# Appendix — Riccardi v. Kessler

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2235%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 894

## Text

Supreme Court, U.S.
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OFFICE OF THE CLERK

Jn Che
Supreme Court of the CGnited States

October Term, 2010

DR. PATRIZIA RICCARDI,

Petitioner.

DR. ROBERT KESSLER,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

Patrizia Riccardi
Petitioner, Pro Se

555 Main Street, Apt 515
New York, NY, 10044
RiccardiP@aol.com
646-342-3355

TABLE OF CONTENTS

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Appendix A — Order Issued by the U.S.

Court Of Appeals for the Sixth Circuit,
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Appendix B - Motion of Appellant to

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Appendix C - Order, Memorandum
Opinion, Issued by Thomas A.
Wiseman, Jr., U.S.D.J., Dated
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Appendix D - Order, Issued by Thomas
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APPENDIX A- ORDER ISSUED BY THE U.S.
COURT OF APPEALS FOR THE SIXTH
CIRCUIT, DATED/FILED JANUARY 28, 2010
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NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION

Kile Name: 10a00540.06
No. 08-5234

UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT

ROBERT KESSLER, ) ON APPEAL FROM

Plaintiff-Appellee, ) THE UNITED
) STATES DISTRICT
v. ) COURT FOR THE

) MIDDLE DISTRICT OF
PATRIZIA RICCARDI, ) TENNESSEE
Defendant-Appellant. )

FILED
Jan 28, 2010
LEONARD GREEN, Clerk

Before: NORRIS, CLAY and SUTTON, Circuit
Judges.

SUTTON, Circuit Judge. Dr. Patrizia Riccardi
sued Dr. Robert Kessler, alleging that he retaliated
against her after she reported him for sexual
harassment. Kessler, in turn, sued Riccardi for
defamation, alleging that her reports against him

Za

Appendix A

were false and damaged his reputation and mental
health. Kessler prevailed in both suits, and Riccardi,
now proceeding pro se, claims the district court
erred by: (1) granting partial summary judgment to
Kessler on her retaliation claim; (2) resolving three
evidentiary motions incorrectly; (8) granting
Kessler's pre-verdict motion for judgment as a
matter of law on the remainder of her retaliation
claim; and (4) denying her postverdict motion for
judgment as a matter of law on Kessler's defamation
claim. We affirm, except with regard to the pre-
verdict judgment as a matter of law on the
retaliation claim, which we reverse and remand.

Riccardi, a psychiatrist, began a medical-
research fellowship in the Radiology Department at
Vanderbilt University in September 2003. She
worked under the direct supervision of Kessler, a
radiology and psychiatry professor. When Riccardi
accepted a part-time faculty position in July 2004,
she agreed to fund a percentage of her salary with
grant money, which she could accomplish either by
obtaining her own grants or by contributing to the
grants of other faculty members, who would then
allocate a portion of their grant funding to her
salary.

During Ruiccardi's first two years _ at
Vanderbilt, she worked almost exclusively with
Kessler, researching a number of mental-health

Q2«¢
Ia

Appendix A

disorders using Positron Emission Tomography, a
neuroimaging technology. Riccardi claims she came
to Vanderbilt specifically to work with Kessler, as he
was a recognized scholar in PET imaging, the field in
which she too wanted to specialize. As Riccardi
understood it, Kessler planned to include her on all
of his grants and help her with grants of her own so
that she could reach her funding goal.

The nature of Riccardi and_ Kessler's
relationship differs dramatically depending on whom
you ask. Riccardi alleges that Kessler began sexually
harassing her in November 2003, which gradually
worsened and culminated in an attempted rape in
June 2005 when they were in Toronto attending a
professional conference. Kessler denies these
allegations, contending that the two began an on-
again-off-again affair in January 2004 that lasted
until June 2005, and that he, not Riccardi, was the
victim of the physical altercation in Toronto.

The Toronto incident prompted Riccardi to
report allegations of Kessler's sexual harassment
and attempted rape to Vanderbilt in June 2005.
University authorities conducted an investigation,
ultimately concluding that the evidence was
insufficient to substantiate Riccardi's claims. During
the investigation, Kessler told Vanderbilt authorities
that he and Riccardi had engaged in a consensual
sexual relationship. The university’ thereafter
strictly limited Kessler's interaction with Riccardi,
instructing him to avoid being alone with her and

4a
Appendix A

not to communicate with her directly. Because much
of Riccardi's work required the assistance or
supervision of Kessler, the parties worked out a
system whereby Riccardi and Kessler would
communicate by e-mail and copy each other's
attorneys on all of their messages.

In June 2006, Riccardi filed a_ sexual
harassment complaint that named Vanderbilt,
Kessler and radiology department chair Dr. Martin
Sandler as defendants. She raised a state-law claim
for retaliation against Kessler individually, along
with claims for battery and intentional infliction of
emotional distress stemming from the _ physical
altercation in ‘Toronto. Kessler countersued, alleging
defamation as well as assault and battery claims
based on the Toronto incident. Riccardi settled her
claims against Vanderbilt and Sandler before trial.

Riccardi alleged—and continues to claim on
appeal—that Kessler unlawfully retaliated against
her by inadequately supporting her grant-writing
efforts and by refusing to include her on a number of
his own grant proposals. The district court granted
partial summary judgment to Kessler regarding his
conduct on five of the grants, finding that Kessler
presented legitimate non-retaliatory reasons for his
actions and that Riccardi had not shown a genuine
factual issue as to whether the stated reasons were
pretextual. As for his conduct on two of the research
projects, however, the district court found that
Riccardi established a question of fact sufficient to

Pye
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Appendix A
warrant a trial.

With the issues whittled down toa Riccardi‘;
remaining two allegations of retahatory conduct,
Kessler's defamation claim and both of then
personal-injury claims, the case proceeded to trial
At the close of the evidence and before the case went
to the jury, the district court granted Kessler's
motion for judgment as a matter of law on Riccardi's
remaining two allegations of retaliation, determining
that Riccardi neither established that she suffered
any adverse action nor demonstrated that the
explanations Kessler gave for his conduct were
pretextual.

The jury found in Kessler's favor across the
board, awarding him $15,000 in damages for
battery,$10,000 in compensatory damages for
assault, $500,000 in actual monetary damages for
defamation, $1,500,000 in other compensatory
damages for defamation and $950,000 in punitive
damages. App. 1236-39.

Riccardi filed a_ post-verdict motion for
judgment as a matter of law, claiming that Kessler
failed to present evidence of actual damages
resulting from the defamatory statements. In the
alternative, she requested a new trial or a remittitur
of the compensatory and punitive damages for

defamation. The court granted her motion with
respect to the $500,000 in actual monctary damages
but denied it as to the other compensatory damages

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Appendli K 4A

and the punitive damages, on the condition that
Kessler accept A remittitur decreasing
thecompensatory damages award from $1,500,000 to
$250,000 and the pumtive damages award from
$950,000 to $250,000 Kessler accepted — the

remittitur and the district court entered ae final

judgement
|

Riccard) first claims that the district court
erred in granting partial summary judgment to
Kessler on her retaliation claim. Tennessee state law
prohibit: individual from "retahatling] O1
discriminatiling] 1n any manner ayainst a person
because such person has opposed a | discriminatory]
practice." Tenn. Code Ann. § 4-21-3801. A plaintiff
alleging a retahation claim under the statute must
as with a Title VII claim, show "(1) that she engaged
in activity protected by the THRA; (2) that the
exercise of her protected civil rights was known to
the defendant; (3) that the defendant thereafter took
a materially adverse action against her; and (4)
[that] there was a causal connection between the
protected activity and the materially adverse action."
Allen v. McPhee, 240 S.W.3d 8038, 820-21 (Tenn
2007). If the plaintiff makes the required showing,
the burden shifts to the defendant "to articulate a
lemtimate, non-discriminatory reason for" the
adverse action. ld. at 821. And if the defendant
satisfies that burden, the burden shifts back to the

plaintiff, who "must present evidence demonstrating

that the articulated reason is pretextual and that

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about them. See R.144, 45. As for the five alleged!
retaliatory action mm which the district purt
granted ummary judgment, however Ricca
ittempt to show retahation falters after that p
Riccard: allege Lhat Kessler retahated
avainst her by"providing inadequate a Istance
with" her "Sex Differences Grant proposal." Riccardi)

Br 1/5 The tact Aa relaved by Riccard) how that

veral months after filing suit, Riccardi: soup

Kessler's assistance as she prepared to submit th

yrant proposal. Riccardi gave Kessler a draft of th

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give Kessler sufficient time over the weekend = to
review it before the Monday submission deadline
Still awaiting his response on Sunday, Riccard
asked a university employee to call Ke ler on her
behalt at about 300 that afternoon Ke ley

responded by emailing Riccardi at 4:20, telling he:
that he "only now had the opportunity to carefully
read" her yvrant and offering several paragraphs of

and suggestions. App. 726-28. The cight

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Appendix A

grant proposal she submitted to the NIH to obtain
funding to study autism. Ricc. Br. 48. Kessler

provided Riccardi with “one page" of comments after
reviewing her draft proposal. Ricc. Br. 49. The grant
was not funded, and the reviewers commented that
the background section was "difficult to follow" and
"not cogent," App. 721, and that the entire proposal
needed "careful editing,” App. 719. As Riccardi sees
it, the reviewers’ comments demonstrate that
Kessler retaliated against her, because he--as an
NIH grant reviewer himself-should "have warned
[her] that the reviewers would make such comments
and suggested meaningful ways to avoid such

criticism." Rice. Br. 49.

Riccardi has not demonstrated that Kessler's
supposedly inadequate assistance constitutes an
adverse employment action sufficient to sustain a
retaliation claim. Kessler's "one page" email—too
short to be helpful by Riccardi's estimate-suggested
that she correct various organizational and
substantive problems, including some of the same
problems mentioned by the reviewers. See, e.g., App.
715-16 (suggesting she edit the background section
to make it more "tightly focused"). Riccardi offers no
evidence that Kessler's feedback amounted to an
adverse action: She does not show, for example, that
Kessler's comments on grant proposals prior to her
complaint were significantly more helpful, nor does
she suggest what "meaningful" comments should

have looked hke

LOa
Appendix A

Riccardi fares no better on her claim that
Kessler retaliated against her by refusing to act as
the "mentor/sponsor" of her application for a Young
Investigator Award sponsored by NARSAD, an
organization that funds psychiatric research
projects. The NARSAD application requires a
"mentor/sponsor letter" "from an on-site
mentor/sponsor ... describing the mentor's/sponsor's
commitment to facilitate the specific research
proposal." R.82-2,2-3. Kessler declined Riccardi's
request that he assume that role, stating that, hght
of their strained relationship and her refusal "to
communicate with fhim] except by email," he "d[id]
not see how [fhe] could effectively fulfill the duties
required of a Mentor/Sponsor for this. project."
App.730. Based on his own experience as a member
of the NARSAD scientific council as well as a
conversation with a "senior member" of the
organization, he believed that he "would be required
to disclose [their situation] to NARSAD" a
Mentor/Sponsor's’ letter, which could have
threatened her chances of receiving the grant. R.82,
119.

Riccardi challenges the district court's
conclusion that these were legitimate, non-
retaliatory reasons for declining her request. She
says that his reason for declining the mentor/sponsor
role must be pretextual because the limits on their
communication did not hamper other projects they

worked on together. But evidence about other

lla
Appendix A

projects does not help her show pretext, because the
record shows that the NARSAD mentor/sponsor role
is more intensive than an ordinary co-investigator
role. See R. 82, ~ 19, see also App. 729. Riccardi
rejoins that she did not ask Kessler to be her
"mentor," just her “senior collaborator," which
purportedly would not have required as much one-to-
one contact. Rice. Br. 51-52. No matter the title, she
does not dispute that Kessler would have had to
submit a letter outlining his plans to support her
project and disclosing their lmited ability to
communicate. Her only response is that Kessler
obtained much of his understanding about the role of
a mentor/sponsor from conversations with an
undisclosed member of NARSAD, which Riccardi
classifies as inadmissible hearsay inappropriate for
consideration in a summary judgment ruling. But
because Kessler testified about his conversation with
a senior member of the NARSAD council to show the
basis of his belief that he could not help her, not for
the truth of the matter asserted, the conversation 1s
not hearsay and the district court did not err in
considering it. See Fed. R. Evid. 801 (c).

|).

Riccardi claims that Kessler retaliated by not
naming her as a co-investigator on his Vanderbilt
Discovery Grant proposal for a project on "dopamine
and depression." Rice. Br. 55. "[I]t was a very small
srant," Kessler explains, "with a very limited budget

and only the very most essential people could be

Appendix A

included on it," R.89-2 at 837, he "had to have
someone from the psychiatry department who would
recruit the depressed subjects" and "[t] here was not
enough money in the budget for anyone else." R.89-2
at 837. addition, "the grant program required
participation by two Vanderbilt departments," so
"the ... investigator on the budget [other than
Kessler] had to be from a department other than
radiology"—the department in which Kessler and
Riccardi worked. R.82, 423. He added that, at the
time he prepared the grant, "collaboration" with her
“had been exceptionally difficult," presumably
because of the restrictions placed on _ their
interaction, R89-2 at 837, and explained that the
project was small enough that he would perform the
PE'T scans himself. /d. Other than claiming that this
grant was related to a larger NIH grant on which
she was a co-investigator and that she would have
worked for free, Riccardi offers no evidence to show
that these non-retaliatory reasons were pretextual.
Rice. Br. 56—-7.
EK.

