Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 1 of 75

FILED IN CLERPS OFFICE

UNITED STATES DISTRICT COURT

PAY,,0 A 2009

FOR THE NORTHERN DISTRICT OF GEORGIA

M'*~~~ , O Ie tlt

JAMES J. MURTAGH, M.D.,

Movant,
V.

Case No.:
EMORY UNIVERSITY, EMORY
HEALTHCARE, INC ., FULTONDEKALB HOSPITAL
AUTHORITY, GRADY
HEALTHCARE, INC ., GRADY
HEALTH SERVICES
COMPANY, INC. JOHN DOES 11,

. 0 19 - C V -118

Respondents.

MEMORANDUM IN SUPPORT OF MOTION TO VACATE

ARBITRATION AWARD

Pursuant to the Federal Arbitration Act, 9 U .S.C. 10, James J . Murtagh,

M.D. (Dr. Murtagh) hereby, by the undersigned counsel, respectfully submits his
Memorandum in Support of Motion to Vacate Arbitration Award . Dr . Murtagh

asserts the following grounds and bases for jurisdiction and venue .
I.

JURISDICTION
Diversity jurisdiction is present here under 28 U .S .C. 1 332 . Dr . Murtagh,
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Movant, is a resident of Arkansas. Dr. Murtagh, formerly a resident of Georgia,

recently moved to Arkansas, prior to the filing of this Motion to Vacate the
Arbitration Award, in order to obtain a job as a physician . Dr . Murtagh has had to

move to where he can find work after his dispute with Emory left him unemployed
and made the physician position application process more difficult . His new job in
Arkansas was temporary although it was extended . Ultimately the position was not

made permanent . Dr. Murtagh has since assumed another temporary job in
Georgia where he is temporarily located . However, Dr. Murtagh intends to pursue
professional positions and residence in states other than Georgia .
If diversity jurisdiction exists, this alone is sufficient to confer federal
jurisdiction for review of Dr . Murtagh's Motion to Vacate the Arbitration Award .

See, e.g., Discover Bank v. Vaden, 489 F .3d 594, 598 note 2 (4~" Cir. 2007) ;
Peebles v. Merrill Lynch, 431 F .3d 1320 (11 'h Cir. 2005) .

There are bases for federal court subject matter jurisdiction over the action
removed beyond diversity, including federal question jurisdiction pursuant to 28
U.S.C. 1331 . These bases are stated in the accompanying Motion and are

incorporated herein .
IL CLAIMS AND GROUNDS FOR VACATING AWARD
Although the FAA has been held to not be an independent source of subject
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matter jurisdiction, it does provide a federal cause of action . Baltin v. Alaron

Trading Corp ., 128 F .3d 1466, 1472 (11fl'Cir. 1997) (citing Franchise Tax Bd . of
the State of Cal. v. Constr. Laborers Vacation Trustfor S . Cal., 463 U .S . 1, 27-28,

(1983)) .
Actions to confirm or vacate FAA arbitration awards are new litigations
even though the new action is termed a "motion ."
CLAIM 1 : THE ARBITRATOR'S AWARD SHOULD BE VACATED DUE
TO EVIDENT PARTIALITY ON THE PART OF THE ARBITRAT OR
Section 10 of the Federal Arbitration Act ("FAA")provides, in part :

(a) In any of the following cases the United States court in and for the
district wherein the award was made may make an order vacating the
award upon the application of any party to the arbitration (2) where there was evident partiality or corruption in the arbitrators,
or either of them .
9 U.S .C. 10 .
Confirmation of an arbitration award should be denied where it is shown that

there was evident partiality on the part of the arbitrator .

Evident partiality on the part of the arbitrator is established when the party
challenging the award demonstrates "facts which would establish a reasonable
impression of partiality ."
Middlesex Mutual Insurance Co . v. Levine, 675 F .2d 1197, 1201 (11thCir .
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1982)(quoting Commonwealth Coatings Corp . v. Continental Casualty Co ., 393

U.S. 145,150 (1968).

In Commonweath Coatings and Middlesex Mutual Insurance Co., arbitration

awards were vacated for evident partiality of the arbitrator under 9 U .S .C.
10(a)(2) because the arbitrator had failed to disclose prior dealings with the
opposing party .
In writing the plurality opinion for the Court in Commonwealth Coatings,
Justice Black explained that courts "should, if anything, be even more scrupulous

to safeguard the impartiality of arbitrators than judges, since the former have
completely free rein to decide the law as well as the facts and are not subject to
appellate review ." Commonwealth Coatings, 393 U.S. at 149 .
The Eleventh Circuit Court of Appeals relied on the above-quoted language
in expressing its view that 9 U .S .C . 10(a)(2) is meant to be "stringent ly applied ."

University Commons Urbana, Ltd ., Capstone Dev . v. Universal Constructors, Inc.,

304 F .2d 1331, 1338 . Arbitrators are required to disclose any dealing which "might
create an impression of possible bias ." Id.
As part of the Settlement and Confidentiality Agreement and Mutual
Release of August 10, 2001, ("Settlement Agreement") Murtagh agreed to dismiss

several pending cases which he had filed against the Veterans Administration
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Medical Center and United States employees who worked for the Veterans
Administration Medical Center. The arbitrator, Richard H. Deane, Jr ., served as

United States Attorney for the Northern District of Georgia from 1998 to 2001 . See
attached exhibit, Deane Resume . In his capacity as U.S. Attorney, Deane
represented the United States Veterans Administration and employees as parties in
litigation with interests adverse to Murtagh .
Murtagh originally filed his complaint in Fulton County Superior Court to
enforce the Settlement Agreement . See attached exhibit, Murtagh's Complaint .
However, after the case was ordered into arbitration and Deans was selected as
arbitrator, Murtagh discovered grounds to rescind the Settlement Agreement .
Rescission of the Settlement Agreement would have given Murtagh grounds to
seek reinstatement of the dismissed lawsuits thus placing Deane's former clients in
jeopardy .
The duty to recuse is absolute where the judge was previously the U .S.

District Attorney on the same or a related case which was within his jurisdiction
while he served as U .S . Attorney. Jenkins v. Bordenkircher, 611 F.2d 162 (6t'' Cir.
1979) cert. denied, 446 U .S. 943 ; United States v . Arnpriester, 37 F.3d 466 (9th

Cir . 1994) . As U.S. Attorney, Deane had supervisory responsibility for

representation of the government entities and employees involved in the settled
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cases. 28 U.S .C . 547 . Under 28 U .S.C . 455(b)(3), Deane would have been
required to recuse himself as judge over the case . The statute provides :
(a) Any justice, judge, or magistrate [magistrate judge] of the United
States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned .(b) He shall also disqualify himself in the following
circumstances :

(3) Where he has served in governmental employment and in such capacity

participated as counsel, adviser or material witness concerning the proceeding or
expressed an opinion concerning the merits of the particular case in controversy
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28 U. S.C . 455(a), (b)(3) .

The Georgia Code of Judicial Conduct Canon 3 contains a similar provision
which requires recusal where :
(b) the judge served as a lawyer in the matter in controversy, or a
lawyer with whom the judge previously practiced law served during
such association as a lawyer concerning the matter, or the judge has
been a material witness concerning it[ .]
Ga. Code of Judicial Conduct Canon 3, Section 3(E)(1)(b) .
It follows that, if arbitrators are to be held to a higher standard than judges as

indicated by Justice Black in Commonwealth Coatings, then Deane should have

recused himself.
At least one federal circuit has ruled that recusal of a former U .S . Attorney is
not required by 28 U .S.C. 455(b)(3) unless the judge participated in the case in
some way beyond holding the office of U .S. Attorney . United States v. Gipson,

835 F.2d 1323, 1326 ( 10th Cir . 1988). Research has not disclosed an opinion
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indicating whether the Eleventh Circuit will follow the Ninth Circuit or the Tenth

Circuit rule. The Ninth Circuit rule is grounded in the language of 28 U .S .C . 547
which makes representation of United States government agencies the sole
responsibility of the United States Attorney . Regardless of which rule is adopted,
Murtagh learned during the course of the arbitration that Deane played a more
active role in the settled cases than he disclosed prior to accepting his appointment .
In particular, Deane did not disclose that he had investigated the allegations
Murtagh had brought against Samue l M. Aguayo, M.D. in the amended complaint
filed in the case of James J. Murtagh, Jr ., M.D . v. Emory University, et al ., United
States District Court for the Northern District of Georgia, Atlanta Division, Civil
Action No . 1 :99-cv-2864-JEC, (the "Kokko" case) . However, in September, 2007,

in the process of reviewing thousands of pages of documents produced in

discovery, Murtagh found Deane's certification filed in the Kokko case pursuant to

28 U.S.C. 2679. See exhibit, Plaintiff Dr. James Murtagh's Motion for Recusal
of Arbitrator and Disclosure of .Information Related to Potential Conflicts filed in

arbitration on January 18, 2008. Deane personally signed the certificate . See
exhibit, Deane Certificate dated April 6, 2000 . Under 28 C.F .R. 15 .3, the

authority to make the certificate was vested in Deane, not his office nor in any of
the Assistant U.S . Attorneys under his supervision . The certification states that
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Deane reviewed the allegations against Dr . Aguayo and determined that the alleged
misconduct had occurred within the scope of Dr . Aguayo's employment with the

United States government . Deane could not have made the certification without
acquiring personal knowledge of the allegations and the nature and scope of Dr .

Aguayo's employment. Deane's personal direct involvement in the Kokko case is

thus established .
Under 28 U.S .C . 455(b)(3) Deane would have had to recuse himself if he

were acting as a judge in a federal case. The right to insist on recusal on the basis
of a conflict under 28 U .S .C . 455(b)(3) is made absolute and not subject to
waiver by 28 U.S.C. 455(e).'
DEANE FAILED TO FOLLOW THE PROCEDURE REQUIRED BY
AAA RULES WHEN PRESENTED WITH THE MOTION FOR RECUSAL .

Parties are free to designate in their arbitration agreement the rules and
procedures by which the arbitration will be conducted . Volt Information Sciences,
Inc. v. Bd. of Trustees of Leland Stanford Junior University, 489 U .S. 468, 479
(1989) . The Settlement Agreement provided that the arbitration would be

Despite the prohibition against waiver of 455(b) conflicts under 28 U.S .C . 455(e), the
Eleventh Circuit has ruled that a motion for recusal can be denied if it is not filed within a
reasonable time after grounds for the motion are ascertained . Summers v. Singletary, 119 F .3d
917, 921 (l Vh Cir. 1997) . To the extent that Summers creates the possibility of waiver of a
445(b) conflict, Murtagh questions its reasoning . However, in this case, Murtagh did request
Deane to recuse himself within a reasonable time after he discovered the extent of Deane's

personal involvement in the settled cases .

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conducted in accordance with the rules of the American Arbitration Association

The Settlement Agreement did not specify which set of AAA rules would be
followed . Because the Settlement Agreement settled a dispute regarding Murtagh's

employment with Emory, it has been assumed that the AAA rules regarding
employment matters would govern the arbitration . Rule 16 of the AAA
Employment Arbitration Rules and Mediation Procedures provides :
a. Any arbitrator shall be impartial and independent and shall perform
his or her duties with diligence and in good faith, and shall be subject
to disqualification for :

i. partiality or lack of independence,

ii. inability or refusal to perform his or her duties with diligence and in
good faith, and
iii . any grounds for disqualification provided by applicable law . The
parties may agree in writing, however, that arbitrators directly
appointed by a party pursuant to Section R-13 shall be nonneutral, in
which case such arbitrators need not be impartial or independent and
shall not be subject to disqualification for partiality or lack

of independence .
b. Upon objection of a party to the continued service of an arbitrator,
or on its own initiative, the A AA shall determine whether the
arbitrator should be disqualified under the grounds set out above, and
shall inform the parties of its decision, which decision shall be
conclusive .
Rule 17(b) of the A AA Commercial Arbitration Rules and Mediation

Procedures is identical to the above-quoted Rule 16(b) of the Employment Rules .

