ASSOCIATION, I WOULD LIKE TO THANK THE COURT FOR THE TUPT TO TRAES THE ESHS TODAY.
THE MESSAGE THAT THE HOSPITAL ASSOCIATION ASKS THE CORE TO SEND TO TOKTS PRACTICING AT
A HOSPITAL IS SIMPLE AND DIRECT. IF YOU WANT CONTRACTUAL PROTECTIONS, FWOE AND GET A
CONTRACT. CONTRACTS OF THIS NATURE ARE COMMONPLACE. THEY SPELL OUT THE
RESPONSIBILITIES AND RIGHTS OF BOTH SIDES, THE DOCTORS AND THE HOSPITAL. THEY ESTABLISH
A DURATION. THEY ESTABLISH WHEN A CONTRACT CAN BE TERMINATED AN THE GROUNDS FOR TERMINATION
AND MORE. THEY GIVE A DOCTOR CONTRACT RIGHTS AN THE ADDITIONAL PROTECTIONS OF THE IMPLIED
COVENANT. THE FLIP SIDE IS THAT A DOCTOR SHOULD NOT EXPECT THAT THE MEDICAL STAFF BYLAWS
WILL BE A SUBSTITUTE FOR A COMMERCIAL CONTRACT. THE BYLAWS MAY TIELT YOU TO A HEARING
ON CREDENTIALING DECISIONS BUT NO MORE AN BEYOND THAT YOU REALLY HAVE THE SAME RIGHTS
AS ANY OTHER INTERESTED PARTY TO BRING A CHALLENGE UN BER MAN AN SEE AN INJUNCTION IF
THE POLICY THE HOSPITAL IS PURSUING DOES NOT ADVANCE A HEALTHCARE OBJECTIVE.
THE PLAINTIFFS HERE HAD TO CONTRACT. THEY PLED NO CONTRACT OTHER THAN THE MEDICAL STAFF
BYLAWS AND TO FILL IN THE GAP, THEY HAVE SOUGHT TO CONTORT THE MEDICAL STAFF BYLAWS INTO
A COMMERCIAL CONTRACT SUBSTITUTE, A CONCEPT THAT HAS NEVER BEEN UPHELD BY ANY COURT AND
THAT IS CONTRARY TO THE PURPOSE AND HISTORY OF THE MEDICAL STAFF BYLAWS. THOSE BYLAWS
WERE INTENDED TO ORGANIZE THE MEDICAL STAFF AT A HOSPITAL AS A FORM OF SELF GOVERNANCE
AND DO NOT DEFINE A COMMERCIAL RELATIONSHIP BETWEEN THE DOCTOR AND THE HOSPITAL. AND
THEY WERE CERTAINLY NEVER INTENDED AS A CHECK ON THE POWER OF A HOSPITAL BOARD TO PURSUE
MANAGERIAL DECISIONS DEEMED TO BE IN THE INTERESTS OF THE PUBLIC. THOSE
MANAGERIAL PRERECOGNIZE FWAT TIFS ALLOW A HOSPITAL BOARD TO PURSUE ALL SORTS OF STRATEGIES
INCLUDING A LINE MAN STRATEGY, INCLUDING THIS CONTRACT AN AS THIS COURT AND MANY OTHER
CONTRACTS, EXCLUSIVE CONTRACTS HAVE MANY ADVANTAGES IN EFFICIENCY AN IN THE DELIVERY
OF HEALTHCARE INCLUDING FOSTERING, BETTER WORKING RELATIONSHIPS BETWEEN THE HOSPITAL'S
PERSONNEL AN THE DOCTOR PERFORMING PROCEDURES, STANDARDIZING PROCEDURES, ENSURING ROUND
THE CLOCK KORMG, IMPROVING SCHEDULING OF PROCEDURES AN MORE. MOST
FUNDAMENTALLY, AN EX SCLOOUF CONTRACT ALLIANCE THE HOSPITAL'S INTERESTS WITH THE INTERESTS
OF THE PHYSICIAN FWRUPS CREATING A TRUE PARTNERSHIP THAT SEEKS TO BEST SERVE HOSPITAL
PATIENTS. THAT'S NOT TO SAY THERE IS NO CHECK ON HOSPITAL'S MANAGERIAL DECISIONS. WE
ALL KNOW THERE IS THE BER MAN CASE LAW WHICH DEFIANCE WHEN AND HOW A CHAL ELECTRIC MIGHT
BE BROUGHT; THAT CASE LAW MAKES CLOER THAT HOSPITAL DECISIONS ARE TIELTED TIELTED,
ENTITLED TO BE REVIEWED UN. AND IN RESPONSE TO CHIEF ZUS STIS RABNER AN JUSTICE
PATTERSON'S INQUIRY THIS MORNING, IF A HOSPITAL SEEKS TO DEFEND ITS POLICY USING FALSIFIED
DATA OR SKEWED DATA AND THE JUDGE MAKE THAT FINDING AND THERE IS NO OTHER EVIDENCE TO
SUFFICIENTLY SUPPORT THE HOSPITAL'S DECISION, THEN THE HOSPITAL POLICY WILL FAIL.
BUT IF THE HOSPITAL POLICY PASSES THE BER MAN TEST, THAT'S THE END OF THE STORY.
THERE IS -- NOTHING SHOULD BE IMPLIED IN THE BYLAWS TO CREATE A FURTHER AVENUE KNEW TO
CHALLENGE THE HOSPITAL'S DECISION. NOW, AS THIS CASE HAS PROGRESSED, THE
PLAINTIFF TASH DASH. JUSTICE PATTERSON: LET ME ASK A QUESTION ABOUT
EVIDENCE. WHAT DOES A HOSPITAL NEED TO PRESENT IN ORDER TO JUSTIFY A HEALTHCARE
DECISION UNDER BER MAN? JUSTICE PIERRE-LOUIS: IT DEPENDS OBVIOUSLY ON THE
HEALTHCARE PROVISION BEING DEFENDED AND WHAT SORT OF EVIDENCE IS APPROPRIATE UP THOSE
CIRCUMSTANCES. THAT VAGUE ANSWER MAY NOT HELP YOU, BUT HERE, IT'S WELL RECOGNIZED THAT
THE CASE LAW, IT'S EVEN SHRINED IN DECISIONS, THERE IS AN OPINION BY JUST STIS OH CON
IN HER SPELLING OUT THE ADVANTAGES OF AN EX INCLUSIVE CONTRACT. THE QUESTION
HERE THAT I THINK A HOSPITAL BOARD WOULD BE CONFRONTED WITH IN THIS PARTICULAR INSTANCE
WOULD BE WILL THE ASSOCIATION WITH THE KOL GROOUP COLUMBIA FWRUP MEAN THE HOSPITAL IS
ASSOCIATING WITH A SECOND RATE FWRUP OF DOCTORS WHO WILL DIMINISH HEALTHCARE AT THE HOSPITAL
AN THAT THE HOSPITAL WOULD BE BETTER OFF THE CURRENT SITUATION, WHICH IS NO EXCLUSIVE
CONTRACT. JUSTICE PATTERSON: THAT SEEMS LIKE SUCH A LOW STANDARD THAT IT'S
ACTUALLY BELOW GROUND. THAT PUTS THE BURDEN ON THE PERSON SEEKING TO AATTACK THE HOSPITAL'S
DECISION. JUSTICE PIERRE-LOUIS: I DON'T KNOW ABOUT THE BELOW THE GROUND
AGREEMENT. JUSTICE PATTERSON: THAT YOU HAVE TO WORSEN HEALTHCARE IN ORDER
TO... JUSTICE PIERRE-LOUIS: WELL, THERE ARE ADVANTAGES. THE STANDARD ISN'T
TO TASH DASH TO REAP THE ADVANTAGING OF AN EXCLUSIVE CONTRACT YOU CAN'T HAVE A SECOND
ARY IMPACT OF WORSENING HEALTHCARE. YOU GET ADVANTAGES FROM GOING INTO AN EXCLUSIVE
ARRANGEMENT. VALLY IS NO EXCEPTION TO THE RULE. THEY HAVE DONE EXCLUSIVE CONTRACTS IN
MULTIPLE AREAS AN THERE IS AN EXPERIENCE BASE AT VALLEY AN I'M SURE OTHER HOSPITALS,
AS WELL, THAT THERE ARE SUBSTANTIAL ADVANTAGES TO THE DEVELOPMENT AND ADVANCEMENT OF A
PARTICULAR LINE OF SERVICE BY GOING WITH AN EXCLUSIVE CONTRACT. JUSTICE
PATTERSON: DOES THE HOSPITAL HAVE THE BURDEN TO SHOW THAT THE DECISION WAS MADE FOR PURPOSES
OF IMPROVING HEALTHCARE? HAD. JUSTICE PIERRE-LOUIS: THE WORD I WOULD
OBJECT TO IS PURPOSES. THE QUESTION IS WHETHER IT IMPROVES HEALTHCARE. THERE ARE ALWAYS
MULTIPLE MOTIVATIONS. HOSPITALS ARE VERY COMPLEX ORGANIZATIONS. THERE ARE ALWAYS MULTIPLE
POINTS OF VIEW. THERE ARE ALWAYS SUBSTANTIAL FRICTIONS IN THE HOSPITAL. IT IS ALWAYS
EASY TO SAY THAT YOU ARE SINGLING ME OUT OUT OF ANIMOSITY OR SOME OTHER BIAS.
JUSTICE PATTERSON: SO IF A HOSPITAL, HYPOTHETICALLY, IS ACTUALLY GETTING RID OF A
GROUP OF DOCTORS BECAUSE OF PERSONAL ANIMOSITY, BUT STUMBLES ACROSS THE FINISH LINE AND
IT REALLY DOES IMPROVE HEALTHCARE BECAUSE PATIENT OUTCOMES IMPROVE IN THE FIVE YEARS FOLLOWING
THAT DECISION, HAS THE HOSPITAL MET ITS BURDEN UNDER BER MAN? JUSTICE
PIERRE-LOUIS: I THINK IT HAS. THE QUESTION IS WHETHER THE HOSPITAL IS ACTING PURSUANT
TO THE PUBLIC INTEREST. JUSTICE PATTERSON: THAT'S WHAT I THINK -- I THINK
TO SAY SIMPLY THAT IT HAPPENS TO -- TELL ME IF I'M WRONG. I UNDERSTOOD BER MAN TO BE
FOCUSED ON THE REASONS FOR THE DECISION. JUSTICE PIERRE-LOUIS: I UNDERSTOOD
BER MAN TO BE FOCUSED ON WHETHER OR NOT THE DECISION WILL HAVE THE RESULT OF IMPROVING
HEALTHCARE BECAUSE THE REASON FOR THE JUDICIARY REVIEW WAS TO ENSURE THAT THE PUBLIC
INTEREST WAS BEING SERVED AND THE PUBLIC INTEREST IN QUALITY HEALTHCARE. IF THE DECISION
SERVES QUALITY HEALTHCARE, BUT PURSUES THAT AND ALSO HAPPENS TO PURSUE SOME ADMINISTRATOR'S
PERSONAL ANIMOSITY TOWARDS A PARTICULAR PHYSICIAN OR PHYSICIANS GROUP, SHOULD THE HOSPITAL
NOT BE ALLOWED TO IMPLEMENT THAT PARTICULAR PRACTICE AND SHOULD THE COURT ENJOIN IT?
THIS. JUSTICE PATTERSON: I AM NOT SUGGESTING -- I WANT TO GET AT WHAT IS
THE RELATIONSHIP BETWEEN THE HEALTHCARE IMPROVEMENT AN THE HOSPITAL'S DECISION. I
THOUGHT IT WAS ALONG THE LINES OF THE DECISION IS MADE IN ORDER TO IMPROVE HEALTHCARE OUTCOME
OR IN FURTHERANCE OF A POLICY OF IMPROVING HEALTHCARE OUTCOMES, WHICH, TO ME, SUGGESTS
THAT YOU LOOK AT THE DECISION ITSELF, NOT SIMPLY WHETHER IT TURNED OUT WELL OR NOT? SH.
JUSTICE PIERRE-LOUIS: WELL, YOU WON'T KNOW WHETHER IT TURNED OUT WELL IN
MOST OF THESE CASES BECAUSE IT'S AN INJUNCTION ACTION. JUSTICE PATTERSON:
RIGHT. JUSTICE PIERRE-LOUIS: THE QUESTION IS WHETHER THERE ARE SUBSTANTIAL
-- A SUBSTANTIAL RATIONAL BASIS FOR THE DECISION. JUSTICE PATTERSON: THAT'S
WHAT I WAS THINKING IT WAS. JUSTICE PIERRE-LOUIS: WHEN YOU REVIEW AN ADMIN
ISTRATIVE AGENCY ACTION YOU DON'T QUESTION WHETHER THE STATE ADMINISTRATOR DIDN'T LIKE
THE PARTICULAR -- HAD SOME ANIMOSITY THAT HE OR SHE WAS PURSUING. YOU QUESTION WHETHER
THE POLICY IS ARBITRARY AN CAPRICIOUS OR UNREASONABLE AN THIS IS SUBJECT TO AN EVEN
MORE DEFERENTIAL STANDARD THAN THAT. JUSTICE WAINER APTER: CAN I ASK YOU
A QUESTION ABOUT THE BURDEN OF PROOF BECAUSE IT SOUNDED LIKE YOU WERE AGREEING WITH JUSTICE
PATTERSON THAT THE BURDEN IS ON THE HOSPITAL TO JUSTIFY THE DECISION. IN AN AGENCY REVIEW
CIRCUMSTANCE, THE BURDEN IS ON THE CHALLENGER TO SHOW THAT THE AGENCY'S ACTION WAS ARBITRARY
AN CAPRICIOUS. HERE WHO IS THE BURDEN ON, IS IT ON THE HOSPITAL OR THE CHALLENGE GER?