Riccardi argues that Kessler wrongfully
withdrew his support of her "Borderline Personality
Grant" proposal “as a result of [her] complaint." Ricc.
Br. 41—42. According to Riccardi, Kessler agreed to
serve as her co-investigator for the grant in March
2005, several months prior to her June 2005
complaint to Vanderbilt authorities. He reviewed the
draft proposal, provided Riccardi with feedback and

even offered her money from his own grant funding

13a
Appendix A

so that Riccardi could obtain preliminary data for
her proposal. Riccardi finished her proposal by June
2005, but decided to wait to submit it until the next
funding cycle rolled around in early 2006.

As she prepared to submit her proposal during
January and February of 2006, Riccardi, through
Kessler's secretary, asked Kessler to confirm that he
would serve as co-principal investigator signing
paperwork for the proposal. Kessler's attorney
informed Riccardi that Kessler "[did] not intend to
do this." App.635. Riccardi submitted the grant
without Kessler's (or any other faculty member's)
assistance, and the grant was not funded. One grant
reviewer commented on her junior status, noting her
failure to list "either an established psychiatric co-
investigator, or a PET co-investigator ... as part of
her team." App.704.

Kessler provides a legitimate non-retahatory
reason for his refusal. The project, Kessler says,
involved administering medicine that could
exacerbate the test subjects' underlying conditions,
and he was concerned about patient safety. In.
addition, he claims that Riccardi did not provide him
a copy of the proposal in January 2006, so he could
not, without running up against ethics rules, sign off
without thoroughly reviewing and understanding
the "essential aspects" of her project. R.82, 415.

These reasons must be pretexual, Riccardi insists,
because Kessler reviewed the proposal
approximately ten months earlier and agreed to

l4a
Appendix A

serve as co-investigator without any mention of
safety or ethical concerns. But this argument does
not satisfy her burden of showing pretext, as she has
not offered proof that the proposal remained in the
same form as it was in June 2005, claimed that she
provided Kessler with a copy of the grant in January
2006 or shown that it would have been ethically
appropriate for Kessler to sign off on the proposal
without re-reviewing it.

Riccardi suggests her reply brief that Kessler's
safety concerns about the grant are pretextual
because Kessler "agreed to serve as co-investigator
on two offher ] other grants ... which were simular in
nature to the [grant] in terms of any potential 'safety
issues. ' Rice. Reply 3. Because she did not raise this
point in the district court or in her initial brief, she
has forfeited it. See Moulton v. U.S. Steel Corp., 581
3d 344,354 (6th. 2009).

III.

Riccardi challenges three of the district court's
evidentiary rulings, which we review for abuse of
discretion. See Biegas v. Quickway Carriers, Inc.,
573 F.3d 365,378 (6th Cir. 2009).

A.

The district court did not err in permitting
testimony that Riccardi told Kessler about her prior
sexual relationships. Though "evidence offered to

15a

Appendix A
prove" any alleged victim's "other sexual behavior"
or "sexual predisposition" is generally inadmissible,
the district court may allow such evidence if "its
probative value substantially outweighs the danger
of harm to any victim and of unfair prejudice to any
party." Fed. R. Evid. 412(a)(1)-(2), (b)(2). Kessler's
defense to Riccardi's allegations was that the two
were in a consensual sexual relationship. Elciting
testimony about what Riccardi told Kessler about
her past sexual relationships, then, was probative as
to whether the two had the type of personal
relationship in which Riccardi would disclose
intimate details of her personal life. We cannot say
that the district court exceeded its discretion in
determining that the probative value of evidence
going to the lnchpin of Kessler's defense
substantially outweighed the potential for unfair
prejudice to Riccardi. Riccardi's alternative
argument that the district court should have
excluded the evidence on Rule 404(b) grounds adds
no merit to her objection. Rule 404(b) prohibits
"evidence of other ... acts" "to prove the character ofa
person in order to show action in conformity
therewith." Fed. R. Evid. 404(b). It does not,
however, bar evidence of prior acts for other
purposes—such as to show that Riccardi shared
personal details of her life with Kessler.

B.

Nor did the district court abuse its discretion
in denying Riccardi's motion to admit evidence that

16a
Appendix A

Kessler shifted assets and accounts to his wife's
name and sold property around the time Riccardi
made her complaint to Vanderbilt authorities.
Riccardi suggests that the evidence should have
come in to show that Kessler “engaged in a pattern
or scheme to evade responsibility for his actions"
once he suspected Riccardi might bring claims
against him. Ricc. Br. 69. Even if this evidence could
have shown that Kessler wanted to "evade
responsibility" by protecting his assets from an
unfavorable judgment, it would have been of little
relevance to the ultimate issues in this case-whether
Kessler committed battery, intentionally inflicted
emotional distress or retaliated against Riccardi.
The district court therefore did not abuse its
discretion in omitting evidence of such attenuated
relevance.

U

Riccardi's remaining evidentiary challenge
that the district court incorrectly permitted "hearsay
evidence consisting of statements [Kessler] made to
others ... that he had an intimate relationship with
[Riccardi]," Rice. Br. 63-is unavailing. The district
court permitted Kessler to testify that he told his
boss and his wife that he was having an affair, citing
the prior consistent statement exemption from the
hearsay rule. See Fed. R. Kvid. 80 I (d)( 1). An out-of-
court statement "consistent with" in-court testimony
is admissible under Rule 80I (d)( 1) if the out-of-
court statement "is offered to rebut an express or

l7a

Appendix A

implied charge against the declarant of recent
fabrication." Id. Throughout the trial, Riccardi tried
to prove that Kessler was lying when he claimed
that their relationship -had been consensual.
Therefore, Kessler offered testimony that he told his
wife and his boss of their purported affair months
before Riccardi complained to Vanderbilt authorities
for the proper purpose of rebutting Riccardi's claim
that he lied about the affair to protect himself. No
doubt, it is possible that Kessler made up the affair
and confessed it to those close to him to take the
sting out of Riccardi's future sexual harassment
claims, but the theory is sufficiently speculative that
we cannot say the district court abused its discretion
in rejecting it.

Riccardi gets nowhere with her challenges to
other witnesses' testimony regarding what Kessler
told them about his relationship with Riccardi.
Because her attorneys did not object at trial to
Martin Sandler's and Craig Oxford's testimony, she
has forfeited this argument. And because her
attorneys elicited testimony from Ingrid Kessler
about Kessler's out-of-court statements, R.264, 756-
57, Riccardi cannot now maintain the court erred in
allowing that testimony. See All Am. Life & Cas. Co.
v. Oceanic Trade Alliance Council Int '1, Inc., 756 F
.2d 474, 479-80 (6th Cir. 1985).

y
j
j

Riccardi next challenges the district court's

18a
Appendix A

denial of her post-verdict motion for judgment as a
matter of law on Kessler's defamation claim. She
claims that Kessler did not present a_ legally
sufficient evidentiary basis for a reasonable jury to
find that he suffered actual injury as a result of her
allegations, which she _ discussed with other
colleagues at Vanderbilt and reported to the
American Association of University Women. (She
does not contest the sufficiency of the evidence as to
any of the other elements of a defamation claim, nor
does she argue the reasonableness of the punitive
damages award.) ''aking, as we must, the "strongest
legitimate view of the evidence in favor of’ Kessler,
we may reverse the district court's denial of
Riccardi's motion only if "a reasonable mind could
draw but one conclusion": a conclusion in Riccardi's
favor. Arms v. State Farm Fire & Cas. Co., 731 F.2d
1245, 1248 (6th Cir. 1984).

To recover damages on a defamation claim
under Tennessee law, a party must prove "actual
injury" resulting from the allegedly defamatory
statements. Memphis Publ'g Co. v. Nichols, 569
S.W.2d 412,417-19 (Tenn. 1978). "[A]ctual injury is
not limited to out-of-pocket loss," and may "include
impairment of reputation and standing in the
community, personal humuliation, and mental
anguish and suffering." Id. at 416. But "anger, mere
annoyance or loss of peace of mind" may not be

sufficient to demonstrate actual injury. See Murray
v. Lineberry, 69 S.W.3d 560, 565 (Tenn. Ct.
App.2001).

19a
Appendix A

Viewing the evidence in Kessler's favor, a jury
could reasonably have concluded that Kessler
experienced sufficient anguish, humiliation and
suffering as a result of Riccardi's allegations to
amount to a compensable "actual injury." Kessler
testified that Riccardi's allegations of rape were
"extremely stressful"; were "like a cloud that hangs
over you and pushes you down and zaps your
energy"; made him "depressed somewhat, anxious
somewhat" and “unable to work to get [his] funding
yoing"; caused him to “wonder ... how many job:
positions {he was] not being considered for because
people think [he's] a rapist, a crazy person, a sexual
harasser"; R.242 at 101-102, and triggered ongoing

problems sleeping at night, id. at 139

In addition to Kessler's testimony, othe:
record evidence lent support to the reasonableness of
the jury's conclusion that Kessler's injuries went
beyond mere embarrassment, annoyance or anger
Riccardi's allegations, for one, prompted a lengthy
internal investigation into Kessler's personal life at
Vanderbilt. When she recounted her allegations to
the American Association of University Women, the
organization posted them on its website. Kessler'
colleagues ran across the website and alerted him to
it, bolstering the legitimacy of Kessler's belief that

the allegations were widely known and_ that

Riccardi's allegations had diminished his reputation
See Myers v. Pickering Firm, Inc., 959 S.W.2d 152,
165 (Tenn. Ct. App. 1997) (finding actual injury in

‘Wa

Appendix A

part because the evidence showed that plaintiff
beheved hi reputation was tarnished by the
defamatory statements). light of the web publication
and the intensive investigation prompted — by
Riccardi's complaints, this case is different from

Tennessee cases in which the plaintiff suffered only
"mere annoyance" or “humilhation"” insufficient to
prove actual injury. See Handley v. May, 588 S.W.2d
772, 776-77 (Tenn. Ct. App. 1979) (no actual injury
when there was "no evidence whatsoever of any
Impairment of reputation and/or standing in the

community" and the evidence showed that plaintiff

was “under mental stress and strain independent of
the defamatory utterance"): Dowlen v. Mathew No
M2001-03160-COA-R3-CV,2003 WL 112955, at*5
(Tenn. Ct. App.Aug. 25, 2003) (no actual injury from
defendant's false statements about a police officer
because he did not demonstrate harm "risling| above
anger, mere annoyance or loss of peace ofmind," nor
did he show that the false statements led to the
officer undervoingy an “internal investigation

"disciplinary action,” or any "cuts in pay, demotion:
or suspensions"). Because the evidence was legally
ufficient to sustain a damayes award, the district

court did not err 1n de nyinyv Roccard)' motvlo)

Lastly, Riccard) claims that the district court’
decision to grant Kessler's pre-verdict motion for

judyment as a matter of law on Riccard)'s remaining

two allegation of retaliation-those urroundinyg

Kessler decisions not to include Riccard)
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Contract.” When rewewing wdegment a romatte)
of law in i diversit 1S 6 NV ( ipp !
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retahator rea yy lor | ict ee nat ] eae
did not have Lire required ¢ nertysei | Lrye rant
ubject matter: and (2) that the om mall budget
could not accom) date Riccard wcceardy) ntered
that these reasor ere pretextual, becauss me Tae
ilwa been o1 rants before, even if she did not
have the nec ry expertise, and bi is the

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6) 2 «
Lat JC

4
Appendix A

Riccardi's belief, that proves only that she did not
work solely on Kessler's grants, not that she did not
expect to be on all of his grants. Because the same
questions of fact that precluded summary judgment
remained unresolved at the close of the evidence,
and because "doubt existi|ed] as to the conclusions to
be drawn from [the] evidence," Johnson, 205 S$.W.3d
at 370, the jury, not the district court, should have
determined whether Riccardi's claim had merit.