When Murtagh discovered the extent of Deane's involvement in the settled
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cases, he requested Deane to recuse himself or refer the issue of whether to recuse

himself to the AAA. Both Deane and Emory refused to refer the matter to the AAA
and Deane proceeded to issue his own ruling in which he decided not to recuse
himself. See attached exhibit, Decision of the Arbitrator dated March 13, 2008 . In
so doing, Deane violated the parties' agreement to follow the AAA procedures .
Furthermore, Deane violated rule II .E. of the Code of Ethics for Arbitrators in
Commercial Disputes ("AAA Code of Ethics") which provides :
E. In the event that an arbitrator is requested by all parties to
withdraw, the arbitrator should do so . In the event that an arbitrator is
requested to withdraw by less than all of the parties because of alleged
partiality or bias, the arbitrator should withdraw unless either of the
following circumstances exists :
(1) If an agreement of the parties, arbitration rules agreed to by the
parties, or applicable law establishes procedures for determining
challenges to arbitrators, then those procedures should be followed ;
or,
(2) if the arbitrator, after carefully considering the matter, determines
that the reason for the challenge is not substantial, and that he or she
can nevertheless act and decide the case impartially and fairly, and
that withdrawal would cause unfair delay or expense to another party
or would be contrary to the ends of justice .
As noted above, in this case, the "arbitration rules agreed to by the parties",
i.e. Rule 16 or the AAA Employment Rules or, possibly Rule 17 of the A AA

Commercial Rules, established procedures for determining challenges to arbitrators

and those procedures should have been followed. Rule I .E, of the AAA Code of
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Ethics provides:
E . When an arbitrator's authority is derived from an agreement of the
parties, the arbitrator should neither exceed that authority nor do less
than is required to exercise that authority completely . Where the
agreement of the parties sets forth procedures to be followed in
conducting the arbitration or refers to rules to be followed, it is the
obligation of the arbitrator to comply with such procedures or rules .
The arbitrator has no obligation to comply with any such procedures
or rules that are unlawful, unconscionable, or inconsistent with this
Code .

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Under the above rule, Deane was required to follow the procedure for
resolving the recusal issue set forth in Rule 16 of the AAA Employment Rules and
submit the matter to the AAA to be independently resolved .
If there had been no such procedure available and the arbitrator had no
choice but to decide the recusal issue himself (which was not the case), his ruling
on the recusal issue was deficient in that it lacked the specific findings required by
Rule II.E .(2). Rather than finding that the reason for Murtagh's challenge was not

substantial, Deane ruled that Murtagh had waived his objection by consenting to
Deane's appointment as arbitrator . See attached exhibit, Decision of the
Arbitrator dated March 13, 2008, pp. 8-9 .
MURTAGH DID NOT WAIVE HIS RIGHT TO REQUIRE THE
ARBITRATOR TO RECUSE HIMSELF

The essence of Deane's decision not to recuse himself was that Murtagh
waived the issue by failing to conduct his own investigation into Deane's
involvement in the settled cases prior to accepting Deane as the arbitrator . Id. In so

holding, Deane improperly shifted his own obligation to disclose conflicts of

interest under the AAA Employment Rules, the AAA Commercial Rules, the AAA

Ethical Rules and the caselaw under the FAA .

Rule 15 of the AAA Employment Rules provides :
15 . Disclosure
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a. Any person appointed or to be appointed as an arbitrator shall

disclose to the AAA any circumstance likely to give rise to justifiable
doubt as to the arbitrator's impartiality or independence, including any
bias or any financial or personal interest in the result of the arbitration
or any past or present relationship with the parties or their
representatives . Such obligation shall remain in effect throughout

the arbitration.
b. Upon receipt of such information from the arbitrator or another
source, the AAA shall communicate the information to the parties
and, if it deems it appropriate to do so, to the arbitrator and others .
c. In order to encourage disclosure by arbitrators, disclosure of
information pursuant to this Section R-15 is not to be construed as an
indication that the arbitrator considers that the disclosed circumstance
is likely to affect impartiality or independence .
Rule 16 of the AAA Commercial Rules is virtually identical to Rule 15 of
the Employment Rules .

Rules II.A-C. of the AAA Ethical Rules provide:

A. Persons who are requested to serve as arbitrators should, before
accepting, disclose
(1) any direct or indirect financial or personal interest in the outcome
of the arbitration which is known or becomes known ;
(2) any existing or past financial, business, professional, family or
social relationships which are known or become known and are likely
to affect impartiality or which might reasonably create an appearance
of partiality of bias . Prospective arbitrators should disclose any such
relationships which they personally have with any party or its lawyer,
with any party-appointed arbitrator, or with any individual whom they
have been told will be a witness . They should also disclose any such
relationships involving their immediate family or household members
or their current employers, partners or professional or business
associates ;
(3) the nature and extent of any prior knowledge he or she may have
of the dispute ; and

(4) any other matters, relationships or interests which they are

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obligated to disclose by the agreement of the parties, the rules or

practices of the institution which is administering the arbitration, or
applicable law regulating arbitrator disclosure .
B. Persons who are requested to accept appointment as arbitrators
should make a reasonable effort to inform themselves of any interests
or relationships described in the preceding subparagraph A .
C. The obligation to disclose interests or relationships described in the
preceding subparagraphs A and B is a continuing duty which requires
a person who accepts appointment as an arbitrator to disclose
forthwith, at any stage of the arbitration, any such interests or
relationships which may arise, or which are recalled or discovered .

Rule I.B. of the above-quoted AAA Ethical Rules clearly places the burden
on the potential arbitrator to make a reasonable effort to inform himself of
conflicts.
Cases decided under the Federal Arbitration Act also place the burden of
investigating conflicts on the potential arbitrator . HSMV Corp. v.ADI, Ltd. 72
F.Supp .2d 1122 (C.D .Cal . 1999) ; Applied Indust. Materials Corp. v. Ovalar
Makine Ticaret Ve Sanayi, A .S., 492 F.3d 132(2nd Cir. 2007)(where arbitrator has

reason to believe conflict may exist, he has duty to investigate) .

Deane did not have the option of turning a blind eye to the potential conflicts
arising from his role as U .S. Attorney in the settled cases . His actual lack of
knowledge of the nature and extent of his involvement cannot be used to avoid a

conclusion of evident partiality.

On the other hand, when Murtagh became aware of Deane's involvement in
the prior litigation, he promptly sought recusal . There was no waiver of the right to
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recusal on Murtagh's part .

CLAIM 2 : THE ATTORNEY FEES AWARD WAS OBTAINED BY FRAUD
AND/OR UNDUE MEANS
Knowingly false and misleading exhibits and witness testimony were
presented to the Arbitrator in support of Emory's request for an award of fees as
part of the arbitration award with the intent that the Arbitrator rely on them . The

Arbitrator did rely on them in granting Emory the ultimate fee awards .
The false information in the exhibits and testimony was material to the
Arbitrator's decision (logically and/or legally mattered to that decision) . Movant
Murtagh was prejudiced (legally harmed in some way) by this particular

Arbitrator's decision .
Dr. Murtagh has conducted a detailed review of Emory's fee petiions and

supporting materials . There are numerous indications that the fee petition
submissions are not accurate and reliable or even trustworthy . In a number of
instances Emory deleted tasks in the non-original invoices submitted to the

Arbitrator as compared to the originals but did not reduce the hours at all or
substantially. In a number entries Emory included a task relating to defending
against Murtagh's claims which are not eligible for an award under applicable law .
In addition, invoices were found with different invoice numbers but almost
completely the same entries and other invoices were found with identical invoice
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numbers, but substantially different entries . This evidence reflects an apparent

attempt to deceive the Arbitrator . Dr. Murtagh requests an evidentiary hearing to
prove this apparent fraud regarding attorney fees awarded .

Knowingly false and misleading exhibits and witness testimony were

presented to the Arbitrator in support of Emory's request for an award of fees as
part of the arbitration award with the intent that the Arbitrator rely on them . The

Arbitrator did rely on them in granting Emory the ultimate fee awards . The false
information in the exhibits and testimony was material to the Arbitrator's decision

(logically and/oar legally mattered to that decision) . Movant Murtagh was

prejudiced (legally harmed in some way) by this particular Arbitrator's decision .

After the Arbitrator declared that Emory was entitled to an award of fees
based on Murtagh's discovery misconduct, the Arbitrator directed Emory to submit
an attorney fees petition to document the fees to which it was entitled . Emory
submitted a fee petition which included an affidavit by Emory's lead
outside counsel with attached (purported) invoices submitted by Emory's outside

lawfirm to Emory at the time the attorney fees were incurred . However, a close
inspection of the submitted affidavit and the purported invoices, and a comparison
of the submitted invoices with another set of invoices purported to be the original
invoices that Emory provided to Murtagh at the hearing before the Arbitrator on
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Murtagh's request, supports the conclusion that material false representations were
made in the affidavit and that the submitted invoices had been materially altered
to falsely support Emory's argument that it was entitled to substantially more fees
than it was avctually entitled to under the Arbitrator's order . The false
representations, explicit and implicit, in the affidavit and invoices submitted by
Emory include :

1) That only lead attorney Wozniak edited the invoices ;

2) That the only edits to the invoices were redactions to protect attorney client
privilege ;
3) That fees incurred for attorney time spent defending Emory against Murtagh's

claims were excluded (because the statute under which Emory sought fees, OCGA
13-6-11, does not allow for recovery of fees spent in defending against the

opposing party's claims, but only allows a fee award for fees incurred in
prosecuting a party's own claims) ;
4) That the invoices produced at the hearing were true originals ;

5) That all work included in the invoices was for the arbitration and not for other
matters or cases including emory's counterclaims for injunctive relief pending
before the Superior Court ;
6) That the total time and total fees charged for a block billed task were properly
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reduced when edits were made to exclude non-allowable work such as work on
other cases or work defending against Murtagh's claims ; and
7) That all work charged in the invoices was reasonable and necessary for
prosecuting Emory's claims against Murtagh and dealing with the discovery issues

in the arbitration .
As a result of Emory's use of the altered invoices and the misrepresentations
made in Emory's counsel's affidavit submitted with Emory's fee petition, the
Arbitrator was misled into concluding erroneously that :
a) Emory's fee petition, Emory's counsel's affidavit, and Emory's invoices

were accurate, honest and reliable ;

b) Emory was entitled to all the fees requested (beyond the fees excluded by
the Arbitrator based on Emory's use of block billing and some failures by Emory to
reduce the time charged for items after an a non-allowed task was removed from a
block billing).
Had Emory not made these material misrepresentations relied on by the
Arbitrator, either Emory's fee petition would have been denied in its entirety based

on the applicable case law which places the burden on the fee applicant to separate
out non-allowable tasks from those for which fees may be awarded, or Emory's fee
award would have been substantially reduced beyond the reductions the Arbitrator
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made.

CLAIM 3 : THE ARBITRATOR ENGAGED IN PREJUDICIAL

PRO CEDURAL MISCONDUCT IN APPLYING A DO UBLE STANDARD
REGARDI NG COM PELLING DISCOVE RY AND SANCTIONING
PARTI ES WH O FAILED TO COMPLY WITH DISC OVE RY ORDERS
Emory failed to produce documents requested by Murtagh in discovery . The

Arbitrator granted Murtagh's Motion to Compel and noticed Emory that the
Arbitrator would consider granting Murtagh's request for attorney fees if Emory
failed to comply with the deadline set in the Arbitrator's Order . Emory failed to
comply with this Order .
Murtagh filed a motion for sanctions and fees . The Arbitrator denied
Murtagh's request for fees and sanctions . Following this sequence of events,

Emory accused Murtagh of a similar failure to produce discovery documents in

violation of an Order of the Arbitrator.
The Arbitrator issued severe sanctions against Murtagh, including dismissal

of Murtagh's claims, striking of Murtagh's defenses to Emory's counterclaims and

granting Emory a default judgment, and awarding attorney fees to Emory .

Because Emory's discovery misconduct occurred first, had the Arbitrator not
applied a double standard regarding compelling discovery and sanctions, the
outcome of the arbitration would have been substantially different, i .e . either
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Murtagh would have prevailed based on sanctions issued against Emory or both
sides would have had similar sanctions imposed making the outcome essentially a
wash.
CLAIM 4 : DR. MURTAGH WAS FRAUDULENTLY INDUCED TO
ENTER THE ARBITRATION AGREEMENT

Dr . Murtagh entered into the settlement in reasonable reliance on Emory's

representations regarding Emory having conducted a peer review and fitness
review relating to Dr. Murtagh, regarding which doctors had participated in such
reviews, and regarding what findings were made by whom as part of such reviews
which reflected unfavorably on Murtagh ; and by misleading him into believing that

this controversy would be kept confidential during an arbitration proceeding, even

though Emory has since demonstrated that it had no intention of keeping its
allegations against Murtagh confidential .
Such representations were material to Dr . Murtagh's decision to enter into

the settlement because such reviews and findings, even if incorrect, had significant
potential for harming Dr. Murtagh's chances of advancing his medical career
and posed a threat of precluding a meaningful medical career .
The settlement included an arbitration clause which Dr. Murtagh also agreed
to in reasonable reliance on Emory's material representations regarding the peer

review and fitness review allegedly conducted regarding dr. Murtagh . Dr.
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Murtagh discovered post settlement that some or all of these Emory material
representations were substantially false .
Had Dr. Murtagh known the truth, including that Emory did not conduct the

peer review as it had represented at the time of settlement, and that the doctors
named as having made or concurred in certain findings adverse to Dr. Murtagh
based on such reviews actually had not made or concurred in such findings, Dr .
Murtagh would have not decided to enter either the settlement or the arbitration
clause.
Because Dr. Murtagh was fraudulently induced to enter into the settlement
and arbitration clause, neither is valid . As a result, Emory's counterclaims based
on the settlement are invalid and no basis for a default judgment against Dr .
Murtagh, and more significantly the entire arbitration process itself and the award

that resulted from Emory's motion to compel arbitration is void or voidable as a

result of this fraud in the inducement .
CLAIM 5: EMORY WAIVED ITS RIGHT TO ARBITRATE BY SEEKING
JUDICIAL RELIEF OF MATTERS SUBJECT TO ARBITRATION UNDER
THE PARTIES SETTLEMENT AND ARBITRATION AGREEMENT
Emory sought relief and obtained from relief from the Superior Court on
claims that Dr . Murtagh violated the settlement non-disparagement clause,
paragraph 1 8 of the Settlement.
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Issues of violation of the non-disparagement clause were required to be

arbitrated under the parties settlement and arbitration agreement .
Emory's actions in seeking to litigate and obtain relief from a court
regarding a matter within the arbitration agreement constitutes a waiver of its right
to arbitration, and any arbitration award is void or voidable as a result .
The Arbitrator's refusal to declare that Emory had waived its right to
arbitrate and the Arbitrator's issuance of an award notwithstanding this waiver
represents prejducial procedural misconduct that is a basis for vacating the award
under the FAA section 10 .

CLAIM 6: EMORY LOST ITS RIGHT TO ENFORCE THE

ARBITRATION AGREEMENT BY BREACHING THAT AGREEMENT

Emory breached the arbitration clause by refusing to refer the Arbitrator's

recusal issue to the AAA, as provided for in the AAA rules . The arbitration clause
reflects the agreement of the parties that the AAA rules would govern and would
be followed during the course of the arbitration .

The AAA rules provide that when a party requests the recusal or
disqualification of an arbitrator, that the AAA, not the arbitrator himself, should
decide whether the arbitrator is to be disqualified . Murtagh filed a recusal motion
and Arbitrator Deane and Emory refused to refer the motion/decision to the AAA .
22

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 23 of 75

The arbitrator then decided the motion and refused to disqualify himself
Emory breached the arbitration clause by seeking and obtaining injunctive relief
from the Superior Court regarding alleged violations by Murtagh of paragraph 18,
the non-disparagement provision, of the settlement, notwithstanding that the

settlement and arbitration clause only allowed Emory to take injunctive relief
claims to a court if the claim related to an alleged violation by Murtagh of
paragraphs 7 or 8 of the settlement .
The FAA provides :

2 . Validity, irrevocability, and enforcement of agreements to arbitrate

A written provision in any maritime transaction or a contract
evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction, or
the refusal to perform the whole or any part thereof, or an agreement
in writing to submit to arbitration an existing controversy arising out
of such a contract, transaction, or refusal, shall be valid, irrevocable,
and enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.

This FAA provision provides that in addition to the grounds for vacating an award
pursuant to a valid arbitration agreement, see FAA sec . 10, 9 USC sec . 10, an
arbitration award may also be defeated if one can show under the law applicable to

contracts generally that the arbitration contract is invalid under the law of
contracts . Here, the arbitration contract is invalid under Georgia contract law for
the reasons stated supra and infra.
23

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 24 of 75

CLAIM 7: EMORY WAIVED ITS RIGHT TO ARBITRATE BY SEEKING

JUDICIAL RELIEF OF MATTERS SUBJECT TO ARBITRATION UNDER
THE PARTIES SETTLEMENT AND ARBITRATION AGREEMENT

The arbitration contract was void ab initio because Grady never

properly ratified it.
Grady's agreement was material to Murtagh's agreement to enter into
arbitration.
CONCLUSION AND RELIEF REQUESTED
For all the foregoing reasons, both the Arbitrator's Decision and judgment

dated February 4, 2009 should be vacated pursuant to 9 U.S .C. 10 .

Respectfully submitted,

s/ J . Clayton Culotta
J. CLAYTON CULOTTA
Culotta & Culotta LLP
Jefferson Hall
432 E. Court Avenue

Jeffersonville, Indiana 47130

Telephone No. (812) 288-5141
Facsimile No . (812) 288-8305
1 61 5 L Street, NW
Suite 1350

Washington, D .C. 20036

s/ Mick G . Harrison
The Caldwell Center
323 S. Walnut Street
24

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 25 of 75

Bloomington, IN 47401

Telephone and Fax No . (812) 323-7274

Cell phone No . (812) 361-6220
E-mail: mickharrisonesc~k earthlink.net
Glenn L. Goodhart, Esq ., GA Bar # 300540
6065 ROSWELL RD NE STE 410
SANDY SPRINGS, GA 30328
TEL. 404-255-3282
FAX 404-255-3524
Attorneys for Plaintiff,
James J. Murtagh, M .D.

25

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 26 of 75

CERTIFICATE OF COMPLIANCE WITH L .R. 5 .1B

I HEREBY CERTIFY that the foregoing motion was prepared in Times

New Roman, 14-point font, as approved by Local Rule S .1B .
s/ Mick G. Harrison
Mick Harrison, Esq .
Pro Hac Vice

26

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 27 of 75

CERTIFICATE OF SE RVICE
This is to certify that I have served a copy of the foregoing
MEMORANDUM IN SUPPORT OF MOTION TO VACATE THE
ARBITRATOR'S FINAL JUDGMENT AND AWARD upon the following parties
by DELIVERY :
Todd D . Wozniak Theodore B . Eichelberger
Lindsey Camp Edelmann Alton & Bird LLP
GREENBERG TRAURIG LLP One Atlantic Center
3920 Northside Parkway, Suite 400 1201 West Peachtree Street
Atlanta, GA 30327 Atlanta, GA 30309-3424
wozniakt@gtlaw .com teichelberger@alstan .co

/s/ Glenn L . Goodhart

Glenn L . Goodhart, Esq.

27

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 28 of 75

Ri chard H . Deane ] r. ( Rick)

Pa rtne r
At la n ta
T el : +1 .404 .581 .8 502
Fax : + 1 . 40 4 . 581 . 8330
E mai l : rhdeane@jonesday .com
Rick represents clients who are facing all types of
criminal or civil investigations by the U .S .
Department of Justice and other investigative
agencies . He has extensive experience in dealing
with federal grand jury investigations . In addition
to his criminal trial work, Rick handles general

litigation matters .
Rick has broad experience trying cases in state and federal courts and
has gained extensive experience appearing before the Fifth and Eleventh
Circuit Courts of Appeal . He recently served as lead counsel in defending
criminal charges against a major design-build company . All charges
against the company were dismissed and the company paid a civil
assessment. He also recently served as lead counsel in a month-long
personal injury case tried in state court to a complete defense verdict .
Representative clients include The Sherwin-Williams Co . ; The Atlanta
School Board ; The Fulton County District Attorney's Office ; Wal-Mart ;
The Facilities Group ; Stewart Parnell, president, Peanut Company of
America ; and numerous others .
Rick i s c o -chair o f the Firm ' s Corporate Cr i minal Inve stigations Practi c e
an d is a member o f th e A merican College of Trial L awyers .
Honors and Dist i nctions
Named by Time Maga z ine in 2001 to th e "Time 100 Li st of In n o v ators"
featured in the Georg i a edition o f Supe r Lawy er s magazine ; named in
Chambers USA " Am e r ic a ' s Leading Lawy e rs for Bu si n es s" ; lis te d in Th e
Best La wy e rs i n Ameri ca and in G eo rgia Tren d ma g azine's " Le g a l Elit e"
Adm i tted
Georgia
Education
University of M i chigan (LL.M . 1979) ; The U ni versity of G eorgia (] . D .
1 977 ; Earl Warren Sc ho lar ; B .A . c u m lau d e 1 9 74)
Government/Military Serv ice
U . S . Attorney, Northe rn District of Georg i a (1998 - 2001) ; Magi s trate
Judge, U .S . D is trict Court , N orth er n District o f Georgia (1994-1998) ; and
Chi e f of the Criminal Di v i sion ( 1 990 -1 994) , C h ie f of the G ene ra l Cri m es
S e ction (1986-1990), an d Ass i s tant U . S . Attorney (1980 - 19 8 6) , Northern
D istrict of Georg i a, Un ited States D epa rtm en t of Just ice

EXHIBIT

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 29 of 75

EXPERIENCE

Atlanta School Board

Conduct an investigation involving Board conduct
Retained by the B oard to conduct an investigation involving the conduct
of a Board member . Investigation led to the filing of an ethics complaint .
Attorney
Mortgage Fraud
Represents lawyer in investigation involving allegations of mortgage
fraud .
CEO Fortune 500 Company
Alleged accounting fraud
Represented the CEO of a major healthcare provider in connection with a
Justice Department investigation of alleged accounting fraud .
Fortune 500 Company
CQmmergial dispute
Represented Fortune 500 company in major commercial dispute with one
of its customers regarding the terms of their contractual obligations .
Fulton Distri ct Attorney ' s Office
Conduct an investigation of allegations
Appointed as a Special Assistant District Attorney in order to conduct an
investigation of allegations that the Atlanta Police Department
underreported rape allegations in order to misrepresent their crime
statistics .
Matsushita Mediation
Mu! i le Plaintiffs v. M s hi ommunicafi
tign Industrial Corporation
.S .A . et al . Civil A tion N o . 3 :00-CV-111-]TC
Served as a mediator in a protracted employment discrimination case
involving multiple plaintiffs .
Packaging Manufacturer
Internal Investigation (Sarbanes-Oxley )
Conducted an internal investigation into a whistleblower complaint
alleging Sarbanes-Oxley vio l ations .
Physician
Medi,pare Fray
Represents a physician In federal investigation involving allegations of
Medicare fraud .
Sherwin-Williams Company , The
Product liability
Represent paint manufacturer in defending various product liability
cases .
Transportation company
Counsel o S cial Li i i n ommitt
Represented a Special Litigation Committee of a board of directors in
connection with a shareholder demand that civil action be brought
against the board, various officers, and the company's outside auditors .
United Auto G roup , In c.

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 30 of 75

Class action allegations
R epresen ted a u tom o bile dealersh i p ag a ins t class ac tion allegations
involving automobile fi nancing .

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 31 of 75

PAST SPEAKING ENGAGEMENTS

Corporate Compliance and Ethics March 26-27, 2009 Atlanta,
Institute
2009
Georgia
The Role of the Board, panelist, March 30, 2007 Atlanta,
Corporate Compliance and Ethics Georgia
Institute, Practicing Law Institute
Corporate Compliance and Ethics March 29-30, 2007 Atlanta,
Institute
2007
Georgia
Corporate Compliance Institute April 2006
2006, panelist, Practice Law
Institute
Challenges to Ethics and September 22,
Professionalism in White Collar 2005
Criminal Cases, White Collar
Crime seminar
- - - - -------Corporate Cooperation & the May 25, 2005 Atlanta,
Changing Relationship Between Georgia
Companies & Their Employees,
panelist, ABA Criminal Justice
Section
Prosecutional Ethics, State-wide February 25, 2005 Atlanta,
U .S . Attorney's Conference, Georgia
meeting of all districts in the state
Current Issues in RICO September 2004 Atlanta,
Prosecutions, panelist, Federal Georgia
Criminal Practice
Professionalism, University of August 13, 2004 Athens,
Georgia Law School Orientation Georgia
Recent Supreme Court Decisions, August 2004 Atlanta,
panelist, American Bar Georgia
Association Annual Convention
Recent Trends in Federal White December 4, 2003 Atlanta,
Collar Prosecution, panelist, White Georgia
Collar Crime Seminar
How To Examine Your Witnesses November 20, Atlanta,
And Get The Most From Them, 2003 Georgia
Gate City Bar Association's Trial
Technique Seminar
Why Conduct an Internal September 5, 2003 Atlanta,
Investigation, panelist, Corporate Georgia
Criminal Investigations Seminar
Prosecutorial Ethics, National August 11, 2003 Atlanta,
Black Prosecutor's Convention Georgia
Health Care Prosecutions, April 10 & 11, 2003 Pine
panelist, Health Care Seminar Mountain,
Georgia
5th Annual Health Care Fraud March 28-29, 2002 Pine
Institute
Mountain,

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 32 of 75

Georgia

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 33 of 75

IN ARBITRATION

JAMES J .IVIURTAGH, JR., M.D.,

Claimant,
V.