LOU LIEU LIEU LIEU I DON'T THINK, THERE IS ANY CASE LAW THAT SPELLS THAT OUT. I THINK
THE HOSPITAL IS GOING TO HAVE TO COME FORWARD WITH THE GROUNDS THAT SUPPORT ITS DECISION
AND WHETHER THAT'S DONE IN THE FIRST INSTANCE OR BY WAY OF REBUTTAL, IT WILL NOT PREVAIL
UNLESS IT DOES THAT. IN TERMS OF THE BURDEN OF PERSUASION, I THINK THE STANDARD
IS QUITE CLEAR IN BER MAN THAT IF THE HOSPITAL -- IF THE EVIDENCE SHOWS THAT THE HOSPITAL
IS REASONABLY PURSUING A HEALTHCARE AGENDA THE COURT SHOULD STAY OUT OF THE -- SHOULD
NOT INTERVENE, SHOULD LEVER THE HOSPITAL TO PROCEED. BUT, HONESTLY, YOUR
HONOR, IT HAS NOT BEEN ADDRESSED IN ANY STIGS I'M AWARE OF. AS THIS CASE HAS
PROGRESSED, IT HAS MORPHED. AND PLAINTIFFS APPEAR TO HAVE CONCEDED THAT THE MEDICAL
STAFF BYLAWS ALONE CANNOT SUPPORT THEIR AWARD AND IT'S NOT ENTIRELY CLEAR -- THEY SAY THAT
THERE IS A BROADER FOUNDATION FOR THEIR CLAIM AND IT'S NOT ENTIRELY CLEAR WHAT THEY MEAN
BY THAT, BUT IT MIGHT MEAN THAT THERE IS AN IMPLIED CONTRACT OF THE SORT YOU TALKED ABOUT
JUSTICE SOLOMON OR IT COULD MEAN THAT THERE IS AN ORAL CONTRACT. I THINK EITHER OF THOSE
DOESN'T HOLD UP. AN IMPLIED CONTRACT CLAIM, IN THIS INSTANCE, IS THAT THEIR
RIGHTS ARE BASED ON THE MEDICAL STAFF BYLAWS, PLUS THE WORK THAT THEY DID A LETTER VALLEY
TO HELP DEVELOP AND ADVANCE A NEUROSURGERY PROGRAM. BUT AS MEMBERS OF THE
ORGANIZED MEDICAL STAFF, EVERY DOCTOR IS OBLIGED TO SERVE THE HOSPITAL. AND THE FACT THAT
A TOKT PERFORMS CERTAIN FUNCTIONS THAT ADVANCE HEALTHCARE AT THE HOSPITAL DOES NOT CONSTRAIN
THE HOSPITAL BOARD FROM PURSUING A POLICY THAT IS IN THE BEST INTERESTS OF THE COMMUNITY
THE HOSPITAL SERVES. IF YOU ADOPT AN IMPLIED CONTRACT THEORY, WHAT YOU ARE
ESSENTIALLY SAYING IS THAT THE MEDICAL STAFF BYLAWS FOR ALL DOCTORS AT A HOSPITAL WHO
PARTICIPATE IN THE SELF GOVERNANCE OF THE MEDICAL STAFF CREATE CONTRACT RIGHTS AND THAT
WOULD BE A VERY UNUSUAL DETERMINATION AND IT WOULD BE ONE THAT THE HOSPITAL ASSOCIATION
BELIEVES IS VERY MUCH AGAINST THE PUBLIC INTEREST BECAUSE IT WILL CON VAIN HOSPITAL BOARDS
FROM IMPLEMENTING REFORM. JUSTICE PATTERSON: I JUST WANT TO READ YOU SOMETHING
FROM BER MAN THAT SUGGESTED, AT LEAST, TWO ME, THAT IT IS THE HOSPITAL'S BURDEN.
THIS IS AT PAGE IS 13. WE CONCLUDE THAT THE HOSPITAL HAS FAILED TO MARBLE ADEQUATE
INFORMATION THAT DEMONSTRATES THAT IT'S PARTICULAR RESTRICTIVE ADMISSION POLICY IS SUFFICIENTLY
RELATED TO A GENUINE AN LEGITIMATE HEALTHCARE OBJECTIVE. DOES THAT SUGGEST
TO YOU THAT IT IS THE HOSPITAL'S BURDEN? LOU LIEU LIEU IT DEPENDS WHAT YOU MEAN BY BURDEN
YOUR HONOR. I ACKNOWLEDGE THAT THE HOSPITAL HAS TO MAKE THE CASE IF THAT'S WHAT YOU'RE
REFERRING TO. IF YOU'RE DEALING WITH THE MORE TECHNICAL I OBJECT OF BURDEN OF PROOF AND
BURDEN OF FWOEG FORWARD THAT WE OFTEN DEAL WITH IN CASES, I DON'T KNOW THAT THAT ADDRESSES
THAT. I THINK WHAT JUSTICE HANDLER THERE IS SAYING AND I DON'T HAVE IT IN FRONT OF ME
THAT THE HOSPITAL HAS GOT TO MAKE ITS CASE. IT HAS FWOT TO SHOW THAT THIS POLICY ACTUALLY
ADVANCES HEALTHCARE. IF THE EVIDENCE THAT THE HOSPITAL MARBLE MARCH SHLS, DOESN'T DO
THAT OR THE EVIDENCE THAT THE PLAINTIFF'S MARCH SHL SHOW THAT IT DOESN'T DO THAT, THEN
THE COURT WILL ENJOIN IT BUT OTHERWISE THE POLICY STANDS. THE OTHER RATIONALE
THAT THE PLAINTIFFS SEEM TO USE TO SUPPORT THE VERDICT IS THIS ORAL CONTRACT. THEY SAY
THAT BASED IN 19 -- I AM GOING TO FET MY YEARS WRONG HERE. IN 2002, VALLEY CAME TO THEM
AND INDUCED THEM TO BRING THEIR PRACTICE TO THE HOSPITAL AND MADE AN ORAL COMMITMENT TO
ALLOW THEM TO PRACTICE AT VALLEY PERPETUALLY SO LONG AS THEY WERE ADEQUATELY CREDENTIALED.
NOW, THAT ARGUMENT HAS NOTHING TO DO WITH THE BYLAWS. IT CUSS NOT ESTABLISH
A BROADER FOUNDATION FOR THEIR CLAIM. IT ESTABLISHES A WHOLE NEW FOUNDATION FOR THE
CLAIM. IT'S A STRAIGHT ORAL CONTRACT CLAIM. FROM A HOSPITAL LAWYER'S PERSPECTIVE
AND FROM THE HOSPITAL ASSOCIATION'S PERSPECTIVE THE CONCEPT THAT THIS SORT OF COMMITMENT
WOULD BE MADE ORALLY OR THEORETICALLY POSSIBLE IS UNHEARD OF. THIS WOULD BE
A MAJOR MANAGERIAL DECISION FOR THE HOSPITAL AND FOR THE PHYSICIAN GROUP. TO THINK THAT
IT WOULD BE MADE IN AN OFF THE HAND CONVERSATIONS IS HARD TO IMAGINE, BUT THE BOTTOM LINE
IS THAT THE HOSPITAL SHOULD NOT LIGHTLY BE FOUND TO HAVE SURRENDERED SUCH A FUNDAMENTAL
MANAGERIAL PREROGATIVE IN A CONVERSATION. INSTEAD THERE SHOULD BE UN ASALABLE EVIDENCE
THAT SUCH A COMMITMENT WAS MADE AND ESTABLISHING THE BOUPD TREES OF THE COMMITMENT.
FOR EXAMPLE, HERE, WHAT WAS THE TERM OF THE COMMITMENT, ON WHAT GROUNDS COULD THE
RELATIONSHIP BE TERMINATED, EVEN WHO ARE THE PARTIES COVERED BY THE PURPORTED AGREEMENT.
PLAINTIFF'S GROUP WENT FROM TWO DOCTORS IN 2002 WHEN THESE DISCUSSIONS WERE
HELD WITH VALLEY TO 12 DOCTORS WHEN THE AGREEMENT WITH THE COLUMBIA GROUP WAS ENTERED.
DOES THE AGREEMENT APPLY TO THE TEN NEW DOCTORS? BEFORE YOU FIND AN ORAL
CONTRACT CONSTRAINING A HOSPITAL'S MANAGERIAL DISCRETION, THOSE SORTS OF QUESTIONS AND
MANY MORE NEED TO BE ANSWERED. IT CAN'T BE AN OFFHAND STATEMENT OF THE MOST GENERIC
NATURE. I'D ALSO LIKE TO ADDRESS ONE ARGUMENT MADE BY THE PLAINTIFFS IN THEIR
MOST RECENT BRIEFING, AND THAT IS THAT THIS IS A UNIQUE CASE, SORT OF A ONE OFF. AND
THE HOSPITAL ASSOCIATION HAS OVERSTATED THE CONCERN THAT THE MEDICAL STAFF BYLAWS COULD
BECOME A NEW WAY FOR DOCTOR'S TO RESIST ORGANIZATIONAL CHANGES THAT DIS SERVE THEIR
PERSONAL INTERESTS. I WISH THAT WERE THE CASE. A RECENT LAWSUIT
MAKES CLEAR THAT IT IS NOT. THE LAWSUIT WHICH I JUST LEARNED ABOUT ON MONDAY WAS BROUGHT
THIS SUMMER BY MR. VERNIERO'S FIRM ON BEHALF OF A GROUP OF NEUROSURGEONS FWENS THE ATLANTIC
HEALTH FWRUP AND ITS HOSPITALS. IT CONCERNS A CENTER WHERE THE HOSPITAL SYSTEM WAS
CENTRALIZING THE TREATMENT OF BRAIN TUMORS. I DON'T HAVE ANY SPECIAL KNOWLEDGE OF THE
LAWSUIT. EVERYTHING I KNOW ABOUT THE LAWSUIT COMES FROM GOING ON ECOURTS AND READING
THE COMPLAINT, BUT THE DOCTORS PRI NOT ONLY A BER MAN CLAIM, BUT THEY BRING A CLAIM BASED
ON THE MEDICAL STAFF BYLAWS AND THE IMPLIED COVENANT UNDER THE MEDICAL STAFF BYLAWS.
THE CASE DOES NOT APPEAR TO BE IDENTICAL TO THIS CASE. CASES NEVER ARE, BUT THERE ARE
VERY, VERY STRONG ECHOS. THE DOCTOR NUMBER IS B E R-C--- I HAVE IT AS 131-23,
BUT I SEEM TO REMEMBER IT AS 133-23 SFLFRNLTS HOW DOES THIS HELP US. CHIEF JUSTICE
RABNER: HOUSE DOES THIS HELP US. LIEU LIEU THE PLAINTIFFS HAVE MADE THE POINT THAT ALL
THE COMPLAINTS THE HOSPITAL HAS STATED ABOUT THE BYLAWS BECOMING AN END RUN AROUND BER
MAN ARE OVER STATED. THIS IS A ONE OF A KIND CASE, UNIQUE CIRCUMSTANCES, YOU'RE NEVER
FWOEG TO HEAR ABOUT THIS AGAIN, WELL, WE ALREADY SEE THE NEXT CASE COMING DOWN THE ROAD
AND I SUSPECT FENDING ON THIS COURT'S RULING, BUT HOPEFULLY NOT BASED ON THIS COURT'S
RULING, BUT IF THE COURT RULES IN THE PLAINTIFF'S FAVOR BASED ON THIS RULING, THERE WILL BE
MORE AND MORE CASES AND BER MAN WILL BE OVER TIME INCREASINGLY IRRELEVANT, ALL OF THE
SOUND REASONING IN THE BER MAN AND DES SIGH CASES WHICH GO OVER HALF A CENTURY WILL BE
SET ASIDE AND WE WILL SEE INCREASING CHALLENGES TO HOSPITAL'S MANAGERIAL STIGSZ BROUGHT
BY AFFECTED PHYSICIAN GROUPS AN OTHERS CLAIMING THAT IT BREACHED THE IMPLIED COVENANT
AND IN THE MEDICAL STAFF BYLAWS. APPLIED COVENANT LAW IS, RESPECTFULLY,
SOMEWHAT AMORPHOUS. THOSE CLAIMS GO TO A JURY. HOSPITALS TASH DASH THAT'S A VERY SCARY
PROS SPENT FOR HOSPITALS AND THAT'S THE IMPORTANCE OF THAT CASE. IT SHOWS THAT THIS
IS NOT A ONE OFF. THAT THIS CASE DOES HAVE SIGNIFICANT PRESENTS DEN SHL AND
INSTITUTIONAL CONSEQUENCES FOR THE HEALTHCARE SYSTEM, THE HOSPITAL CARE SYSTEM IN THIS
STATE. PRECEDENT SHL. YOU KNOW FROM THE PERSPECTIVE OF THE HOSPITAL ASSOCIATION,
THE LAWSUIT UNDERSCORES THE IMPORTANCE THAT BER MAN REMAIN THE SINGULAR VEHICLE TO CHALLENGE
A HOSPITAL BOARD'S MANAGERIAL STIGSZ. UNDER BER MAN, THE NORTH STAR IS WHETHER THE POLICY
SHOULD BE ENJOINED BECAUSE IT'S NOT SHOWN TO ENHANCE A LEGITIMATE PUBLIC HEALTH OBJECTIVE.
