Kelley v. Franklin County Rehab

7ermont Superior Court
Filed 12/31/25
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 to Reconsider; Motion to Reconsider; Motion; Motion Entry Order of
8/18/25; Entry Order of August 18, 2025, Supplemental; to Reconsider Entry Order of 8/18/25 -

2nd Supplemental; to Reconsider Entry Order of 8/18/25 (Third Supplemental) (Motion: 17; 19;
22; 23)
Filer: Vincent Illuzzi; Vincent Illuzzi; Vincent Illuzzi; Vincent Iluzzi
Filed Date: August 29, 2025; September 11, 2025; September 29, 2025; October 03, 2025

The motions are DENIED.

Plaintiffs Bruce and Nancy Kelley have filed multiple motions seeking a reconsideration
of the Court's August 18, 2025 decision on Defendants Franklin County Rehabilitation & Adult
Care Center and Dr. Teig Marco's motions for summary judgment. Plaintiffs' approach to both
the underlying motion practice as well as the present motions to reconsider have been

unconventional and inconsistent with Rule 7's standards. In both responding to the motion for

summary judgment and in the motion for reconsideration, Plaintiffs has filed multiple

"supplemental" motions that function effectively as sur-replies and have extended the briefing
process well beyond the normal limits of what briefing should encompass. While the Court has
not issued an order to end this type of drip-drip briefing, it does not condone or endorse such

practice.
In the present instance, Plaintiffs have filed not only a Motion to Reconsider (August 29,

2025) but a Motion for Interlocutory Appeal (same date), a First Supplemental Motion to
Reconsider (September 11, 2025), Second Supplemental Motion to Reconsider (September 29,

2025), and a Third Supplemental Motion to Reconsider (October 3, 2025), as well as responsive
filings to the Defendants' Oppositions. Each of these motions has sought to expand the record
and in the case of the Second and Third Supplemental Motions, introduce entirely new opinions

from expert witnesses that the Court will address below. The result has been a haystack of
pleadings in which the Court must dig through layers of argument and new opinions to determine
if, in fact, there is a needle of good cause to revisit the prior denial.
The Vermont Supreme Court has expressed stated that Courts are not obligated to dig
through desultory briefing and records to resolve summary judgment motions. Travelers Ins.
Companies v. Demarle, Inc. USA, 2005 VT 53, ¶¶ 6–9 (mem.). As Rule 56 requires, parties
must present a “concise statement of material facts as to which it is contended that there exists a
genuine issue to be tried.” V.R.C.P. 56(c)(2). The window for motions to reconsider are even
more narrow as the motion is not a second chance to re-litigate or respond to the Court’s orders,
it is a vehicle to “correct manifest errors of judgment or to present newly discovered evidence.”
Brislin v. Wilton, No. 2009-236, 2010 WL 712556, at *3 (Vt. Feb. 25, 2010).
The issue before the Court in these on-going filings, as was at the heart of the underlying
summary judgment motion, is the limited and narrow question of whether Plaintiffs’ have
sufficient expert testimony to establish that the actions or inactions of FCRC staff and Dr. Marco
during the window of time after the hoyer chair lift at 4:00pm on March 2, 2018 and before his
removal to Northwest Medical Center before 7:00am on March 3, 2018, either caused or
contributed to the injury that Mr. Kelley ultimately suffered. Wilkins v. Lamoille County Mental
Health Services, Inc., 2005 VT 121, ¶¶ 12–14. This “but for” causation standard requires