FULTON-DEKALB HOSPITAL
AUTHORITY, EMORY
UNIVERSITY, EMORY
HEALTHCARE, INC ., GRADY
HEALTHCARE, INC ., GRADY
HEALTH SERVICES
COMPANY, INC ., JOHN DOES 1-10

SUBMITTED IN
C ONFIDENTIAL
ARBITRATION

Respondents .

FINAL JUDGM ENT AND AW ARD OF THE ARBITRA TOR

1.

The Arbitrator finds on behalf of Emory University and Emory

Healthcare, Inc. (jointly "Emory") and Fulton-Dekalb Hospital Authority, Grady

Healthcare, Inc. and Grady Health Services Company, Inc . (jointly "Grady") on all
claims in this Arbitration and against Dr . Murtagh on all claims in this Arbitration .
The Arbitrator further awards the following monetary sanctions and damages as
follows :
a. As a sanction for discovery abuses in this Arbitration and for
payment of the expenses associated with those discovery abuses in this
Arbitration, the Arbitrator awards to Emory and against Dr . Murtagh
$349,201 .06 in fees and expenses .

EXHIBIT
ATI-23 56 63 3 v 1

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 34 of 75

b . As a sanction for discovery abuses and for payment of the

expenses associated with those discovery abuses in this Arbitration, the
Arbitrator awards to Grady and against Dr . Murtagh $22,395 .50 in fees and

expenses .
c . As compensatory damages for its claims in Arbitration, the
Arbitrator awards to Emory and against Dr . Murtagh $5,000 in nominal
damages.
d . As damages pursuant to O .C .G.A. 13-6-11, the Arbitrator
awards to Emory and against Dr . Murtagh $bbl,701 .06 in fees and expenses .
These fees and expenses encompass, and are not in addition to, the sanctions
award stated in paragraph "a" herein .
e . The Arbitrator does not award punitive damages against Dr .
Murtagh with respect to the claims pending in Arbitration .
2. Emory and Dr. Murtagh have agreed that Dr . Murtagh may pay his
arbitration fees and expenses from the funds in an escrow account into which
Emory has made payments due to Dr . Murtagh under the Settlement Agreement
pending this arbitration and over which Emory has had control . Within ten days of
this Final Judgment and Award of the Arbitrator, Dr . Murtagh directs Emory to
withdraw $53,510 .28 from the escrow account and submit that amount to Jones
Day to pay for Dr . Murtagh's arbitration fees and expenses outstanding for 2008 .

-2ATI-2356633v1

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 35 of 75

3 . Emory may setoff the amount owed to it - a total of $666,701 .06 against any remaining amounts in escrow and amounts that Emory owes to Dr .
Murtagh under the settlement agreement at issue in this Arbitration . The Arbitrator
finds that Emory owes $572,613 .51 to Dr . Murtagh under the Settlement
Agreement, adjusted to present value . Furthermore, the value of the escrow
account, reduced by the arbitration fees and expenses in paragraph 2 above, is
$519,103 .23 . Accordingly, there is $519,103 .23 available to be setoff against the

$666,701 .06 that Dr. Murtagh owes Emory . The remaining $147,597 .83 shall be
due and payable by Dr . Murtagh to Emory. Interest shall accrue on the outstanding
balance owed by Dr . Murtagh at the rate set by O .C.G.A. 7-4-12(c) .
Any of the parties may petition Judge Wendy Shoob of the Superior Court of
Fulton County, Georgia to file this Decision of the Arbitrator under seal with the
Superior Court of Fulton County, Georgia .
Dated : February

, 2009 Richard H . Deane, Jr.

JONES DAY
1420 Peachtree St ., N .E., Suite 800
Atlanta, GA 30309-3053
Telephone : (404) 521-3939
Facsimile : (404) 521-8330
Neutral Arbitrator

-3A'1'1-2356633v l

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 36 of 75

IN ARBITRATION
JAMES J.1ViURTAGH , JR., M.D.,
Claimant,
V.

FULTON-DEKALB HOSPITAL
AUTHORITY, EMERY
UNIVERSITY, EMORY
HEALTHCARE, INC ., GRADY
HEALTHCARE, INC ., GRADY
HEALTH SERVICES
COMPANY, INC ., JOHN DOES 1-10

SUBMITTED IN
CONFIDENTIAL
ARBITRATION

Respondents .
FINAL JUDGMENT AND AWARD OF THE ARBITRATOR
1.

The Arbitrator finds on behalf of Emory University and Emory

Healthcare, Inc . (jointly "Emory") and Fulton-Dekalb Hospital Authority, Grady

Healthcare, Inc . and Grady Health Services Company, inc . (jointly "Grady") on all
claims in this Arbitration and against Dr . Murtagh on all claims in this Arbitration .
The Arbitrator further awards the following monetary sanctions and damages as
follows:
a . As a sanction for discovery abuses in this Arbitration and for
payment of the expenses associated with those discovery abuses in this
Arbitration, the Arbitrator awards to Emory and against Dr . Murtagh
$349,201 .06 in fees and expenses .

AT[-2355633vI

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 37 of 75

b . As a sanction for discovery abuses and for payment of the

expenses associated with those discovery abuses in this Arbitration, the
Arbitrator awards to Grady and against Dr . Murtagh $22,395 .50 in fees and

expenses.
c . As compensatory damages for its claims in Arbitration, the
Arbitrator awards to Emory and against Dr . Murtagh $5,000 in nominal

damages.
d . As damages pursuant to O .C.G.A . 13-6-11, the Arbitrator
awards to Emory and against Dr . Murtagh $661,701 .06 in fees and expenses .
These fees and expenses encompass, and are not in addition to, the sanctions
award stated in paragraph "a" herein .
e . The Arbitrator does not award punitive damages against Dr .
Murtagh with respect to the claims pending in Arbitration .
2 . Emory and Dr. Murtagh have agreed that Dr . Murtagh may pay his
arbitration fees and expenses from the funds in an escrow account into which
Emory has made payments due to Dr . Murtagh under the Settlement Agreement
pending this arbitration and over which Emory has had control . Within ten days of
this Final Judgment and Award of the Arbitrator, Dr . Murtagh directs Emory to
withdraw $53,510 .28 from the escrow account and submit that amount to Jones
Day to pay for Dr . Murtagh's arbitration fees and expenses outstanding for 2008 .

-2AT L -2356633 v 1

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 38 of 75

3 . Emory may setoff the amount owed to it - a total of $666,701 .06 against any remaining amounts in escrow and amounts that Emory owes to Dr .
Murtagh under the settlement agreement at issue in this Arbitration . The Arbitrator
finds that Emory owes $572,613 .51 to Dr. Murtagh under the Settlement

Agreement, adjusted to present value . Furthermore, the value of the escrow

account, reduced by the arbitration fees and expenses in paragraph 2 above, is
$519,103 .23 . Accordingly, there is $519,103 .23 available to be setoff against the
$666,701 .06 that Dr. Murtagh owes Emory . The remaining $147,597 .83 shall be
due and payable by Dr . Murtagh to Emory . Interest shall accrue on the outstanding
balance owed by Dr . Murtagh at the rate set by O .C .G.A . 7-4-12(c) .
Any of the parties may petition Judge Wendy Shoob of the Superior Court of
Fulton County, Georgia to file this Decision of the Arbitrator under seal with the
Superior Court of Fulton County, Georgia .
Dated: February

, 2009 Richard H . Deane, Jr.

JONES DAY
1420 Peachtree St ., N.E., Suite 800
Atlanta, GA 30309-3053
Telephone : (404) 521-3939
Facsimile : (404) 521-8330
Neutral Arbitrator

-3ATF -2356633v E

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 39 of 75

IN ARBITRATION
JAMES J . MURTAGH, JR ., M.D.,
C laimant,
V.

FULTON-DEKALB HOSPITAL
---

AUTHORITY, EMORY
UNIVERSITY, EMORY
HEALTHCARE, INC . , GRADY
HEALTHCARE, INC ., GRADY
HEALTH SERVICES
COMPANY, INC ., JOHN DOES 1-10

SUBMITTED IN
CONFIDENTIAL
ARBITRATION

Respondents .
DECISION OF T HE ARBITRATOR
This arbitration arises out of a settlement agreement between the parties
("Settlement Agreement"), and corresponding litigation is pending in the Superior
Court of Fulton County, Georgia . On December 20, 2005, in the Superior Court
case, nudge Tusan found that Dr . Murtagh had knowingly and willfully violated
her injunction against further violation of the Settlement Agreement and found Dr .

Murtagh in contempt . (12/20/2005 Hr'g Tr. at 64 :9-19.) Judge Tusan at that time
warned Dr. Murtagh that "should there be any additional violations in the future,"
he would be "sanctioned by dismissal of [his] pleading and payment of attorney's

fees to the defendants as well as a fine of $15,000 for each violation ." (Id. at
64:2{x-65 :01 .) On October 3, 2007, Judge Shoob found Dr . Murtagh in violation of
Judge Tusan's December 20, 2005 order, because Dr . Murtagh had compiled and

ATi-23512200

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 40 of 75

published disparaging articles about Emory, and Judge Shoob dismissed Dr .

Murtagh's claims in that action, as well as in this arbitration . After briefing by the
parties regarding Dr . Murtagh's discovery abuses in arbitration and a hearing on
Emory's Motion for sanctions in arbitration, the Arbitrator decided on June 28,

2008 that Dr . Murtagh had violated an order compelling production of certain

documents and that given the nature of his violation, which was willful and
material to the claims in the case, his violation warranted dismissal of his
remaining claims (if any remained following Judge Shoob's order), and judgment
by default on the claims against him in arbitration ("Sanctions Order") .
Furthermore, the Arbitrator determined that certain attorney's fees were warranted .
(Sanctions Order pp . 3 and 14 .)
The Sanctions Order directed Emory University and Emory Healthcare, Inc .
0ointly "Emory") and Fulton-Dekalb Hospital Authority, Grady Healthcare, Inc .
and Grady Health Services Company, Inc . (jointly "Grady") to submit an
application for expenses, including attorney's fees expended for the motion to

compel, good-faith efforts to resolve the related discovery disputes and the
sanctions motion . (Sanctions Order at 14 .) Emory and Grady have submitted such
expense and fee applications, and Emory has additionally requested damages on its
counterclaims in the arbitration, including compensatory damages, damages
pursuant to O .C .G.A . 13-{-11, and punitive damages . An additional hearing was

-2ATI-2351220v8

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 41 of 75

held on November 18, 2008 on the monetary sanctions amount and on damages,
and all parties were permitted to examine and cross examine witnesses .
Pending the outcome of this litigation, Emory has deposited scheduled
payments due to Dr . Murtagh under the Settlement Agreement into an escrow

account. Emory further asks that the Arbitrator decide whether any award against
Dr . Murtagh may be setoff against the funds in the escrow account and future
amounts owed by Emory to Dr . Murtagh pursuant to the Settlement Agreement .
Dr . Murtagh opposes Emory's claims for costs and fees associated with the
motion to compel, good-faith efforts to resolve related disputes, and the sanctions
award. He also opposes Emory's claims for damages and request for setoff .
Furthermore, Dr . Murtagh requests that the Arbitrator decide whether Dr . Murtagh
is entitled to any costs and fees associated with the portion of Emory's sanctions
motion upon which Emory did not prevail.
Emory's and Grady's Sanctions Fee Petitions
Where a party fails to comply with an order to produce discovery the party
subject to the order may be required "to pay the reasonable expense, including
attorney fees, caused by the failure . . . ." O .C.G.A. 9-11-37(d)(1) ; see also Ga .
Cash Am ., Inc .-v . _Strv ng, 286 Ga . App . 405, 414-15, 649 S.E.2d 548, 556 (2007).
Emory and Grady have shown that they are entitled to their reasonable expenses