THE MEDICAL STAFF BYLAWS HAVE NO ROLE IN THAT JUDICIAL ASSESSMENT AND THEY CAN'T BE
EMPLOYED AS THEY WERE HERE TO CREATE AN AVENUE NEW TO SIDESTEP THE BER MAN INQUIRY AND
AS LEGAL GROUNDS FOR A JURY AWARD IN THE TENSE OF MILLIONS OF DOLLARS. UNLESS
THE COURT HAS FURTHER QUESTIONS? HAD. CHIEF JUSTICE RABNER: THANK YOU,
MR. LEWIN PETER G. VERNIERO: THANK YOU YOUR HONORS, CHIEF JUSTICE,
JUSTICES, MAY IT PLEASE THE COURT. SOME CASES ARE SO FACT SENSITIVE, SO DEEPLY
LODGED WITHIN THE PROVINCE OF A JURY, THEY MUST BE WON OR LOST BEFORE JURORS,
AND NOT APPELLATE COURTS. THIS IS SUCH A CASE. JURORS HEARD OVER
WHELMING EVIDENCE ALLOWING THEM TO CONCLUDE THAT VALLEY'S WHITE PAPER WAS NO MORE
THAN A PRETEXT TO OUS THE PLAINTIFFS, VALLEY'S PERCEIVED LACK OF LOYALTY
ON THE PART OF PLAINTIFFS DROVE THIS PROCESS RATHER THAN ANY GOOD FAITH EFFORT
TO IMPROVE HEALTHCARE. THAT COREY AT AS SEEN BY JURORS SHOULD INFORM THE
COURT'S CONSIDERATION ON THE 3 ISSUES ON WHICH IT GRANTED CERTIFICATION. FIRST,
THE TRIAL COURT PROPERLY SUBMITTED THE IMPLIED COVENANT CLAIM TO THE JURY.
THE CONTRACT THAT GAVE RISE TO THAT CLAIM RESTED ON A FOUNDATION BROADER THAN VALLEY'S
MEDICAL STAFF BYLAWS. PLUS, BEFORE THE TRIAL COURT, VALLEY STRATEGICLY
SUPPORTED, INCLUDING THE IMPLIED COVENANT CLAIM, SO AS TO ELIMINATE OTHER CLAIMS,
AND IT SHOULD BE HELD TO THAT POSITION NOW. VALLEY ARGUES THAT THE SUMMARY
JUDGMENT OBSERVATIONS MADE BY THE TRIAL COURT WHEN DISMISSING THE CEO AND THE BOARD
FROM THIS CASE SOMEHOW DISQUALIFIED THE JURY FROM LATER CONSIDERING THE
IMPLIED COVENANT CLAIM VALLEY'S PERSPECTIVE ON SUMMARY JUDGMENT A WRONG. TRIAL
COURTS MAKE NO FINDING OF FACT WHEN DECIDING SUMMARY JUDGMENT MOTIONS, THE TRIAL
COURT MADE NO FINDING HERE. THE TRIAL COURT CONSIDERED THE RECORD AND
CONCLUDED THAT THE CONTRACT AT ISSUE WAS BETWEEN PLAINTIFFS AND VALLEY AS AN
INSTITUTION, NOT BETWEEN VALLEY CEO AND ITS BOARD. THE TRIAL COURT'S
INTERLOCUTORY ANALYSIS ABOUT THE WHITE PAPER'S PURPORTED FINDINGS CANNOT OVERRIDE
WHAT WAS LATER PROVEN AT TRIAL. THERE IS NOTHING IN THE JURY'S VERDICT
OR THE APPELLATE DIVISION'S NON PRECEDENTIAL DECISION THAT WOULD
TRESPASS ON SOME FUTURE BOARD'S ABILITY TO ENTER EXCLUSIVITY ARRANGEMENTS, SO LONG AS
THE BASIS FOR DOING SO RESTS ON VALID HEALTHCARE REASONS SUPPORTED BY
RELIABLE DATA. RESPECTFULLY A SHAM STUDY DOES NOT SATISFY THAT STANDARD.
SECOND, THERE IS NO REASON TO DISTURB THE LOWER COURT'S DETERMINATION THAT
VALLEY HAD WAIVED THE ATTORNEY/CLIENT PRIVILEGE THAT MAY HAVE ATTACHED TO
CERTAIN E-MAILS. THROUGH THOSE E-MAILS, VALLEY'S GENERAL COUNSEL DID MORE THAN
DISPENSE GENERIC LEGAL ADVICE. AS THE LOWER COURT CONCLUDED AFTER AN IN CAMERA
REVIEW, COUNSEL WAS DEEPLY INVOLVED IN THE GENESIS AND MAKING OF THE WHITE
PAPER. ONCE VALLEY SEXUAL ASSAULT SKALTED THAT PAPER AS THE REASON TO PLAINTIFFS
-- IN PLAINTIFF'S CLOSING ARGUMENT TO THE LACK OF CERTAIN PATIENT'S TRANSFERS
BEING PRESENTED IS NO REASON TO UPSET A TRIAL THAT SPANNED FOR CONSECUTIVE WEEKS,
INCLUDED 22 WITNESSES, AND OVER A THOUSAND PAGES OF EXHIBITS. WHEN PLACED
IN CONTEXT, THAT COMMENT WAS FAIR AND ACCURATE IN CONTRAST TO THE BLATANT FALSE
HOODS AND THE OTHER PROBLEMS ASSOCIATED WITH COMMENTS MADE BY THE CASES
CITED BY VALLEY. NOR DID THE ISSUE OF PLAINTIFF TRANSFERS
DOMINATE THE TRIAL AS EXPERT TESTIMONY AS IN THE BENDER CASE, AGAIN, ONE OF THOSE
CASES THAT VALLEY HAS RELIED ON. HERE, THE TRIAL COURT JUDGE DID NOT 4 CLOSE,
AND THIS IS A CRITICAL POINT, YOUR HONORS, DID NOT FORECLOSE VALLEY FROM
ADMITTED EVIDENCE OF PURPORTED TRANSFERS, THE JUDGE SIMPLY FOUND IT INAPPROPRIATE
TO DO SO ON CROSS-EXAMINATION OF A PARTICULAR WITNESS. VALLEY DECLINED
TO PURSUE THE PROPOSED EVIDENCE THROUGH OTHER MOONS AND UNDER THOSE CIRCUMSTANCES
THERE WAS NO ERROR LET ALONE PLAIN ERROR IN ALLOWING THE FLEETING ACCURATE
REMARK IN THE PRESENT CASE. LASTLY NOW THAT THERE'S BEEN FULL
SUPPLEMENTAL BRIEFING AND WE'VE HEARD REFERENCES TO THE SUPPLEMENTAL BRIEFING AND
THE OPPORTUNITY TO VIEW THIS HIGHLY FACT SENSITIVE CASE, PLAINTIFF WOULD RESPECTFULLY
URGE THIS COURT TO VACATE ITS GRANT OF CERTIFICATION OR IN THE ALTERNATIVE
TO AFFIRM IN ALL RESPECTS. I'M HAPPY TO ANXIOUS QUESTIONS RICHLT WHAT IS THE PRECISE
CONTRACT BEYOND THE BYLAWS THAT YOU RELY ON. PETER G. VERNIERO:
I TAKE A SLIGHTLY DIFFERENT VIEW AS YOU MIGHT IMAGINE TO THE CONTRACT HERE.
FIRST I WOULD LIKE TO IN ANSWERING YOUR QUESTION, YOUR HONOR, BECAUSE I THINK THERE WAS
SOME QUESTION OR SOME DISCUSSION ABOUT THIS, THE FACT THAT ALLEGED THIS
CONTRACT BEYOND THE BYLAWS WERE STATED BEFORE THE SUMMARY JUDGMENT JUDGE, THEY'RE
IN THE STATEMENT OF FACTS THAT PLAINTIFF SUBMITTED, THAT'S AT 58-1 A AND IT WAS
ALSO IN -- EXCUSE ME, THAT WAS IN OUR SUMMARY JUDGMENT BRIEF, AND IT WAS ALSO IN THE
STATEMENT OF FACTS SUBMITTED TO THE TRIAL COURT, THAT'S AT D A 2099, AND
IT WAS ALSO LISTED IN THE COMPLAINT, THE FACTS WERE, THE AMENDED COMPLAINT.
THE CONTRACT ORIGINATED FROM VALLEY REACHING OUT TO MY CLIENTS.
THAT'S HOW THIS ALL BEGAN. VALLEY EXTENDED THE OFFER BECAUSE VALLEY HAD A
CRITICAL NEED TO BUILD UP THEIR BRAIN AND SPINE CENTER, THEIR NEUROLOGICAL
DIVISION. THEY NEEDED BETTER EQUIPMENT, THEY NEEDED STAFF, THEY NEEDED THE
INFRASTRUCTURE. THERE WAS AN OUTGOING GROUP, A RELATIVELY SMALL GROUP OR
PERHAPS A GROUP THAT WAS ON THE EVE OF RETIREMENT, AND THEY SAID THIS OUTGOING GROUP
BASICALLY WE CAN'T DO THIS ANY MORE, WE CAN'T DO ON CALL, WE CAN'T DO EMERGENCIES
MRICHLT SO WE UNDERSTAND THAT WILL VALLEY INITIATED CONTACT IN ORDER TO
BUILD UP THE NEUROLOGICAL CONTRACT, BUT AS CHIEF JUSTICE STATED WHAT IS THE CONTRACT
THAT YOU RELY UPON THAT GOES BEYOND THE CONTRACT THAT HAS RIGHTS TO THE
EMERGENCY DEPARTMENT IN PERPETUITY. PETER G. VERNIERO: THE CONTRACT
IS WHAT DR. ROTH TESTIFIED TO MRICHLT SO AN ORAL CONTRACT. PETER
G. VERNIERO: IT WAS AN ORAL CONTRACT BUT IT WAS ALSO A CONTRACT BASED ON THE
PERFORMANCES OF THE PARTIES, SO IT WASN'T ENTIRELY ORAL. MRICHLT A CONTRACT
THAT WOULD HAVE ALLOWED FOR A PARTICULAR GROUP OFS DOCTORS TO IN PERPETUITY HAVE
IN AN EMERGENCY CONTRACT THAT'S A PRETTY LUKE KA TRIF CONTRACT, I THINK WE
WOULD ALL AGREE, WHAT IS YOUR RESPONSE TO A MEEK'S ARGUMENT THAT SOME CONTRACTS
NEED TO BE IN WRITING BECAUSE OF WHAT WAS COVERED BY THE CONTRACT, EVERY DOCTOR
THAT EVER JOINED THIS PRACTICE CUSTOM AND PRACTICE WOULD ALSO BE COVERED UNDER
THIS ORAL CONTRACT, WE DON'T KNOW, BECAUSE IT'S NOT IN WRITING, HOW LONG WILL
IT LAST, IS IT JUST IN PERPETUITY BECAUSE AT SOME POINT IN THE PAST THIS GROUP
ASSISTED THE HOSPITAL IN BUILDING UP THIS DEPARTMENT? SUCH ALLOW KA TESTIFY
CONTRACT IN THIS INDUSTRY WHERE CONTRACTS ARE VERY COMMON SEEMS AS THOUGH IT SHOULD HAVE
-- IT SHOULD BE IN WRITING IF THAT WERE THE CASE, FOR BOTH PARTIES. ON BOTH
PARTIES ENDS I WOULD THINK THAT THERE WOULD BE A WRITING. PETER G.
VERNIERO: I UNDERSTAND THE QUESTION AND I DISAGREE WITH THE PREMISE OF IT
RESPECTFULLY AND I REALIZE YOU'RE ECHOING WHAT AMICUS HAS SAID, OUR POSITION IS
NOT THAT THIS CONTRACT WAS IN PERPETUITY. OUR ARGUMENT HERE IS THAT THE CONTRACT
WAS IN PLACE AS LONG AS PLAINTIFFS WERE DOING THEIR JOB AND UPHOLDING THEIR
END OF THE BARGAIN, WHICH THEY WERE, AND I DON'T THINK THERE'S ANY DISPUTE ABOUT THAT,
THEY BUILT UP THE CENTER, THEY GOT THE EQUIPMENT, THEY ERRANDS THIS HOSPITAL
THE FIRST EVER BERGEN COUNTY AWARD IN THIS AREA, THEY BUILT UP THEIR STAFF AND
SO FORTH, UNTIL SUCH TIME AS THERE WAS A VALID HEALTHCARE REASON TO SHIFT TO
SOME OTHER ARRANGEMENT RICHLT WHAT ARE THE TERMS OF THE CONTRACT?
