Kilmartin Settles Malpractice Case

NEWPORT CITY -- Attorney Duncan Kilmartin settled a legal malpractice and consumer fraud complaint brought against him by the widow he represented in a wrongful death lawsuit.

Neither Kilmartin nor his attorney Andrew Maass was present at a hearing in Orleans Superior Court-Civil Division Wednesday, but Andrew Manitsky, who represents the estate of Lyman Dezotell Jr., said the parties negotiated a settlement through mediation.

Manitsky said he was not at liberty to disclose the amount of money nor the terms of the settlement. "I can tell you we're satisfied with the settlement," Manitsky said.

Kilmartin and Maass did not return phone calls for this story.

Widow Maria Dezotell's counterclaim came on the heels of a civil action filed by law firm Rexford & Kilmartin in an attempt to collect Kilmartin's fees.

Wednesday's hearing was held to determine how the money would be split up among Maria and her 12-year-old son Roger Dezotell and Lyman Dezotell's six daughters from previous relationships: Jennifer DeForge, Nicole Sevigny, Beverly Sanborn, and Melissan, Renee and Sammie-Jo Dezotelle.

(The spelling of the family's last name is at times both Dezotell and Dezotelle in court documents.)

Lyman Dezotell Jr. of Derby Line was killed in a car accident in November 2001 by then-25-year-old Theodore Pecor III, now age 37, a participant in an experimental drug addiction treatment trial at the University of Vermont.

Two other local men, Dean Fountain of Newport and Kevin Baker of Coventry, also died in the crash. All three were in the same vehicle on their way to work at IBM in Williston.

Kilmartin's initial complaint indicated he was owed $100,000 as part of his third of the $325,000 settlement reached in the Dezotell suit.

But the counter-claims filed by Manitsky say Kilmartin was unable to handle the complex case, did little independent work to prosecute the case, relied on the work done by attorneys for Baker's estate, made settlement offers without Maria Dezotell's knowledge or approval and gave Maria Dezotell misleading information that led her to settle for far less than the case was worth.

In his answer, Maass denied any wrong-doing or negligence on the part of his client and said Maria Dezotell made a "fully informed, knowledgeable and educated" decision to accept the offer from UVM.

As an affirmative defense, Kilmartin argued that Maria Dezotell never questioned the settlement until she read in a newspaper that the Baker estate had settled for far more, $800,000. Maass filed a document saying that the Fountain estate settled for a nominal amount.

Maass wrote that Dezotell could have made an effort to have the settlement dissolved, voided, set aside or re-opened, but failed to do so.

Kilmartin was accused of similar behavior earlier in this case. In June 2005, David Spielman, attorney for co-defendant Fletcher Allen Health Care, filed a motion to sanction Kilmartin for refusing to stipulate to the hospital's dismissal from the suit and for failing to conduct an investigation into the allegations.

In 2011, Maass told the Orleans County Record, "We are confident that Duncan Kilmartin and his firm conducted themselves with the professionalism required of them in representing Ms. Dezotell and the estate, and that the high regard of his reputation through his long-standing membership in the Vermont bar and within the Northeast Kingdom will remain intact."

Pecor was a subject in an experiment conducted by UVM and Fletcher Allen Health Care that sought to explore the usefulness of the drug buprenorphine in treating heroin addiction.

Buprenorphine has a known sedative effect, and Pecor was permitted to drive home two hours after being administered 6 milligrams of the drug Nov. 29, 2001. That day Pecor said he was experiencing severe effects from the drug and told the staff administering the test that he had no one to drive him home.

Pecor's vehicle crossed the center line of Route 15 in Johnson that day, colliding with Baker's 1993 Ford Escort in which Lyman Dezotell and Fountain were passengers. All three died as a result of the accident.

In June 2001, Maria Dezotell, who had recently emigrated from Romania, gave birth to their son Roger Lyman Dezotell.

In criminal proceedings, Pecor was convicted of three counts of felony gross negligent operation and possession of marijuana while the state dismissed three counts of manslaughter.

He was sentenced to serve three to 15 years in prison.

The Baker suit was filed first, followed by the Dezotell action, which Kilmartin told Maria Dezotell could result in a judgment of more than $1 million, according to filings from Manitsky's fellow attorney Robert Hemley.

"But he took virtually no steps to prepare the case for trial: he took no depositions; he retained no experts; he served no interrogatories," Hemley wrote.

The Baker estate was represented by law firm Sleigh and Williams, which actively pursued the case.

"Undisclosed to Mrs. Dezotell, Kilmartin's plan was to rely exclusively on the work done by the other law firm," Hemley wrote.

Sleigh and Williams shared their work product with Kilmartin for a time, until he ignored billing statements for the Dezotell portion of the work, Hemley wrote. In 2007, "more than two years after the other attorneys had cut him off," Kilmartin represented to the court that he was using the discovery from the Baker case in the Dezotell case.

During the five years of litigation, Sleigh and Williams racked up $100,000 in expenses, while Rexford & Kilmartin only incurred $2,000 in expenses, Hemley wrote.

The Baker case settled for $800,000 in October 2008, but that amount was not made public until the Burlington Free Press reported it in January 2009. UVM admitted no wrong-doing.

Hemley wrote that Kilmartin consulted with Ritchie Berger, UVM's attorney, and with other attorneys and incorrectly guessed that Baker had settled for $350,000 or less. Without Maria Dezotell's permission, he offered to settle with UVM for $500,000.

Kilmartin told Maria Dezotell that the case had "zero" chance of defeating UVM's motion for summary judgment, but having done her own research and located expert witnesses, Dezotell told Kilmartin to move the case forward, demanding no less than $1-million.

Without telling Dezotell that he'd already offered half that amount, Kilmartin demanded from UVM $975,000, which garnered this response from UVM's attorney: "I am at a loss to square your voice message of last week issuing a $500,000 settlement demand with your letter of today's date."

The back and forth continued until Dezotell agreed to the $325,000 settlement.

When Dezotell heard about the amount of the Baker settlement, she "realized something was wrong," Hemley wrote.