-3ATI-23512204

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 42 of 75

caused by Dr. Murtagh's failure to comply with the Arbitrator's decision

compelling production .
There is no question that Dr . Murtagh failed to comply with the Arbitrator's
December 12, 2005 Decision compelling the production of documents responsive
to Emory's discovery request . The Arbitrator found this to be the case in his
Sanctions Order . (See Sanctions Order p . 9 .) Predictably, Dr . Murtagh's failure to

comply with Emory's discovery requests created additional and unnecessary

litigation expenses for Emory . For instance, Emory was forced to first file a
motion to compel, which was granted, and ultimately Emory had to obtain the
information that Dr. Murtagh should have readily provided by seeking discovery
from third parties . (Sanctions Order at 4-7 .) Dr. Murtagh also was untruthful in
this proceeding, requiring additional investigation and deposition testimony that
would have otherwise been unnecessary . (Id . at 9-1 1 .) Dr . Murtagh's refusal to
cooperate in discovery and comply with the Arbitrator's decision unnecessarily
expanded this proceeding .
Emory and Grady have both presented sufficient evidence of their expenses .
Their attorneys have billed at or below market rates, and though Emory's counsel
has block-billed some of its work, Emory's counsel has made good-faith efforts to
remove from the billings fees that were not related to the motion to compel, goodfaith efforts to resolve or the sanctions motion . Emory has provided a summary of

-4An-235122M

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 43 of 75

the time related to the motion to compel, good-faith efforts to resolve and the
sanctions motion as evidence of its fees and expenses, and Emory has provided the

original, unredacted bills for Dr. Murtagh's counsel's review . Emory has provided
the testimony of its supervising lawyer, stating that the fees requested reflect only

--

the time related to the motion to compel, good-faith efforts to resolve and the
sanctions motion and that the supervising lawyer personally reviewed the entries
and calculated the amounts requested accordingly . (Hr'g Tr . at 157:13-158:04.)

Dr . Murtagh contends that it is inappropriate for an Arbitrator to award

attorneys fees in a federal arbitration, citing Joyner v. Raymond James Fin. Serv .,
inc., 268 Ga. App . 835, 602 S .E.2d 871 (2004) . However, Javner actually supports
the opposite position, and, in fact, reversed a Superior Court's decision to vacate a
fee award granted by an arbitrator in a federal arbitration . Id. "Arbitrators may
fashion a remedy to suit the facts and equities of a case regardless of whether the

remedy would be available in an action filed in a court of law ." Id. at 839 and 876,
n. 6 .
Dr. Murtagh next claims that the evidentiary support for the fee petition is
insufficient under the Federal Rules . Dr . Murtagh relies upon an Eleventh Circuit
opinion to argue that the documentation and testimony are not specific and
sufficiently accurate. However, as the Arbitrator has repeatedly noted, this
arbitration is being conducted pursuant to the Georgia Civil Practice Act by

-5 RTI-235 I220v8

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 44 of 75

agreement of the parties . See, e.g., Sanctions Order at 1-2 ; see also December 21,
2006 Amended Consent Scheduling Order at 2 .
Nevertheless, Emory's proof of its attorney's fees is sufficient even under
the Federal Rules and the case cited by Dr . Murtagh . The Eleventh Circuit has
stated that the party seeking fees must present evidence from which the court can
determine the appropriate hours and hourly rates . See Norman v . Housing

merv, 836 F .2d 1292, 1304 (1 lth Cir . 1988) .

Authority of the City of Montgomery,
"[F]ee counsel should have maintained records to show the time spent on the
different claims, and the general subject matter of the time expenditures ought to
be set out with sufficient particularity so that the district court can assess the time
claimed for each activity ." Id. (citations omitted). "A well-prepared fee petition
also would include a summary, grouping the time entries by the nature of the
activity or stage of the case ." Id . This is precisely what Emory has provided .
Furthermore, the Norman case states that even though the party requesting fees is
to present evidence of its fees, it is for the court to determine the appropriate
billable rate and the appropriate number of hours for the work, rather than to adopt
wholesale the billing records presented . Id.
Dr . Murtagh's reliance on Paul v . Destito is misplaced, because the lack of
evidence presented in that case is not comparable to this case . In Paul, the party
seeking fees introduced no time records, billing records or any records about the

-6ATI-2351220v8

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 45 of 75

time spent or services rendered . 250 Ga. App. 631, 641, 550 S .E.2d 739, 74(}
(2002) . Emory has introduced a summary document of its bills, detailing the
activities by Emory's counsel . (Emory Ex . 11 .) Emory has provided the
unredacted versions of the invoices for Dr. Murtagh's counsel's review, which are

in Dr . Murtagh's counsel's possession at Dr . Murtagh's request . (Emory Exs . 910 .) Emory has provided testimony from lead counsel about how the summaries
were created, and the manner in which they were created to include only time
relevant to the motion to compel, good-faith efforts to resolve disputes and the
sanctions motion . (Hr'g Tr. 156:01-158:04 .) Emory's lead counsel testified about
the fees, and Dr . Murtagh's counsel cross examined him about the fees . (Id . at
156 :01-168:21 ; 169 :07-332 :06 .) Emory also has introduced a survey of Atlanta
billing rates and has explained how its lawyers discounted their rates to belowmarket rates, given their experience and reputation . (Emory Ex . 6; Hr'g Tr . at
144 :23-146:08 .) This is precisely the type of evidence that the Georgia Court of
Appeals has stated will support a fee petition and precisely the type of evidence
ordinarily presented to courts in Georgia to prove fee award amounts . See, ~,

Santora v. American Combustion, 225 Ga . App . 771, 775, 485 S.E.2d 34, 38
(1997) .
The nature of the violations here were willful, vexatious and material to the
claims in the case . The violations caused Emory to seek discovery from multiple

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third-party sources when Dr . Murtagh's compliance would have prevented some

need to do so and caused repeat deposition questioning when compliance and

honesty could have limited, if not avoided, the depositions . Accordingly, fees are
appropriate, and the Arbitrator must determine a reasonable amount of fees .
As pointed out by Dr. Murtagh, Emory's counsel did block bill their time
entries, which included time unrelated to the motion to compel, good-faith efforts
to resolve and the sanctions motion . Rather than making a separate entry for each
individual activity performed for Emory in this litigation, Emory's timekeepers
would combine all project descriptions into a single time entry . While this is an
appropriate way to bill clients, it is not conducive to parsing out which portions of
time entries are attributable to one project or another . Emory did make a goodfaith, indeed commendable, effort to remove unrelated time, but there is evidence
that this was an imperfect process . For example, Dr . Murtagh showed on cross
examination that in one entry, project descriptions were removed to reflect only
projects related to recoverable fees, but the time billed was not lowered to reflect
the removed project entries . Consequently, the Arbitrator finds that there are
special circumstances warranting a reduction in the fees awarded from the amount
that Emory requested .
Furthermore, some of the time attributed to the projects for which Emory
seeks its fees would have likely been necessary even if Dr . Murtagh had fairly

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participated in discovery . For example, even without Dr . Murtagh's discovery

abuses, Emory would have likely sought documents from some third parties . Thus,

some of the related projects may have included work that was not solely
attributable to Dr . Murtagh's discovery abuses . Again, this warrants a fee award
lower than the amount Emory has sought .
Given Emory's evidence of more than 3,400 actual hours spent on projects

related to the motion to compel, good-faith efforts to resolve and sanctions motion,
the Arbitrator finds that 1,250 hours of time are recoverable by Emory for the
related projects . Additionally, based on the billing ranges for timekeepers of
$94 .50 per hour to $450 per hour, the Arbitrator finds that a b l ended rate of $250
per hour for all timekeepers who billed to the case is appropriate . Consequently,
Emory's fee award is $312,500 incurred in bringing the motion to compel, goodfaith efforts to resolve the disputes and the sanctions motion . Furthermore, Emory
has shown that it directly incurred $36,701 .06 in other expenses related to these
motions and good-faith efforts to resolve the disputes, including arbitration
expenses, and that amount is also awarded to Emory and against Dr . Murtagh .
Grady seeks only its fees expended with respect to preparing for and
attending the sanctions hearing itself, as well as arbitration expenses related to that
hearing. While Grady did not join that motion until the sanctions hearing, Dr .
Murtagh's discovery abuses did necessitate Grady's consideration of the motions

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to compel and for sanctions, participation in motion to compel hearing and

participation in the sanctions hearing . Accordingly, Grady's request that it recover
fees and expenses related only to the sanctions hearing and preparation for it is
warranted, is not excessive and is a reasonable and necessary amount for defending
its interests . Because there is only one attorney who billed time for the hearing,
there is no need to determine a blended rate . Mr . Eichelberger's rate of $435 per
hour is reasonable, and the total hours sought, 19 .3, is also reasonable .
Accordingly, the Arbitrator awards $8,395 .50 in fees to Grady . Grady also claims
"in excess of $14,000" in arbitration expenses, and the billing records support that
there were in excess of $14,000 in sanctions motion arbitration expenses for which
Grady was responsib le . But Grady did no t specify an exact amount of expenses
above $14,000, and therefore, the Arbitrator awards Grady only $14,000 in
arbitration expenses .
Having reviewed the fee requests of both Emory and Grady for the motion to
compel, good-faith efforts to resolve the discovery disputes and sanctions motion,
the Arbitrator awards Emory $349,201 .06 in fees and expenses and awards Grady
$22,395 .50 in fees and expenses .
Dr. Murtagh's Reguest For Fees
Dr . Murtagh contends that because Emory did not prevail on each theory of
its sanctions motion that Dr . Murtagh is entitled to submit a fee petition for his

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expenses in defending against that portion of Emory's motion . Dr. Murtagh cites
Federal Rules of Civil Procedure I 1 and 37 for this proposition . Dr . Murtagh's
argument fails for three reasons . First, Emory prevailed on its motion for
sanctions . The fact that Emory specifically prevailed on one theory, O .C .G.A . 911-37, and did not specifically prevail upon all possible grounds, is of no
consequence . Second, the Arbitrator did not find that Dr . Murtagh prevailed on
some portion of Emory's motion . Rather, the Arbitrator ruled on Emory's motion
on some grounds and did not, accordingly, need to rule on other grounds, as they
were moot . Third, even if the Arbitrator had ruled in favor of Dr . Murtagh based
on Rule 1 I or 37 of the Federal Rules of Civil Procedure, these rules are not
automatic fee-shifting statutes for the party defending against the motion, and the
award of fees to the party defending the motion under those statutes is generally
discretionary . See e.g., fencer v. Mortgage Acceptance Corp ., 2006 WL

1302413 . *6, No. 05 C 356 (N .D. Ill. May 4, 2006) ; Leja v. Schmidt
Manufacturing,_Inc, 2005 WL 2009924, * 5 No . Civ. A.01-5042 (D .N.J . Aug . 17,
2005). However, under Rule 37 of both the Federal and Georgia rules, the court
must include fees as sanction against a party who is found to have disobeyed the
court's prior order, except when failure to comply with the court's order was
substantially justified or an award of fees would be unjust . Fed . R. Civ. P.
37(b)(2)(C); O.C.G .A. 4-11-37(b)(2) . "Instead of or in addition to the orders

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above, the court must order the disobedient party, the attorney advising that party,
or both to pay the reasonable expenses, including attorney's fees, caused by the
failure, unless the failure was substantially justified or . . .unjust ." Fed. R. Civ . P.
37(b)(2)(C) (emphasis added) . Thus, under these circumstances, whether to award

fees to Dr . Murtagh would be at the discretion of the Arbitrator, but whether to

award fees to Emory and Grady is not .
Compensatory Damages
Emory is entitled to nominal damages . O.C.G.A . 13-b-b provides that
"[inn every case of breach of contract the injured party has a right to damages, but
if there has been no actual damage, the injured party may recover nominal
damages sufficient to cover the costs of bringing the action ." The Georgia

Supreme Court has held that "nominal damages are awarded : (1) where no actual
damage flows from the injury ; or (2) where the violation of a right is shown,
substantial damages claimed, and some actual loss proved, and yet the damages are
not susceptible of reasonable certainty of proof as to their extent ." King v. Brock,
282 Ga . 56, 57, 656 S .E .2d 206, 207 (2007). "In Georgia, the term `nominal
damages' is `purely relative, and carries with it no suggestion of certainty as to
amount . Instead of being restricted to a very small amount, the sum awarded as
nominal damages may, according to circumstances, `vary almost indefinitely ."'
Callahan v . Panfel, 195 Ga . App . 891, 893, 395 S .E .2d 80, 82 (1990). As