Kessler tries to save this part of the judgment
by claiming that the lhngering questions about
pretext do not matter, because Riccardi failed to
show an "adverse action" and therefore never
established a prima facie case of retaliation. ‘he
evidence showed that the grant was never funded,
Kessler argues, so failing to include Riccardi on the
srant was not an adverse action, as it did not hinder
her in the end from meeting her funding
requirements. The district court apparently agreed,
noting when granting the Rule 50 motion that any
"damage" Riccardi incurred was “ethereal and
speculative." App. 1232

But Kessler—and the district court-overlooked
a crucial factual issue. The grant might not have
received funding, but Riccardi testified that even
working on an unfunded grant proposal would have
advanced her career. From that, a jury reasonably
could have found that being excluded from carecer-
building, albeit unfunded, grant work "well might

have dissuaded a reasonable worker from making or

24a

Appendix A

supporting a charge of discrimination," Allen, 240
S.W.3d at 820 (quoting Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006),
and therefore constituted an adverse action.
Kessler's rationale-that his actions did not really
harm Riccardi because she never would have
received funding from the grant anyway--contains
another flaw. It is after-the-fact reasoning that
contains its own dose of speculation about whether
the action was adverse to Riccardi at the time it
occurred. See Burlington Northern, 548 U.S. at 72-

)

73 ("an indefinite suspension without pay could well"
be an adverse action "even if the suspended

employee eventually received backpay")

The district court erred along similar lines in
granting Kessler's Rule 50 motion with respect to
the "Risperidone Contract." ill December 2006,
Kessler signed the contract, which provided funding
to conduct PET scans” of individuals’ with
schizophrenia. Kessler did not seek Riccardi's—or
anyone else's-assistance in preparing the funding
application, claiming that "1t was far simpler just to
write it" himself. R.89-2 at 13. The district court
denied summary judgment, noting that the project
was similar to other work he and Riccardi had
worked on together and that, although Kessler
prepared the application on his own, another
colleague, Dr. Robert Shelton, was lsted as a co-

investigator, which "|gave] rise to an inference that

20a

Appendix A

Kessler's stated reason for not including" Riccardi—
"that 1t was just too much trouble"-was pretextual.
R.133, 34. At trial, Kessler testified that no one other
than himself was listed on the Risperidone Contract,
purportedly to provide a legitimate non-retaliatory
reason for excluding Riccardi. When Riccardi's
counsel confronted him with the fact that Shelton
was listed as a co-investigator with a salary on the
"proposal transmittal fonn," R.242 at 1 ~9, Kessler
claimed that another Vanderbilt employee-not he-
put Shelton's name on the apphcation. Even though
Riccardi's name was not on the proposal, Kessler
continued, she would not have been excluded from
working on the Risperidone Contract once work
began on it, but work had been delayed by the
company funding the project

Kessler's testimony that nothing would have
prevented Riccardi from working on the contract

yan does not dispel the inferences of

once work beg
pretext identified by the district court at summary
judgment. Riccardi claims that Kessler retaliated
against her by leaving her name off the proposal,
and a number of facts related to this complaint came
out at tmal that the jury should have hed the
opportunity to weigh, namely: (1) that Riccardi was
included on all of his PE T-related projects between
September 20038 and June 2005; (2) that he did not
ask her to work on either of his PET projects
afterward; (3) that the Risperidone contract was
related to thew other work; and (4) that someone

else's name was placed on the proposal, suggesting

26a

Appendix A

that he readily could have done what he previously
always had done: include Riccardi's name.

Kessler opposes this conclusion on two fronts,
claiming that a jury could not have concluded that
Kessler's conduct was an "adverse action" and that
Riccardi offered nothing to support her claim of
pretext. Leaving Riccardi's name off the project was
not an adverse action, Kessler insists, because work
on the project was delayed. But as with the
Methamphetamine Grant, this reality does not
undermine Riccardi's prima facie case. There was
evidence after all that having one's name on projects
is a career benefit. As to pretext, Kessler insists that
Riccardi cannot rebut a purported non-retaliatory
reason for his action-that he did not exclude Riccardi
from work because no one had started working on
the project. But any project delays do nothing to
eliminate the harm of being left off the grant. The
district court erred when it did not allow the jury to

decide these lingering questions.

(Kessler, we should note, appears to dispute
the premise of our reasoning, claiming that "Riccardi
does not complain that her name was not included
on the Risperidone Contract ... only ... that she did
not do any work on that Contract," Kessler Br. 40.
We are not sure where Kessler gets this idea, as the
cited transcript pages do not mention the
Risperidone Contract and our review of the trial
transcript reveals nothing to that effect. But even if

Riccardi at some point suggested that she was only

21a

Appendix A

complaining about not getting to work on a yet-to-
begin project, there is certainly contrary testimony
indicating that Kessler's decision not to include her
name on the contract formed the basis of her
complaint and her papers before both the district
court and this court confirm as much, see R.95, 38-
39, Rice. Br. at 61, Rice. Reply at 19 ("[Kessler's]
retaliatory conduct was in excluding me from the
Risperidone contract proposal").)

Two final points. One, the reader may wonder
why the parties-and the district court-treated the
various adverse actions in this case as distinct
claims as opposed to one claim with aggregated
harms. We had the same question. The answer is
that this is how the parties presented the case. And
because the parties chose to structure the case in
this manner and because no party has complained
about this aspect of the case on appeal, we need not
decide whether thelr assumptions about’ the
appropriate structuring of this case are correct.

‘Two, we have asked Robert Rack, the head of
the Office of Circuit Mediators, to contact the parties
to determine whether they may wish to mediate the
two claims left in this case. The mandate as a result
will not issue until the parties successfully mediate
the case or determine that they no longer wish to to
resolve their differences through court-sponsored
mediation.

VI.

28a
Appendix A

For these reasons, we affirm the judgment,
except with respect to the district court's grant of
judgment as a matter of law on the two retaliation
claims tried before a jury, which we reverse and

remand.

APPENDIX B- MOTION OF APFELLANT TO
AMEND APPELLANT'S BRIEF AND ORDER
DENYING MOTION TO AMEND APPELLANT'S
BRIEF, ISSUED JULY 29, 2008

28a

UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT

PATRIZIA RICCARDI,
Appellant-Defendant

No: O8-5234

ROBERT KESSLER,
Appellee-Plaintiff

— — — eee Nee ee”

MOTION OF APPELLANT TO AMEND
APPELLANT'S BRIEF

Dr. Patrizia Riccardi ("Appellant") moves to the
Court to amend Appellant's brief based on
discovered information that Judge Wiseman and
Judge Brown had conflicts of interest precluding
them from acting as impartial Judges in this matter
because of their ties to Vanderbilt University, a
defendant in the case and an employer of Appelle.
Therefore, Appellant was denied a fair trial and
moves to amend the brief to assert this additional
basis for granting Appellant a new trial.

1. On July 10th and July 11th 2008, Appellee sent a
certified letter to Appellant which was received on

July 17th requesting an extension of time to file his

29a
Appendix B
brief and requesting the Appendix Appellant. 2.
Appellant filed her notice of appeal on February 25,
2008.

3. Appellant's bref was due on May 5, 2008.
Appellant sought an extension of time and was
granted one extension of time to file her brief on
June 5th, 2008.Contrary to Appellee's
misrepresentation, Appellant only requested one
extension and timely served her brief on June 5th
2008.

4. Appellant filed a motion for leave to file of 86
pages of brief on June 5% 2008. The Court granted
the motion on June 24th 2008.

5. Appellee's brief was due on July 8th, 2008.
Appellee also misrepresents the date that their brief
was due. I have no objection to their request but |
only want to bring Appellee's lack of candor to the
attention of the Court.

6. Appellant moves to the Court to file an amended
brief and will send the amended version with the

Appendix to Appellee as well.

Respectfully submitted,

Patrizia Riccardi, MD
CERTIFICATE OF SERVICE

| hereby certify that a true and correct copy of the

foregoing has been sent via U.S certified mail to

30a
Appendix B
Kevin Sharp,
DRESCHER AND SHARP, P.C.
1720 WEST END AVENUE, SUITE 300
NASHVILLE, TENNESSE 37212

Case No. 08-5234

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ORDER

ROBERT KESSLER,
Plaintiff -Appellee

PATRIZIA RICCARDI,
Defendant -Appellant

Upon consideration of the appellant's motion to
amend brief,

It is ORDERED that the motion be and it hereby is
DENIED. The court of appeals is a court of review
and it will not consider information not previously
presented to and considered by the district court

ENTERED PURSUANT TO RULE 45d(a), RULES
OF THE SIXTH CIRCUIT

Leonard Green, Clerk

Issued: July 29, 2008

APPENDIX C - ORDER, MEMORANDUM
OPINION, ISSUED BY THOMAS A. WISEMAN,
JR., U.S.D.J., DATED 08/08/2007

3la

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DR. PATRIZIA RICCARDI
Plaintiff,

Civil Action No
3:06cv0605
VANDERBILT UNIVERSITY
MEDICAL CENTER,
and DR. ROBERT KESSLER,
and DR. MARTIN SANDLER,
individually,

Defendants.

i i

ORDER

Before the Court are two motions: (1) the
Motion for Summary Judgment filed by Defendants
Vanderbilt University Medical Center (“Vanderbilt”)
and Dr. Martin Sandler (“Sandler”) (Doc. No. 66),
seeking judgment in their favor on all claims
brought against them by Plaintiff Dr. Patrizia
ticcardi, including claims against Vanderbilt for
sexual harassment by a supervisor and retaliation in
violation of Title VII and § 4-21-301 of the Tennessee
Human Rights Act, Tenn. Code Ann. (“THRA”), and

Cc.’

against Sandler individually for retahation in

3Za

Appendix C
violation of the THRA;: and (2) the Motion for Partial
Summary Judgment (Doc. No. 75) by Defendant Dr.
Robert Kessler (“Kessler”), seeking summary
judgment as to the THRA retaliation claim asserted
against him individually.

l‘or the reasons set forth in the accompanying
Memorandum Opinion, the Court finds that
Vanderbilt's and Sandler’s motion should be granted
in part and denied in part. Specifically, the motion
for summary judgment as to the sexual harassment
and retaliation claims against Vanderbilt is hereby
DENIED on the grounds of disputed issues of
material fact, but the motion for summary judgment
as to the THRA retahation claim against Sandler }
GRANTED and that claim DISMISSED. Defendant
Kessler’s motion for partial summary judgment

DENIED.

Itis so ORDERED.

Thomas A. Wiseman, Jr.
Senior U.S. District Judge

$7)

Appendix ©

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLIE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DR. PAT RIZIA RICCARD I
Plaintiff )

VANDERBILT UNIVIECRSITY — )
MEDICAL CENTER,
and DR. ROBICRT KIicSSLIER
and DR. MARTIN SANDLER, )
individually

Defendant

MEMORANDUM OPINION

Before the Court are two motion (1) the
Motion for Summary Judyment filed by Defendant
Vanderbilt University Medical Center (“Vanderbilt”)
and Dr. Martin Sandler (‘Sandler’) (Doc. No. 66)
eeking judgment in their favor on all claim
brought against them by Plaintiff Dr. Patrizia
Riccardi, including claims against Vanderbilt fo
exual harassment by a supervisor and retaliation in
violation of Title VII and § 4-21-3301 of the Tennessee
Human Rights Act, Tenn. Code Ann. (°THRA”), and
against Sandler individually for retaliation in
violation of the THRA;: and (2) the Motion for Partial

Summary Judgment (Doc. No. 75) by Defendant Dr

Robert Ke ler (“Ke ler’) eekineg ummary

ment a | the THR revalliat rt
wWaInst nin ndiviadua I} ( ! i} i f
premised Dor tne ederal quest pore nted
yell as the complet () I it] Lhe | roi
rhe n tO na 1) 1} nrye i j re
ripe for considerats me) [ reason ct t!
belov the Court find Chiat anderbilt
mdier motion Hould be y ited ' part y
denied nm part pecihy | t } r} fion {oy , nap
yuayme if i Li Le f i] nara rit | (
retahation clain MrPaIst mderbilt wall be ed
but thi notion for nimal mudgment f thie
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rranted and that claim ]
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78a
Appendix C

Plaintiff alleges that, in February 2006, she
submitted a grant proposal to the NIH entitled
“Imaging of Dopamine Release in_ Borderline
Personality Disorder” (the “BPD Grant’). (Riccardi
Aff. 4 66.) She claims that Kessler refused to assist
her with this grant in any way, despite having
agreed in March 2005 to serve as co-investigator on
the grant proposal, that Vanderbilt acquiesced to his
refusal and that his refusal was retaliatory.

The evidence, viewed in the lhght most
favorable to the Plaintiff, shows that she prepared
the paperwork for this grant and was ready to
submit it in June 2005, but decided for strategic
reasons to wait until early 2006 to submit it.
Kessler was listed as co-investigator on the
application; he reviewed the draft proposal in March
or April 2005 and _ provided comments’ and
suggestions at that time and even offered to allocate
money from his other grants to fund two or three
scans so that Plaintiff would have pilot data to
support the BPD Grant proposal. (Riccardi Aff. 44
67, 68, and Ex. 5.) Plaintiff does not allege, however,
that Kessler saw the final version of the application.
Kessler asserts that he did not, and further claims
that his agreement to assist with the grant in early
2005 was” preliminary and_=e anticipated his
involvement in developing procedures for the study.

In a letter to Vanderbilt’s counsel dated
September 26, 2005, Plaintiffs counsel at that time,
David Raybin, stated: “With regard to the new grant

79a
Appendix C

[presumably referring to the BPD Grant proposal]
Dr. Riccardi finds it satisfactory that Kessler’s name
would be on the proposal so as to enhance its chance
of being accepted. However, there must be a clear
understanding that if it is accepted and funded, he
would be replaced as the person with whom she
would work .. ...” (Doc. No. 74-16, at 24.)