Plaintiffs to prove that the injury “would not have occurred ‘but for’ the defendant’s conduct.”
Collins v. Thomas, 2007 VT 92, ¶ 8.
Given Mr. Kelley’s complicated medical history as well as the chain of events leading up
to his ultimate paralysis, this standard requires expert witness testimony. Taylor v. Fletcher
Allen Health Care, 2012 VT 86, ¶¶ 9, 10. “But for” causation is also a different and distinct
element from Plaintiffs’ burden to establish the standard of care that each of the Defendants were
obliged to follow, and which they are alleged to have breached.
In this case, Plaintiffs have presented sufficient evidence to establish—at least for the
purpose of summary judgment—their proposed standard of care as well as the alleged breaches
that Dr. Marco and FCRC staff committed against that standard of care. Plaintiffs can also show
the Mr. Kelley suffered a substantial injury. What Plaintiffs have struggled to show is how the
alleged breaches of Dr. Marco and the evening FCRC staff caused Mr. Kelley’s paralysis. This
is because Plaintiffs do not contend that either Dr. Marco or the evening FCRC staff caused the
subdural hematoma that led to his paralysis. Instead, Plaintiffs allege that the staff’s failure to
perform neurological exams of Mr. Kelley resulted in a delay of returning Mr. Kelley to the
hospital where he could have the surgery to relieve the hematoma. Put more plainly, Plaintiffs
have to show that the delay from Dr. Marco’s and the evening FCRC staff’s inactions put Mr.
Kelley back in the hospital beyond when a surgery could have prevented his paralysis. That is
“but for” causation in this case.1
The problem with Plaintiffs’ evidence coming into the present motion practice is that
none of the relevant experts have offered testimony or opinion that answers this issue. While
there has been general testimony that “time is function” in such cases, there has been no expert
testimony saying but for this specific delay, doctors would have saved all or part of Mr. Kelley’s
neurological function in his lower extremity. This is, in part, because of the complicated nature
of both Mr. Kelley’s medical history as well as the complicated series of events that led to the
subdural hematoma. There is expert testimony to suggest that the hematoma may have started in
the hospital or in the ambulance ride to FCRC. There is also evidence to suggest that the
botched hoyer chair lift may have caused or contributed to the injury. These factors suggest a
complicated timeline that puts more uncertainty into the later and allegedly contributing factors,
like the time that Mr. Kelley spent at FCRC.
As one link within the chain of events that led Mr. Kelley from initial recovery from
vascular surgery at the end of February to his paralysis on the evening of March 3d, the time at
FCRC was always a possible contributing suspect. Plaintiffs’ burden, however, is not to merely
speculate about the role of the delay at FCRC or to join these defendants by their mere proximity
to the events, but to provide evidence within a reasonable degree of medical certainty, as offered
by an expert witness, that links the defendants’ inactions causatively to the injury.
As FCRC and Dr. Marco’s initial motions demonstrated, all of Plaintiffs’ experts on
causation stopped short of this evidence. Dr. Rachlin and Dr. Eskey spoke about the effects that
a delay between injury and treatment can have on a patient with a subdural hematoma against the
spine, but neither of them offered an opinion in deposition that stated but for the delay alleged to