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previously mentioned, Emery has won on all counts against Dr . Murtagh b y

default, including claims for breach of contract . Therefore, Emory is entitled to

nominal damages on that basis alone .
Furthermore, as discussed in the Sanctions Order, Dr . Murtagh's violation of

the order compelling production was material . What Dr. Murtagh refused to
voluntarily produce was evidence that supported that Dr . Murtagh did, in fact,
violate the Settlement Agreement by disparaging Emory to third parties, accusing
Emory of criminal wrongdoing, and discussing the underlying litigation .
(Sanctions Order at 5-9 ; Settlement Agreement T 18(a) (defining conduct
prohibited by the non-disparagement clause as including "conduct of any kind that
either directly or indirectly disparages, criticizes, defames or otherwise casts a
negative characterization upon Emory . . . .").) For example, Dr . Murtagh refused
to produce a number of emails containing allegations against Emory of violating
student civi l rights and accusing Emory faculty of involvement in criminal activity
and "stealing of money from poor minority patients at Emory's partner Grady
Hospital ." Dr . Murtagh sent the mails to Richard Searfoss, and much of the
content was subsequently published online by The New Criminologist, including
accusations that Emory faculty were involved in stealing from patients . (Exs . K.
and L to Emory's Mot . for Sanctions .) This arbitration never reached the summary

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judgment stage, but if it had, Emory may have used this evidence to support such a
motion on its breach of contract.
Though neither party suggested an amount of nominal damages, the
Arbitrator awards to Emory the amount of $5,000 in nominal damages .
Attorney's Fees for Being "Stubbornly Litigious, DeaCin e in Bad Faith, and
Causing Unnecessary Expense ." O.C.G.A. -4 13-6-11
Litigation expenses pursuant to O .C.G.A. 13-b-11 are recoverable when
the party has proven entitlement to such expenses, and the party has also been
awarded damages. This is true even if the damages award is solely for nominal
damages . King, 282 Ga . at 58 (once a party proves entitlement under O .C .G.A.
13-6-11, "a party who recovers nominal damages is entitled to attorney fees and
expenses as a prevailing party ."); see also, J . Kinson Cook of Georgia, Inc . v.
Heerv/Mitcheli, 284 Ga. App . 552, 560-61, 644 S .E.2d 440, 449 (2007) (citations
omitted) ("[b]ecause litigation expenses are wholly ancillary, they are not
recoverable when no damages are awarded") . Emory alleged in its Amended
Counterclaim that Dr . Murtagh violated O .C.G.A. 13-6-11 (Emory Amended

Counterclaim 90-92), and Dr . Murtagh has defaulted on that claim (Sanctions

Order at 14) . Such a default is sufficient grounds to award the statutory damages
of expenses of litigation, including attorney's fees, without an additional finding of
fact on the issue . See, e ., Cannon Air Transp. Servs . v. Stevens Aviation, 249

Ga. App . 514, 518, 548 S .E .2d 485, 489 (2001) (finding an award of attorney's
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fees appropriate after granting a default judgment against party that committed
discovery abuses, but remanding for proof of the amount) . Even though Emory
was not required to prove that Dr . Murtagh violated this statute, Emory did submit
sufficient evidence for such a factual finding, and Dr . Murtagh did not rebut the

evidence.
O .C.G.A . 13-6-11 allows for recovery of litigation expenses where the
claim-defendant :
1 . has acted in bad faith ;
2, has been stubbornly litigious ; or
3 . has caused the plaintiff unnecessary trouble and expense .

O.C.G.A . 13-6-11 .
"Bad faith is not simply bad judgment or negligence ; but it imports a
dishonest purpose or some moral obliquity, and implies conscious doing of wrong,
and means breach of known duty through some motive of interest or ill will ."
Davis v. Walker, 288 Ga. App . 820, 825-26, 655 S .E.2d 634, 639 (2007) (internal
citations omitted) . Even where there is a bona fide controversy as to liability, a
jury may find that a defendant acted in the most "atrocious bad faith" in its dealing
with the plaintiff and award attorney fees . City f Lilburn, 286 Ga . App . 568, 571,

649 S .E.2d 8 1 3, 816 (2007).

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Bad faith warranting an award of attorney fees must have arisen out of how
the defendant acted in dealing with the plaintiff; specifically, the element of bad
faith relates to the defendant ' s conduct in entering into the transaction and dealings
out of which the cause of action arose, not to the defendant's conduct after the
cause of action arose . City of Lilburn, 286 Ga. App . at 571, 649 S .E.2d at 816 .
Even slight evidence of bad faith can be enough to create an issue for the jury . Id .
See also, Brannon Enter. Inc. v . Deaton, 159 Ga . App . 685, 686, 285 S .E.2d 58, 60
(19$1) ("Bad faith is bad faith arising out of the transaction upon which the
complaint is based and refers to a time prior to the institution of the action .");
Artzner v. A & A Exterminators, Inc ., 242 Ga. App . 766, 773, 531 S.E.2d 200, 206
(2000) ("It is well settled that the bad faith contemplated by O .C .G.A. 13-6-11 is
bad faith connected with the transaction and dealing out of which the cause of
action arose, rather than bad faith in defending or resisting the claim after the cause
of action has already arisen .").
However, the bad faith may arise in the performance of the contract and
need not stem from the negotiation of the contract . Robert E . Canto Bldg .
Contractors Inc . v . Garrett Machine & Constr. Inc ., 220 Ga . App . 871, 873, 608
S.E.2d 280, 282 (2004) ("Bad faith warranting an award of attorney fees must have
arisen out of the transaction on which the cause of action is predicated . It may be

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found in the defendant's carrying out the provisions of the contract, that is, in how
the defendant acted in his dealing with the plaintiff.")
The concepts of "stubborn litigiousness," and "causing the plaintiff
unnecessary trouble and expense," refer to a defendant's forcing the plaintiff to sue
where no bona fide controversy exists . D & H Constr . Co. v. City of Woodstock,
284 Ga . App . 314, 318, 643 S .E.2d 826, 830 (2007); see also, Cityof Lilburn, 286
Ga . App . at 571, 649 S .E.2d at 816 ("[A] recovery of attorney fees for stubborn
litigiousness or for causing the plaintiff unnecessary trouble and expense is
authorized where the evidence reveals no bona fide controversy or dispute with
regard to the defendant's liability .").
The key to the test is "bona fide controversy ." Brannon Enter ., 159 Ga.
App. 685, 686, 285 S .E.2d 58, 60 (1981) . "Where none exists, forcing a plaintiff
to resort to the courts in order to collect is plainly causing him `unnecessary
trouble and expense . "' Id. (internal citations omitted).
In this case, Emory has presented sufficient evidence to find that Dr .
Murtagh has acted in bad faith in his performance under the Settlement Agreement .
In the Settlement Agreement, Dr . Murtagh agreed not to disparage Emory .
(Settlement Agreement ~ 18(a) .) Nevertheless, Dr . Murtagh not only disparaged
Emory, he did so by impersonating an Emory employee through a fabricated email
address -- the bogus email address that Dr . Murtagh created using Lorraine

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Hennigar's name . (Emory Counterclaim 1 33-4Q and Exs. 7-10 thereto .) Dr .

Murtagh sent mails purporting to be from Ms . Hennigar to Emory employees .'
Among other things, the emails accuse Emory of not only witness tampering but of
assaulting a witness as a means of witness tampering . (U.) Impersonating another
Emory employee and setting up an emai l account in her name and sending emails
impersonating Ms . Hennigar in order to violate the Settlement Agreement is bad
faith in the performance under the Settlement Agreement . Accordingly, Dr.
Murtagh acted in bad faith under O .C.G.A . 13-6-11, and no further analysis is
needed to determine whether Emory is factually entitled to damages under the
statute in addition to Dr . Murtagh's default on this claim .
Emory is entitled to recover its reasonable expenses in prosecuting its
counterclaims against Dr . Murtagh. A party who prevails under O .C.G.A. 13-611 is entitled to recover only those fees and expenses incurred in prosecuting its

claims . See Dennis -Smith v. Freeman, 277 Ga. App . 822, 825, 627 S.E.2d 872,
875 (2006) ("O .C.G.A. 13-6-11 does not permit recovery of expenses incurred in
defending a lawsuit . The Freemans were eligible to recover only those expenses
incurred in prosecuting their counterclaim .") (emphasis in original) . Emory claims
that it is entitled to expenses and attorney's fees for prosecution of its

' Emory also alleges that similar emails were sent from other Emory employee
addresses to both Emory employees and the staff at the New York Times, and such
is established by default . (Id .)

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counterclaims against Dr . Murtagh . Emory's evidence in support of this claim is

similar to what Emory provided - for its sanctions fee petition . Emory has provided
redacted invoices that reflect Emory's expenses incurred in its affirmative case and
has provided the original, unredacted invoices as backup . (Emory Exs . 9, 10 .)
Emory has presented evidence in the form of testimony by its lead counsel that
shows reasonable diligence in including in its evidence only activities associated
with the affirmative prosecution of Emory's counterclaims against Dr . Murtagh .
(Hr'g Tr . at 123 :14-124:08.)
However, Emory claims that part of its expenses in its affirmative case
against Dr . Murtagh were costs from another suit filed to determine the identity of
the individual responsible for the fraudulent emails disparaging Emory (Lorraine
Henni ar v . John Doe, Civi l Action No . 04-$107-01) . Dr . Murtagh argues that
expenses incurred by Emory in that suit are not recoverable in the instant action .
While as a practical matter, Emory did incur the expenses, and they were pertinent
to Emory's prosecution of its counterclaims against Dr . Murtagh, Georgia case law
supports Dr . Murtagh's position . "No expenses of litigation incurred in other
lawsuits can be awarded pursuant to section 13-6-11 . Only expenses of litigation
incurred in the present lawsuit can be awarded under this section ." Ew gys v .

Georgia R .R. Bank, 806 F.2d 991, 993 (1 1 th Cir . 1986) . Consequently, the
Arbitrator does not award any fees or expenses incurred in the He nnigar litigation .

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In support of its claim, Emory showed that in prosecuting its claims against
Dr . Murtagh, timekeepers billed Emory more than 5,200 hours2 at the rates
mentioned above . As with the sanctions award, the Arbitrator finds cause to
reduce the actual amount to account for the inherent problems in attributing fees to

Emory's prosecution of its claims in the block billing context . Accordingly, the
Arbitrator finds that 2,500 hours of time were reasonable for Emory's work related
to the prosecution of its affirmative case at a blended rate of $250 per hour for all
timekeepers who billed to the case . Consequently, Emory's fee award under

O.C .G.A. 13-6-11 is $625,000 and $36,701 .06 for expenses related to the
prosecution of Emory's counterclaims against Dr . Murtagh.3 The hours and
expenses awarded incorporate and are not in addition to the fees awarded to Emory
for its motions to compel and for sanctions, because the time spent on discovery
issues related to the motions to compel and for sanctions were a significant portion
of Emory's prosecution of its counterclaims against Dr . Murtagh .

2 The more than 5,200 hours do not include Emory's hours billed in the Hennigar
suit .
3 Though Emory provided evidence of additional expenses, there was no evidence
beyond the expenses incurred for the motion to compel, good-faith efforts to
resolve and sanctions motion that such additional expenses were incurred in
prosecuting Emory's claims against Dr . Murtagh rather than in the defense of
claims against Emory . Accordingly, the Arbitrator awards the same amount for
expenses that were awarded under the sanctions Order . These activities were
reasonably incurred in the prosecution of Emory's claims against Dr . Murtagh .
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Punitive Damages
Given that Dr . Murtagh has had a default judgment entered against him, an
award of fees and expenses related to the motion to compel, good faith efforts to
resolve the discovery dispute and the sanctions motion awarded against him, and
damages pursuant to O.C.G.A . 13-6-11, punitive damages would be excessive in
this case . Accordingly, the Arbitrator does not award any punitive damages to
Emory or against Dr. Murtagh.
Escrow Setoff And Payment of Arbitration Fees and Expenses
Emory requests that the payments due to Dr. Murtagh under the Settlement
Agreement be used to setoff any award against Dr . Murtagh. (Emory's Amended
Counterclaim, Prayer For Relief.) Under Georgia Law, a setoff is appropriate
when one party seeks to setoff a debt owed to him or her against the claim of an
opposing party . O .C.G.A. 13-7-1 . In this case, Dr . Murtagh was owed
additional payments under the Settlement Agreement at the time this arbitration
was filed, and rather than paying Dr . Murtagh directly, Emory was allowed to
make some of those payments into an escrow account pending the outcome of this
litigation. There is presently $182,796.14 in the escrow account . There is also an
additional $30,000 .00 still owed by Emory to Dr . Murtagh under the Settlement
Agreement .