In January 2006, Plaintiff asked Kessler to
sign the BPD Grant proposal as a co-investigator but
she did not contact him directly or give him a
complete copy of the submission. Instead, she
apparently gave paperwork to Kessler’s secretary
who then asked him to sign it. Kessler notified
Plaintiffs attorney through his own attorney that he
was not willing to act as co-investigator on the grant.
In a declaration filed in support of his motion for
partial summary judgment, Kessler states that, as
he understood the project, the administration of
medication could cause exacerbation of patients’
underlying symptoms. This risk could be minimized
by the use of appropriate research procedures, but
Kessler claims he had no information regarding
what procedures Plaintiff planned to put in place to
minimize this risk. He asserts he was also
concerned that the safety of patients could be
jeopardized by Plaintiffs refusal to contact him
directly if emergencies arose during the course of the
research. Kessler also asserts that ethical rules
require that researchers who sign grants understand
their research commitments and the essential
aspects of the research project involved and that,
without further information about Plaintiffs

80a
Appendix C

proposed procedures on this grant, he did not feel he
could satisfy his ethical obligations. Finally, Kessler
claims that he was not the only person at Vanderbilt
who could co-sign the grant proposal, and that the
proposal was ultimately submitted by Plaintiff with
a different co-investigator.

In response, Plaintiff asserts only that she
never “refused” to provide a copy of the complete
grant paperwork to Kessler, but she does not
contend that she provided him with a complete copy
of the proposal, nor has she rebutted or called into
question any of Kessler’s asserted reasons for
refusing to sign the grant as a co-investigator. She
faults Vanderbilt for acquiescing in Kessler’s refusal
to join in this grant proposal and for not offering her
the assistance of “an alternative faculty member
with relevant expertise to serve as co-investigator on
the grant,” but also states that Kessler was the only
Vanderbilt faculty member to possess such relevant
expertise. (Doc. No. 93, Riccardi Aff. 9§} 70, 71.)
Regardless, when Sandler learned that Kessler did
not feel comfortable being co-investigator on the
BPD Grant proposal, he suggested to Plaintiff that
another faculty member could serve as_ co-
investigator, and the University would designate
another faculty member to be an authorized user of
the radioactive drugs to be used in connection with
the imaging associated with the grant application.
(Sandler Aff. § 31 and Ex. 11.)

Sandler also testified that the reasons he did
not instruct or direct Kessler to participate in

Sla
Appendix C

Riccardi’s grant application included (1) his concerns
that Kessler and Plaintiff could not meaningfully
collaborate on a project such as this one given
Riccardi’s repeated statements, both directly and
through her attorney, regarding her refusal to have
any direct contact with Kessler; and (2) principles of
academic freedom inherent in any University
community, and set forth in the Faculty Manual,
rendered it inappropriate for him to attempt to
dictate to Kessler to join in a specific project. (See

Sandler Aff. 4] 32.)

The Court finds that, assuming for purposes of
this motion that Plaintiff has established a prima
facie case based on Kessler’s refusal to support this
grant and Vanderbilt’s and Sandler’s acquiescence in
that decision, the Defendants have _ presented
Jegitimate, non-discriminatory reasons for the
action, which Plaintiff has failed to address. She has
not pointed to any evidence that creates a disputed
issue of fact as to whether Kessler’s reasons for
refusing to be co-investigator on her BPD Grant
were pretextual, and Plaintiffs attorney's admission
that Plaintiff wanted Kessler named on the grant
proposal but did not really intend to work with him
on the project lends further support to Kessler’s
expressed ethical concerns. Plaintiffs retaliation
claim based on Kessler’s withdrawal of his support
for the BPD Grant therefore fails.

(c) Plaintiff's Autism Grant Proposals

In June 2006, Plaintiff submitted an NIH

82a
Appendix C

grant proposal on autism. Kessler made comments
on the initial NIH grant and signed it as co-
investigator. Plaintiff alleges that Kessler’s
comments were “not meaningful and comprised all of
one page” (Riccardi Aff. §| 74), and that his failure to
provide more extensive assistance was somehow
retahatory. The Court finds that the record shows
that Kessler agreed to be co-investigator on the
grant and provided substantive commentary on
Plaintiffs draft proposal. Plaintiff's allegations that
his comments were too short and not meaningful are
conclusory and unsupported, and she has not
demonstrated that she suffered a materially adverse
employment action in connection with Kessler’s
assistance on this grant proposal.

In August 2006, Plaintiff submitted an
internal Discovery Grant proposal, also on autism.
She contends that Kessler failed to assist her with
that grant application and that his refusal to do so
was again retaliatory. With respect to this grant
proposal, the undisputed evidence shows that
Plaintiff initially requested that Kessler be co-
investigator on an unspecified discovery grant on
Friday, August 11, 2006; the request appeared as
basically a postscript at the end of an e-mail
discussing their work on the AMPT Grant. Plaintiff
did not indicate the subject of the grant or the date
on which she intended to submit the proposal.
Rather, she simply stated, “I am apply to a discovery
grant and I am requesting your willingness to be on
the grant.” (Doc. No. 82-2, at 4.) On Monday,
August 14, Kessler responded to the e-mail, first

83a
Appendix C

commenting on the other matter being discussed and
then adding, “In regard to the discovery grant, I
would like to know the topic of the grant and would
like to be able to have a chance to make

meaningful comments before its submission.” (/d.)

In a response that can only be characterized
as snippy, sent later the same day, Plaintiff asked,
As long as your help for the discovery grant
[sic], why do you want to know about the
topic? would this change you [sic]
availability in terms of being an
investigator? You are the only one who
does PET neuroimaging at Vanderbilt
as you may well know. Surely the only
one I can ask. I am not sure about
what you mean by ‘to make meaningful
comments before its submission’.
Please explain.
(Id.) She did not, however, answer Kessler’s
question as to what the topic of the grant was, nor
did she indicate the date on which she planned to
submit the proposal.

The next day, August 15, Kessler replied:
Regarding the Discovery Grant, when an
investigator agrees to be a collaborator, she or
he agrees to provide support and to be
responsible for the scientific conduct of
that grant. In this regard it is much like
a paper where one must sign a release
stating that you accept responsibility
for the content of the paper and have no

84a
Appendix C

conflict of interest. I would very much
like to help you with this grant and
hope that you receive this funding. The
ethical conduct of research however
requires that I know what I am
pledging to support and what I am
accepting responsibility for. I [am] not
trying to be difficult in this regard, but
knowing the content of the grant
applications on which you are a
collaborator is a basic responsibility of
each investigator. 1 hope that this
explains the basis of my _ previous
comments to you.

(Doc. No. 82-2, at 2.)

The following day, on Wednesday, August 16,
2006, Plaintiff responded with shghtly greater

civility:
Regarding the Discovery Grant, | perfectly
agree with you. Grant is on autism. I

requested your willingness to be on the grant
on Friday, you answered on Monday and than
[sic] — after one more day of (frantic)
consultation — yesterday. Do you think you
can give your consent today??

Ud.) Again, however, she did not indicate when she
intended to submit the grant proposal.

The following morning, Thursday, August 17,
Kessler responded that he would be pleased to assist
with the grant and that he presumed it would be
consistent with the NIH autism grant proposal

85a
Appendix C

previously submitted. He also included some
preliminary comments and suggestions and stated,
“1 would like to help in the composition and editing
of this application so that, as much as possible, the
grant application is clear and compelling.” (/d.) An
hour later, Plaintiff responded: “Thanks but
unfortunately it is too late; I had to submit the
grant.” (Doc. No. 82-2, at 1.) In other words,
Plaintiff waited to request assistance until less than
a week before she planned to submit the grant
proposal, never told Kessler the date on which she
planned to submit the proposal, and then wasted
several days quibbling about whether he really
needed to know the grant’s topic before agreeing to
co-sign it.

In her response in opposition to summary
judgment, Plaintiff claims that Kessler’s response to
her request that he assist with the Discovery Grant
was disingenuous because, as her mentor, Kessler
had “full knowledge of [Plaintiff's] grant work” and
knew that she could only be referring either to the
Autism Grant or Sex Differences Grant. In addition,
Plaintiff claims Kessler was well aware of the
submission dates for Vanderbilt Discovery Grants
because there are set quarterly dates for submission
of such grant proposals and he had submitted his
own discovery grants. S*inally, Plaintiff asserts that,
prior to the filing of her formal complaint against
him, Kessler would “immediately pledge his
assistance to her with her grants even before she
requested any help.” (Riccardi Aff. 4] 77.)

86a
Appendix C

Plaintiff's position with regard to the Kessler’s
lack of assistance on the Autism Grant is beyond
ridiculous. Her assertions that Kessler must have
known the topic of the grant and its due date are
conclusory and not based on personal knowledge.
Her approach to soliciting his assistance was
patently unreasonable: She never sent him the
grant documents, never told him what her
submission deadiine was, and in any event did not
request his assistance sufficiently in advance of her
unspoken deadline for Kessler to have had time to
provide meaningful assistance. Even assuming his
failure to co-sign the Discovery Grant could be
considered a materially adverse employment action,
Plaintiff has not presented any evidence suggesting
that such failure was causally related to her having
made a discrimination claim against him, nor has
she rebutted Kessler’s proffered legitimate, non-
discriminatory reason for that failure—-namely, that
he agreed to support the grant only to discover
Plaintiff had already submitted it.

Plaintiffs retaliation claim based on Kessler’s
allegedly insufficient support of her Autism Grants
therefore fails.

(d) Plaintiffs NARSAD Grant Application

NARSAD is a non-profit organization that
provides funding for scientific research in severe
psychiatric brain and behavior disorders. (Doc. No.
82, Declaration of Robert M. Kessler (“Kessler Decl.”)
{| 18.) One of NARSAD’s grant programs is for young

8/a
Appendix C

investigators and requires that the applicants have
an “on-site mentor or senior collaborator who is an
established investigator. ... The mentor/sponsor
role is usually extensive for fellowship extension
(mentor), and more senior’ colleague/advisor
(sponsor) for an applicant well prepared to initiate
independent science.” (Kessler Decl. Ex. B
(NARSAD application guidelines).) Plaintiff wanted
to submit a NARSAD Young Investigator grant
proposal in July 2007, and first asked Kessler to sign
her Young Investigator grant application as “senior
author” in April 2007.

In his response to Plaintiff's e-mail request in
that regard, Kessler stated:

I have received your emails asking me to serve
as your NARSAD Young Investigator Award
Mentor/Sponsor. I feel I must respectfully
decline to attempt to serve in that capacity.
As you know, the NARSAD Young
Investigator Award requires a
“Mentor/Sponsor” and the NARSAD web site
states that the Mentor/Sponsor must provide
a letter which states the mentor’s commitment
to facilitate the research proposal. As you
refuse to communicate with me except by
email, refuse to accept any documents that
display my handwriting or signature, and
given the obvious disdain shown toward me
and the general adversarial approach taken
by you, I do not see how I could effectively
fulfill the duties required of a Mentor/Sponsor
for this project. Additionally, | believe that I

Sha
Appendix C

would have to disclose this situation to
NARSAD in a Mentor/Sponsor letter so that
they could adequately evaluate whether or not
I can fulfill the duties as required. Given
these circumstances, I suggest that you
contact Dr. Jeremy Kaye, Chair, Department o
f Radiology, who can assist you in finding a
suitable mentor for this application.
(Doc. No. 93-10, at 2.) Kessler also attested in his
Declaration that prior to responding to Plaintiffs
request he contacted a colleague who, like himself,
was also a member of the NARSAD Scientific
Counsel to determine whether he should or could be
Plaintiffs Mentor/Sponsor given the © strained
relationship between them and their method of
communicating. Kessler’s colleague advised him
that he would be required to disclose to NARSAD the
method of communication, and also told him that he
believed that NARSAD would not fund a pvrant
where the communications between the
Mentor/Sponsor and investigator were so limited and
restricted. Based upon that information and his own
concerns, Kessler alleges that he reasonably believed
he could not fill the role of mentor and his agreeing
to do so would cause the grant application to be
rejected. (Kessler Decl. {| 19.)

In her response, Plaintiff states only that she
did not ask Kessler to be her “mentor” but her
“senior collaborator,” and that there was no one else
at Vanderbilt with relevant PET neuroimaging
experience to serve in that role. Plaintiff also points
out that the role of senior collaborator to a more

89u
Appendix C

established young investigator was less intensive
than that of “mentor,” that Kessler had agreed to co-
sign other grant proposals, and that they continued
to collaborate together on the AMVP’'T Grant. She
does not, however, refute Kessler’s evidence that the
involvement of a mentor or senior collaborator on a
NARSAD Young Investigator’s grant is intended to
be substantially more intensive than that of a co-
investigator on other types of grants, nor has she
addressed his averments that he felt obligated to
disclose to NARSAD their method of communication
and that, given the strained and __ limited
communications between them, he was concerned
that if he sponsored the grant proposal it would not
be funded.