PETER G. VERNIERO: THE TERMS OF THE CONTRACT ARE WE GET THE BENEFIT OF OUR
BARGAIN WHICH IS AT THE VERY LEAST WE GET TO USE THIS EQUIPMENT, WE HAVE
PRIVILEGES, WE HAVE OUR SHARE OF ON CALL DUTY THE WAY IT WAS ASSIGNED. THOSE ARE THE
BASIC TERMS, AND THIS A CRITICAL POINT. EVERYONE SORT OF KNEW WHAT THOSE TERMS
WERE, WHY, BECAUSE THAT'S WHAT WAS HAPPENING FOR ABOUT 8, 9 YEARS
UNDISTURBED. IT WAS ONLY WHEN VALLEY BECAME BASICALLY OBSESSED WITH COMPETITION
FROM OTHER HOSPITALS THAT THEY BEGAN THIS PROCESS OF FIGURING OUT AWAY TO
DISAVOW PLAINTIFFS, THAT'S WHEN THE RELATIONSHIP STARTED TO SOUR MRICHLT ARE THE
BYLAWS AND THE RULES FOR THE REGULATION OF THE MEDICAL STAFF THAT TALK ABOUT THE
ON CALL SCHEDULE, IS THAT IN CONFLICT WITH YOUR UNDERSTANDING OF THIS CONTRACT
THAT THESE DOCTORS WOULD HAVE PRIVILEGES FOR AS LONG AS THEY WERE DOING THEIR JOB
AND IT'S FINE, BECAUSE THE RULES AND REGULATIONS FOR THE MEDICAL STAFF
STATE THAT THE ON CALL SCHEDULE IS NOT A RIGHT OR A PRIVILEGE AND CAN BE REMOVED
AT THE DISCRETION OF THE DEPARTMENT. PETER G. VERNIERO:
WE BELIEVE THAT THE ON CALL WAS CLEARLY PART OF THE EXPECTATION MRICHLT WHAT
I'M SAYING IS WELL YOU HAVE IT WRITTEN IN THE RULES AND REGULATIONS OF MEDICAL STAFF
THAT IS INCORPORATORED IN THE BYLAWS THAT THAT'S THE CASE. THAT'S CORRECT, RIGHT,
THAT'S WRITTEN DOWN. PETER G. VERNIERO: THAT'S THE WAY I
READ -- I SAW THAT LANGUAGE IN THE BYLAWS, I WOULD ANSWER THE QUESTION THIS
WAY. IF THE ARGUMENT IS THERE WAS A PROCESS UNDER THE BYLAWS TO WORKOUT SOME OF
THESE THINGS LIKE YOUR HONOR IS SAYING, THAT WOULD BE ONE THING, BUT THEY'RE
SAYING NOTHING WE HAD ARGUED ABOUT, NOTHING WE HAD COMPLAINED ABOUT, COULD BE AD
JUDICATED, IF YOU WILL, UNDER THE BYLAWS, THIS WROB A VERY DIFFERENT CASE IF
VALLEY CAME TO US RATHER THAN A 13, 14, MONTH MANEUVER AROUND THE BYLAWS, IF VALLEY
HAD COME TO US AND SAID WE HAVE SOME PROBLEMS, WE'VE GOT TO GO TO THE BYLAWS, WE
WANT TO GIVE YOU A HEARING, WE WARNLT TO WORK SOME THINGS OUT AND BY THE
WAY WE MAY NOW HAVE A VALID HEALTHCARE REASON TO GO WITH A DIFFERENT GROUP. THAT
WOULD BE A DIFFERENT CASE, THAT'S NOT THIS CASE. THIS CASE IS, AND THIS
GOES I THINK TO JUSTICE PATERSON'S QUESTION, IS WHAT ARE THE BERMAN FACTORS.
THEY'RE REALLY BASIC. THERE HAS TO BE A REGULAR COURSE OF BUSINESS IN WHICH
A VALID HEALTHCARE OBJECTIVE IS TRYING TO BE ACHIEVED AND THE PROCESS AND THE
INFORMATION ABOUT WHICH THE BOARD GOES ABOUT ACHIEVING IT IS REASONABLE AND
RELIABLE. THIS CASE, THIS PROCESS, FAILED ON ALL 3 COUNTS. IT WAS IN A REGULAR
PROCESS, AND I'LL GET TO THAT IN A MOMENT, THE HELL CARE OBJECTIVE WAS NOT
LEGITIMATE AS JUSTICE HANDLER SAID IT SHOULD HAVE BEEN, THE HEALTHCARE OBJECTIVE
AND I HAVEN'T HEARD ANY DISPUTE ON THIS BECAUSE THERE REALLY IS NONE, WAS TO OUFT
OUR PLAINTIFFS, AND THE RELIABLE INFORMATION CLEARLY WAS KNOTS
SATISFIED AND IT WAS NOT JUST AN ALLEGATION THAT THE INFORMATION IN THE REPORT WAS
MANIPULATED, THE JURY BASICALLY FOUND THAT. THAT WAS PROVEN MRICHLT AND GOING
BACK TO THE CHIEF JUSTICE'S QUESTION ABOUT THE PARAMETERS OF THE ORAL QUESTION,
I JUST WANT TO MAKE SURE I UNDERSTAND. THE PARAMETERS OF THE ORAL CONTRACT,
BASED ON YOUR ARGUMENT IS THAT EVERYONE KNEW THAT THE PLAINTIFFS WOULD HAVE PRIVILEGES
AND THE EMERGENCY DEPARTMENT WOULD HAVE PRIVILEGES TO USING THE EQUIPMENT FOR
AS LONG AS THEY WARNLTED AS LONG AS THEY WERE DOING THEIR JOBS AND PERFORMING THEIR
DUTIES IN THE EMERGENCY DEPARTMENT. PETER G. VERNIERO: SO LONG AS
THEY WERE UPHOLDING THEIR END OF THE BARGAIN MRICHLT AND UPHOLDING THEIR
END OF THE BARGAIN WAS DOING THEIR JOBS. PETER G. VERNIERO: IT WAS
CONTINUING TO STAFF THE EQUIPMENT, REMEMBER, DOCTOR WALGZ MAN WAS ON CALL
FOR MANY YEARS I THINK WITH VERY FEW BREAKS, OF MOVING THEIR OFFICES CLOSER TO.
JUSTICE WAINER APTER: IN MOVING THE OFFICES CLOSER TO VALLEY
YOU'RE SAYING WAS A REQUIREMENT UNDER THE CONTRACT. PETER G.
VERNIERO: IT WAS A BASIC UNDERSTANDING THAT PART OF THE CONTRACT WITH THE CEO WAS
THAT PLAINTIFFS WOULD HELP WITH EQUIPMENT, HELP WITH PERSONNEL, MOVE THEIR
OFFICES OR AT LEAST BE ACCESSIBLE, AND SERVICE CLIENTS AND PATIENTS AND GIVE VALLEY
WHAT THEY DIDN'T WANT BUT DESPERATELY NEEDED, WHICH WAS A CENTER OF
EXCELLENCE. JUSTICE WAINER APTER: YOUR CLIENTS WERE
SOPHISTICATED PARTIES, AREN'T BASIC UNDERSTANDINGS BETWEEN SOPHISTICATED PARTIES
USUALLY COMMITTED TO WRITING SO THAT YOU DON'T HAVE A COURT SAYING WHAT ARE THE
TERMS OF THE CONTRACT AND INSTEAD YOU HAVE TO WAIT TILL TRIAL TO HEAR SOMEONE SAY
THIS IS WHAT I EXPECTED. PETER G. VERNIERO: WELL, ARE YOU ASKING
ME AS A MATTER -- AS A LAW WOULD IT BE BETTER TO ALWAYS PUT EVERYTHING IN
WRITING, PERHAPS, BUT THERE ARE ALL KINDS OF SDPUTHS ABOUT THAT AS WELL WHEN SOMETHING
IS IN WRITING. THE JURY FOUND A CONTRACT, AS JUSTICE SOLOMON I THINK IT WAS
SUGGESTED, THE JURY WAS GIVEN THE MODEL CHARGE ON CONTRACT NICHLT CAN I ASK YOU
A QUESTION ABOUT THAT, I'M SORRY TO INTERRUPT YOU, ON THE BREACH OF
CONTRACT CLAIM THE JURY FOUND THAT A CONTRACT EXISTED ALTHOUGH THEY FOUND THAT THE
JURY DID NOT REACH THAT, WHAT CONTRACT ARE YOU REFERRING TO, WAS THAT THE BYLAWS,
WAS THAT THE SEPARATE AGREEMENT, WHAT DO YOU SUGGEST THAT THEY FOUND IN THAT
CIRCUMSTANCE. PETER G. VERNIERO: I WOULD GIVE A SIMILAR
ANSWER TO WHAT MY COLLEAGUE MR. PORRINO SUGGESTED, WE'LL NEVER KNOW WHAT WAS IN THE
JURY'S MIND BUT WE DO KNOW WHAT THE JUDGE WAS THINKING ABOUT WHEN HE CHARGED THE
JURY. TOWARD THE VERY ENDS OF THE CHARGE CONFERENCE, AND THIS WAS AFTER THE
JUDGE HEARD ALL THE EVIDENCE, THERE WAS A GREAT DEAL OF DISCUSSION ON THIS VERY
POINT, HOW DO WE PHRASE THESE TWO QUESTIONS AND HOW DO I CHARGE THE
JURY. AND TO ANSWER I THINK IT WAS THE CHIEF JUSTICE'S QUESTION, BOTH SIDES SUBMITTED
WHAT THEY WANTED TO BE CHARGED, EACH SIDE RED LINED THE OTHER AFTERNOON
THE TRIAL JUDGE MADE THE ULTIMATE CALL WITH INPUT FROM BOTH SIDES AND EVERYONE
AGREED, IS MY UNDERSTANDING, ON THE CHARGE. BUT TOWARD THE VERY END OF
THE CHARGE CONFERENCE AND I THINK THIS IS VERY VERY PERCEPTIVE OF JUDGE WILSON,
HE SAYS YOU KNOW, THERE COULD BE MORE THAN ONE CONTRACT HERE, HE DIDN'T USE THOSE
WORDS EXACTLY, HE SAID YOU KNOW THERE'S THE BYLAW AND EVERYONE SEEMS TO GRAE THAT COULD
BE A CONTRACT, THE QUESTION IS WHAT FLOWS FROM THAT, BUT JUDGE WILSON SAID BUT
THERE COULD HAVE BEEN ANOTHER CONTRACT HERE BEYOND THE BYLAWS AND THAT'S THE WAY
I'VE ALWAYS LOOKED AT THIS CASE PICHLT IF JUSTICE PATTERSON IF YOU'RE SAYING THAT
THE JURY FOUND THAT THE CONTRACT WAS IN LONG TERM PERPETUITY AS LONG AS
YOUR DOING YOUR JOB PRIVILEGES THEN IT MAKES NO SENSE WHATSOEVER THAT THEY SAID
THAT THERE WAS NO BREACH. PETER G. VERNIERO: IT DOES, URNG,
RESPECTFULLY, IF YOU LOOK AT THE ACTUAL JURY CHARGE. THE JURY WAS ASKED
TWICE WHETHER THERE WAS A CONTRACT. ONCE WAS SPECIFICALLY IN THE CONTEXT OF A
BREACH OF THE BYLAW REQUIRING A HEARING AND THE JURY FOUND YES, THERE WAS
A CONTRACT, BUT NO, THERE WAS A MREEF. JUSTICE WAINER APTER: BUT
THERE WAS NO HEARING, RIGHT? PETER G. VERNIERO: THERE WAS
NO HEARING BUT THE WAY IT WAS PHRASED WAS WAS THE CONTRACT BREACHED BECAUSE OF
A REQUIRED HEARING AND THE JURY PRESUMABLY FOUND THAT A HEARING WAS NOT REQUIRED
EITHER BECAUSE THEY BELIEVED VALLEY'S ARGUMENT THAT WE HAD NOT PUT IN
WRITTEN NOTICE FOR IT, WE DIDN'T TRIGGER THAT PART OF THE BYLAW, SO THE JURY SAID
NO CONTRACT BREACHED. JUSTICE PATTERSON:GIVE US THE QUESTIONS AND
ANSWERS TO AND FROM THE JURY THAT REAL TO OR ARGUABLY RELATE TO THIS OTHER
CONTRACT. PETER G. VERNIERO: THAT'S THE SECOND QUESTION
AND THERE IT WAS THE SACHL QUESTION, WAS THERE A CONTRACT, AND THE JURY FOUND THERE WAS
A CONTRACT. THE COURT: YOU'RE TALKING ABOUT 4 AND 5.
PETER G. VERNIERO: CORRECT. BUT THERE THE BREACH QUESTION, IF YOU WILL, WASN'T
BASED ON THE BREACH OF THE BYLAWS, IT WAS BASED ON THE BREACH OF THE COVENANT,
SO THERE WAS SOMETHING BROADER. JUSTICE PATTERSON.
BUT THE COVENANT IS A SEPARATE RELATED BUT SEPARATE CLAIM. PETER G.
VERNIERO: CORRECT. JUSTICE PATTERSON: SO ARE YOU SAYING THAT
THERE WAS NO BREACH OF CONTRACT, THE BREACH OF THIS OTHER "CONTRACT WAS NOT PREBT
ED TO THE JURY AS PART OF A BREACH OF CONTRACT CLAIM. PETER G.
VERNIERO: I'M SAYING TWO THINGS, I'LL SAYING THAT THERE WAS A CONTRACT BROADER
THAN THE BYLAWS, I'M ALSO SAYING, AND THIS MAY NOT HAVE BEEN PRONOUNCED
IN MY BRIEF, BUT I BELIEVE THAT THERE ARE CERTAIN NARROW CIRCUMSTANCES WHERE A
BREACH OF THE BYLAWS COULD YIELD MONETARY DAMAGES, I DISAGREE WITH A ME
KEY ON THAT. JUSTICE PATTERSON: BUT LET'S MOVE AWAY FROM
THE BREACH OF THE BYLAWS, 4 AND 5 ARE THE Q AND A AND THE ONLY QUESTION AND ANSWER
THAT RELATED TO THIS OTHER CONTRACT, SUCH A DESCRIPTIVE NAME, OTHER CONTRACT, AND
IT SEEMS TO ME THERE WAS SOMETHING RATHER SIGNIFICANT MISSING FROM THAT
JURY VERDICT FORM AND THAT IS WAS THAT CONTRACT BREACHED. WAS THERE A CONTRACT,
I MEAN WASN'T THAT YOUR STANDARD FORM REQUEST, WAS THERE A CONTRACT, WAS
THERE A BREACH OF THE CONTRACT, WERE THERE DAMAGES RESULTING FROM THAT BREACH, THAT'S
A STANDARD. PETER G. VERNIERO: THE JURY WAS ASKED THAT
QUESTION, WAS THERE A CONTRACT. JUSTICE PATTERSON: I GET IT, BUT
WHERE IS IT. PETER G. VERNIERO: IT WAS IN THE CHARGE.
