Justices Agree to Hear Dentist's Cross-Appeal in $4 Mil. Case

The Legal Intelligencer
By Gina Passarella

A second appeal over a $4 million jury verdict awarded to a former University of Pennsylvania dentist will be heard now that the state Supreme Court granted a cross-petition for allocatur filed by the dentist against the university.

In September, the high court granted the university's request for allowance of appeal and agreed to tackle the issue of whether damages for future income calculated as part of a business' profits should be discounted to present value.

In their latest order, issued Nov. 13, the justices agreed to hear arguments over whether the Superior Court properly granted a nonsuit to Mark Helpin's claim for tortious interference with prospective economic relations.

Trial Judge Marlene Lachman had dismissed by nonsuit Helpin's tort claims against the university and three individuals employed there after Helpin presented his case. Helpin's attorney, Patricia Pierce of Willig Williams & Davidson, said her client was happy with the outcome of the trial but has filed conditional cross-appeals on the nonsuit issue throughout the appeals process in case Penn was granted relief at any stage. The trial court and Superior Court never had to get to those issues because they upheld the $4.04 million verdict in Helpin's favor.

The Supreme Court will be the first to hear the issue of interference with economic relations on appeal, Pierce said.

According to court papers, Helpin was hired at Penn Dental during the deanship of Raymond Fonseca. Fonseca's September 1989 offer letter to Helpin promised Helpin half of any profits generated by the joint Penn Dental/Children's Hospital of Philadelphia dental clinic, of which Helpin was to become director. Fonseca's letter also guaranteed that the bonus arrangement would continue even if Helpin were no longer head of the clinic or chairman of the school's pediatric dentistry department.

Fonseca stepped down as Penn Dental's dean in 2003. Helpin claimed in court papers that once he learned of that development, he spoke with Fonseca and was assured that Fonseca's 1989 letter would protect him against any problems with the new dean over his bonus arrangement.

But Helpin said that six months after Marjorie Jeffcoat replaced Fonseca as dean, Helpin was removed from his departmental position and banished to a suburban office where he could not treat the clinic's special-needs patients.

Helpin's department was then molded into a new, larger dental school department, and he was reassigned from his duties at the pediatric dental clinic, the university claimed. The university argued in court papers that Helpin had been told of shortcomings with respect to junior faculty recruitment and retention shortly before his pediatric dentistry department was subsumed into a new dental school department. He eventually left the school under what the court found to be constructive discharge.

The issue of interference with economic relations deals with what Pierce said was the interference by individual defendants Jeffcoat, Thomas Freitag and Lawrence M. Levin in Helpin's ability to treat patients at the clinic once he was moved to the suburban office.

Pierce said Lachman ruled at trial that although Helpin had a professional relationship with the patients, the economic relationship was between the patients and Penn. On that basis she granted a nonsuit to the economic relations claim, Pierce said.

Pierce has argued that the contract gives Helpin a 50 percent economic stake in the clinic and said it would be inconsistent to allow the jury to find he had that economic stake — which the jury did — and not allow the jurors to say Helpin had an economic interest in the patients he saw there.

Penn's attorney, Arthur Makadon of Ballard Spahr, deferred comment to the university. General Counsel Wendy S. White said she had no comment as to the latest development in the case.

Penn's issue on appeal will center on the state Supreme Court's 1980 opinion in Kaczkowski v. Bolubasz , which applied the "total offset method" of calculating damages in a wrongful death case and abandoned the practice of discounting future earnings to present value. The court said, however, that it would not apply the total offset method to every case but would allow for a case-by-case analysis of which method to use.

The total offset method, according to a footnote in the opinion, assumes that future increases in earnings due to inflation are offset by the interest rate so no reductions to present values are made. Penn argued the offset method "grossly inflates" Helpin's damages.

Penn took issue on appeal to the Superior Court with the fact that its damages expert wasn't allowed to include a damages chart he prepared based on "present value" damages.

Pierce said in September the majority of Helpin's $4.04 million jury award was based on future damages. At trial, she said, Penn's damages expert sought to reduce future damages by 2.5 percent to bring it down to present value so that Helpin doesn't get the windfall benefit of being able to invest that lump sum and receive more than the damages are worth.

Pierce said in September that federal courts have adopted the present-value approach in pure employment cases but said this is a breach of contract case. She said Pennsylvania law has used the total offset method in personal injury and certain contract cases.

The trial court in Helpin used the total offset method because it likened Helpin's losses to the loss of individual productivity rather than the loss of profits in a business, which Penn argued they were, Judge John T. Bender had said for the Superior Court.