The Court appreciates the difficult nature of
the situation in which Plaintiff finds herself: The
Court of course must presume at this stave in the
proceedings that Plaintiffs allegations of sexual
harassment and assault are true. Accordingly,
under those circumstances it is understandable that
Plaintiff would have reservations about working and
collaborating with the alleged perpetrator of the
harassment and assault, even when that person is
the only person at Vanderbilt who does the type of
research Plaintiff is interested in pursuing and
therefore the only person capable of furthering her
career. The fact remains that Kessler’s concerns
about being a mentor/sponsor to a NARSAD Young
Investigator with whom communications pose a
problem are likewise reasonable, and Plaintiff has

not offered any evidence to suggest that Kessler’s

90a
Appendix ©

stated reasons for not agreeimg to serve in the
Mentor/Sponsor role for the NARSAD | grant
application were pretextual. Likewise, Plaintiff has
likewise not shown that Vanderbilt failed in any
duty to assist her. Her retaliation claim based upon
the alleged lack of support for her NARSAD grant
application therefore fails

(ec) Kessler’s Post-June 2005 Grant Proposals

Kessler submitted three grant proposals after
June 2005 on which he did not include Plaintiff as a
co-investigator: (1) the “Methamphetamine Grant”
submitted to the NIH; (2) an internal Vanderbilt
Discovery Grant on “Dopamine and Depression”; and
(3) the “Risperidone Grant” submitted to Janssen,
L.P. in April 2006. As set forth below, the Court
finds that Plaintiff has alleged sufficient facts from
which a jury might reasonably conclude that
Kessler’s motive ta not including Plaintiff as a co
investigator on either the Methamphetamine Grant
or the Risperidone Garant was retaliatory

Methamphetamine Grant Proposal

Kessler concedes he did not include Plaintiff
as a co-investigator on his Methamphetamine Grant
proposal submitted in October 2005, the only prant
he has submitted to NIH after June 2005. He deni
that Plaintuffs exclusion from the grant proposal
was retaliatory in any way. Kessler states in hi
declaration submitted in support of his own motion
for partial summary judgment that he did not

VTi

Vppe Picida (
‘

mnclude Plaintiffiin the project because the budget for
trie Methamphet nine Garant wea micell sand clidk net
allow for the inclusion of investiyaton Who. like
Plaimtilf, did not have ¢ cperence in the area of druy

abuse. (Ke ler Decl. 4S YI.)

Plaintilfl. on the other hand. alleu threat ar
was named as a co-investivator on allol Dr. We ler
vriant ubmitted for funding sine he began wort
at Vanderbilt” up untal she filed her complaint
against him. (Doe. No. 1O7, at $7; Riecardi Dep. at
SOK TD ohicii.. furthers at hai hye Wil
included on several grants for which she did not. at
the tame of the vrant propo al have any research

expermence or expertise in the area of the pvrant

(Riccard: Aff. 9% 94, 95.) On that b he claim
fhataitl was mot nece ary for her to huave « prerrperres
In the particular tud areca to rv i A CO
mvestivgator on a grantaunvolyving Ploy wunaciny bree
her hunction would have been () or:re & romedieal
doctor performing: neuroumaging analysis using Phd
thy mne rol hie played lor other vrant on which
he worked with Ke ler (Riccardi Aff, © 97.)
Plaintilf also pont mat that Vhiile Ke levy t

Plaintiff lack of expemence and expertise ry thy
irene Of Grup abuse a NOon-GIscrimwnator regaasol
lor not naming her a coounvestivato hy reaqit
ipplicathiol Cute are! prevpoer tuthores

claim Cryst KK heey eould } iVe vdyhi tie thye rresangl

budvet in order to melude mother nvestivator

92a
Appendix C

the grant. For instance, instead of allocating David
Zald, PhD, an 8% effort with salary, he could have
allocated only 5% to Dr. Zald as he had an earlier
grant. (Riccardi Aff. § 98.) He could also, she claims,
have given her the opportunity to be listed on the
grant without funding.

In reply, Kessler argues that Plaintiff has no
personal knowledge about the requirements for a
grant on which she had no involvement, and
therefore that her protestations that experience and
expertise in the area of drug abuse were not
necessary are merely conclusory assertions that are
not sufficient to give rise to a material issue of
disputed fact. Kessler also points out that Plaintiff's
claim that he could have manipulated the budget to
include her is likewise not’ based upon personal
knowledge, in addition to the fact that working on an
unfunded grant would not have contributed to
Plaintiffs salary or, therefore, her ability to stay at
Vanderbilt. In sum, Kessler argues that Plaintiff
has no admissible evidence to establish that his
proffered reasons for not including her on the grant—
-that the small budget of the grant was not sufficient
to include co-investigators who lacked the requisite
experience and expertise—were not honestly held
beliefs upon which he reasonably relied given the
facts before him at the time the decision was made.

The Court nonetheless finds that the Plaintiff
has created a genuine issue of disputed fact as to
whether Kessler’s proffered reasons for not including
her on the Methamphetamine Grant proposal were

93a
Appendix C

pretextual. There is a genuine issue of material fact
as to whether Plaintiff had been included on all
Kessler’s NIH grant proposals involving PET after
she arrived at Vanderbilt up until June 2005,
regardless of her expertise and experience in the
particular area of study. There is likewise a genuine
issue of material fact as to whether Plaintiff
reasonably expected to be included on all of Kessler’s
grants involving PET imaging. Clearly, the fact that
Plaintiff refused to be in direct contact with Kessler
after June 2005 certainly made working together
more difficult. Notwithstanding, Plaintiffs
reluctance in that regard must be considered
reasonable at this juncture, since the Court must
view the facts in the hght most favorable to the
Plaintiff. Moreover, the parties have been able to
continue to work together on the AMPT Grant, so it
must be assumed that they would have been able to
work together in a similar fashion on other grants.

Kessler’s Dopamine and Depression Grant
Proposal

Kessler also submitted a small internal
Vanderbilt Discovery Grant proposal in March 2006
on Dopamine and Discovery, on which he did not
include Plaintiff as a co-investigator. Kessler alleges
that this internal grant only permitted two
investigators and required participation by two
different departments. Plaintiff therefore was not
even eligible fer inclusion on this grant. (Kessler
Decl. § 23.) In his deposition, he stated he did not
include Plaintiff because at the time of

94a
Appendix C

hissubmission collaboration with Plaintiff had been
“exceptionally difficult.” (Doc. No. 89-3, Deposition
of Robert Kessler, M.D. (“Kessler Dep.”) at 837:2—5.)

Plaintiff argues that Kessler’s claim is
“disingenuous” because the internal grant proposal
did not request funding for any part of his or his co-
investigator’s salary in the budget, and that Internal
Discovery Grants typically do not fund the salaries
of the investigators because the grant money is
allocated to the study itself instead. Plaintiff claims
that the purpose of a Discovery Grant is “to obtain
pilot data to then use as support for a larger grant
submission where a portion of the investigators’
salaries would be funded. (Riccardi Aff. 4 102.) She
also claims she would have “gladly” participated on
this grant even without funding.

Regardless, Kessler states he did not include
any other investigators from the Radiology
department, so Plaintiff was not treated differently
than any other Radiology Department members.
Plaintiff has not refuted that fact, nor the contention
that the internal grant only permitted two
investigators and they each had to be from different
departments. Plaintiff therefore has not succeeded
in pointing to specific facts in the record that refute
or create an issue of fact concerning the Kessler’s
legitimate, non-discriminatory reason for his failure
to include her as a co-investigator on his Internal
Discovery Grant.

Kessler’s Risperidone Grant Proposal

95a
Appendix C

In his deposition, Kessler discussed his
Risperidone Grant proposal, submitted to Jansen,
LP in April 2006. At his deposition, in response to
the question as to why Plaintiff was not assisting
him in the preparation of that proposal, Kessler
stated that “it was far simpler just to write it, and
her help was not needed.” (Kessler Dep. at 838:19-—
20.) According to Plaintiff, Risperidone is an
antipsychotic medication and the grant involved
PET scanning of individuals diagnosed with
schizophrenia.- She alleges that the subject of the
study is similar to the previous neuroimaging
analysis work she and Dr. Kessler have done
together. Further, although Kessler submitted the
proposal without input from anyone else, he included
Dr. Richard Shelton as a co-investigator on the
grant, despite Dr. Shelton’s alleged lack of expertise
in schizophrenia or neuroimaging. These facts are
sufficient to give rise to an inference that Kessler’s
stated reason for not including Plaintiff on the
grant—that it was just too much trouble—was
pretextual and that the true motive in excluding
Plaintiff from this grant proposal was retaliatory.

(5) Issues of Fact Preclude
Summary Judgment on Plaintiff's Retaliation
Claim Against Vanderbilt

In sum, Plaintiff lacks evidence to support her
claim of retaliation based upon Vanderbilt’s or
Kessler’s alleged lack of support for her own grant
proposals. Notwithstanding, the Court finds that

96a
Appendix C

Plaintiff has presented sufficient evidence from
which a reasonable jury might conclude that Kessler,
in his capacity as Plaintiffs supervisor, retaliated
against Plaintiff by refusing to include her as a co-
investigator on his own Methamphetamine and
Risperidone grant proposals. Because Kessler was
in a supervisory position vis-a-vis the Plaintiff, his
actions are imputed to Vanderbilt for purposes of
Plaintiff's retahation claim. See Wathen v. Gen. Elec.
Co., 115 F.3d 400, 405-06 (6th Cir. 1997) (noting
that agents of the employer cannot be individually
liable under Title VII, but that the “obvious purpose”
of the use of the word “agent” in the statute was “to
incorporate respondeat superior lability into the
statute” (citations omitted)). Vanderbilt’s motion for
summary judgment as to the retaliation claim
against it must therefore be denied.

C. Plaintiff's Retaliation Claim Against
Kessler Individually Under the THRA

As indicated above, the THRA makes it a
discriminatory practice for any person to retaliate
against another person “because such person has
opposed a practice declared discriminatory by this
chapter or because such person has made a charge,
filed a complaint, testified, assisted or participated
in any manner in any investigation, proceeding or
hearing under this chapter.” Tenn. Code Ann. § 4-21
3801. The THRA, unlike Title VII, permits
retaliationclaims against individual “persons” and
not merely against employers. M&merson v. Oak
Ridge Research, Inc., 187 S.W.3d 364, 377 (Tenn. Ct.

97a
Appendix C

App. 2005).

As discussed above, there is no question that
Plaintiff engaged in protected activity, first when
she reported sexual harassment to the ODC, and
later when she filed a formal complaint with the
EEOC. Kessler was aware of Plaintiff's exercise of
protected rights. He maintains, however, that the
actions of which Plaintiff complains, even if true, do
not constitute materially adverse employment
actions sufficient to support a claim for retaliation
under the THRA. In addition, Kessler claims that
Plaintiff cannot establish that he took any adverse
employment action against her or that any such
alleged action is causally related to the protected
activity. Finally, Kessler asserts that even if his
actions could be considered adverse employment
actions, he has_ proffered legitimate, non-
discriminatory reasons therefor, which Plaintiff
cannot rebut.

As set forth above in connection with the
discussion of the_ retaliation claim = against
Vanderbilt, the Court finds that Plaintiff has not
presented sufficient evidence from which a jury
could conclude that Kessler’s alleged lack of support
for Plaintiffs own grant proposals was retaliatory.
However, Kessler’s motion for partial summary
judgment on the retaliation claim against him must
be denied for the same reasons Vanderbilt’s motion
as to that claim must be denied: The actions upon
which the claims against Vanderbilt are premised
were all actions taken individually by Kessler, and

98a
Appendix C

Plaintiff has demonstrated the existence of material
disputed facts as to whether Kessler’s failure to
include her on his own Methamphetamine and
Risperidone Grant proposals was retaliatory.

D. Retaliation Claim Against Sandler
Under the THRA

Although she did not include an “aiding and
abetting claim” in her Complaint, Plaintiff now
alleges that Sandler is subject to individual liability
for retaliation under the “aiding and abetting”
provision of the THRA. Specifically, the THRA
makes it a discriminatory practice to “[alid, abet,
incite, compel or command a person to engage in any
of the acts or practices declared discriminatory” by
the THRA, including retaliation for engaging in
activity protected by the THRA. Tenn. Code Ann. §
4-21-303(2). It is well settled law that individuals
may be held lable for aiding and abetting an
employer’s discriminatory conduct by, for example,
obstructing an investigation of the discrimination
and thereby preventing corrective action from being
taken. See Rhea v. Schoonover, 395 F. Supp. 2d 696,
706 (W.D. Tenn. 2005) (denying defendants’ motion
to dismiss, noting that an individual who instructs
an employer to engage in a discriminatory practice
will be held liable for this retaliatory act).

Plaintiff argues that Sandler is liable for
aiding and abetting retaliatory conduct under the
THRA because he “[knew] that [Vanderbilt’s]

conduct constituted a breach of duty and [gave]

99a
Appendix C

substantial assistance or encouragement _ to
[Vanderbilt] in its discriminatory acts.” (Doc. No.
107, at 62, citing McNeail-Tunstall v. Marsh USA,
307 F. Supp. 2d 955, 974 (W.D. Tenn. 2004)). More
specifically, Plaintiff asserts that genuine issues of
material fact exist as to whether Sandler interfered
with and influenced the outcome of the ODC
investigation in favor of Kessler; provided false
information to Anita Jenious during the course of
her investigation; barred Plaintiff from use of her
office while allowing Kessler unfettered access to his
office and the PET lab; and suspended work on the
AMPT Grant.