JUSTICE WAINER APTER: SO THE CHARGE THAT I READ I AGREE WITH YOU TALKS
A LOT ABOUT GENERAL BAD FAITH AND UNFAIRNESS, BUT IT SEEMS LIKE WHERE WE'VE
ENDED UP IS YOU'RE ARGUING THAT IT'S NOT JUST THE BYLAWS, THERE IS THIS SEPARATE
CONTRACT, AND IT HAS THESE VERY DEAF TERMS AND I THINK YOU'RE ARGUING THAT
BECAUSE UNDER OUR LAW IN ORDER TO HAVE A MUTUAL CONTRACT YOU MUST HAVE CERTAINTY
OF TERMS, AND FOR CERTAINTY OF TERMS YOU'VE SAID THE CERTAINTIES OF TERMS WERE
PERPETUAL USE OF EMERGENCY DEPARTMENT CALL, THE GAMMA KNIFE AND THE OTHER
THING, BI-PLANE, UNTIL FOR AS LONG AS WE ARE FULFILLING OUR PART OF THE CONTRACT.
BUT THEN YOU FALL INTO YOU'RE ARGUING THAT WAS BREACHED, YOU'RE NOT ACTUALLY
ARGUING THAT THERE WAS A BREACH OF SOME SORT OF OTHER IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING, BECAUSE THE IMPLIED COVENANT OF GOOD FAITH AND
FAIR DEALING IS THIS IDEA THAT VALLEY COULDN'T DO ANYTHING TO MAKE YOUR CLIENTS
NOT BE ABLE TO FULFILL THEIR PORTION OF THE BARGAIN, SO IT WOULD BE LIKE IF
THEY DIDN'T LET THEM MOVE THEIR OFFICES OR SOMETHING LIKE THAT, BUT HERE YOU'RE
ACTUALLY ARGUING THAT VALLEY DID BREACH THIS VERY SPECIFIC ORAL SIDE CONTRACT.
PETER G. VERNIERO: WE'RE ARGUING TWO THINGS. WE DID ARGUE
THE BREACH OF THE CONTRACT WAS ENTITLED US TO DAMAGES AND THE JURY DISAGREED, BUT
I DISAGREE, JUSTICE JUSTICE WAINER APTER, TO BE -- JUSTICE WAINER
APTER: THERE HAS TO NOT BE A BREACHED. PETER G. VERNIERO:
RIGHT, AND WHAT WE'RE ARGUING IN THIS CASE, WE ARGUE THERE WAS A BREACH AND IF
THE JURY HAD ANSWERED NUMBER 1 THAT MAY HAVE END THE CASE AND THEY WOULDN'T
HAVE GOTTEN TO NUMBER TWO, WE DON'T KNOW, BUT WE'RE ARGUING THAT THE IMPLIED CO
VENANT WAS BREACHED BECAUSE VALLEY DID WHAT IT DID TO UNDERMINE THE BENEFIT
OF THE BARGAIN, TO DENY US OUR PRIVILEGES BY MANEUVERING THE FACT SUCH THAT THEY COULD
MAKE A GOOD FAITH ARGUMENT OR A FACIAL ARGUMENT I SHOULD SAY THAT THE BYLAWS
WEREN'T THE RIGHT PLACE. JUSTICE PATTERSON: THE NEXT QUESTION IS
WAS THERE A -- PETER G. VERNIERO: THERE ARE A LOT OF
THINGS THAT DON'T SHOW UP ON A VERDICT SHEET, RIGHT? JUSTICE
PATTERSON: BUT IN A CONTRACT CLAIM WHETHER OR NOT ITS BREACHED IS PRETTY BASIC.
PETER G. VERNIERO: AND THAT'S WHY THE TRIAL JUDGE, AND HE WAS
RATHER INSISTENT ON THIS, HE INSISTED ON GIVING THE MODEL CHARGE AND THAT GOES
THROUGH IN GREAT DETAIL WHERE THE BREACH WOULD HAVE BEEN, HAD IT BEEN,
INSTRUCTED THE JURY, YOU HAVE TO FIND OFFER, ACCEPTANCE, ALL OF THE THINGS THAT
WE'RE TRYING TO FIND OUT. JUSTICE PATTERSON: CONTRACT FORMATION,
I'M NOT TALKING ABOUT CONTRACT FORMATION, WE HAVE AN ANSWER FROM THE JURY
AS TO WHETHER THERE WAS CONTRACT FORMATION. I'M LOOKING AT SOMETHING REALLY
MAJOR THAT IS MISSING FROM THE JURY FINDINGS IN THIS CASE AND THAT IS IN A
CASE WHERE THERE IS A BREACH OF CONTRACT ON WHICH 30 SOME MILLION DOLLARS HAVE BEEN
AWARDED HERE, WE DON'T HAVE AN ANSWER AS TO WHETHER THERE'S A BREACH OF THE
CONTRACT. AND RESPECTFULLY, STARTING TO TALK ABOUT A DIFFERENT CLAIM WHICH IS
THE BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, IS A DIFFERENT -- IS
A DIFFERENT ANIMAL. SO. PETER G. VERNIERO: I WOULD SAY THE
ANSWER TO IS THE BREACH, THE BREACH OF THE AM APPLIED COVENANT, THAT WAS
ASKED AFTERNOON THAT WAS ANSWERED. JUSTICE WAINER APTER: DO YOU
AGREE THAT A BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR
DEALING CANNOT BE BY DEFINITION A BREACH OF A CONTRACT? PETER G.
VERNIERO: IT CANNOT BE BY DEFINITION THE SAME AS A BREACH OF A LITERAL TERM,
THAT'S WHAT WADE SAYS. JUSTICE WAINER APTER: SO THEN HERE WHAT IS
THE DIFFERENCE, YOU HAVE THIS CONTRACT WITH THESE VERY DEFINITE TERMS,
EMERGENCY DEPARTMENT CALL, THE BI-PLANE, THE GAMMA KNIFE, WE'RE ALLOWED TO USE THOSE
FOR AS LONG AS WE FULFILL OUR INDEPENDENT OF THE BARGAIN, WHERE IS THE BAD
FAITH ACTION THAT DID NOT CONSISTGE SAYING YOU CANNOT LONGER USE ED CALL, THE GAMMA
KNIFE OR THE BI-PLANE. PETER G. VERNIERO: THIS IS WHERE YOU HAVE
TO LOOK AT THE WHOLE CONTRACTUAL FRAMEWORK WHICH IN OUR VIEW INCLUDES THE
BYLAWS, AND I UNDERSTAND THE OTHER SIDE SAYS A BYLAW BREACH COULD NEVER SUPPORT
COVENANT BRIECH. JUSTICE WAINER APTER: BUT THE REASON WE'RE
SEPARATING THEM IS BECAUSE YOU ALREADY SAID THAT THE JURY FOUND THAT THERE
WAS NO BREACH OF THE BYLAWS, SO LET'S JUST TAKE THE BYLAWS OUT OF IT, SO I CAN KEEP
IT DISTINCT IN MY HEAD. PETER G. VERNIERO: I SAY THAT, YOUR HONOR,
BECAUSE I THINK IT SUPPORTS MY WEIGHT ANALYSIS, BECAUSE THE JURY FOUND THAT
THERE WAS NO LITERAL BREACH OF THE BYLAWS, THEN THEY MOVE ON TO THE IMPLIED COVENANT
CLAIM. JUSTICE WAINER APTER: THEN YOU'RE SAYING THAT THE
IMPLIED COVENANT CLAIM IS BASED ONLY ON THE BYLAWS, THE WAY I UNDERSTAND IT IS
YOU MUST HAVE A DEFINITE CONTRACT THAT HAS MUTUAL CONSENT, CONSIDERATION,
AND CERTAINTY OF TERMS, HOWEVER IT WAS NOT BREACHED, INSTEAD OF IT BEING BREACHED,
ONE PARTY ACTED IN BAD FAITH TO MAKE THE OTHER PARTY NOT BE ABLE TO FULFILL
THEIR END OF THE BARGAIN. PETER G. VERNIERO: OUR ARGUMENT IS THERE
ARE MANY TERMS TO THIS CONTRACT, MANY OF THEM ARE EMBODIED IN THE BYLAWS
AND SOME OF THEM ARE EMBODIED IN THAT PART OF THE CONTRACT THAT EXTENDED BEYOND
THE BYLAWS, AND WHEN YOU PUT THOSE TWO TOGETHER, YOU MARRY IT WITH THE
CHARGE, THE JURY'S VERDICT IS SOUND NICHLT BUT THAT'S NOT WHAT HAPPENED HERE, WHAT
HAPPENED HERE IS IN COUNT FOUR YOU'VE GOT THE BYLAWS BEING THE PREMISE THAT
THE JURY IS BASING THE EXISTENCE OF A CONTRACT ON, AND IN KOURNT 5 IT SOUNDS LIKE
YOU'RE SUGGESTING TODAY THAT WE'RE TALKING ABOUT THE OTHER CONTRACT, THAT SIDE
AGREEMENT, BUT CONFLATING THOSE TWO WOULD LEAD TO JURY CONFUSION IF THEY'RE
GOING FOR A BREACH IN ONE WHICH THEY DID NOT FIND AND THEN MOVING ON TO THE IMPLIED
COVENANT IN COUNTER 5, WOULDN'T THAT LEAD TO IMMENSE JURY CONFUSION IF THERE'S
NO ACTUAL FACT AL CONTRACT FOR THEM TO REVIEW. PETER G.
VERNIERO: I DON'T THINK SO, YOUR HONOR, BECAUSE THEN WE COULD SAY WE'RE REALLY
DIMINISHING THE POSSIBILITY OF ORAL CONTRACTS, AND OF COURSE THE JURY WAS
CHARGED ON ORAL AND IMPLIED CONTRACT. I THINK THE REASON THERE MIGHT BE A LITTLE
CONFUSION AND I DON'T THINK THE JURY WAS CONFUSED HERE AT ALL, A LITTLE
CONFUSED IN TERMS OF THIS DISCUSSION, IS I DISAGREE WITH THE SUGGESTION OF VALLEY
AND THERE MAY HAVE BEEN A SUGGESTION BY THE BENCH THAT THERE WAS NO FORMAL
PLEADING ON THIS BROADER CONTRACT. I HAVE 3 RESPONSES TO THAT.
THE FIRST IS THERE WAS FACTUAL STATEMENT, PLEADING, IF YOU WILL. IT WAS CONTAINED
IN THE SUMMARY JUDGMENT STATEMENT OF FACTS AND I'VE ALREADY GIVEN YOU THE
CITE ON THAT. THERE WAS IN OUR SUMMARY JUDGMENT BRIEF, WE TALKED BCH, WHEN VALLEY
TRIED TO GET OUR PLAINTIFF'S CASE DISMISSED AND FAILED, SO THERE WAS
DISCUSSION ABOUT THAT, SO CLEARLY THEY WERE ON NOTICE OF THIS BROADER CONTRACT.
AND 3 AND MAYBE THIS IS THE MOST SALIENT, IS WE HAVE A COURT RULE ON THIS, IT'S
COURT RULE 4:9-2, IT'S REALLY DESIGNED FOR THIS TYPE OF CASE, WHICH SAYS
IT ALLOWS FOR PLEADINGS TO BE AMENDED BY OPERATION OF LAW TO CONFORM TO EVIDENCE.
AND IT GIVES A SLIDING SORT OF PROCESS OF HOW THAT HAPPENS.
JUSTICE FERNANDEZ-VINA: WOULD THAT BE CONFORMING AFTER THE SUMMARY JUDGMENT MOTION
WAS DISPOSED OF OR BEFORE. PETER G. VERNIERO: THE RULE GOES
SO FAR AS TO SAY EVEN AFTER JUDGEMENT, AND THE REASON FOR THAT, THE REASON
IT'S A SLIDING SCALE GOES BACK TO MY VERY VERY VERY FIRST POINT ABOUT THIS AS A
JURY ISSUE, IS RULE 4:9-2, IT TALKS ABOUT THE PROCESS FOR AMENDING THE PLEADINGS
TO CONFORM TO EVIDENCE, BUT THEN SAYS JUSTICE FASCIALE, AND THIS IS SO CRITICAL,
BUT FAILURE TO SO AMEND SHALL NOT AFFECT THE RESULT OF THE TRIAL ON THESE
ISSUES. SO THIS IS JUST ANOTHER EXAMPLE OF WHERE THE COURT SYSTEM IS SAYING LOOK,
THIS IS GOT TO THE JURY, THIS QUESTION, NOW WHY DID IT GET TO THE JURY, AT LEAST
THREE TIMES VALLEY CONSENTED OR ACQUIESCED THIS GOING TO THE JURY, THE VERY
FIRST TIME NO ONE HAS MENTIONED WAS THE CHANCERY. JUSTICE
PATTERSON: WHAT GOING TO THE JURY. PETER G. VERNIERO: THE IMPLIED
COVENANT CLAIM AND JUST THE WHOLE CONCEPT OF MONETARY DAMAGES.