1 To draw out this distinction by way of example, if the ambulance taking Mr. Kelley from FCRC to

Northwestern Medical Center had loaded him feet-first such that the doors hit him on the head, Plaintiffs
would likely have evidence of the breach of the duty of care, but they would still have to show that the
bump on his head caused or contributed to his paralysis. If they could not, then the ambulance crew, no
matter how improper their actions, could not be held liable for the ultimate damages. It would be insult to
injury but not negligence.
be caused by Dr. Marco and the evening FCRC staff, Mr. Kelley would have had a different
outcome.
In their motions for reconsideration, Plaintiffs seek to relitigate this issue by pointing to
the same or similar portions of the record that the Court reviewed in the motion for summary
judgment. As Defendants note, much of this evidence, particularly from Kristin Husher and Dr.
Christopher Davey, does not address the complicated issue of “but for” causation. Instead, the
citations to the record cite to the opinions that Ms. Husher and Dr. Davey have given that the
Defendants’ actions breached their respective duties of care and that these breaches resulted in
several hours of delay in returning Mr. Kelley to the hospital. Again, none of the evidence
shows that this delay caused Mr. Kelley to lose any portion of recovery that he would have had if
the delays had not occurred. Neither Dr. Rachlin, nor Dr. Eskey offer such an opinion.
The two new pieces of evidence offered by Plaintiffs in their Second and Third
Supplemental filings are opinions by Dr. Davey and Ms. Husher that expand their original
opinions and drift into the issue of causation. Both offer new opinions that if the FCRC staff had
performed examinations the night of March 2, 2018, they would have discovered Mr. Kelley’s
neurological issues and returned him to the hospital, and the earlier return would have resulted a
favorable outcome saving some or all of Mr. Kelley’s lower neurological functions and avoiding
paralysis.
If such opinions had been disclosed at the beginning of this case or during the normal
course of discovery, Plaintiffs might be in a different posture with their claims against Dr. Marco
and the evening FCRC staff. Coming at the last minute, well after the time for discovery, from
two unqualified witnesses, and in the truncated and conclusory form of new, post-deposition
affidavits, the Court finds three significant reasons to reject Dr. Davey and Ms. Husher’s newly
minted opinions.
First, the opinions are not expert opinions. They are conclusory statements. Under Rule
702, an expert opinion is permitted to help the finder of fact understand complicated or
specialized concepts. These can be nearly anything from the complicated medical principles of
how a particular disease affects a body, to how water flows through different types of soil, or to
how a piece of machinery works and is maintained. What each opinion shares in common is that
it provides an explanation and illuminates a particular process or phenomena to assist the fact-
finder’s understanding. V.R.E. 702; see also K.Kreiling, Expert and Opinion Evidence in
Vermont: Developments, Profiles, and Emerging Concerns for Reliability of Scientific Evidence,
17 Vt. L.Rev. 109, 117–19 (Fall, 1992) (describing the purpose and expansive nature of
permissible expert testimony). In Ms. Husher’s and Dr. Davey’s supplemental testimony, they
do not offer an opinion as to why or how the delays affected Mr. Kelley’s neurological condition,
they simply opine that it did and that but for the delays, Mr. Kelley would have had a better
outcome and avoided paraplegia. Unlike their opinions concerning the standard of care, these
new opinions offer no analysis, refer to no specialized knowledge or basis, and are conclusory.
Such statements are not admissible as expert witness opinions under V.R.E. 702. Vale v. United
States, 673 Fed. Appx. 114, 116 (2d Cir. 2016) (holding that expert testimony is “inadmissible as
unreliable where it consists of conclusory and speculative opinions”); see also In re Hinesburg
Hannaford Act 250 Permit, 2017 VT 106, 51 (rejecting a statement from an expert as
conclusory).
Second, Dr. Davey and Ms. Husher’s newly minted opinions are beyond the scope of
their expertise. Both witnesses were disclosed as experts in the field of nursing home and
rehabilitative care. Dr. Davey is a medical doctor with extensive experience in providing
medical care to patients in nursing home facilities. Ms. Husher has a similar nursing
background. Neither are trained or experienced in neurology or similar area of expertise, and
neither were disclosed as being capable of providing such testimony. As Defendants note, both
have in their prior deposition expressly disclaimed any knowledge or basis for opining about the
causative issues behind Mr. Kelley’s neurological issues that they have now sought to offer.
Under Rule 702, an expert’s testimony must match their area of competence on which
their qualification rests. See, e.g., Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356,
1362 (Fed. Cir. 2008) (unless a patent lawyer is also a qualified technical expert, his testimony
on technical issues is improper and thus inadmissible); McCullock v. H.B. Fuller Co., 981 F.2d
656, 657 (2d Cir. 1992) (in products-liability action alleging injury from inhalation of glue
vapors, trial court did not err in excluding testimony of plaintiff's expert, an electrical and
industrial engineer, since his background would only qualify him to testify as to the need for a
ventilation system, but the issue in dispute was the adequacy of a warning label); Watkins v.
Schriver, 52 F.3d 769, 771 (8th Cir. 1995) (holding that trial court did not err in refusing to
permit neurologist to testify about forensic medicine). In this case, both Dr. Davey’s and Ms.
Husher’s opinions are well outside of their areas of competency, and the new opinions are not
permissible within the limits of Rule 702.
Third, these statements are untimely. Discovery in this matter largely ended in October
of 2023. While the Court has allowed certain extensions, Plaintiffs have not sought, nor have
they received an extension for either of the witnesses to expand the scope of their testimony.
These new opinions, which are not based on newly discovered evidence but are specifically
crafted to address shortcomings in Plaintiffs’ case, are simply too late in the process to be
admitted. They have come after depositions and motion practice and are both entirely new and
inconsistent with both witnesses’ prior deposition testimony, their expert disclosures, and even
their expert qualifications. As such, the Court will not permit these late opinions, which
represent new areas of testimony from existing witnesses. V.R.C.P. 26(b)(5)(A)(i).
Based on these factors, both collectively and individually, Dr. Davey’s and Ms. Husher’s
new opinions on “but for” causation are not admissible and cannot form the basis for any
reconsideration.
ORDER
Based on the foregoing, Plaintiffs’ motions for reconsideration are Denied.

Electronically signed on 12/30/2025 6:35 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge