN DES SIGH, THERE WAS, IRONIC KALLY, AN ARGUMENT BY THE PLAINTIFFS THAT THERE
SHOULD BE A CHARGE ON BER MAN AND DES SIGH, BUT THAT WAS IN THE CONTEXT, AS I UNDERSTAND
IT OF COUNTS 1 AND 2 OF THE COMPLAIN, WHICH WAS DISCRETIONARY DETERMINATIONS IN THE
HEALTHCARE CONTEXT AN FUNDAMENTAL FAIRNESS. THOSE CLAIMS HAD BEEN DISMISSED ON THE INVOLUNTARY
DISMISSAL MOTION. SO THAT WAS THE COLLOQUY AT THE CHARGING CONFERENCE ON THAT
ISSUE. WE, I I THINK OUR POSITION WAS THE CHARGE SHOULD NOT BE INCLUDED BECAUSE THOSE
CLAIMS ARE NOT PART OF OUR CASE ANYMORE. JUSTICE WAINER APTER: I AM LOOKING
SPECIFICALLY AT THE JURY CHARGE ON THE IMPLIED COVENANT CLAIM I AM GOING TO READ PART
TO YOU, IT SAYS THE PLAINTIFF IN THIS CASE CLAIMS THAT THE DEFENDANT VALLEY BREACHED THE
IMPLIED FAITH BY ENCOURAGING PLAINTIFF TO CLOP TOO FAST, AT VALLY BUT THEN UNFAIRLY AN
DIS HOEMENTLY BARRING PLAINTIFFS FROM FRT CON TEN THAT VAL BREACHED THE COVENANT OF GOOD FAITH
AN FAIR DEALING IN MAKING A PREDETERMINED DECISION CREATING A SHAM STUDY BY CHANGING
METRICS TO ACHIEVE IT'S IN TENNED GOAL OF SKEWING THE RESULTS TO ENSURE POOR QUALITY.
DID YOU OBJECT TO THAT CHARGE? CHRISTOPHER S. PORRINO: IT WAS
NOT AN OBJECTION BY COUNSEL TO THAT CHARGE SPECIFICALLY. AGAIN -- JUSTICE
WAINER APTER: THE JURY FOUND YOUR CLIENT GUILTY OF THAT WHOLE SCHEME AS IT WAS LAID OUT
IN THE JURY CHARGE AND THERE SEEM TO BE A NUMBER OF SEPARATE PARTS OF IT AND THERE WAS
NO OKS. OBJECTION TO THAT PORTION OF THE CHARGE WOULD THAT BE BLANK ERROR?
HOW WOULD WE LOOK AT THAT? CHRISTOPHER S. PORRINO: WELL, THE
MOTION FOR SUMMARY JUDGMENT HAD BEEN MADE AND THE ISSUES AS IT RELATES TO THE ARE THE
ISSUES HAD BEEN PRESERVED AND OF COURSE OUR POSITION AS YOU'VE READ IN OUR PAPERS AND
AS I HAVE SAID TODAY IS THAT THAT IS WHEN THE CASE SHOULD HAVE ENDED AND THOSE CONTRACT
CLAIMS SHOULD HAVE BEEN DISMISSED. WITH RESPECT TO THE DETERMINES MADE ON
THE BREACH OF COVENANT GOOD FAITH -- THE IMPLIED COVENANT GOOD FAITH AN FAIR DEALING,
OUR POSITION IS THAT THAT CLAIM NOW ASK ALLEGED TO BE SOMETHING THAT ISN'T INCLUDED WITHIN
THE BYLAWS, THAT IT IS SOMETHING BEYOND THE BYLAWS. AS I SAID BEFORE, THAT
CLAIM WASN'T PLED, BUT LET'S ASSUME FOR PURPOSES OF THE ARGUMENT THAT IT EXISTED AND THAT'S
WHAT THE JURY MADE A DETERMINATION ON. IT CAN'T BE THAT THERE WAS THE DETERMINATION MADE
THAT THE PLAINTIFFS HAD FOREVER PRIVILEGES, WHICH IS THE AGREEMENT THEY SAY WAS BREECHED.