JUSTICE PATTERSON: BUT THE IMPLIED COVENANT CLAIM AS TO WHICH CONTRACT.
PETER G. VERNIERO: THE IMPLIED COVENANT CLAIM AS TO THE CONTRACT THAT THE EVIDENCE
SUPPORTED. JUSTICE WAINER APTER: THE BROADER CONTRACT NOT
THE BYLAWS. PETER G. VERNIERO: UNDER MOOI ANAL MY ANALYSIS
IT'S EITHER ONE. JUSTICE WAINER APTER: BUT THE JURY DISAGREED.
PETER G. VERNIERO: THEY DISAGREED THAT FAILURE TO HOLD A
HEARING WAS A BREACH. JUSTICE PATTERSON: AND THEY WERE ALSO NEVER
GIVEN A QUESTION AS TO WHETHER THERE WAS A BREACH OF THAT ASPECT OF THE
CONTRACT. AND WHEN YOU HAVE A CLAIM SET FORTH IN THE CHARGES AND YOU PRESENT TO
THE JURY A SERIES OF QUESTIONS THAT IT'S POSED TO ANSWER AND ONE GELTHS
SKIPPED AND PEOPLE MAKE MISTAKES, I'M NOT SUGGESTING IT'S ANYTHING INSIDIOUS ABOUT
IT, BUT THIS IS NOT SOME DETAIL IN THE CASE, THIS IS AT THE HEART OF THIS
CASE AND THE JURY NEVER FOUND THAT THEY EITHER BREACHED IT OR THEY DIDN'T BREACH
IT. PETER G. VERNIERO: LET ME EXPLAIN WHY I RESPECTFULLY
DISAGREE, EVEN IF YOUR HONOR THINKS A STEP WAS MISSED, I DON'T THINK IT WAS, BUT
LET'S ASSUME FOR THE PURPOSE OF YOUR QUESTION. JUSTICE
PATTERSON: YOU DO NOT THINK THAT THAT QUESTION SHOULD HAVE BEEN ANSWERED.
PETER G. VERNIERO: I THINK WHEN YOU MARRY THE CHARGE TO THE QUESTIONS
THAT WERE ASKED, IT ALL CAME OUT IN THE JURY'S VERDICT AND THEY WELL UNDERSTOOD
WHAT THEY WERE BEING ASKED TO DO. AND IF I COULD JUST GET TO THOSE 3 POINTS.
IN THE CHANCERY CASE WHEN REALLY AT THAT POINT WE WERE LOOKING FOR INJUNCTIVE RELIEF,
IT WAS VALLEY WHO SAID OH THIS CASE IS JUST ABOUT MONEY, IT PROBABLY BELONGS
IN THE LAW DIVISION, SO THEN WE MOVED TO THE LAW DIVISION, SO RIGHT THERE, THIS
IDEA THAT A BYLAW BREACH OR A BREACH OF THIS LARGER CONTRACT COULD NEVER
SUPPORT WHAT HAPPENED HERE, VALLEY -- JUSTICE PATTERSON: I THINK
THAT'S -- MOST LAWYERS REPRESENTING DEFLTHS WHO FIND THEMS GOES IN
CHANCERY AND SEE A DAMAGES CLAIM START TALKING ABOUT THE LAW DIVISION, I THINK THAT'S
A STRETCH TO SAY THAT'S A WAIVER OR A RECOGNITION THAT THERE WAS A VALID CONTRACT
HERE. PETER G. VERNIERO: YOUR HONOR, WHAT VALLEY
SAID WAS NOT -- THEY WEREN'T CONCERNED BECAUSE THEY SAW A LITTLE MONETARY DAMAGES,
THE DIRECT QUOTE WAS THIS CASE IS ALL ABOUT MOENL MONEY, THAT'S WHAT VALLEY SAID,
BUT AGAIN, IT'S NOT JUST THAT ISOLATED COMMENT. JUSTICE
PIERRE-LOUIS: IN THAT THE PLAINTIFFS WERE SEEKING MONEY. PETER G.
VERNIERO: YES. BUT YOUR HONOR RESPECTFULLY AT THAT POINT MY CLIENTS WERE
SEEKING AN INJUNCTION, AND IT WAS VALLEY WHO SAID THIS CASE IS ALL ABOUT
MONEY, YOU DON'T GET TO ARGUE THIS TYPE OF BREACH IN CHANCERY, YOU DON'T GET A
N INJUNCTION FOR THAT, YOU CAN GET A HEARING FOR THAT. THIS CASE IS ABOUT MONEY.
SO THAT WAS NUMBER 1. NUMBER TWO IS IN THE SUMMARY JUDGMENT
WHEN THEY WERE TRYING TO DISPOSE OF THE IMPLIED COVENANT CLAIM, THEY DIDN'T
DISPOSE OF IT BECAUSE THEY SAID THAT IT COULD NOT GO TO THE JURY AS A MATTER OF LAW
WHICH THEY'RE SAYING NOW, THEY SAID IT ALL AS SIMULATED INTO OTHER COUNTS
AND THEN THEN WHEN IT CAME DOWN TO THE CHARGE, THAT'S EXACTLY WHAT THEY SAID, THEY
SAID YOU HAVE A PUBLIC POLICY CLAIM AND A FUNDAMENTAL FAIRNESS CLAIM, THAT
SHOULD ALL GET PUT INTO THE IMPLIED COVENANT. SO TO FINISH THE ANSWER, JUSTICE
PATTERSON, IF YOU BELIEVE A STEP WAS MISSED THEN IT CLEARLY IS PLAIN ERROR,
AND THEN YOU HAVE TO TAKE A STEP BACK AND SAY IS THIS AN UNJUST RESULT WHAT HAPPENED
HERE. AND I THINK THE JURY, THEY MAY NOT HAVE GOTTEN ALL THE BUZZ WORDS
CORRECT, BUT THEY GOT THE BOTTOM LINE CORRECT. JUSTICE PATTERSON:
I CAN'T SPEAK TO ANYTHING, OBVIOUSLY AUNTDZ THERE, AND NO LAWYER EVEN WHO
IS THERE KNOWS WHAT'S IN THE MINDS OF THE JURY, THAT'S NOT WHAT I'M ADDRESSING.
I'M ADDRESSING WHETHER THERE MAY HAVE BEEN A COLLECTIVE MISTAKE HERE THAT LEFT
A GAP IN THE FINDINGS OF THIS JURY THAT MAKE IT VERY DIFFICULT TO CONCLUDE
THAT THERE WAS A PROPER FOUNDATION FOR A BREACH OF THE IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING. BECAUSE IF THEY HAD FOUND A BREACH OF THAT CONTRACT,
YES, THEN THAT'S WHERE YOU ARE, THAT'S WHERE YOUR CASE IS, AND IF THEY SAY NO,
THEN YOU'VE GOT A DIFFERENT CASE, AND WE GOT NO ANSWER, AND WHY, BECAUSE THE
QUESTION WASN'T ASKED. JUSTICE FASCIALE. AND
IF THAT'S THE CASE WAS A REMAND BE THE PROPERTY COURSE OF ACTION.
PETER G. VERNIERO: RESPECTFULLY I DO NOT THINK A REMAND IS WARRANTED IN THIS CASE,
AND I REALIZE JUSTICE PATTERSON YOU WEREN'T THERE, YOU DIDN'T TRY THIS
CASE, BUT WE HAVE SO MUCH CASE LAW THAT SAYS THAT WE RESPECT THE JURY'S UNLESS THERE IS
A MANIFEST INJUSTICE, AND EVEN IF THERE'S A FLAW IN THE CHARGE, EVEN IF THEY
SKIPPED A STEP, I THINK IT IS PROPER FOR THIS COURT, WITH ALL DUE RESPECT, YOUR
HONOR, IT IS PROPER FOR THIS COURT HERE AND NOW TO LOOK AT THIS ENTIRE RECORD
INCLUDING THE E-MAILS THAT THE OTHER SIDE SAY SHOULD NOT HAVE BEEN SEEN, BUT YOU
HAVE MY ARGUMENTS IN THE BRIEF, AND I THINK IT IS VERY HARD PRESSED ON THIS RECORD
TO CONCLUDE THAT THE JURY'S VERDICT WAS SO PALPABLY UNFAIR, THE OUTCOME
WAS SO UNREASONABLE, THAT WE THROW OUT THE RESULTS OF A 4 WEEK TRIAL.
THE COURT: WE'RE AT 35 MINUTES, I WANT TO MAKE SURE YOU GET TO THE E-MAILS.
THE PARAGRAPH THAT JUSTICE WAINER APTER READ EARLIER, ABOUT THE THEORY, D A
82, CAN YOU GIVE US MORE SPECIFICS ABOUT HOW THAT PARAGRAPH WAS DEVELOPED? WHO
PROPOSED IT, DID ANYONE RED LINE IT AND IF SO, HOW WAS IT RED LINED?
PETER G. VERNIERO: I DO NOT HAVE THE REDZ LINED COPY, I CANNOT ANSWER.
CHIEF JUSTICE RABNER: WHO PROPOSED IT. PETER G. VERNIERO: BOW
SIDES PROPOSED JURY CHARGES, I CANNOT SPEAK TO WHO SPECIFICALLY PROPOSED
THAT CHARGE. WE COULD THROUGH THE CLERK'S OFFICE I'M SURE MR. PORRINO AND I COULD
SUPPLY THAT PART OF THE RECORD, I JUST DON'T WANT TO MISLEAD THE COURT. WHAT I
DO KNOW IS BOTH SIDES PROPOSED CHARGES, THEY WERE RED LIENDZ, THE TRIAL JUDGE
REALLY HASHED OUT IN SOME DETAIL AND HE CAME UP WITH THE CHARGE THAT HE DID.
IN TERMS OF THE PRIVILEGED E-MAILS, IF I JUST MAY HAVE.
CHIEF JUSTICE RABNER: I JUST WANT TO GO ON WITH THIS FOR A SECOND, IF
VALLEY PROPOSED THAT CHARGE, THAT RAISES A QUESTION OF INVITED ERROR, HE WERE DO
NOT KNOW WHETHER VALLEY PROPOSED IT OR WHETHER YOUR CLIENTS PROPOSED IT.
PETER G. VERNIERO: I THINK IT IS INVITED ERROR BECAUSE VALLEY
AGREED TO IT AND DIDN'T OBJECT TO IT. JUSTICE WAINER APTER:
THAT WOULD JUST BE PLAIN ERROR, WOULDN'T IT. PETER G. VERNIERO:
WELL I'M NOT SURE ABOUT THAT, BECAUSE IF I'M NOT MISTAKEN. CHIEF
JUSTICE RABNER: YOU WOULD AGREE THAT IF THEY PROPOSED THE CHARGE IT'S A STRONGER
ARGUMENT AND THAT'S WHY I'M PRESSING THE POINT. PETER G.
VERNIERO: I WOULD LIKE TO HAVE THAT FACT TO ARGUE, YES, BUT WITH WAFRNTD R CANDOR
TO THE COURT I JUST DON'T KNOW THE ANSWER TO THAT QUESTION, AND I'M NOT
SURE IT'S IN THE RECORD. JUSTICE PATTERSON: IT MAY NOT BE, BECAUSE
IF IT'S THE RED LINES -- PETER G. VERNIERO: AND WE WOULD BE
GLAD TO SUPPLEMENT THE RECORD, MR. PORRINO AND I COULD DO THAT EASILY FACHLT
ARE THE SUMMARY JUDGMENT BRIEFS BEFORE THE TRIAL JUDGE IN THE RECORD.
PETER G. VERNIERO: UNDER APPELLATE DIVISION RULES YOU CANNOT PUT BRIEFS IN UNLESS
YOU'RE ARGUING AN EXCERPT, WE DID HAVE A SUMMARY JUDGMENT BRIEF THAT I LAID
OUT TO YOU THAT LAID OUT THE FACTS OF THIS BROADER CONTRACT, I DON'T KNOW IF THE
FULL SUMMARY JUDGMENT BRIEFS ARE IN THE RECORD, I WOULD TEND TO DO THAT
BECAUSE IT'S AN APPELLATE DIVISION RULE. JUSTICE SOLOMON: I HAVE
A COUPLE OF QUESTIONS, SO IF EVERYBODY COULD JUST BEAR WITH ME WHILE I TRY
TO GET THIS OUT, IN MR. PREEN NO'S DISCUSSION HE SAID THE BREACH OF CONTRACT AND
THE BREACH OF THE IMPLIED COVENANT ARE TWO SEPARATE THINGS. PETER
G. VERNIERO: THEY'RE DISCRETE INQUIRIES, YES. JUSTICE SOLOMON:
AND IF YOU DO NOT -- IF YOU FIND -- WELL LET ME BACK UP. SOME TIME AGO, YOU
DISCUSSED WHAT THE BREACH OF THE IMPLIED COVENANT WAS IN THIS CASE, AND THAT IT
DID NOT HAVE A RELATIONSHIP TO WHETHER THERE WAS A BREACH OF CONTRACT OR NOT,
THEY'RE SEPARATE INQUIRIES, THEY'RE SEPARATE QUESTIONS, I THINK THAT'S
SORT OF WHAT YOU WERE ARGUING. I THINK. PETER G. VERNIERO: I'M ARGUING
THAT THE CONTRACT HERE CONSISTED OF SEFRLT PARTS, ONE OF WHICH WAS THE BYLAWS,
ONE OF WHICH WAS SOMETHING BROADER. JUSTICE SOLOMON: SO CREATE THE
CONTRACT. PETER G. VERNIERO: AND THE CONTRACT INCLUDED THE
EXPECTATION OF THE PARTIES GIVING BOTH SIDES THE BENEFIT OF THE BARGAIN. THE JURY
HAD SUFFICIENT EVIDENCE IN FRONT OF IT TO FIND THERE WAS NO ACTUAL BREACH
OF A TERM OF THAT CONTRACT BUT THERE WAS A FRUSTRATION OF THE BENEFITS.