The Court finds that Plaintiff has failed to
produce any admissible evidence that could lead a
reasonable jury to conclude that Sandler personally
engaged in or aided and abetted any allegedly
retaliatory conduct. First, Plaintiff has not pointed
to admissible evidence demonstrating’ that
Vanderbilt’s ordinary practice is to suspend a faculty
member accused of sexual harassment pending
investigation, such that Sandler’s decision not to do
so in Kessler’s place could be considered anomalous.
As set forth above, Plaintiff's lack of access to her
office was brief and did not constitute a material
adverse employment action. ‘To the extent Sandler’s
decision to suspend work on the AMPT Grant
adversely affected Plaintiff, it is clear that it affected
Kessler as well, and the action was done in an effort
to prevent Plaintiff and Kessler from having any
direct contact with each other during the immediate
aftermath of Plaintiffs report of harassment.

100a
Appendix C

Ultimately, Vanderbilt worked out a system that
permitted Plaintiff and Kessler to continue work on
the grant without direct contact with cach other.

Plaintiff also alleges that Sandler aided and
abetted Kessler’s retaliation when he acquiesced in
Kessler’s decisions not to be co-investigator on
Plaintiffs BPD grant or to sponsor her NARSAD
grant proposal. Even if Plaintiff's allegations in that
regard were supported by admissible evidence, she
has not rebutted Sandler’s legitimate, non-
discriminatory reason for not attempting to force
Kessler to participate in these grants: that ethical
principles pertaining to collaborative grant work and
academic freedom prevented him from doing so.

Sandler’s motion for summary judgment of the
THRA retaliation claim against him individually will
therefore be granted, and the cause of action against
him dismissed.

IV. CONCLUSION

For the reasons set forth above, the Court
finds that Vanderbilt’s motion for summary
judgment and Dr. Robert Kessler’s motion for partial
summary judgment must be denied. The motion for
summary judgment of the retaliation claim against
Dr. Martin Sandler will be granted.

An appropriate Order will enter.

Thomas A. Wiseman, Jr.

lOla
Appendix C

Senior U.S. District Judge

APPENDIX D - ORDER, ISSUED BY THOMAS
A. WISEMAN, JR., U.S.D.J., DATED 10/05/2007

97a
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDL® DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DR. PATRIZIA RICCARD I, )

Plaintiff, )

Vv. ) Civil Action No.
DR. ROBERT KESSLER,) 3:06cv0605
Defendant. )

DR. ROBERT KESSLER.)

Plaintiff, )
Vv. ) Civil Action No.
DR. PATRIZIA RICCARDI, ) 3:06ev0615
Defendant. )

ORDER

Kor the reasons stated from the bench, the
Court rules,or defers ruling, on the parties’ various
motions in limine as follows:

1. Dr. Robert Kessler's Rule 412 Motion (Doc.
No. 195): Having conducted the required in camera
hearing, the Court concludes that Dr. Kessler's
testimony regarding conversations between
himself and Dr. Patrizia Riccardi, in which Dr.
Riccardi allegedly divulged details of her past sexual
relationships, will be admissible. This testimony is
relevant to the nature of the parties’ relationship

98a
Appendix D
and their respective credibility, which are issues

going to the very heart of this case. The probative
value of this evidence therefore substantially
outweighs the danger of harm to Dr. Riccardi
resulting from its admission, Kessler's motion to
admit this evidence is therefore GRANTED. If the
Court deems it advisable, the Court will instruct the
jury that it should not consider the evidence for any
purpose other than determining the — partics'
credibility and the nature of their relationship.

The Court also finds that Dr. Shopper's
testimony regarding what Dr. Riccardi told him
about her sexual past will be admissible as non
hearsay admissions of a party opponent the
probative value of which (on the issue of Dr.
Riecardi's credibility regarding her relationship with
Kessler) substantially outweighs its potential
prejudice to Dr. Riccardi. Dr. Kessler's motion to
admit this testimony is therefore GRANTED, but
without prejudice to Dr. Riccardi's ability to object to
specific testimony to the extent it does not bear on
her credibility (which may depend on how Dr.
Riccardi testifies at trial) or is otherwise beyond the
scope of Dr. Shopper's expertise. The other evidence
addressed in Kessler's motion is not properly
characterized as evidence whose admissibility would
be governed by Rule 412, as it consists of testimony
from eye witnesses” directly concerning the
relationship between Dr. Riccardi and Dr. Kessler.
The motion to admit this evidence is GRANTED,

49a
Appendix 1D)
without prejudice to Riccardi's ability to object to the
evidence at the time it is introduced at trial on the
basis of personal knowledyve, foundation or any othe:
legitimate basis provided by the Federal Rules of
Kvidence,

2. Riceardi's Motion in Limine to iexclude
Mvidence at Trial (e-mails Containing Political)
Jokes) (Doc. No. 141); GRANTED. The eight e-mail:
referenced in Riccardi's motion are cumulative
evidence given that there are numerous other e
mails that may be introduced into evidence that do
not have political content and given that Riccardi
has agreed to stipulate that she sent Kessler joke
and e-mail messages with political content. The
Court therefore finds that the potential prejudice to
Riccardi if these e-mails are admitted substantially
outweighs their probative value

3. Riceardi's Motion in_ lamine to Include
Kvidence at Trial (Defendant's Efforts to Move
Assets Out of His Name) (Doc. No. 143): DENTED.

4. Riccardi's Motion to Iixclude Defendant

Kessler's Hearsay Testimony at Trial (Doc. No. 157)
The motion to exclude written witness statements 1:
GRANTED and the motion to exclude the ODC

file generally is GRANTED. The motion to exclude
testimony from Dr. Sandler, Ingrid Kessler and
perhaps others that Kessler told them he was having
an affair with Dr. Riccardi is DEFERRED. At the
time Kessler seeks to introduce this” evidence,
Riecard) can renew her objections and the Court will

C)0)e4
Appendix D

rile it that time

Oo. hoecardys Motion om Lamune to bxelude
Prior Bad Acts and Sexual History at Trial (D0.
No, 162)

(1) ‘The motion to exelude evidence that
Ruccardi as “sexually aver ive my So many word

GRANTED
(2) (5) ‘The Higtior to exelud eyvice ry

hoecardi's disavreements with former colleagues at
Yale failure to keep in contact With former Yale
colloupue that she "went AWOL" while at Yale, or

that she did not fulfill her professional obliyations at
Yale is GRAN'PED. The Court may reconsider thi
ruling af Riccardi opens the door to at
(6)-(7) ‘The motion to exclude evidence that Dr
hoecards: did not have pvpood emotional stability of
dependability Or repardingy hey overall
professionalism is DEFERRED. The Court wall rule
Ol Spe Hic evidence a | Introduced based on the
objections made and the context of the evidence

offered

(4) ‘Phe mothon to exclude CVIdenet rf
Riccardi's altercation with Dr. Meltzer 3 DENIED
the motion to exehucd eVIGenes Of Riecnurds
argument with ecretari at Vanderbilt

GRANTED
({9)-( 10) The motion to exclide mVICenee

Yccard's problems with the vrant-writiay

regarding |
proce at Vanderbilt is DEFERRED. This evidence
may potentially be relevant to Riecardi’s claims of
retahation and resulting damayes. The Court) wall

rule on specifie objections as they are raised in thy

10la
Appendix D
context of the trial.

(11) With regard to the motion to exclude
evidence that "Dr. Riccardi had a torrid sexual
history filled with numerous romantic partners and
abortions": to the extent this portion of Riccardi's
motion refers to testimony by Kessler or Dr.
Shopper, it is DENIED for reasons already stated.

6. Riccardi's Motion to Exclude Dr. Kessler's
expert Report (Doc. No. 163): GRANTED. The
written report itself is inadmissible hearsay. The
Court will rule on objections to the content of Dr.
Moisy Shopper's in-court testimony at the time such
testimony is offered and objections are raised.

7. Riccardi's Motion to [xclude Dr. Kessler's
Defamation Claim Which is Based on Statements
Alleged Made to. or Relayed bv. the AAUW (Doc. No.
190): DENIED. Riccardi had adequate notice of the
basis of the claim and will not be not prejudiced by
its inclusion, particularly given that Kessler's
counsel was unable to obtain documentation of the
alleged libel until September 26, 2007. Defamatory
statements "to others" are referenced in the Pretrial
Order, the specific details of which are set forth in
Kessler's pretrial brief, filed the same day as the
parties Proposed Joint Pretrial Order, and the
allegedly defamatory content of which is contained in
Kessler's original complaint.

8. Kessler's First Motion in _ Limine_ to
*xclude Proof of Dr. Riccardi's Body (Doc. No. 146):

10%a
Appendix D
DENIED. This evidence is relevant to Dr. Kessler's
claim that the parties' had a sexual relationship
and Dr. Riccardi's denial of same.

9. Kessler's Second Motion in Limine_ to
Exclude Proof of Dr. Riccardi's Expectations to be
included on all Dr. Kessler's Grants (Doc. No. 147):

DENIED.

10. Kessler's Third Motion in Limine_to
Exclude Testimony of Dr. Riccardi on the state of
mind of others and hearsay testimony (Doc. No
148): DEFERRED to trial. Objections based on
lack of personal knowledge or hearsay should be
raised at trial at the time the evidence is offered.

11. Kessler's Fourth Motion in _Limine _ to
Exclude testimony of Dr. Riccardi re: matters of
which she has __no___personal knowledge:
DEFERRED to trial. Objections based on lack of
personal knowledge should be raised at trial at the
time the evidence is offered.

Itis so ORDERED.

Thomas A. Wiseman, Jr.
Senior U.S. District Judge

APPENDIX E
102:

United States District Court for the Middle
District of Tennessee

801 Broadway, Nashville, TN 37203, (615) 736-5498
Juage Thomas Anderton Wiseman, Jr.

Federal Judicial Service:
U.S. District Court, Middle District of Tennessee

Nominated by Jimmy Carter on August 1, 1978, to a
seat vacated by Frank Gray, Jr.; Confirmed by the
Senate on August 11,1978, and received commission
on August 11, 1978. Served as chief judge, 1984-
1991. Assumed senior status on November 3, 1995

Kducation:

Vanderbilt University, B.A., 1952

Vanderbilt University Law School, J.D., 1954
University of Virginia School of Law, LL.M., 1990

Professional Career:

U.S. Army, 1954-1956

Private practice, Tullahoma, Tennessee, 1956-1963
Private practice, Winchester, Tennessee, 1963-1971
Member, Tennessee House of Representatives, 1964-
1968

‘Treasurer, State of Tennessee, 1971-1974

Private practice, Nashville, Tennessee, 1974-1978

103a
Appendix E
Adjunct faculty, Vanderbilt University Law School,
1989-present
Special Master, Sixth Circuit Court of Appeals,
1992-1993

Race or Ethnicity: White

Gender: Male

104a
Appendix E

FINANCIAL DISCLOSURE REPORT
Calendar Year 2003

Report Required by the Ethics in Government Act of
1978 (5 U.S.C. app. §§ 101-111)

1. Person Reporting (Last name, First name, Middle
initial) Wiseman, Jr., Thomas A

2. Court or Organization
Tennessee, Middle

3. Date of Report
04/16/2004

4. Title (Article III Judges indicate active or senior
status; magistrate judges indicate full- or part-time)
U.S. District Judge, Sr.Status

5. Report'Type (check appropriate type) Annual

6. Reporting Period
01/01/2008 to 12/31/2003

7. Chambers or Office Address
777 U.S. Courthouse

801 Broadway

Nashville TN 37203

8. On the basis of the information contained in this
Report and any modifications pertaining thereto, it

105a
Appendix E
is, IN My opinion, in complhiance with applicable laws
and regulations.

IMPORTANT NOTES: The instructions
accompanying this form must be followed. Complete
all parts, checking the NONE box for each part
where you have no reportable information. Sign on
last page.

I. POSITIONS. (Reporting individual only; see pp.
9-13 of filing instructions)

Position, Name of Organization/Entity

1. Board Member Sister Cities of Nashville
2. Adjunct Professor of Law Vanderbilt University
School of Law

Il. AGREEMENTS. (Reporting individual only; see
pp. 14-16 of filing instructions)
NONE (no reportable agreements)

Il. NON-INVESTMENT INCOME. (Reporting
individual and spouse; see pp. 17-24 of filing
instructions)

A. Filer's Non-Investment Incom
DATE, SOURCE AND TYPE, GROSS INCOME
1. 2003 Vanderbilt University School of Law

Adjunct Prof 4,200.00
2. 2003 Tennessee Consolidated Retirement System

106a
Appendix KE
3,832.86

B. Spouse's Non-Investment Income - (If you were
married during any portion of tile reporting year,
please complete this section. (dollar amount

not required except for honoraria)

DATE, SOURCE AND TYPE
1. 2003 Tennessee Consolidated Retirement System

IV. REIMBURSEMENTS - transportation, lodging,
food, enterainment. (Includes those to spouse and
dependent children. See pp. 2S-27 of instructions.)
NONE

V. GIFTS. (Includes those to spouse and dependent
children. See pp. 28-31 of instructions.)

NONE - (No such reportable gifts.)

VI. LIABILITIES. (Includes those of spouse and
dependent children. See pp. 32-34 of instructions.)

CREDITOR, DESCRIPTION, VALUE CODE

1. SunTrust Mortgage. Richmond. VA Mortgage on
Rental Property #1, L

2. Pinnacle National Bank, Nashville, TN Mortgage
on Investment Property #2, O

3. Pinnacle National Bank, Nashville, TN Unsecured
Note, K

107a
Appendix i
VII. INVESTMENTS and TRUSTS ~- income,
value, transactions (includes those of the spouse and
dependent children. See pp. 34-57 of filing
instructions.)