BREACHED, THAT WAS BEYOND THE BYLAWS. IF THAT WAS EASE WHAT THEY WERE DEPRIVED OF THAT'S
A DIRECT BREACH OF CONTRACT. JUSTICE SOLOMON: BUT THE TRIAL COURT WHEN
IT GRANTED SUMMARY ZUMENT SPECIFICALLY DID NOT DECIDE SUMMARY JUDGMENT AS TO VALLY HOSPITAL;
THAT'S WHAT WENT TO TRIAL. AT TRIAL, THE TRIAL COURT AND THOSE TASH DASH I BELIEVE
THE CHARGE CONFERENCE, BUT THERE WAS SOME SUBSTITUTION ABOUT THE EXISTENCE OF THE
CONTRACT AN THE JURY WAS, IN FACT, CHARGED ON WHEN CONTRACT AN THAT OTHER OUTSIDE AGREEMENT
IMPLIED CONTRACT AN IF THEY FIND CONTRACT OR IMPLIED CONTRACT THEN THEY COULD ALSO FIND
A BREACH OF THE COVENANT. WAS PT THAT WHAT THE JURY WAS ASKED TO DECIDE AND
IT DECIDED AGAINST YOUR CLIENT? CHRISTOPHER S. PORRINO: THE NOTION THAT
THERE WAS SOMETHING OTHER THAN THE BYLAWS AS I UNDERSTAND IT IS BASICALLY ONE THING AND
THAT IS WE HAVE PRIVILEGES, WE, THE PLAINTIFFS HAVE PRIVILEGES FOR EVER. UNLESS, IT'S
OURS TO LOSE AN THAT IN SOME WAY SHAPE OR FORM CREATED AN AGREEMENT OR CONTRACT. EXPRESS,
IMPLIED, ORAL. JUSTICE SOLOMON: I DIDN'T THINK THAT WAS IT AT ALL. I THOUGHT
IT WAS AN I BELIEVE JUSTICE PATTERSON SAID IT, THAT THEY WERE INDUCED TO JOIN THE HOSPITAL
STAFF TO INVEST TIME AN RESOURCES TO DEVELOP THE THEIR PRACTICE TO MAKE IT THE PREEMINENT
HOSPITAL IN THIS NEUROSURGICAL, NEUROLODGE YIK KAL AREA AND THAT THEY DID ALL THAT.
IN OTHER WORDS, THEY WERE INDUCED, THEY EXPENDED RESOURCES, THEY PERFORMED AND NOW
THEY ARE THERE DOING ALL THIS AND THAT IMPLIED CONTRACT WAS STRIPPED OUT FROM UNDER THEM.
THAT'S SEPARATE AN APART FROM THE BYLAWS OR THIS CONTRACT THAT YOU'RE SKREBING
SSHG THAT'S AN IMPLIED CONTRACT. CHRISTOPHER S. PORRINO: BUT THE IMPLIED
CONTRACT OR ORAL CONTRACT, WE CAN USE THE TERM IMPLIED, THE FWRAEMENT THE IMPLIED AGREEMENT
WAS THAT THEY WOULD HAVE THESE PRIVILEGES FOREVER. AGAIN, GIVING THEM THE BENEFIT OF
EVERY DOUBT BECAUSE THEY DID ALL OF THESE PURPORTEDLY WONDERFUL THINGS THAT DOCTORS ON
STAFF WOULD ORDINARILY DO, BUT GIVING THEM THE BENEFIT OF EVERY DOUBT BECAUSE THEY DID
ALL THESE WONDERFUL THINGS TLFLS THIS CONTRACT IMPLIED HOWEVER WE WANT TO DEFINE IT.
WHAT THEY WERE SEEKING RELIEF FROM WAS THE FACT THAT THEIR PRIVILEGES, THAT
EXISTED PRIOR TO THIS LITIGATION BEING FILED SHOULD HAVE CONTINUED FOREVER. IT WAS
THERE'S TO LOSE; THAT'S THE ONLY TASH DASH. JUSTICE SOLOMON: IN AN IMPLIED
CONTRACT, IT WOULDN'T GO ON FOR FOREVER. IT WILL GO ON UNTIL IT IS PROPERLY AN APPROPRIATELY
TERMINATED IN GOOD FAITH. CHRISTOPHER S. PORRINO: I WILL ACCEPT THAT.