JUSTICE SOLOMON: THAT'S WHERE I WANT TO GET TO. AND THAT IS THE BREACH OF THE
IMPLIED COVENANT. PETER G. VERNIERO: CORRECT.
JUSTICE SOLOMON: AND IN FACT THE TRIAL COURT HEARD ALL THIS EVIDENCE, CRAFTED A
CHARGE, AND I THINK YOU WERE SUGGESTING THAT THE VERDICT IS EXACTLY CONSISTENT
WITH THE CHARGE, AND I WANT TO DRAW YOUR ATTENTION AND EVERYBODY'S ATTENTION TO
THE PARAGRAPH ABOVE THE PARAGRAPH THAT THE CHIEF WAS READING FROM ON D A
82, THE SECOND SENTENCE BEGINS IN ORDER FOR YOU TO FIND THAT THERE WAS A BREACH
OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING IN THIS CASE, THE PLAINTIFF
MUST PROVE TOUF THAT THE DEFENDANT WITH NO LEGITIMATE PURPOSE ACTED WITH
BAD MOTIVES OR INTENTIONS OR ENGAGED IN DECEPTION OR EVASION IN THE PERFORMANCE
OF THE CONTRACT. AND IS THAT WHAT YOU'RE ARGUING THE JURY SAID YES TO,
QUESTION 5 OF THE JURY CHARGE? PETER G. VERNIERO: YES. I'M ARGUING
THAT, I DON'T HAVE THAT SPECIFIC LANGUAGE IN FRONT OF ME, BUT I AM ARGUING
THAT THE CHARGE, THE OVER ALL CHARGE, MINDFUL THAT WE LOOKED AT THE CHARGE AS A
WHOLE, THE OVERALL CHARGE WAS ADEQUATE AS A MATTER OF LAW FOR THE JURY TO
FIND A BREACH OF THE COVENANT. JUSTICE SOLOMON: LET ME READ YOU
THE LAST PHRASE OF THAT CHARGE. BY SUCH CONDUCT DENIED THE MRV, YOUR CLIENT,
OF THE BARGAIN INITIALLY INTENDED BY THE PARTIES, SUCH THAT AS TO QUESTIONS 4,
5 AND 6 ON THE JURY VERDICT SHEET WHICH THEY ANSWERED YES TO 4, YES TO 5
AND AWARDED DAMAGES ON 6, THEY SAID BY A PREPONDERANCE OF THE EVIDENCE THAT THE
VALLEY HOSPITAL AND NEUROLOGICAL P.C. ENTERED INTO A CONTRACT, YES, THAT'S
THE SAME CONTRACT DISCUSSED IN THAT PARAGRAPH I JUST READ AND I THINK THAT'S WHAT
YOUR ARGUMENT WAS AND QUESTION 5, DO YOU FIND BY A PREPONDERANCE OF THE
EVIDENCE THAT THE DEFENDANT THE VALLEY HOSPITAL VIOLATED THE COVENANT OF GOOD FAITH
AND FAIR DEALING WITH THE PURPOSE OF DEPRIVING THE PLAINTIFFS XREE HENCE SHOULD
HAVE NEUROLOGICAL P.C. OF THEIR RIGHTS AND BENEFITS UNDER THE CONTRACT.
I THINK THAT'S EXACTLY WHAT YOU WERE ARGUING, AND I THINK THAT'S EXACTLY WHAT THE
COURT CHARGED AND I THINK THAT'S EXACTLY WHAT THE JURY FOUND EXCEPT THEY
ADDED IN A NUMBER FOR DAMAGES THAT I HAVEN'T MENTIONED. PETER G.
VERNIERO: AND I WOULD ADD ONE OTHER THING THAT THAT'S EXACTLY WHAT VALLEY DIDN'T
OBJECT TO. JUSTICE SOLOMON: I'M NOT WORRIED ABOUT YOUR
ARGUMENT, IT'S JUST TO GET MY HEAD AROUND -- PETER G. VERNIERO:
YOU SAID IT BETTER THAN I COULD HAVE SAID IT. THE CHARGE TAKEN AS A WHOLE AND
THE JURY VERDICT TAKEN AS A WHOLE ARE CONSISTENT, AND PARTICULARLY ON WE'LL
SAY PLAIN ERROR AS OPPOSED TO INVITED ERROR, EITHER ONE, THERE'S NO REASONABLE
BASIS TO UPSET WHAT OCCURRED IN THIS CASE AND I WOULD ASK THE COURTER, CHIEF
JUSTICE OF CHIEF JUSTICE I KNOW I'M AT THE END OF MY TIME, I ASSUME THE COURT DOESN'T
WANT TO HEAR FROM ME ON THE PRIVILEGES, I'LL RELY ON MY BRIEF, I WOULD JUST
ASK THE COURT TO TAKE A STEP BACK AND LOOK AT WHAT HAPPENED IN THIS CASE NOT AS
ALLEGATIONS BUT WHAT THE JURY HEARD AND OBVIOUSLY AGREED WITH. THIS IS A SEMI
PUBLIC INSTITUTION THAT TREATED THESE DOCTORS IN A WAY THAT WAS UNFAIR, THAT IS
CLEAR FROM THE JURY'S FINDING, AND IF THIS COURT WERE TO REVERSE AN UNPUBLISHED
OPINION TO SOMEHOW MAKE A POINT ON SOME TECHNICALITY, IT WOULD BE SENDING AN AWFUL
MESSAGE TO ALL THE PARTIES IN THIS CASE, TO JURORS, TO TRIAL COURTS, NO TRIAL
IS EVER PERFECT, NO TRIAL IS EVER CLEANED AND PRESSED. CHIEF
JUSTICE RABNER: BEFORE YOU GET TO THE END THERE, GIVE US TWO MINUTES TO FLESH OUT
WHAT YOU SAID AT THE OUTSET, THAT THESE E-MAILS GAVE MORE THAN LEGAL ADVICE.
PETER G. VERNIERO: YES, SO I START WITH PAYTON, I START WITH
JUSTICE HANDLER'S DECISION IN PAYTON AND PAYTON SAYS THAT WHEN YOU ARE LOOKING
AT -- PAYTON WAS AN INVESTIGATION, THIS IS A REVIEW, YOU LOOK AT THE ENTIRE
PROCESS, YOU DON'T JUST LOOK AT THE END PRODUCT WHICH IS IN THIS CASE WAS THE WHITE
PAPER. SO IF YOU LOOK AT THE ENTIRE PROCESS, YOU SEE THAT THE GENERAL
COUNSEL WAS INVOLVED AT THE BEGINNING OF THIS PROCESS, IN THE MIDDLE AND AT THE END.
IN THE BEGINNING, THERE WERE ALL KINDS OF E-MAILS THAT SHE WAS EITHER COPIED
ON OR THAT SHE INITIATED AND SHE CAME RIGHT OUT AND SAID AND I THINK THIS IS ONE OF
THE MOST RELEVANT E-MAILS, SHE SAYS, AND THIS IS 2526, SHE SAID THERE'S NOTHING
WE CAN DO IF THEY HAVE PRIVILEGES. NOW, THE CONTEXT THERE IS THE CEO WANDERED
TO GET RID OF MY CLIENTS AND IS BASICALLY ASKING HOW DO WE DO THIS AND THE
G C SAYS THERE'S NOTHING WE CAN DO IF THEY HAVE PRIVILEGES, THE ONLY THIFRNG WE CAN
DO IS CLOSE THE SERVICE, DO WE HAVE AN APPETITE FOR THIS. NOW, I WOULD
SUBMIT THAT'S NOT GENERIC LEGAL ADVICE, THAT'S IN LINE WITH WHAT EVERY OTHER PERSON
UNDER THE C O WAS DOING AND SAYING, WHICH IS WE'VE GOT TO HELP THEM GET RID OF
OUR CLIENTS, AND THEY WENT SO FAR AS TO SAY IN ONE OF THESE E-MAILS, MAYBE
WE NEED TO GO TO THE NUCLEAR OPTION AND THE V P AT THE HOSPITAL'S RESPONSE WAS
KA BOOM, MEANING BLOW THEM UP. SO THE JURY HEARD ALL OF THIS AND ALSO THE
JURY DID HEAR ABOUT LEGITIMATE HEALTHCARE REASONS, BOTH SIDES WERE ARGUING THAT,
VALLEY WAS ARGUING THAT AS WELL. JUSTICE PATTERSON: IS VALLEY
CORRECT THAT THERE WAS A PROTECTIVE ORDER WITH A CLAW BACK PROCEDURE.
PETER G. VERNIERO: THE JUDGE FOUND THAT THE PRIVILEGE WAS WAIVED SO THE CLAW
BACK WAS INOPERABLE, THAT'S MY UNDERSTANDING. THAT THE JUDGE TO SAY KAS DID
AN IN KAMENT RA REVIEW, SAW ALL OF THESE E-MAILS IN CONTEXT AND HE SAID THE
PRIVILEGE WAS WAIVED SO THEY DON'T GET CLAWED BACK. I MEAN THAT WAS THE POINT,
I BELIEVE, OF THE IN CAMERA INSPECTION. AND BY THE WAY THE CLAW BACK CAME,
THE ALLEGED CLAW BACK CAME MANY MANY WEEKS LATER AND AS JUDGE TO SAY FOUND, THESE
DOCUMENTS WERE MARKED CONFIDENTIAL AND SO FORTH, I THINK THE WITNESSES WERE
ASKED ABOUT IT IN DEPOSITION SO THERE'S CERTAINLY NO INADVERTENCE HERE, THIS IS
NOT 6 OR 7 E-MAILS OF THE G C AND WICHTD IN BETWEEN NON PRIVILEGED E-MAILS,
VALLEY TURNED OVER THESE E-MAILS BECAUSE IT WAS PART OF THE PROCESS THAT MISTAKENLY
THEY THOUGHT WOULD HOLD UP TO SCRUTINY, BUT OBVIOUSLY IT DIDN'T BECAUSE OF THE
DATA WAS MANIPULATED AND SO FORTH. SO, YOUR HONOR, THERE'S THAT E-MAIL AND THERE
ARE OTHER E-MAILS WHERE IT'S VERY, VERY CLEAR GOING BACK AND FORTH WITH THE CEO
THAT THE G C WAS INVOLVED IN THE BEGINNING OF THE PROCESS, THE G C IS ALSO
ON CALENDAR INVITES, SHE'S MEETING WITH THE ANALYSTS, MEETING WITH THE SUBORDINATES
TO THE CEO THROUGHOUT THIS PROCESS AND THEN IF THAT WERE NOT ENOUGH TO MAKE
THE CHEESE MORE BINDING AS JUSTICE STEIN WOULD SAY, SHE BEGINS TO NEGOTIATE THE
CONTRACT WITH THE RIVAL GROUP, THE G C. SO THE JUDGE LOOKED AT THIS AND
HE SAID THIS IS IN WAIVER, THIS IS AN ISSUE WAIVER, I MEAN THIS IS ALMOST A TEXTBOOK
CASE OF IT AND THESE E-MAILS WEREN'T WEAPON I'VE HAD, THE SUGGESTION THAT
THE G C WAS HAR SHL QUESTION AND SO FORTH, THE JURY HEARD THE G C AND MADE ITS
DECISION. SO THAT'S THE WAIVER POSITION. CHIEF JUSTICE RABNER:
THANK YOU, WOULD YOU LIKE TO CLOSE OUT YOUR ARGUMENT. PETER G.
VERNIERO: YES, JUST CLOSE OUT MY ARGUMENT AGAIN THE CLOSING STATEMENT VERY VERY
DIFFERENT THAN WHAT YOU SAW IN THE OTHER CASE, I'LL RELY ON MY BRIEF, I WOULD
JUST GO BACK TO HOW I BEGAN THAT I DON'T WANT TO SAY THAT JURY VERDICTS ARE ABSOLUTELY
SACROSANCT, BUT IT'S PRETTY CLOSE, AND WHEN THEY'RE PROPERLY CHARGED WHICH
WE THINK THEY WERE AND WHEN THEY DELIBERATE THE WAY THEY DID, WHEN THEY MADE
THE CREDIBILITY FINDINGS THAT THEY MADE AND THERE WERE CREDIBILITY FINDINGS
TO BE MADE BECAUSE SOME OF THESE WITNESSES JUST SIMPLY WERE NOT CREDIBLE, IT'S
INCUMBENT UPON OUR SYSTEM, THE APPELLATE COURT SYSTEM, TO RESPECT THAT FINDING,
OTHERWISE WE ARE GOING TO BE UNRAVELING ALL SORTSZ OF CASES IN ALL MANNER OF WAYS
AND THAT'S NOT WHAT OUR SYSTEM WAS DESIGNED TO DO. THE JUST RESULT
HAPPENED IN THIS CASE, WE URGE THE CASE TO LEAVE THIS CASE WHERE IT FOUND IT.