A. Description of Assets (including trust assets)
Place "(X)" afier each asset exempt from prior
disclosure

B. Income during reporting period

(1) Amount Code (A-H)

(2) Type (eg. div, rent, or int)

C. Gross value at end of reporting period
(1) Value Code 2 (J-P)
(2) Value Method Code 3 (Q-W)

D. Transactions during reporting period
(1) Type (eg. buy, sell, merger, redemption)
If not exempt from disclosure

(2) Date Month- Day

(3) Value Code 2 (J-P)

(4) Gain Code 1 (A-

(5) Identity of buyer/seller (if private transaction)

1. Decberd Marble Granite None J W

2. Lot, Tim's Ford Lake, FranklinCo., TN None J W
3. Smalleap World Fund—American Funds A
Dividend K T

4. IRA, ,A.G.Edwards (American Funds-SmallCap
World and ICA) S None J T

5. A.G. Edwards A Dividend J T

6. Rental Property #1,Indian Shores, FL (1997
$172,000) E Rent NR

108a

Appendix E
7. Harbor Funds-Capital Appreciation A Dividend J
T
8. Legg Mason-Value Trust None K T
9. Centennial Money Market Acct (A.G. Edwards) A
Interest J T |
10. Orasure None K T
11. Bankatlantic Bancorp Inc. (BBX) A Dividend K T
12. Met Life A Dividend J T Buy 8/03 J
13. Callaway Golf A Dividend J T Buy 7/03 J
14, Jensen Fund None d 'T Buy 2/03 J
15. Levitt Corp Fla Spinoff BBX Bankatlantic
Bancorp Inc. 12/3 None J T
16. ANDRX Group/Corp. None J T Buy 2/03 J
17. ANDRX Group/Corp. A Dividend Sold 5/03 J A
18. Geaentech Inc. None J T Buy 6702 J
19. Genentech Inc. C Dividend Sold 6/11 J A
20. Investment Property #2 Nashville, TN(2003
$515,000) None O R Buy 12/03 O

1. Income Gain Codes

(See Columns BI and D4)
A= $1,000 or less

B= $1,001-$2,500

C= $2,501-$5,000

D= $5,001-$15,000

E= $15,001-$50,000

F = $50,001-$100,000

G= $100,001-$1,000,000
H1= $1,000,001-$5,000,000
H2= More than $5,000,000

2. Value Codes:
(See Columns C1 and D3)

109a
Appendix E

J= $15,000 or less
K= $15,001-$50,000
L= $50,001-$100,000
M= $100,001-$250,000
N= $250,001-$500,000
O= $500,001-$1,000,000
P1= $1,000,001-$5,000,000
P2= $5,000,001-$25,000,000
P3= $25,000,000-$50,000,000
P4= More than $50,000,000

3. Value Method Codes
(See Column C2)

Q= Appraisal

R= Cost (Real Estate Only)
S= Assessment

T= Cash/Market

U= Book Value

V= Other

W= Estimated

VIII. ADDITIONAL INFORMATION OR
EXPLANATIONS (Indicate part of Report.)

IX. CERTIFICATION.

I certify that all information given above (including
information pertaining to my spouse and minor or
dependent children, if any) is accurate, true, and
complete to the best of my knowledge and belief and
that any information not reported was withheld
because it met applicable statutory provisions
permitting non-disclosure.

110a
Appendix I
I further certify that earned income from outside
employment and honoraria and the acceptance of
gifts which have been reported are in compliance
with the provisions of 5 U.S.C. § 501 el seg., 5 U.S.C.
§ 7353, and Judicial Conference regulations.

NOTE: ANY INDIVIDUAL WHO KNOWINGLY
AND WILFULLY FALSIFIES OR FAILS TO FILE
THIS REPORT MAY BE SUBJECT TO CIVIL AND
CRIMINAL SANCTIONS (5 U.S.C. app. § 104)

KILING INSTRUCTIONS

Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Columbus Circle, N .I.

Washington, D.C. 20544

llla
Appendix kh

FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 2004

Report Required by the Ethics in Government Act of
1978 (5 U.S.C. app. §§ 101-111)

1. Person Reporting (Last name, I irst name, Middle
initial) Wiseman, Jr., Thomas A

2. Court or Organization
Tennessee, Middle

3. Date of Report
05/10/2005

4. Title (Article Ill Judyes indicate active or senior
status; magistrate judges indicate full- or part-time)
U.S. District Judge, Sr.Status

5. Report Type (check appropriate type) Annual

6. Reporting Period
01/01/2004 to 12/31/2004

7. Chambers or Office Address
777 U.S. Courthouse

801 Broadway

Nashville TN 37203

8. On the basis of the information contained in this
Report and any modifications pertaining thereto, it

ll2Za
Append “a
IS, IN My Opinion, in comphance with applicable lay

and reyvulation

IMPORTAN' NOTES The mnstruction
accompanying this form must be followed. Complet
all parts, checking the NONE box for each part

where you have no reportable Information. Sign on

last pape

I. POSITIONS. (Reporting individual only; see pp

9-153 of filang instructions)
Position, Name of Organization/Intity

1. Board Member Sister Cities of Nashville
2. Adjunct Professor of Law Vanderbilt Universit:

sx hool Ol Law

iH. AGREEMENTS. (Reporting individual only Te
pp. 14-16 of filing instructions)
NONE (no reportable agrecments)

Hl. NON-INVESTMENT INCOME. (Reporting

individual and = spouse ee pp. 17-24 of filing

mstructions)

A. iler's Non-Investment Incom

DATH, SOURCKH AND TYPE, GROSS INCOME

1. 2004 Vanderbilt University School of Law

Adjunct Prof 4,200.00
2. 2004 Tennessee Consolidated Retirement Syste

1] Sia
Vppe nad ! /

Bb. Spouse's Non Investment Income (If you wer
manned during adbiy portion ()! tile reportiny Jerail
plea ( complete thi echwor (dollar amount

'

not required ¢ Keept lor honoraria)
DATE, SOURCE AND TYPE
1 YOOA Leona ee Consolidated Retirement tery

IV. REIMBURSEMENTS | transportation, lodging
food enterainment (hrichuds those to polse mod
dependent children. Se pp /ofinstructions.)

NON Is

V. GIETS Clryclerce those lo) protlye mid dependent

children. Se pp 25-3) OF mstructions. )
LONI - ONo such reportable pitts.)

Vi. LIABILITIES. Qneludes those of spouse and

dependent children ee pp. b2-454 of instruetior )

CREDEPOR, DESCRIPTION, VALU CODIe«

}). SunTrust Mortpape. Richmond. VA Mortyage on
Rental Property #1, 1.

2. Pinnacle National Bank, Nashville, TN) Mortgages
on Investment Property #2, O

$b. Pinnacle National Bank, Nashville, TN Unsecured

Note K

ll4a
Appendix EK
Vil. INVESTMENTS and TRUSTS - income,
value, transactions (includes those of the spouse and
dependent children. See pp. 34-57 of filing
instructions.)

A. Description of Assets (including trust assets)
Place "(X)" afier each asset exempt from prior
disclosure

B. Income during reporting period

(1) Amount Code (A-H)

(2) Type (eg. div, rent, or int)

C. Gross value at end of reporting period
(1) Value Code 2 (J-P)
(2) Value Method Code 3 (Q-W)

D. Transactions during reporting period

(1) Type (eg. buy, sell, merger, redemption)

If not exempt from disclosure

(2) Date Month- Day

(3) Value Code 2 (J-P)

(4) Gain Code 1 (A-

(5) Identity of buyer/seller (if private transaction)

1. Decherd Marble Granite None J W

2. Lot, Co., TN None J W Sold 05/04 J C Abbott

3. Smalleap World Fund-American Funds A
Dividend K T

4. IRA, A.G. Edwards (American Funds-SmallCap
World and ICA) SA Dividend J T

5. A.G. Edwards A Dividend J T

6. Rental Property #1, Indian Shores, FL (1997
K$172,000) Rent N R

lld5da

Appendix I
7. Harbor Funds-Capital Appreciation A Dividend J
T
8. Legg Mason-Value Trust None K T
9. Centennial Money Market Acct. (A.G. Edwards) A
Interest J T
10. Orasure None K T Sold 1104 KC
II. Bankatlantic Bancorp Inc. (BBX) A Dividend K T
Sold 3/04 J D
12. MetLife A Dividend J T Sold 2/04 J B
13. Callaway Golf A Dividend J T Sold 9/04 J --
14. Jensen Fund A Dividend J T
15. Levitt Corp Fla Spinoff BBX Bankatlantic
Bancorp Inc. 12/3 None J T
16. Invesment Property #2 Nashville, TN (2003
$515,000) None OR
17. TIVO None J T Bought 01/04 J
18. TIVO None J T Sold 12104 J —
19. Eli Lily A Dividend J T Bought 03/04 J
20. Eh Lily A Dividend J T Bought 10/04 J
1. Mylan Laboratories A Dividend J T Bought 04/04

22. Dreyfus,Greater China Fund A Dividend J T
Bought 03/04 J

1. Income Gain Codes
(See Columns BI and D4)
A= $1,000 or less

B= $1,001-$2,500

C= $2,501-$5,000

D= $5,001-$15,000

K= $15,001-$50,000

Ik = $50,001-$100,000
G= $100,001-$1,000,000

116a
Appendix E
H1= $1,000,001-$5,000,000
H2= More than $5,000,000

2. Value Codes:

(See Columns C1 and D3)
J= $15,000 or less

K= $15,001-$50,000

L= $50,001-$100,000

M= $100,001-$250,000

N= $250,001-$500,000

O= $500,001-$1,000,000
P1= $1,000,001-$5,000,000
P2= $5,000,001-$25,000,000
P3= $25,000,000-$50,000,000
P4= More than $50,000,000

3. Value Method Codes
(See Column C2)

Q= Appraisal

R= Cost (Real Estate Only)
S= Assessment

T= Cash/Market

U= BookValue

V= Other

W= Estimated

VIII. ADDITIONAL INFORMATION OR
EXPLANATIONS (Indicate part of Report.)

IX. CERTIFICATION.

[ certify that al] information given above (including

information pertaining to my spouse and minor or
dependent children, if any) is accurate, true, and

ll7Va
Appendix E
complete to the best of my knowledge and belief and
that any information not reported was withheld
because it met applicable statutory provisions
permitting non-disclosure.

I further certify that earned income from outside
employment and honoraria and the acceptance of
gifts which have been reported are in compliance
with the provisions of 5 U.S.C. § 501 el seq., 5 U.S.C.
§ 7353, and Judicial Conference regulations.

NOTE: ANY INDIVIDUAL WHO KNOWINGLY
AND WILFULLY FALSIFIES OR FAILS TO FILE
THIS REPORT MAY BE SUBJECT TO CIVIL AND
CRIMINAL SANCTIONS (5 U.S.C. app. § 104)

FILING INSTRUCTIONS

Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Columbus Circle, N .E.

Washington, D.C. 20544

118a
Appendix I

VUCast: Vanderbilt University News Network

Mayor Bill Purcell honored as distinguished
alumnus at Vanderbilt Law
School; Thomas Wiseman Jr. cited for
distinguished service

NASHVILLE. Tenn - Nashville Mayor Bill Purcell
has been named the 2004 Distinguished Alumnus of
the Vanderbilt University Law School.

Purcell, a 1979 graduate of the Law School,
will receive the award during the school's annual
Leadership Dinner April 3 at the Hermitage Hotel.

Criteria for the award include exemplary
professional accomplishments and _ recognized
leadership within one's field of endeavor. Recipients
of the award must also demonstrate qualities that
reflect the values of a Vanderbilt University Law
School education, according to Kent D Syverud, dean
and Garner Anthony Professor of Law.

"Bill Purcell has excelled as a state legislator,
public policy expert, public defender and_ public
servant," Syverud said “He has distinguished
himself as mayor by squarely facing the toughest
issues of metropolitan government, including
schools. taxes, development and _ neighborhoods.
Through inclusive processes, he stewards the
community lo creative, long-term solutions that
improve Nashville as a place to work and live. He

119a
Appendix E
models all the skills of outstanding lawyers, and the
Vanderbilt Law School is particularly proud to honor
our alumnus Mayor Purcell for his extraordinary
contributions to public service and to Nashville."

On being named Distinguished Alumnus of
the Year, Purcell said, ‘Vanderbilt Law School
brought me to Nashville and gave me the start in my
legal career and interests in protecting our children.
It goes without saying that this recognition means a
Great deal for me because of the role this law school,
its faculty and alumni play in my life every day."

Purcell served 10years in the ‘Tennessee
General Assembly, six as House majority leader,
before becoming director of the Vanderbilt Institute
for Public Policy Studies' Child and Family Policy
Center in 1996. He was elected mayor of the
Metropolitan Government of Nashville and Davidson
County in 1999 and reelected in 2003. Purcell is a
trustee and member of the executive committee of
the US Conference of Mayors.