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Emory and Dr. Murtagh agree that unpaid fees due to the Arbitrator may be
paid by Dr . Murtagh from the escrow account . The amount of unpaid fees due

from Dr . Murtagh through the end of 2008 is $53,510 .28. Thus, by agreement of
Dr. Murtagh and Emory, Dr . Murtagh's portion of the outstanding arbitration fees
through 2008 shall be paid by Emory submitting to Jones Day the amount of
$53,510.28 from the escrow account .
The Arbitrator agrees with Emory that it is appropriate to setoff the amount
owed by Dr. Murtagh against the amount Dr . Murtagh owes to Emory under this
Decision . However, $255,0004 of the $340,000 not yet paid in escrow were to be
future payments, which are worth more to Emory as a present setoff than they
would be if Emory paid them in the future, and the Arbitrator determines that the
present day value of the $255,000 owed to Dr . Murtagh in future payments is
actually $282,830 .82, calculated through their respective payment due dates .5
During some of the time the Settlement Agreement payments were made
into an escrow account, the escrow account did not earn interest that accrued to Dr .
4 This consists of three payments of $85,000, with a payment due in July 2009,
2010 and 2011 .
5 Though the Arbitrator finds no law specifically on point with respect to how to
calculate present value, one Georgia statute, and the only statute the Arbitrator was
able to find on the issue under Georgia law, uses seven percent per annum to
determine present day value . O .C.G .A. 34-9-222 . The Arbitrator concludes that
seven percent is a reasonable rate of interest to determine present value in this case .
Accordingly, the Arbitrator assesses the current value of the 2009 payment at
$87,975, the 201 0 payment at $94,133 .25, and the 201 1 payment at 100,722 .57.
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Murtagh's benefit while this Arbitration was pending . Dr. Murtagh argues that he
shou ld have received interest pursuant to paragraph 1, page 3 of the Settlement
Agreement, and that in any event, Dr . Murtagh opposed the use of the escrow
account in its entirety and should therefore receive the benefit of accrued interest .
Under the Settlement Agreement, in the event that Dr . Murtagh sought review of
any arbitration award in favor of Emory, installment payments would be paid into
an interest bearing escrow account, (Settlement Agreement 1, p . 3 .) Emory
argues that since Dr . Murtagh opposed application of the Settlement Agreement
generally, he should not receive the benefit of the Settlement Agreement's terms
and that depositing the funds in an account that would not accrue interest was
proposed by Emory and that Dr . Murtagh was aware and made no specific
objection . The Arbitrator finds that in fairness to Dr . Murtagh, he should receive
the benefit of accruded interest on the escrowed funds . Accordingly, the Arbitrator
determines that the $182,796 .14 deposited into the escrow account should be
valued at 202,002 .72.6 Furthermore, the $85,000 that was to have been paid to Dr .

6 The escrow account has been used by Dr . Murtagh to pay arbitration fees and
expenses periodically through the course of this arbitration . Accordingly, only the
actual amount in the escrow account has been used to determine the interest
payable on the account, and since the escrow account did accrue interest to Dr .
Murtagh's benefit prior to April 23, 2007, interest is calculated only for the balance
on and after that date . The Arbitrator finds no definitive Georgia rule on the
amount of interest due for such a situation, but it is comparable to a prejudgment
damages award, pursuant to O .C.G.A . 7-4-12, which states that unless a
particular amount of interest is specified in a contract "[a]lt judgments in this state

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Murtagh in 2008 but was neither deposited in escrow nor paid to Dr . Murtagh
would have additional value too, and the Arbitrator determines that its current

value is actually $87,779 .97, based upon the rate set by O .C.G.A . 7-4-12 . As a
result, the total amount available to be setoff, including the adjusted value of the
escrow account and the adjusted value of the 2008 and future payments under the
Settlement Agreement is $572,613 .51 .
The Arbitrator concludes that the amount due to Dr . Murtagh under the
Settlement Agreement and in escrow may be setoff against the amounts that Dr .
Murtagh owes to Emory . Including the sanctions, award of nominal damages, and
attorney's fees and expenses pursuant to O.C.G.A. 13-6-11, the total award
against Dr . Murtagh and for Emory is in the amount of $666,701 .06 . Emory
currently owes Dr . Murtagh $519,103 .23 (present day value) under the Settlement
Agreement, including interest on the escrow account, as reduced by $53,510 .28 for
payment of the arbitration fees and expenses . Thus, following setoff, Dr . Murtagh

shall bear annual interest upon the principal amount recovered at a rate equal to the
prime rate as published by the Board of Governors of the Federal Reserve System,
as published in statistical release H. 15 or any publication that may supersede it, on
the day the judgment is entered plus 3 percent ." O .C.G .A. 7-4-12(a)-(b) . Based
on the prime rate of 3 .25 percent published by the Federal Reserve Board in
publication H . 15 for January 29, 2009, the total interest rate would be 6 .25 percent.
The Arbitrator finds this to be a reasonable rate of interest . Calculating the accrued
interest on a daily basis, based on the actual balance of the account beginning on
April 23, 2007 and ending on January 29, 2009, the total interest accrued is
$19,206.58 .
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will still owe Emory $147,597 .83 . Interest shall accrue on the outstanding balance

owed by Dr . Murtagh to Emory at the rate set by O .C .G .A. 7-4-12(c).

Any of the parties may petition Judge Wendy Shoob of the Superior Court of
Fulton County, Georgia to file this Decision of the Arbitrator under seal with the
superior Court of Fulton County, Georgia
Dated : February 1 , 2009

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Richard H . Deane, Jr.
JONES DAY
1420 Peachtree St ., N .E ., Suite 800
Atlanta, GA 30309-3053
Telephone : (404) 521-3939
Facsimile : (404) 521-8330
Neutral Arbitrator

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Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 64 of 75

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

FILED IN OFFICE

Nov

JAMES J. MURTAGH, M.D.

3 0

zao4

DEPUTY CLERK SUPERIOR COURT

Plaintiff,
CIVIL ACTION FILE
NUMBER :

FULTON-DEKALB HOSPITAL
AUTHORITY, EMORY UNIVERSITY,
EMORY HE.ALTHCARE,INC ., GRADY
HEALTH SERVICES COMPANY, INC .,
JOHN DOES 1-10
Defendants,

COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL

COMES NOW the Plaintiff, JAMES J. MURTAGH, M .D ., and for his Complaint for Damages
against Defendants Fulton-Dekalb Hospital Authority, Emory University, Emory Healthcare, Inc .,
Grady Health Services Company, Inc . and John Does 1 through 10 alleges as follows :
INTRODUCTION
1.) This case involves the malicious slander of the Plaintiff, James J. Murtagh, M .D ., by
representatives of Defendants Fulton-Dekalb Hospital Authority, Emory University, Emory
Healthcare, Inc., Grady Health Services Company, Inc . and John Does I through 10 who at all times
acted on behalf of and with the authority of said Defendants . The Defendants' defamation of the
Plaintiff occurred as part of a concerted and ongoing effort by the Defendants to destroy Dr .
Murtagh's personal and professional reputation, to intentionally and wrongfully interfere with the
Plaintiffs valuable business and professional relationships and to interfere with and to disrupt the
Plaintiffs ability to practice medicine . The Defendants' wrongful actions were also intended to, and

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 65 of 75

did, inflict severe emotional distress on the Plaintiff . As a result of the Defendants' wrongful acts
alleged herein, the Plaintiff has sustained, is sustaining and will sustain in the future substantial and
ongoing damages in excess of

$1,000,000 .

The Plaintiff seeks damages for defamation, for

intentional interference with advantageous business relationships, for intentional infliction of

emotional distress and for malicious injury to his business .
THE PARTIES
2.) The Plaintiff James J. Murtagh, M .D ., is natural person residing at 511 Calibre Woods,
Atlanta, DeKalb County, Georgia .
3.) The Defendant, Fulton-Dekalb Hospital Authority ("Fulton-Dekalb'~, is an Atlanta,
Georgia volunteer board that governs Grady Health System which in turn operates Grady Memorial
Hospital . Fulton-Dekalb may be served with process by serving Robert L . Brown, Jr ., Chairman of
the Board of Trustees, at Fultan-Aekalb's principal place of business, 80 Jesse Hill Jr . Drive,
Atlanta, Fulton County, Georgia 30303 .
4.) The Defendant, Grady Health Services Company, Inc . is a corporation organized and
existing under the laws of the State of Georgia which operates Grady Memorial Hospital . Grady may
be served with process by serving Timothy Jefferson, its registered agent, at Grady's principal place
of business located at 80 Jesse Hill Jr . Drive, Atlanta, Fulton County, Georgia 30303 . All acts ofthe
representatives of Fulton-Dekalb and of Grady Health Services Company, Inc . were performed by
and on behalf of both Fulton-Dekalb and Grady Health Services Company, Inc . Accordingly,
Fulton-Dekalb and Grady Health Services Company, Inc . are collectively referred to herein as
"Grady".
5.) The Defendant, Emory University, is a domestic non-profit corporation organized and
existing under the laws of the State of Georgia, with its principal place of business at 1380 Oxford
2

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 66 of 75

RoadN.E., Atlanta, Dekalb County, Georgia, 30322 . Emory University maybe served with process
by serving Stephen D . Sencer, its registered agent , at 201 Dow man Drive, }. p 1 Administration
Building, Atlanta, Dekalb County, Georgia 30322 . The Emory School of Medicine is apart of Emory
University.
6.) The Defendant, Emory Heathcare, Inc . is a domestic non-profit corporation
organized and existing under the laws of the State of Georgia, with its principal place of business
at 201 Dowman Dr . N .E., Atlanta, Dekalb County, Georgia, 30322 . Emory Heathcare, Inc may
be served with process by serving Jane E . Jordan, its registered agent, at 201 Dowman Dr. 101
Administrative Building, Atlanta, Dekalb County, Georgia 30322 . Emory Heathcare, Inc
operates the Emory University Hospital. All acts of the representatives of Emory Heathcare, Inc
and Emory University were performed by and on behalf of both Emory Heathcare, Inc and
Emory University . Accordingly, Emory Heathcare, Inc and Emory University are collectively
referred to herein as "Emory" .
7.) The Defendants, John Does 1 through 10, are individuals or entities who committed,
or are otherwise liable for, the acts alleged herein .

JURISDICTION AND VENUE

8 .) This is an action for damages and is within the jurisdiction of this Court. Venue is
proper in Fulton County, Georgia because the principal place of business and residence of
Defendants Fulton-Dekalb Hospital Authority and Grady Health Services Company, Inc . ("Grad') is
located in Fulton County and the Defendants Grady and Emory are joint tort-feasors .

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 67 of 75

THE FACTS
9.) The Plaintiff is a licensed medical doctor who is Board Certified in Pulmonary
Medicine and Internal Medicine, and has been Board Eligible in Sleep Medicine . Dr. Murtagh
graduated from the University of Michigan Medical School with honors in 1982 and successfully
completed residencies in Internal Medicine at Parkland Hospital in Dallas, Texas in 1985, followed
by the successful completion of a fellowship in Pulmonary Medicine at the University ofMichigan at
Ann Arbor, Michigan and the National Institute of Health in Bethesda, Maryland in 1987 . From
1985 to until 1991, Dr . Murtagh was employed by the National Institute of Health where he
conducted scientific and medical research in the area of Pulmonary Molecular Medicine . Dr.
Murtagh has published learned treatises in the areas of his specialty.
10.) In 1991, Dr. Murtagh was recruited by the ErnoryUniversity School of Medicine,
became employed there as an assistant professor of medicine, and was promoted to associate
professor with tenure in 1995 . The Emory University School of Medicine operates physician
residency programs at various hospitals in the Atlanta, Georgia area, including the Veterans
Administration Hospital and Grady Memorial Hospital . As part of his duties as a professor at the
'- -~'

Emory University School of Medicine, Dr . Murtagh trained residents in the specialties of internal
medicine and pulmonary medicine and treated patients at the Veterans Administration Hospital and
at Grady Memorial Hospital.
11 .)

