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UVM Settles Second Drug Lawsuit

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By Adam Silverman • Free Press Staff Writer • March 6, 2009

The University of Vermont has resolved a second lawsuit related to a triple-fatal 2001 car crash involving a participant in a drug study at the school -- but the amount is nearly a half-million dollars less than UVM paid to settle another widow's claim last fall.
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University attorneys agreed to pay $325,000 to Maria Dezotell of Jericho, whose husband, Lyman, 44, was killed as he drove from the Northeast Kingdom to work at IBM in Essex Junction with two colleagues. UVM disclosed settlement details this week in response to a public-records request from The Burlington Free Press.

An insurance policy covered the entire cost of the settlement and "most" of a $36,844 legal bill, according to the university, which did not admit wrongdoing.

The previous case ended last fall with an $800,000 payment to Ann Baker, widow of crash victim Kevin Baker, 44, of Coventry. UVM, facing a nearly $30 million budget shortfall that prompted layoffs and the slashing of two sports teams last month, spent $275,000 of its own money toward portions of the Baker settlement and the corresponding $410,000 legal bill insurance did not cover.

The discrepancy between the amounts paid to Baker and Dezotell occurred in part because the university did not disclose the cost of the earlier settlement before resolving the second claim, Dezotell attorney Duncan Kilmartin said Thursday.

Both settlements included confidentiality provisions, standard in resolving many lawsuits, but the Free Press sought details because the cases involved the expenditure of public money.

"We negotiated based on the information available to us, which did not include the confidential amount of the Baker settlement," Kilmartin said. "Just like two juries could come to radically different conclusions about liability and damages, so too could negotiators negotiating a settlement."

David Sleigh and David Williams, whose St. Johnsbury law firm represented the Baker family, said university attorneys approached Kilmartin with an offer to resolve the case while the newspaper's public-records request was pending.

"They needed to get that case settled before the amount was revealed in ours," Williams said. "If Duncan found out what we got, he was going to hold out for more."

The Free Press sent UVM a formal request under Vermont's open-records law Dec. 17, and the university provided information Dec. 31.

Kilmartin, though, said his negotiations with the school began in late October.

"Serious negotiations were occurring before your request was made. All significant issues were concluded prior to Christmas," he said. "Based on the dates, it would appear UVM negotiated in good faith."

Kilmartin, whom Maria Dezotell replaced as her attorney last month, said the newspaper's Jan. 3 article about the $800,000 Baker settlement "came as a surprise," but he added, "Why it was a surprise I'm not disclosing."

Neither UVM's lead counsel, Ritchie Berger, nor school spokesmen responded Thursday afternoon to requests for comment about the negotiations and the timeline. Earlier, the university released a statement expressing concern for Lyman Dezotell's survivors.

"The university recognizes the loss experienced by the Dezotell family in that tragic accident and hopes that this resolution will assist them in moving forward," UVM spokesman Enrique Corredera said.

Maria Dezotell declined an interview request.

She filed the lawsuit in 2003 in Orleans Superior Court in Newport. The claim alleged a UVM research team acted negligently by allowing a man involved in testing buprenorphine, a drug to treat heroin addiction, to drive home after taking a dose Nov. 29, 2001.

Driver Theodore Pecor, then a 25-year-old student at Johnson State College, fell asleep at the wheel, drifted across the center of Vermont 15 in Johnson and slammed head-on into the men's oncoming car. Also killed was Dean Fountain, 69, of Newport. Pecor faced criminal charges, pleaded guilty and served three years in prison.

Buprenorphine, or "bupe," is an alternative to methadone and helps people overcome addictions to opioid narcotics such as heroin or the painkiller oxycodone. Bupe has since won approval from the federal Food and Drug Administration.

Some elements of the Dezotell case appear unresolved. Kilmartin responded to Maria Dezotell's Feb. 17 effort to replace him by filing a motion that sought an "order to remain as counsel," according to court records. Her new attorney, Andrew Manitsky of the Burlington firm Gravel and Shea, said Thursday that he had no comment.

Also, Sleigh and Williams have filed a claim in Orleans Probate Court seeking $50,000 from the Dezotell settlement to fulfill what they say was an agreement between their firm and Kilmartin to share legal costs of the proceedings against UVM, such as the hiring of expert witnesses.
Contact Adam Silverman at 660-1854 or asilverm@bfp.burlingtonfreepress.com. To have Free Press headlines delivered free to your e-mail, sign up at www.burlingtonfreepress.com/newsletters.