Kelley v. Franklin Cty Rehab

7ermont Superior Court
Filed 09/05/25
Chittenden Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 21-CV-00323
175 Main Street
Burlington VT 05401
802-863-3467
www.vermontjudiciary.org

Bruce Kelley, et al v. Franklin County Rehab Center, LLC d/b/a Franklin County
Rehabilitation Center and d/b/a Franklin County Rehabilitation & Adult Care
Center, et al

ENTRY REGARDING MOTION
Title: Motion for Permission to File an Interlocutory Appeal of this Court's 8/18/25
Order (Motion: 16)
Filer: Vincent Hluzzi
Filed Date: August 29, 2025

The motion is DENIED.

Plaintiff seeks permission for an interlocutory appeal on the Court's August 18% decision

granting summary judgment to three individual defendants in the present matter. The basis of
Plaintiff's motion is premised on newly filed facts that they believe cure the prior issues in their

opposition to Defendant's motion for summary judgment. For the reasons stated below, the Court
does not find sufficient grounds to grant Plaintiff's Motion, and permission for interlocutory appeal

is Denied.

Standard of Review

Under V.R.A.P. 5, permission for an interlocutory appeal depends on whether a ruling
involves a controlling question of law about which there exists a substantial ground for difference of

opinion and an immediate appeal may materially advance the termination of the litigation. V.R.A.P.
5(b)(1). The Vermont Supreme Court has interpreted Appellate Rule 5(b)(1) to require the moving
party to prove three things:

(1) the ruling to be appealed must involve a controlling question of law; (2) there
must be a substantial ground for difference of opinion on that question of law; and
(3) an immediate appeal must materially advance the termination of the litigation.

Entry Regarding Motion Page 1 of 4
21-CV-00323 Bruce Kelley, et al v. Franklin County Rehab Center, LLC d/b/a Franklin County Rehabilitation Center
and d/b/a Franklin County Rehabilitation & Adult Care Center, et al
State v. Pelican, 154 Vt. 496, 501 (1990) (quoting State v. Wheel, 148 Vt. 439, 440 (1987)). “The three
factors should be viewed together as the statutory language equivalent of a direction to consider the
probable gains and losses of immediate appeal.” In re Pyramid Co. of Burlington, 141 Vt. 294, 302,
(1982) (quoting 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure
§ 3930, at 156 (1977)). A party’s failure to satisfy any one of these three requirements “precludes
certification” by a trial court that the order at issue is appropriate for interlocutory appeal. Pyramid
Co., 141 Vt. at 302. The trial court exercises its discretion in granting or denying a party’s motion
seeking interlocutory review. State v. Haynes, 2019 VT 44, ¶ 33, 210 Vt. 417. A motion for an
interlocutory appeal must not constitute a dilatory tactic or cause significant delay. Castle v. Sherburne
Corp., 141 Vt. 157, 164 (1982). Discovery rulings “do not, absent exceptional circumstances, present
controlling questions of law within the meaning of the rule.” Id.

Background

The present case involves a complicated series of claims regarding Plaintiff’s paralysis.
Plaintiff had been hospitalized at UVM Medical Center for vascular issues in his legs for
approximately two and a half months before he had a complicated surgery designed to relieve the
vascular issue. Several days after the surgery, Plaintiff was moved to a rehabilitation center. Plaintiff
began complaining of discomfort in his legs on the ambulance ride over to the center. On his first
day at the center, he was lifted from his seat in a hoyer lift chair. Plaintiff complained of pain during
the lift. After the lift, he began experiencing numbness and continuing discomfort. The nursing
staff at the center did not perform a neurological examination that evening, and the on-call doctor
did not order such tests. In the morning, the center sent him to the local hospital for an unrelated
health issue. At the hospital, the staff determined, after testing, that there were issues with Plaintiff’s
legs, and the hospital sent him back to UVM Medical Center. After examining Plaintiff and
performing tests, UVM Medical Center determined that the issue was neurological and related to a
pocket of blood against his spine. Over 16 hours after Plaintiff was admitted, the UVM Medical
Center performed surgery to relieve the pressure on the spine, but it was too late as Plaintiff’s
paralysis had become permanent.

On review for summary judgment, Defendants raised the issue of causation. Their filings
focused on Plaintiff’s experts and the gap between the allegation of negligence and the question of
“but for” causation. Wilkins v. Lamoille County Mental Health Services, Inc., 2005 VT 121, ¶¶ 12–14. As
Entry Regarding Motion Page 2 of 4
21-CV-00323 Bruce Kelley, et al v. Franklin County Rehab Center, LLC d/b/a Franklin County Rehabilitation Center
and d/b/a Franklin County Rehabilitation & Adult Care Center, et al
a complicated medical issue, Plaintiffs must establish the elements of negligence through specific
expert witness opinions and testimony. Taylor v. Fletcher Allen Health Care, 2012 VT 86, ¶ 9.

As Plaintiffs admit, the alleged negligence of the nurses and doctor from the time after the
hoyer lift until Plaintiff left the rehabilitation center did not cause the injury that led to Plaintiff’s
paralysis. Instead, they allege that their failures contributed a delay to getting Plaintiff diagnosed and
treated that lost Plaintiff valuable time. The problem with this proposition is that none of Plaintiffs’
experts in the testimony and information put before the Court were able to link this delay
specifically to Plaintiff’s paralysis.

To draw a simpler analogy, imagine a party is in a car wreck and is badly injured. An
ambulance arrives and puts the party on a stretcher. But as they are putting the stretcher into the
ambulance, they drop it. This is arguable a breach of the ambulance’s duty of care to safely put a
person into the ambulance. There has been a breach and negligence, but it is only actionable if they
can show that the party’s injuries were worsened by the drop.

In this case, Plaintiffs have experts who have opined, for purposes of summary judgment,
that the nurses and medical doctor were negligent, but there is no opinion or evidence to show the
worsening. In other words, if the nurses had done the testing would Plaintiff have been sent to
UVM Medical Center sooner and would the diagnosis and surgery have come before the paralysis
became permanent? No expert has said so. For that reason, the Court granted partial summary
judgment.

Legal Analysis

As noted above, the partial summary judgment decision was premised on a review of the
available facts marshalled by both sides for summary judgment purposes. In their motion for
interlocutory appeal, Plaintiffs do not point out any legal issue but effectively seek reconsideration
and the introduction of new exhibits. There is no controlling question of law. The law of
negligence, medical malpractice, and causation are largely undisputed. Plaintiffs’ motion questions
the Court’s conclusions, but it does not suggest that there is a specific legal issue in dispute.

Finally, there is no legal issue in dispute that could substantially advance the case.
Notwithstanding the partial grant of summary judgment, the rehabilitation center remains a
defendant, and a cause of action continues against both the rehabilitation center and UVM Medical
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21-CV-00323 Bruce Kelley, et al v. Franklin County Rehab Center, LLC d/b/a Franklin County Rehabilitation Center
and d/b/a Franklin County Rehabilitation & Adult Care Center, et al
Center. If this partial summary judgment was reversed, the litigation would neither terminate nor
materially advance.

Based on this lack of either a dispositive or disputed legal issue or controlling question of
law, the Court finds that Plaintiffs cannot establish a basis for an interlocutory appeal under the case
law governing, and that the resulting appeal would effectively be a piecemeal appeal of the present
matter. Pelican, 154 Vt. at 501 (1990); see also In re Pyramid Co. of Burlington, 141 Vt. 294, 300–01
(1982).

For these reasons, Plaintiffs’ motion for an interlocutory appeal is Denied.

Electronically signed on 9/4/2025 7:08 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

Entry Regarding Motion Page 4 of 4
21-CV-00323 Bruce Kelley, et al v. Franklin County Rehab Center, LLC d/b/a Franklin County Rehabilitation Center
and d/b/a Franklin County Rehabilitation & Adult Care Center, et al