The Plaintiff has also pursued additional medical education and training, and

acquired experience as a practitioner in sleep medicine, which is an area of internal medicine that is
closely related to Dr . Murtagh's specialty of pulmonary medicine . In December 2003, Dr. Murtagh
was Board Eligible in Sleep Medicine .
12.) The wrongful acts of the Defendants alleged herein were intentionally committed
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Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 68 of 75

to damage Dr . Murtagh's personal and professional reputation in the medical and health care
business communities within and outside of the Atlanta area . The Defendants' wrongful acts were
further committed in order to interfere with Dr . Murtagh's ability to practice medicine in his chosen
fields by, including but not limited to, falsely representing to other physicians, hospital medical staffs

and health care businesses that Dr . Murtagh is mentally incapable of effectively practicing medicine,
that Dr. Murtagh was properly subjected to an adverse final peer review and/or medical review
committee action while on the medical staff of one or more hospitals at which the Emory University
Medical School operates residency programs and that Dr . Murtagh was terminated for just cause
from the Emory University Medical School . In addition, the Defendants wrongfully interfered with
Dr. Murtagh's advantageous business relationships by falsely communicating to prospective
employers and health care businesses, with which Dr . Murtagh had established valuable business
relationships, that the Defendants possessed adverse information about Dr . Murtagh's performance
as a physician that dissuaded such prospective employers and health care businesses from pursuing
or continuing with an employment or other business relationship with Dr . Murtagh.
13 .)

The acts of the Defendants alleged herein were committed in concert as part of

their shared and j oint intention to ru in Dr. Murtagh's personal-and profess ional reputation and to
destroy the advantageous business relationships that he has developed .
14.) The Defendants knew that their repeated wrongful acts alleged herein would
cause, and the Defendants intended for them to cause, Dr . Murtagh great emotional distress and
harm.
15.)

Upon information and belief, the acts of the Defendants alleged herein were

committed for the wrongful purposes of damaging Dr . Murtagh's credibility as a witness in civil and
criminal proceedings and investigations relating to other acts committed by the Defendants,

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 69 of 75

retaliating for earlier instances when Dr . Muztagh reported to the proper authorities, what he believed
was, unlawful conduct on the part of the Defendants and removing Dr . Murtagh as a competitor .
16 .) The Defendants have misused their positions as teaching hospitals by falsely
representing that Dr. Murtagh had been the subject of a final adverse peer review or medical review
committee action as a member of the medical staff of one or more hospitals at which the Emory
Medical School operates residency programs . Adverse peer review and medical review committee
actions are properly taken by hospitals and their organized medical staff against physicians only in
situations where factual ev idence establishes that the physician is gu ilty o fma,sconduct related to his
or her exercise of medical staff privileges or is unqualified or incompetent to exercise his or her
medical staff privileges . Such actions may result in a limitation, reduction, suspension or
termination of medical staff or clinical privileges and are properly concluded only after accusations
are made in writing and signed by the appropriate hospital official and the physician imn question is
provided with notice of the allegations and alleged evidence and a fair opportunity to confront,
respond to and rebut any witnesses and evidence against him or her. Suchh due process rights are
provided for in the hospital's medical staff by-laws, or other hospital procedural rules, which also
specify the manner in which tie ' severity of final adverse action, i f any, will be determined.
Thereafter, the hospital's rules or medical staffbylaws or rules and applicable laws specifywhen and
if such action will be reported . Any statement to another hospital, medical staff, health care
business, or government entity, by a representative of the Defendant hospitals, that a physiciann on
their medical staffs has been subjected to adverse peer review is likely to have a devastating effect on
the subject physician's professional reputation and is likely to destroy any advantageous business or
employment relationship, or potential relationship, that the physician may have with another hospital,
medicall staff or health care business . The representatives of the Defendants were, at all times

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material to this case, fully aware that any statement that Dr. Murtagh had been subjected to adverse
peer review or medical review committee action would cause the injuries to Dr . Murtagh alleged
herein .
17.) Representatives of Grady and Emory became aware of Dr . Murtagh's
advantageous business and prospective employment relationships through various means, including
direct inquiries by representatives ofprospective employers . Those relationships include, but are not
necessarily limited to, the following :
a. In or about January 2003, representatives of Emory and Grady became
aware that Dr . Murtagh had developed an advantageous business
relationship and prospective employment relationship with James St .
Clair at J&C Nationwide Placement, a business entity that specialized in
physician recruitment that was attempting to recruit Dr . Murtagh for a
position .
b. In or about December 2003, representatives of Emory and Grady became
aware that Dr . Murtagh had developed an advantageous business
relationship and prospective employment relationship with Somnugraph; --
Inc, an entity that provided sleep medicine services, and its
representative, Duke Naipohn . Representatives of Emory and Grady
were also aware that, because Emory desired to become involved in the
expansion of its sleep medicine services in the Atlanta area, Dr.
Murtagh's relationship with Somnograph, Inc . and Mr. Naiphon would
result in a competitive threat to Emory.
18.)

Emory and Grady representatives, with knowledge of Dr . Murtagh's advantageous

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 71 of 75

business and prospective employment relationships alleged above, abused their positions as
representatives of prestigious teaching hospitals in order to make false representations about Dr .
Murtagh that in each case damaged and interfered with the relationship . By way of example :
a. Somnograph, Tana is, one of the largest sleep medicine providers
in the United States . Dr . Murtagh was in the process of finalizing
a valuable business arrangement through discussions with

Somnograph's chief executive officer, Duke Naipohn in

December 2003 .
b. One or more managerial representative of Emory became aware
that Somnograph was about to consummate an employment
relationship with Dr . Murtagh and falsely stated to Mr . Naipohn
that Emory University had completed an adverse peer review
proceeding with respect to Dr. Murtagh, and had concluded that
Dr. Murtagh suffers from a mental illness which would preclude
him from competently and effectively, engaging in the practice of
. ._~__ .. .

medicine .

c. As a result of the Emory's false and disparaging representations

about Dr. Murtagh, Somnograph elected not to go forward with .
its relationship with Dr . Murtagh.
19 .) With respect to the other advantageous business and prospective employment
relationships alleged herein, the Emory and Grady representatives made similar false statements
about Dr . Murtagh or failed to provide truthful information knowing that such failure would damage
the relationship .

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 72 of 75

20.) The Defendants' conduct alleged herein constituted willful misconduct, malice,
fraud, wantonness, oppression, or that entire want of care which would raise the presumption of
conscious indifference to consequences . Any peer review or medical review committee action by
Emory or Grady representatives was conducted with malice or fraud.

COUNT ONE
SLANDER AND DEFAMATION PER SE

21 .) The allegations of Paragraphs 1 through 20 are re-alleged, re-asserted, and reaverred as if fully set forth herein .
22 .) The defamatory, slanderous, and false, statements made by the Emory and Grady
representatives wrongfully disparaged Dr . Murtagh's character, professional competence,
professional knowledge, and professional abilities .
23 .) The Emory and Grady representatives knew that the representations were false
when made and that an actual adverse peer review had not been concluded .
24.) The false, disparaging, and defamatory statements made by the Emory and Grady
representatives were specifically made about, and for the purpose of injuring, Dr . Murtagh's
business and professional reputation .
25 .) The false, defamatory, and disparaging statements made by the Emory and Grady
representatives have caused Dr . Murtagh to sustain damages in excess of $1,040,000, plus
prejudgment interest accruing thereon .
26 .) The false, defamatory, and disparaging statements made by the Emory and Grady
representatives were made intent ionally, and for the express purpose ofwrongfully damaging Dr .

Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 73 of 75

Murtagh's business and professional reputation and, accordingly, Dr . Murtagh is entitled to an

award of punitive damages to deter and punish Emory and Grady for their intentional defamation
of Dr. Murtagh .
27.) Defendant's slander of Dr. Murtagh in his trade or,business is per se and damages for
such slander are presumed as per O.C .G.A . 51-5-4(a)(3) and Georgia common law.

28 .) Plaintiff Murtagh is entitled to recover damages for Defendant's per se slander in an

amount to be detexminecd by the enlightened conscience of a fair and impartial jury .
WHEREFORE, Plaintiff Murtagh prays :
(1) that he be granted trial by jury as to this Count One;
(2)

that .judgment be entered in favor ofPlaintiffMurtagh, and against Defendants Fultan-

Dekalb Hospital Authority, Emory University, Emory Healthcare, Inc., and Grady Health Services
Company, Inc, jointly and severally, as to Count One of Plaintiffs Complaint ;
(3) that Plaintiff Murtagh recover from Defendants Fulton-Dekalb Hospital Authority,
Emory University, Emory Healthcare, Inc ., and Grady Health Services Company, Inc, jointly and
severally, his damages, including direct, consequential, general, special, interest and necessary
expenses, for Defendant's perse slander in ann amount to be determined by the enlightened conscience
of a fair and impartial jtuy, but in no event less than $1,000,000.00 ;
(4) that Plaintiff Murtagh recover from Defendants Fulton-Dekalb Hospital Authority,
Emory University, Emory Healthcare, Inc ., and Grady Health Services Company, Inc, jointly and
severally, punitive damages in an amount to b e determined by the enlightened conscience of a fair and
impartial jury.
(5)

that the Court grant such other and further relief as is just and proper.

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Case 1:09-cv-01186-HTW Document 1-1 Filed 05/04/09 Page 74 of 75

COUNT TWO
DEFAMATION
29.) The allegations of Paragraphs 1I through 20 are re-alleged, re-asserted, and re averred
as if fully set forth herein .
30.) The defamatory, slanderous, and false statements made by the Emory and Grady
representatives wrongfully disparaged and slandered Dr . Murtagh's character, professional
competence, professional knowledge, and professional abilities .
31 .) The Emory and Grady representatives knew that the representations were false when
made and that an actual adverse peer review had not been concluded .
32 .) The false, disparaging, slanderous and defamatory statements made by the Emory and
Grady representatives were specifically made about, and for the purpose of injuring, Dr .
Murtagh's business and professional reputation .
33 .) The false, defamatory, slanderous and disparaging statements made by the Emory and
Grady representatives have caused Dr . Murtagh to sustain damages in excess of $1,000,000, plus
prejudgment interest accruing thereon .
34 .) The false, defamatory, slanderous and disparaging statements made by the Emory
and Grady representatives were made intentionally, and for the express purpose of wrongfully
damaging Dr . Murtagh's business and professional reputation and, accordingly, Dr . Murtagh is

entitled to an award of punitive damages to deter and punish Emory and Grady for their
intentional defamation of Dr. Murtagh .
35 .) Plaintiff Murtagh is entitled to recover damages for Defendant's slander in an amount
to be determined by the enlightened conscience of a fair and impartial jury .

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Wf-ZEREFORE, Plaintiff Murtagh prays :

(1) that he be granted trial by jury as to this Count Two ;
(2) that judgment be entered in favor of Plaintiff Murtagh, and against Defendants
Fulton Dekalb Hospital Authority, EmoryUzuvezsity, EtnoryHealthcare,Tnc ., and
Grady Health Services Company, Inc, jointly and severally, as to Count Two of
Plaintiff s Complaint;
(3) that Plaintiff Murtaghrecover from Defendants Fulton-Dekalb Hospital Authority,
Emory University, Emory Healthcare, Inc ., and Grady Health Services Company,
Inc, jointly and severally, his damages, including direct, consequential, general,
special, interest and necessary expenses, for Defendant's slander in an amount to be
determined by the enlightened conscience of a fair and impartial jury, but in no
event less than $1,000,000 .00 ;
(4) that Plaintiff Murtagh recover from Defendants Fulton-Dekalb Hospital Authority,
Emory University, Emory Healthcare, Inc ., and Grady Health Services Company,
Inc, jointly and severally, punitive damages in an amount to be determined by the
enlightened conscience of a fair and impartial jury.

(5) that the Court grant such other and further relief as is just and proper .

COUNT III
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS
BUSINESS AND PROFESSIONAL RELATIONSHII'S
36 .) The allegations of Paragraph 1 through 20 are re-alleged, re-asserted, and re-averred
as if fully set forth herein.
37 .) This is an action for damages for tortious interference with Dr . Murtagh's

12