JUSTICE SOLOMON: YOUR ARGUMENT IS IT WASN'T TERMINATED IN GOOD FAITH HERE.
THE WHOOIT PAPER WAS A SHAM, THE NUMBERS WERE FUDGED WE SHOULD STILL BE THERE.
CHRISTOPHER S. PORRINO: THAT IS A BREACH OF CONTRACT. THAT WAS NOT AN IMPLIED COVENANT
CLAIM. THAT IS A BLAECH OF CONTRACT. IMPLIED CONTRACT, ORAL CONTRACT, WHATEVER. IT IS
NOT A GOOD FAITH AN FAIR DEALING CLAIM. JUSTICE SOLOMON: I UNDERSTAND, BUT
IT WAS CHARGED TO THE JURY AND I THINK CORRECTLY BY THE TRIAL JUDGE THAT EVERY CONTRACT,
EXPRESS, WRITTEN OR IMPLIED CARRIES WITH IT A COULD HAVE COVENANT OF GOOD FAITH AN FAIR
DEALING. YOU CAN'T SEPARATE THE TWO. THEY ARE PART OF THE SAME THING. THAT COVENANT,
THAT PROMISE TO ACT IN GOOD FAITH AND FAIRLY IS PART OF THE IMPLIED CONTRACT OR THE ACTUAL
CONTRACT IN THIS CASE. CHRISTOPHER S. PORRINO: SO I -- LET ME TRY AND SAY
IT THIS WAY. THE COVENANT OF GOOD FAITH AN FAIR DEALING CAUSE OF ACTION CANNOT
BE THAT THE CONTRACT WAS BREACHED, WHETHER THE CONTRACT WAS IMPLIED OR OTHERWISE.
THE GOOD FAITH AN FAIR DEALING CAUSE OF ACTION UN WADE V KES LER CANNOT BE A BREACH OF
CONTRACT. IT HAS TO BE, YOU KNOW, STEPS TAKEN TO FRUSTRATE THE OBJECTIVES UNDER THE CONTRACT.
IT CANNOT BE THAT THE CONTRACT THAT WAS REACHED WAS BREACHED. JUSTICE SOLOMON:
AGREED. CHRISTOPHER S. PORRINO: BUT THE ONLY POSITION THAT HAS BEEN TAKEN
THROUGHOUT THIS CASE WAS THAT THE HOSPITAL BREACHED THIS PURPORTED, IMPLIED ORAL
CONTRACT. ASIDE FROM THE BYLAWS, WHICH WAS WHAT WAS PLED AND WHICH THE CASE
WAS LITIGATED ON, BUT IN THE HYPOTHETICAL WE'RE TALKING ABOUT NOW, THE ONLY AGREEMENT,
IMPLIED OR OTHERWISE WAS WITH RESPECT TO HAVING PRIVILEGES FOR LONG. THOSE PRIVILEGES
WERE LIMITED SOONER BEFORE THEY WOULD HAVE LIKED. THAT IS A BLAECH OF CONTRACT CLAIM,
NOT A COVENANT OF GOOD FAITH AN FAIR DEALING CLAIM. JUSTICE PATTERSON:
YOU'RE SAYING EVEN THOUGH, AS A LEGAL PRINCIPLE THERE IS A COVENANT OF GOOD FAITH AN FAIR
DEALING THAT ATTACHES TO EVERY CONTRACT, THE ONLY BREACH OF THE COVENANT OF GOOD FAITH
AN FAIR DEALING THAT WAS ALLEGED IN THIS CASE RELATES TO THE BYLAWS AND NOT TO THIS OTHER
-- CHRISTOPHER S. PORRINO: THAT'S ALL THAT WAS PLED. JUSTICE
PATTERSON: SO IF THERE IS -- SO YOU'RE SAYING THE PLAINTIFFS DID NOT CHOOSE TO ASSERT
