by Mike Donoghue, Vermont News First

A version of this news story appeared today in the online edition of the Vermont Standard in Woodstock. 

BURLINGTON — A federal jury has ordered Dartmouth Health to pay more than $1.1 million to a fertility doctor from Windsor County after ruling the defendants fired her because of her disability.

Dr. Misty Blanchette Porter of Norwich was awarded $1 million in economic damages for lost income and expenses.

The jurors said Dr. Porter also was entitled to $125,000 in non-economic damages for the loss of enjoyment in life, mental anguish or pain and suffering, according to the 7-page verdict form.

The jury of six men and six women deliberated for about 17 hours over three days before returning the verdict in U.S. District Court in Burlington shortly after 4 p.m. Thursday.

The verdict is the latest chapter in the 8-year old contentious legal fight between the two sides — and it probably still isn’t over.

Federal Magistrate Judge Kevin Doyle provided both sides with four weeks to file any post-trial motions and appeals are possible.

When the jury foreperson announced the verdict, Doyle asked the lawyers if either side wanted the jurors polled about their verdict.  Both sides declined.

The lead lawyer for Dr. Porter’s legal team, Geoffrey Vitt of Norwich, left the courthouse before a comment could be obtained.  He did not respond to subsequent phone messages. 

Dartmouth Health was apparently satisfied with the verdict.

“We feel very happy,” Dr. Edward Merrens, DH’s chief clinical officer, said after coming out of a post-verdict meeting with the defense team.

Merrens had sat at the defense table monitoring the nearly three-week trial on behalf of Dartmouth Health.  He was part of the decision to lay off Dr. Porter. 

After her dismissal the University of Vermont Medical Center recruited her. 

Dartmouth Hitchcock Medical Center, Dartmouth Hitchcock  Clinic, Mary Hitchcock Memorial Hospital and  Dartmouth Hitchcock Health were all named as defendants in the civil lawsuit filed in October 2017.  They are known collectively as “Dartmouth Health,” court papers said.

After an adverse pre-trial ruling against Porter, the case was eventually appealed on Nov. 4, 2020 to the U.S. Court of Appeals for the Second Circuit in New York City where it remained for over three years.

A three-judge appeals panel heard arguments and eventually reversed the summary judgement approved by then-Chief Judge Geoffrey W. Crawford.  The appeals court, in a 100-page decision, affirmed Crawford in part and vacated the rest of his pre-trial ruling.  The court remanded the case back to Burlington on Feb. 27, 2024.

Doyle was assigned to take over the case from Crawford on April 2, 2024.

The jury verdict was below the estimated $1.8 million in lost wages that Economist Robert Bancroft of Westford testified Dr. Porter would lose by the time she plans to retire in 2033 at age 70.

Porter also was seeking punitive damages in an effort to ensure Dartmouth Health does not treat other employees the same way.

Doyle had told the jury it could order punitive damages if Dartmouth Health’s wrongful conduct “was outrageously reprehensible” and the defendants acted with malice.

The jury rejected several claims made by Dr. Porter.  She maintained Dartmouth Health had violated the New Hampshire Whistleblowers’ Protection Act and the Americans with Disabilities Act, but the jury rejected those claims.

The jury found that the Windsor County doctor could recover under a Disability Discrimination claim under Vermont law.   A similar claim under New Hampshire law also was rejected.

Former U.S. Attorney for Vermont Tristam Coffin, part of the defense team, was asked for a comment as he left the courthouse, but said, “Not from me.”

Dartmouth Health had maintained Dr. Porter and two other doctors in the Reproductive Endocrinology and Infertility (REI) division were dismissed for financial reasons.  

The defendants also said they closed the division due to the inability to find qualified nurses.

The multiple and inconsistent reasons Dartmouth Health told the doctors, the medical staff, the public and the press played into Dr. Porter’s case. 

Doyle spent one hour on Tuesday afternoon outlining 33 pages of legal principles and laws that the jury should follow.

Dartmouth Health tried a couple of times during the trial to have the case dismissed, but Doyle rejected the efforts.

Dartmouth Health also took various steps along the way to try to block or limit the testimony of key witnesses, including Bancroft and Dr. Joanne Conroy, Dartmouth Health’s chief executive officer.

Vitt and his co-counsel, Sarah Nunan of Norwich and Eric Jones of Burlington presented 13 witnesses on their direct case.

The defense called eight witnesses that included Dr. Merrens and Dr. Maria Padin, a chief medical officer for the southern region, who were both also called initially by Porter for her case.  Daniel Herrick, who worked at DH in finances, also testified.

Porter had one rebuttal witness. 

More than 100 exhibits were introduced during the trial and the jury has about 90 that were admitted as evidence to review in the jury room.

Porter has been a doctor for 30 years, including from 1996 to 2017 at Dartmouth Health.  She also served as a professor at the Dartmouth Medical School.

When she was terminated, Porter was on long-term disability, but had returned to part-time work, the lawsuit said.

The closing ended a Dartmouth Health program that produced the first in vitro fertilization case in Northern New England in 1985, Vitt told the jury.

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