CHIEF JUSTICE RABNER: THANK YOU. MR. PORRINO, REBUTTAL?
CHRISTOPHER S. PORRINO: THANK YOU JUSTICES, I'LL TRY AND ANSWER A COUPLE OF THE
QUESTIONS THAT I THINK ARE STILL OPEN, CHIEF JUSTICE YOU HAD ASKED ABOUT THE
GENESIS OF THAT ASPECT OF THE CHARGE RELATING TO THE COVENANT. WHAT I CAN TELL
YOU IS THAT IN VALLEY'S REPLY BRIEF TO THE APPELLATE DIVISION, DECEMBER 14, 20
20, AT PAGES 18 TO 20, WE EXPLAINED THAT VALLEY OBJECTED TO THE CONTENTION
CHARGES, AND THERE WAS LOTS OF COLLOQUY ON THAT, YOU CAN GO BACK AND READ IT, AND.
CHIEF JUSTICE RABNER: YOU SAID THE CONTENTION CHARGES?
CHRISTOPHER S. PORRINO: YES, THE PARTY'S CONTENTIONS, ONE PARTY
CONTENDS THIS, THE OTHER PARTY CONTENDS THAT, AND INCLUDED IN THOSE CONTENTION
CHARGES WAS SIMILAR LANGUAGE TO THE LANGUAGE THAT GOT CHARGED ON THE
BREACH OF THE IMPLIED COVENANT AND THE STATEMENTS IN THE APPELLATE BRIEF SET FORTH
THAT HISTORY AND GO ON TO EXPLAIN THAT THOSE OBJECTIONS WERE OVERRULED AND THAT
FURTHER OBJECTION TO THAT LANGUAGE, WHICH WAS VERY SIMILAR LATER ON IN THE
CHARGE WOULD HAVE BEEN FUTILE. ANYWAY, THE LANGUAGE CAME FROM, TO ANSWER YOUR
QUESTION DIRECTLY, IT'S OUR UNDERSTANDING THAT THE LANGUAGE CAME FROM THE
PLAINTIFFS. JUSTICE PATTERSON: WAS THERE ANY SUGGESTION
THAT -- IS IT YOUR CONTENTION THAT THE JURY VERDICT FORM SHOULD HAVE, BECAUSE THE
BREACH OF CONTRACT EARLIER SECTION IN QUESTION 3 I GUESS, 2 AND 3, HAD BEEN LIMITED
TO THE ISSUE OF BYLAWS AND A HEARING, IS IT YOUR CONTENTION THAT TO BE COMPLETE
THE JURY VERDICT FORM SHOULD HAVE ASKED THE JURY WHETHER THERE WAS A BREACH OF
THIS BROADER OR OTHER CONTRACT THAT WE'VE BEEN TALKING ABOUT TODAY?
CHRISTOPHER S. PORRINO: THAT QUESTION, THERE'S AN ANSWER TO THE QUESTION
IN ITEM TWO WHICH YOU'RE AWARE OF, THE QUESTION OF THE ORAL CONTRACT, THE
BEYOND THE SOMETHING CONTRACT, IMPLIED CONTRACT, WHATEVER YOU WANT TO DESCRIBE IT,
THAT CONTRACT IS NOT HERE, WE HAVE THE BREACH OF IMPLIED COVENANT AND OF
COURSE AS WE'VE TALKED ABOUT AD NAUSEUM WHAT THE PLAINTIFFS ARE REALLY SAYING IS
THEIR FOREVER AGREEMENT WAS BREACHED OR VIOLATED, THAT'S A BREACH OF CONTRACT,
THERE'S NOT A JURY FINDING HERE THAT THERE WAS A BREACH OF CONTRACT.
CHIEF JUSTICE RABNER: IF THE JURY WAS PROPERLY CHARGED ON THAT ISSUE BUT
SIMPLY NOT ASKED TO RECORD ITS ANSWER ON THE VERDICT SHEET, IS THERE A PROBLEM?
CHRISTOPHER S. PORRINO: WELL THE REASON THAT I WOULD SUGGEST
THERE'S A LITTLE CONFUSION HERE IS BECAUSE BEYOND THE BYLAWS AGREEMENT, THE ORAL
AGREEMENT, WASN'T PLED. IF YOU LOOK BACK AT THE AMENDED COMPLAINT, THERE ARE
ALLEGATIONS ABOUT COMING TO THE HOSPITAL, THE PLAINTIFFS ARRIVING AND THEN TALKING
TO PRESIDENT MYERS AND THEM BUILDING OUT THIS NEUROSCIENCE PRACTICE, BUT THERE
IS NO ALLEGATION OF AN AGREEMENT. AND WHEN YOU LOOK AT THE SUMMARY JUDGMENT RECORD
THAT MR. VERNIERO NAR ROW REFERRED TO, THAT DOESN'T ABLG AN AGREEMENT EITHER.
CHIEF JUSTICE RABNER: I UNDERSTAND YOUR ARGUMENT AND THE
DISPUTE BETWEEN COUNSEL ON THAT POINT. IF THE CHARGE NONETHELESS WAS PROPER AND
THERE SIMPLY WASN'T A PLACE ON THE JURY VERDICT SHEET ON RECORD, IS THERE
A PROBLEM? CHRISTOPHER S. PORRINO: YES, THERE IS A PROBLEM,
A MAJOR PROBLEM. AS JUSTICE PATTERSON SAID THIS ISN'T A DETAIL, THIS IS THE CASE,
AND WE WOULD HAVE BEEN ARGUING THAT, YOU KNOW, YOU CAN'T -- YOU KNOW, YOU'RE
ALLEGING BREACH OF THIS ORAL CONTRACT WHICH YOU DIDN'T PROVE, SO IT'S -- YOU KNOW,
THIS IS -- I DON'T KNOW IF IT WAS INTENTIONAL OR UNINTENTIONAL, I'M NOT
MAKING ANY JUDGEMENTS ABOUT IT, BUT THERE'S A REASON THAT THERE'S LACK OF CLARITY
AND CONFUSION, AND IT'S BECAUSE THESE CLAIMS WERE NEVER SQUARELY ASSERTED, THAT
WAS, AND AGAIN, I'M NOT SAYING IT WAS DONE ON A PURPOSE OR IT WASN'T DONE
ON PURPOSE, BUT THEY WERE NEVER SQUARELY ASSERTED SO THEY WERE NEVER SQUARELY
ADDRESSED AND WE SORT OF SLIPPED INTO THIS CONFUSION. DID I ANSWER YOUR
QUESTION, CHIEF JUSTICE. CHIEF JUSTICE RABNER: PLEASE GO AHEAD.
CHRISTOPHER S. PORRINO: I'LL JUST WRAP UP BRIEFLY BY SAYING
LET'S JUST TRY TO STEP BACK FOR A MOMENT AND UNDERSTAND WHAT WAS HAPPENING HERE
AT VALLEY HOSPITAL AND THIS NEUROSCIENCE GROUP, NEUROSURGERY GROUP. THEY
CAME ON BOARD AND THEY DID WHAT DOCTORS DO AND I THINK BY ALL ACCOUNTS IN THOSE
EARLY YEARS THEY DID WHAT THE HOSPITAL HOPED THEY WOULD DO, BUT THEN THE
PLAINTIFFS MADE A DECISION, WHICH THEY WERE ENTITLED TO MAKE, THEY HAD THE RIGHT
TO DECIDE THAT THEY WANTED TO SPEND MORE TIME AT HACKENSACK, THEY WANTED TO ALLOCATE
RESOURCES TO ACQUIRE A GAMMA KNIFE AT HACKENSACK AND HAVE HACKENSACK PAY
THEM FOR THE LEASE OF THAT GAMMA KNIFE. THEY DECIDED THAT THEY WOULD ONLY DO 4.7
PERCENT IN TOELD, OF THE TOTAL PLAINTIFF'S PRACTICE, TOTAL REVENUE DERIVED
THROUGH VALLEY HOSPITAL BY 2014, IS 4.7 PERCENT, THEY DECIDED THAT THEY WERE GOING
TO DO THINGS ELSEWHERE, AND THAT'S THEIR PRIVILEGE. IT WAS WITHIN THE
HOSPITAL'S DISCRETION TO DECIDE THAT THEY WISHED TO ENTER AN EXCLUSIVE ARRANGEMENT,
EXCLUSIVE ARRANGEMENTS ARE FAVORED, WE DON'T HAVE TO GUESS ABOUT WHY THEY MAKE
SENSE, IT'S SET FORTH IN THE CASES THAT TALK ABOUT THEM, THE NOTIONS OF
FAMILIARITY, ECONOMIC EFFICIENCY, IT ALL FEEDS INTO WHY EXCLUSIVE ARRANGEMENTS
MAKE SENSE. VALLEY HOSPITAL DID WHAT IT WAS ENTITLED TO DO, IT ENTERED
AN EXCLUSIVE ARRANGEMENT WITH THE COLUMBIA GROUP WHICH BY THE WAY THE PLAINTIFFS
HAVE ALREADY SAID THEY DIDN'T WANT. NOW, THE 4.7 PERCENT THAT WAS REDUCED TO
SOME DEGREE, AND JUST TO BE CLEAR, THEY DIDN'T LOSE THEIR PRIVILEGES, ALL
OF THEM, THEY WERE STILL ALLOWED TO TREAT THEIR OWN PATIENTS AT VALLEY HOSPITAL
BUT THEY WERE CURTAILED SO SOME MEASURE OF THAT 4.7 PERCENT OF THE REVENUE
WAS MS GOING TO BE CURTAILED AND THAT'S WHY THEY FILED THIS LAWSUIT. THEY HAD
THE RIGHT TO MOVE AWAY AND DECIDE TO TAKE ON MORE LEADERSHIP RULES AT HACKENSACK
AND RESIGN LEADERSHIP RULES AT VALLEY, BUT WE ALSO HAD THE RIGHT AND THE DISCRETION
TO ENTER INTO AN EXCLUSIVE CONTRACT WITH COLUMBIA. DAB I JUST WANT TO SEE
IF THERE WERE ANY OTHER QUESTIONS, IF YOU WOULD JUST GIVE ME ONE MOMENT.
JUSTICE PATTERSON: LET ME JUST FOLLOW-UP ON SOMETHING THAT WAS MENTIONED
EARLIER JUST ASK IF THERE'S AN ISSUE, IS THERE ANY CONTENTION IN THIS CASE THAT
BECAUSE THERE WERE ONLY TWO DOCTORS AT THE TIME THAT THIS IMPLIED CONTRACT
THAT PLAINTIFFS ARE ALLEGING AND LATER THERE WERE 12 DOCTORS, IS THERE ANY
CONTENTION THAT THERE IS SORT OF A LACK OF A -- THE CONTRACTING PARTY WAS
SOMETHING OTHER THAN THE CURRENT OR LATER DOCTORS WHO COMPRISED COMPREHENSIVE NEURO
SURGICAL P.C.? DO YOU SEE WHAT I'M SAYING. CHRISTOPHER S.
PORRINO: I THINK WHAT YOU'RE SAYING IS THE PURPORTED UNDERSTANDING IS REACHED WITH
2 DOCTORS AND THERE ENDS UP BEING LOTS OF OTHER DOCTORS AS PART OF THE PRACTICE.
JUSTICE PATTERSON: WELL DID XREE HENCE SHOULD HAVE NEURO SURGICAL
P.C. EXIST AT THAT TIME. CHRISTOPHER S. PORRINO: I'M NOT SURE IF
THE ENTITY EXISTED PER SE. JUSTICE PATTERSON: WAS THERE ANYTHING,
IT'S LATE IN THE GAME TO MAKE A CONTENTION NOW OBVIOUSLY, BUT WAS THERE
ANY CONTENTION ON THE PART OF VALLEY THAT WHAT ARE WE TALKING ABOUT HERE, EVEN
THE ALLEGATION WAS THAT THERE WERE TWO DOCTORS INVOLVED, IT WAS NOT THE SAME
ENTITY. CHRISTOPHER S. PORRINO: I'D HAVE TO CHECK THE
RECORD, IT IS ABSOLUTELY THE CASE THAT, YOU KNOW, THE PURPORTED ORAL ARRANGEMENT
DID NOT INCLUDE ALL THE DOCTORS WHO SUBSEQUENTLY CAME ON BOARD, THEY WERE NOT
PART OF THE GROUP AT THE TIME THIS SUPPOSED ARRANGEMENT, NEVER PLED ARRANGEMENT
WAS MADE. AND ONE OTHER THING I SHOULD MENTION IS I THINK THERE'S BEEN A SUGGESTION
THAT THEY WERE PROMISED FOREVER PRIVILEGES, INCLUDING FOREVER
PROSPECTIVE LICHS OF THE BI-PLANE AND THE GAMMA KNIFE, THEY DIDN'T EXIST AT THE TIME
THAT THE ALLEGED ORAL AGREEMENT WAS MADE, THAT CAME LATER. SO THIS AGREEMENT
WASN'T PLED BECAUSE IT DIDN'T EXIST. WE KIND OF SLIPPED INTO THE NOTION
OF ANOTHER AGREEMENT WHEN THEY RAN INTO THE TROUBLE THEY HAD WITH THE BYLAWS.
I WILL REST ON THE BRIEFS AND THANK YOU, JUSTICES, FOR YOUR TIME.
CHIEF JUSTICE RABNER: THANK YOU. THANK YOU TO ALL COUNSEL FOR THE VERY HELPFUL
ARGUMENTS, WE'LL TAKE THE MATTER UNDER ADVISEMENT.