A BREACH OF THE COVENANT OF GOOD FAITH AN FAIR DEALING CLAIM WITH RESPECT TO THIS SECOND
IMPLIED CONTRACT. CHRISTOPHER S. PORRINO: WHAT I AM SAYING IS, IF -- THEY
COULD HAVE ALLEGED THAT THERE WAS AN IMPLIED CONTRACT OR AN ORAL CONTRACT THAT ENTITLED
THEM TO FOREVER PRIVILEGES. THEY DIDN'T ALLEGE THAT, BUT THEY COULD HAVE. HAD
THEY ALLEGED THAT, THEY COULD HAVE ALLEGED BREACH OF CONTRACT AND THEY COULD HAVE ALLEGED
BREACH OF THE COVENANT OF GOOD FAITH AN FAIR DEALING. MY POINT IS UN WADE
V KES LER, IF YOUR CLAIM IS THAT YOU WERE DENIED THESE FOREVER PRIVILEGES AND THOSE FOREVER
PRIVILEGES ARE DENIED, THAT'S A BREACH OF CONTRACT. LETTER IT'S NOT A BREACH OF THE I
MPLIED COVENANT OF GOOD FAITH AN FAIR DEALING. ULTIMATELY, WHEN WE TRY TO CUT
THROUGH ALL OF THE MORE RAS, WHICH THE COURT IS DOING AN EXCELLENT JOB OF, THE BREACH
OF CONTRACT CLAIM IS GONE IN THIS CASE. THE JURY NO CAUSED IT. ALL THAT WAS LEFT WAS
THE IMPLIED COVENANT CLAIM. JUSTICE PATTERSON: SO, IF -- OBVIOUSLY, THERE IS
CASE LAW WHERE THERE IS NO BREACH OF CONTRACT, BUT THERE IS A BREACH OF THE IMPLIED COVENANT
IN GOOD FAITH AN FAIR DEALING. CHRISTOPHER S. PORRINO: YES.
JUSTICE PATTERSON: YOUR ARGUMENT IS LEAVING ASIDE THE BYLAWS FOR THE MOMENT, AS TO THIS
IMPLIED CONTRACT BASED ON BUILDING UP THE PRACTICE AND BRINGING IN PATIENTS AND AND
DOING THE THINGS THAT THEY SAY THEY WERE ASKED TO DO AND DID DO, THE FACT THAT THE ALLEGATION
HERE IS THAT THEY LOST PRIVILEGES MEANS THAT THEY -- WHAT THEY WERE REALLY ALLEGING WAS
A BREACH OF CONTRACT CLAIM, NOT A BLAECH OF THE COVENANT. CHRISTOPHER S.
PORRINO: CORRECT. IF WE LOOK AT ANY OF THE IMPLIED COVENANT CASES WE KNOW THAT THOSE
CASES ARE BASED ON CONTRACT WHICH TUESDAY NT NECESSARY LEASE BREACH THE PURPORTED
CONTRACT. JUSTICE PATTERSON: SOME OF THESE CASES, THERE IS A MURKY, FWRA
GRAY AREA WHERE THE SAME CONDUCT CAN CAUSE THE PURPOSES OF THE CONTRACT TO BE FRUSTRATED,
BUT, ALSO, BREACH THE CONTRACT. AM I WRONG ABOUT THAT SF?
CHRISTOPHER S. PORRINO: I THINK WADE V KES LER IS CLEAR ON THIS POINT. YOU'VE GOT BREECH
OF CONTRACT WHEN THE OBJECT OF THE CONTRACT IS BREACHED. HERE, THE QUOTE UNQUOTE FOREVER
PRIVILEGINGS. THOSE FOREVER PRIVILEGES ARE DIMINISHED; THAT'S THE BREACH OF CONTRACT.
IT'S NOT, YOU KNOW, LIKE UN BRUNSWICK HILLS, I GUESS, WHERE WE'RE TALKING ABOUT, YOU KNOW,
MESSING AROUND WITH SOMEONE'S OPTION AND TRYING TO TRICK THEM INTO NOT EXERCISING IT;
THAT'S A BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AN FAIR DEALING. THE
BRUNSWICK CASE WAS NOT DECIDED ON THE CONTRACTOR'S BREACH. THEY DIDN'T ACTUALLY
BREACH THE CONTRACT. THE ALLEGATIONS WERE AND WHAT THE CASE WAS ABOUT WAS THE CONDUCT
AROUND IT EFFECTIVELY, YOU KNOW, THROUGH MISLEADING STATEMENTS AND THE REST FRUSTRATED
THE PLAINTIFF'S OPPORTUNITY IN THAT CASE TO EXERCISE THE OPTION SFLFRMENTS COUNSEL, THE CHARGE THAT JUSTICE WAYNE READ EARLIER, THE PAR FWRAF THAT IS AT DA-82, HOW WAS THAT
THE JUDGE CRAFT IT? DID PARTIES PRESENT IT TOGETHER, DID ONE SIDE INTERPRET
IT? HOW DID IT START? IMPORTANT. CHRISTOPHER S. PORRINO:
PORCH I HAVE TO ADMIT HAVING NOT TRIED THE MATTER ITSELF I AM NOT SURE ON HOW IT EXACTLY
CAME TO BE, JUSTICE. I WASN'T THERE. THE LANGUAGE ENDED UP IN THE, YOU KNOW, IN THE
CHARGE. THERE WAS DISCUSSION AND DEBATE AROUND IT AND AS I ACKNOWLEDGED BEFORE, THERE WAS
NOT AN OBJECTION WITH RESPECT TO THAT LANGUAGE SFLFRMENT PERHAPS MR. VERNIERO CAN HELP
US. CHIEF JUSTICE RABNER: IT IS NOW 12:30 WOULD YOU LIKE TO ADDRESS THE
E-MAILS. JUSTICE WAINER APTER: I'M SORRY. I HAVE ONE MORE QUESTION.
CHIEF JUSTICE RABNER: THAT'S ALL RIGHT. JUSTICE WAINER APTER: YOUR CLAIM
ON THE IMPLIED COVENANT CLAIM THAT A BREACH OF THE IMPLIED COULD HAVE NAPT OF GOOD FAITH
AN FAIR DEALING IS GENERALLY SOMETHING THAT DOES NOT BREACH THE CONTRACT BUT THAT FRUS
STRAITS THE OTHER PARTY'S ABILITY TO PERFORM UNDER THE CONTRACT OR SOMETHING SIMILAR TO
THAT, WHEREAS, HERE, THE ALLEGATION IS NOT THAT SOMETHING THAT THE HOSPITAL DID FRUSTRATED
THE DOCTOR'S ABILITY TO PERFORM UNDER THE CONTRACT AN INSTEAD IT IS THAT THE
HOSPITALIZED BREACHED A COMMITMENT TO ALLOW THE DOCTORS TO HAVE E R CALL AN USE THE BIPLANE
AND THE GAMMA KNIFE FOREVER AND THAT THAT IS ONLY A BREACH OF CONTRACT NOT ANYTHING THAT
FRUSTRATED THE DOCTOR'S ABILITY TO FULFILL THEIR END OF THE BARGAIN? CHRISTOPHER
S. PORRINO: JUSTICE YOU SAID IT BETTER THAN I DID AND I WOULD JUST ADD TO THAT.
JUSTICE PATTERSON: SHE SAID IT A LOT BETTER THAN I DID. CHRISTOPHER S. PORRINO:
I WOULD JUST ADD THAT -- WELL, I AM NOT GOING TO TLIE TO ADD TO IT. THANK YOU.
SFLFRMENTS E-MAILS. CHIEF JUSTICE RABNER: E-MAILS. CHRISTOPHER S.
PORRINO: SO, LET ME JUST SPEND A MOMENT TALKING ABOUT ONE OF THE MANY E-MAILS THAT WE
HAVE ARGUEDED WERE UTILIZED IMPROPERLY IN THIS CASE. IN YOUR DELIBERATIONS,
I WOULD URGE YOU TO SPEND JUST A COUPLE OF MEANT TO TAKE A LOOK AT DA-295 AND DA-296.
IT IS JUST A RELATIVELY SHORT E-MAIL STRING THAT STARTS WITH A NOTE FROM GAIL CALLANDRILLO
WHO IS VICE PRESIDENT AT VALLY, THE CLIENT FOR LACK OF A BETTER TERM, NOT A LAWYER, TO
ROBIN GOLDFISCHER AND THEN A RESPONSE FROM GAIL AND THERE ARE OTHER PEOPLE COPIED ON
THE E-MAIL, INCLUDING THE DIRECTOR OF OPERATIONS AN THE HOSPITAL'S PRESIDENT, AUDREY MEYERS,
BUT THIS IS AN ATTORNEY/CLIENT COMMUNICATION. WHAT YOU WILL SEE, AND IT'S
NOT TOTALLY OBVIOUS FROM THE FACE OF THE E-MAIL UNLESS YOU UNDERSTAND THE WHO'S WHO AN
WHAT'S WHAT, BUT MS. CALLANDRILLO IS ASKING THE ZEN COUNSEL ROBIN GOLDFISCHER FOR ADVICE
WITH RESPECT TO THE VERY ISSUE THAT WE'RE HERE TO TALK ABOUT TODAY. APPARENTLY, YOU
CAN TELL FROM THE FACE OF THE E-MAIL THAT MS. GOLDFISCHER HAD SENT TO MS. CALLANDRILLO,
ATTORNEY TO CLIENT, ADVICE FROM OUTSIDE COUNSEL AND THEY ARE MENTIONED HERE, AM ME MAK
BRIDE AN LINDA HAD AND THE E-MAIL SAYS ROB THANK YOU FOR SENDING ALL THE MATERIALS FROM
AM ME MAK AN LINDA HAD DAD AND THEN SHE PROSE TO ASK A NUMBER OF QUESTIONS ABOUT WHAT
THEY SHOULD DO AND HOW THEY SHOULD APPROACH THINGS. MS. GOLDFISCHER DOES,
AS I SAID IN MY OPENING, WHAT EVERY LAWYER WHO IS DEALING WITH POTENTIAL LITIGATION WOULD
DO. SHE PROVIDES ADVICE ABOUT HOW TO DEAL WITH IT. SHE SAYS IN A TOTALLY
ROUTINE WAY, FRANKLY, IN MY ESTIMATION, BUT YOU WILL MAKE YOUR OWN JUDGMENT, THAT THE
ISSUES WILL NEED TO BE STUDIED, THAT THINGS ARE GOING NEED TO BE DOCUMENTED, THAT WE'RE
GOING TO NEED TO MEET AN TALK ABOUT IT AND I WILL JUST SAY THAT WHEN I READ THIS E-MAIL
FOR THE FIRST TIME, IT STRUCK ME THAT THIS IS WHAT I DO AND SO MANY OF OUR COLLEAGUES
DO EVERYDAY. CLIENTS COME INTO OUR OFFICES ON ISSUES INVOLVING ALL KINDS OF
MATTERS WITH CONCERNS ABOUT POTENTIAL LITIGATION. AND I CAN'T COUNT THE NUMBER OF TIMES
THAT I HAVE SAID TO THE CLIENT SITTING IN MY CONFERENCE ROOM AN THIS IS ABSOLUTELY NO
DIFFERENT, I UNDERSTAND THE CONCERN. I UNDERSTAND WHAT YOU WANT TO DO. WE NEED TO
DO A LITTLE WORK FIRST. WE NEED TO DO SOME INVESTIGATION. WE NEED TO DO A LITTLE
STUDYING, A WRING REPORT SO WE'RE PREPARED, WHATEVER. THE BOTTOM LINE IS THAT
IS WHAT HAPPENED HERE AND IF THE FINDING OF THE APPELLATE DIVISION IS ALLOWED TO STAND,
WE HAVE TO CHANGE THE WAY WE PRACTICE LAW. JUSTICE PATTERSON: THE RULES
HAVE BEEN CHANGED. CHRISTOPHER S. PORRINO: CORRECT. THERE WAS A PROTECTIVE
ORDER IN THIS CASE THAT SQUARELY PROVIDED FOR CLAW BACK AN NONWAIVER. THE PROTECTIVE
ORDER PROVIDED, YOU KNOW, A HUNDRED PERCENT ON POINT WITH WHAT YOU WOULD WANT TO SEE IN
ORDER TO PROTECT AGAINST THIS KIND OF AN EVENT WHERE THESE PRIVILEGED E-MAILS ARE
INADVERTENTLY TURNED OVER AND THEN THEY ARE USED TO SPIN THESE CONSPIRACY THEORIES.
CHIEF JUSTICE RABNER: IS THIS E-MAIL PERHAPS DIFFERENT FROM THE ORDINARY ONE THAT YOU
DESCRIBED IN THAT IT PUTS QUOTATION MARKS AROUND THE WORD STUDY? CHRISTOPHER S.
PORRINO: LOOK, THE EXPLANATION ON THIS WAS CLEAR, IN THE SENSE THAT STAFF DEVELOPMENT
FOLKS WERE REFERENCED HERE, NOT THE ONES WHO DO THE STUDY, BUT REGARDLESS, IF MY
COMMUNICATION TO MY CLIENT ABOUT GOING TO GO OUT AN GET A REPORT TO, YOU KNOW, SUBSTANTIATE
X Y OR Z IS IN ISSUE WHEN THAT REPORT IS PREPARED, THE LAW ON AN ISSUE WAIVER IS
CHANGED COMPLETELY AND I'VE FWOT TO CHANGE THE WAY I COMMUNICATE AND I THINK MANY OF THE
WAY MY COLLEAGUES WOULD HAVE TO CHANGE THE WAY THEY COMMUNICATE. THERE IS
NOTHING -- AN YOU WILL READ THE E-MAILS IN CONTEXT HERE. THERE IS NOTHING SURPRISING
ABOUT IT AT ALL, EXCEPT THAT IT'S A PRIVATE ATTORNEY CLIEPT COMMUNICATION THAT IS NOW
BEING USED TO CROSS-EXAMINE THE GENERAL COUNSEL OF VALLEY AND TO CREATE THE IMPRESSION
THAT THERE WAS SOME GRAND CONSPIRACY WHEN ALL SHE WAS DOING WAS PROVIDING ADVICE IN
ANTICIPATION OF LITIGATION. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU WOULD
LIKE TO ADD? CHRISTOPHER S. PORRINO: I THINK WE'VE COVERED THE
LANDSCAPE, YOUR HONOR AND I WILL SAVE THE REST OF MY TIME FOR REBUTTAL. JUSTICE
PATTERSON: MR. PORRINO, IS THAT PROTECTIVE BLANK WITH THE CLAW BACK PROVISION IN THE
RECORD? HAD. CHRISTOPHER S. PORRINO: I BELIEVE IT IS. JUSTICE
PATTERSON: I CAN LOOK IT UP. CHRISTOPHER S. PORRINO: LET ME YUS TELL JUST
TELL US -- ALSO, TELL US AFTER THE LUNCH BREAK IF YOU DON'T HAVE IT HANDY.
CHRISTOPHER S. PORRINO: DA-322 AND THE RELEVANT PROVISIONS ARE ON DA-329, PARAGRAPH 12
AND CONTINUING ON TO PAGE 330. IT TALKS ABOUT THE THENGS YOU WOULD EXPECT TO SEE IN A
CLAW BACK -- IN A PROTECTIVE ORDER THAT HAS A CLAW BACK PROVISION. JUSTICE
FASCIALE: COULD YOU ELABORATE VERY BRIEFLY ON WHAT YOU MEPT BEE REMAND. YOU SAID REMAND
IN YOUR OPENING REMARKS? CHRISTOPHER S. PORRINO: OUR NESH POSITION IS
THAT THE CASE SHOULD HAVE BEEN -- CONTRACT CLAIM SHOULD HAVE BEEN DISMISSED ON SUMMARY
JUDGMENT AND THAT WOULD END THE CASE. I THINK THERE WERE SOME CROSS APPEALS BUT I THINK
THAT EFFECT ILY ENZ THE CASE. IF THE COURT FINDS THAT THE ATTORNEY CLEENT PRIVILEGE WAS
NOT WAIVED HERE OR IF THE COURT FINDS THAT THE COMMENTARY DURING SUMMATION WAS REVERSIBLE
ERROR, THEN I THINK WE'RE IN REMAND TERRITORY. CHIEF JUSTICE RABNER: THANK YOU.