The Distinguished Alumnus Award was
established in 1988. Previous recipients have
included George Cates Jr., Pauline Gore, James
Sasser, Gilbert Merritt Jr., Richard Sinkfield, James
Cheek III, Tone Grant, Fred Graham, Douglas
Henry, Hugh Morgan, James Neal, Lucius Burch Jr,
Fred Thompson, Aubrey Harwell, and Wayne S
Hyatt.

120a
Appendix
Also on April 3,Judge Thomas A Wiseman JUr.,
senior US district judge for the Middle District of
Tennessee, will be given the Law _ School's
Distinguished Service Award.

Wiseman, a 1952 graduate of Vanderbilt
University who earned his law degree from
Vanderbilt in 1954, was appointed to the bench by
President Carter in 1978. He served as chief judge
from 1984 to 1991 and took senior status in 1995. He
served in the Tennessee House of Representatives
from 1965 to 1958 and was state treasurer from 1971
through 1974. He is an adjunct faculty member at
Vanderbilt Law Scheol and served on the school's
Alumni Board from 1991 to 1994.

"Judge Wiseman has worked with Vanderbilt
law students and faculty for decades, inside the
classreom and courtroom and in the community,"
Syverud said. "A beloved teacher of trial advocacy
and evidence, he has trained countless Vanderbilt
law students in his classes and his chambers. His
commitment to quality at the Law School and in his
students has made Vanderbilt Law School a much
better place and, therefore, amply merits his
selection as recipient of the 2004 Distinguished
Service Award," Syverud added.

On learning that he would receive the honor,
Wiseman said, "The education I received and the
friends I made at Vanderbilt Law School have been
largely responsible for any success I have achieved. |
am grateful to Vanderbilt for this award and for the

l2la
Appendix
opportunity to give back to the institution that has
meant so much to me."

The Distinguished Service Award was first
presented in 1987 when the dean recognized the
former presidents of the Law Alumni Association
and Dean's Council. Recipients have _ included
William McDonnell, Mrs Cecil Sims, John Beasley
Il, Paul Hartman, Stephen Potts, Gamer Anthony,
Mary Moody Wade, Henry’ Bushkin, Robert
Brundige, Edward Hardin, Wayne Hyatt, David
Partlett, Don Welch, Kay Simmons, Richard Aldrich,
Joe Wyatt, JoeMcCarty, Tom McCoy, Pauline
Aranas and Ted LaRoche.

For more information about Vanderbilt, please
visit the News Service homepage at
www.vanderbilt.edu/News. More information on the
Law School can be found at www.vanderbilt.edu/law.

Media contact: Susanne Hicks. (615) 322-NEWS
susanne.hicks@vanderbilt.edu

122a
Appendix E

Judge Thomas A. Wiseman Jr.
Significant Sig
Vanderbilt, '52

Judge Thomas A. Wiseman Jr., senior U.S.
district judge for the Middle District of Tennessee,
was given the Law School's Distinguished Service
Award.

Wiseman, a 1952 graduate of Vanderbilt
University who earned his law degree from
Vanderbilt in 1954, was appointed to the bench by
President Carter in 1978. He served as chief judge
from 1984 to 1991 and took senior status in 1995. He
served in the Tennessee House of Representatives
from 1965 to 1968 and was state treasurer from 1971
through 1974. He is an adjunct faculty member at
Vanderbilt Law School and served on the school's
Alumni Board from 1991 to 1994.

Judge Wiseman has worked with Vanderbilt
law students and faculty for decades, inside the
classroom and courtroom and in the community,
Syverud said. A beloved teacher of trial advocacy
and evidence, he has trained countless Vanderbilt
law students in his classes and his chambers. His
commitment to quality at the Law School and in his
students has made Vanderbilt Law School a much
better place and, therefore, amply merits his
selection as recipient of the 2004 Distinguished
Service Award, Syverud added.

123a
Appendix Ek
On learning that he would receive the honor,
Wiseman said, “The education I received and the
friends I made at Vanderbilt Law School have been
largely responsible for any success | have achieved. |
am grateful to Vanderbilt for this award and for the
opportunity to give back to the institution that has

meant so much to me.’

124a
Appendix

Vanderbilt University Law School

Home>Faculty>Affiliated Faculty>Thomas A.
Wiseman III

Thomas A. Wiseman III

Partner, Gideon & Wiseman

Adjunct Professor of Law

J.D. Vanderbilt University Law School
B.A. Washington & Lee Universit,

Thomas A. Wiseman III is a partner in the
law firm of Gideon &Wiseman, which he cofounded
where he specializes in Jitigation

He is a Fellow in the American College of
Trial Lawyers, past president of the Nashville Bar
Association and ‘Tennessee Chapter of the American
Board of ‘Trial Advocates, and certified as a civil and
medical malpractice trial specialist

At Vanderbilt, Professor Wiseman teache:

Trial Advocacy.

1¢

lZva

Appendix Iv

Grideon & Wiseman PIC
Attorneys at Law

Allorneys

Thomas A. Wiseman II]

Admitted to bar: 1982. Kentucky; 1985,

‘Tennessee.

Mducation: Washington & Lee University (13.A.,
1979); Vanderbilt University (J.D., 1982). Fellow,
American College of Trial Lawyers; Recipient,

The Law Review Note Award. Member and
executive Student Writing Editor, Vanderbilt Law
Review, 1981-1982

Author: Note, 'Federal Rule of Evidence 803 (3) and
the Criminal Defendant: The Limits of the Hillmon
Doctrine,' 35 Vand. L. Rev. 659, 1982. Co-Author:
'first-Party Bad Faith: Common Law Remedies and
a Proposed Legislative Solution,’ 72 Ky. lL. Rev. 141,
1983-1984.

Adjunct Faculty, Vanderbilt University Law School
Trial Advocacy. Listed in Best Lawyers of America

Memberships: Nashville (Member and President,
2001), Kentucky, ‘Tennessee and American Bar
Associations; ‘Tennessee and Nashville Bar
loundations; Harry Phillips American Inn of Court;
American Board of ‘Trial Advocates (President,
Tennessee Chapter, 2005). (Certified Civil Trial and

1Z0a

Appendix f
Medical Malpractice Ipecialist Penne (i
Commission on Continuiny Legal Kducation and
Specialization). Practice \rea Cavil Latigatior

Prof ional Laabilit

128a
Appendix E

Firm Profile:

GIDEON &WISEMAN PLC was formed in 1992 by
C.J. Gideon, Jr., Thomas A. Wiseman in and Gail
Vaughn Ashworth. Partners in the firm’ have
extensive civil litigation experience in State and
Federal Courts, Administrative Law tribunals, and
before Regulatory agencies. The firm has substantial
medical and hospital malpractice defense, product
hability, insurance defense, personal injury and
health care administrative practices.

Firm Size: 15

Representative Clients:

Adventist Health System - Sunbelt: AIMCO:
American Health Centers, Inc.; American Medical
Systems; Athens Community Hospital; Attentus
Healthcare; Bani of America; Bedford County
General Hospital; Bradley Memorial Hospital;
Centennial Medical Center; Cheatham Medical
Center, Chubb Executive — Risk; Cleveland
Community Hospital; Community Health Systems,
Inc.; Crockett Hospital; Dyersburg Regional Medical
Center; Employers Reinsurance Corporation; George
W. Hubbard Hospital; Grandview Medical Center;
Hillside Hospital; Henderson Community Hospital:
Hendersonville Hospital; Highland Hospital;
Horizon Medical Center; Hospital Corporation of

America/Healthcare Indemnity, Inc.; Lakeway
Regional MHospital; LifePoint Hospitals, Ince:;

129a
Appendix EK

Livingston Regional Hospital; Management
Corperation of America; McKenzie Regional
Hospital; McNairy Regional Hospital; Medical
Assurance; Meharry Medical College; MHM
Services, Inc.; Mid-Tenn. Ford Truck Sales, Inc.;
Parkway Regional Hospital; Proclaim America, Inc.;
Regional Hospital of Jackson; River Park Hospital;
Safeco Insurance Companies of America; Scott
County Hospital; Skyhne Medical Center; Smith
& Nephew-Richards, Inc.; Southern Hills Medical
Center; Southern Tennessee Medical Center; State
Volunteer Mutual Insurance Co.; Stone Crest
Medical Center; Summit Medical Center, Tennessee
Health Management, Inc.; The Doctors Company,
Travelers; Trinity Hospital; Vanderbilt University
Medical Center: Volunteer General Hospital; White
County Community Hospital.

Office Hours:

Monday: 08:00 AM- 05:00 PM
‘Tuesday: 08:00 AM- 05:00 PM
Wednesday: 08:00 AM - 05:00 PM
Thursday: 08:00 AM- 05:00 PM
Friday: 08:00 AM- 05:00 PM

MEMBERS

C.J. Gideon. Jr. (Member) born Wichita, Kansas,

October 27, 1953; admitted to bar, 1978, Tennessee;
1989, U.S. Supreme Court; 1990, U.S. Claims Court.
Education: Duke University (B.A... magna cum
laude, 1975); Vanderbilt University (J.D., 1978).
Listed in Best Lawyers in America, 1991—.Author:

130a
Appendix KE

Article, "The Countersuit in Medical Malpractice
Litigation," The Journal of the Tennessee Medical
Association, Vol. 71, December, 1978. Adjunct
Faculty, Vanderbilt University Law School Trial
Advocacy. Member: Nashville and Tennessee Bar
Associations; Harry Phillips American Inn of Court.
Practice Areas: Medical Malpractice: Hospital
Negligence; Health Care Administrative Litigation;
Product Liability; Business Litigation. Email: C. J.
Gideon, Jr.

Thomas A. Wiseman /// (Member) born Tullahoma,
Tennessee, October 25, 1957; admitted to bar, 1982,

Kentucky. 1985, Tennessee. Education:
Washington&Lee University (BA., 1979); Vanderbilt
University (J.D. 1982). Recipient, The Law Review
Note Award. Member and_ Executive Student
Writing Editor, Vanderbilt Law Review, 1981-1982.
Author. Note, "Federal Rule of Evidence 803 (3)and
the Criminal Defendant: The Limits of the Hillmon
Doctrine," 35 Vand. L.Rev.659,1982. Co-Author:
"First-Party Bad Faith: Common Law Remedies and
a Proposed Legislative Solution," 72 Ky. L. Rev.
141,1983-1984. Adjunct Faculty, Vanderbilt
University Law School Trial Advocacy. Listed in
Best Lawyers of America. Member: Nashville
(Member and President 2001), Kentucky, Tennessee
and American Bar Associations; ‘Tennessee and
Nashville Bar Foundations; Harry Phillips American
Inn of Court; American Board of Trial Advocates
(President, Tennessee Chapter, 2005). Fellow,
American College of Trial Lawyers, 2007—.
(Certified Civil Trial and Medical Malpractice

l3la
Appendix E
Specialist, Tennessee Commission on Continuing
Legal Education and Specialization). Practice Areas:
Civil Litigation; Professional Liability Health Care
Litigation; Medical Malpractice. Email: Thomas A.
Wiseman II]

Gail _ Vaughn Ashworth (Member) born Opelika,
Alabama, Marchld, 1956; admitted to bar, 1983,
Tennessee and U.S. District Court, Middle District of
Tennessee; 1998, U.S. Supreme Court. Education:
Tennessee Technological University (B.S... summa
cum laude, 1977;MA., 1979); Vanderbilt University
(J.D., 1983). Alpha Lambda Delta; Kappa Delta Pi;
Sigma Nu Phi. Member, Harry Phillips American
Inn of Court, 1990-1992.Listedin Best Lawyers in
America, 1995—. Member, Medical Ethics
Committee, Centennial Medical Center. Rule 31
Certified Mediator. Member: Nashville (Board of
Directors, 1993-1997: President, 1997), Tennessee
(Board of Governors, 1996-1997,1999—; General
Counsel, 1999-2007; Vice President, 2007; Executive
Council Coordinator, Secretary, 1988-1990; Young
Lawyers Division, 1990-1992; President, 1996,
Fellows of the Young Lawyers Division) and
American(House of Delegates, 2000-2006; District
Representative, 1989-1991, Assistant Executive
Council Coordinator, 1990 and Meetings
Coordinator, 1991, Young Lawyer Division) Bar
Associations; Lawyers Association For Women
(Marion Griffin Chapter); ‘Tennessee Lawyers
Association for Women Bar Associations; ‘Tennessee
Justice Center, Inc.,(Member, Board of Directors,
1999—; Chair, 2006—); Chair, Tennessee Registry

132:
Appendix E
of Election Finance, 1996. Fellow. Tennessee Bar
Foundation; Nashville Bar Foundation. Practice
Areas: Personal Injury Administrative Law;
Insurance Law; Employment Law; HealthCare Law;
Products Liability; Medical Ethics; Mediation.
Email: Gail Vaughn Ashworth

Bryan Essary (Member) born ‘Tuscaloosa, Alabama,
March31,.1963; admitted to bar, 1990, Georgia and

Tennessee; 1998, U.S. Supreme Court. Kducation:
University of Alabama (BA.. 1987); Cumberland
School of Law of Samford University(J.D., magna
cum laude, 1990). Phi Kappa Phi; Curia Honoris.
Recipient, American Jurisprudence Awards in
Kederal Income Tax. Bankruptcy and Commercial]
Transactions ll. Member 1988-1989 and Managing
Editor 1989-1990, Cumberland Law Review. Co-
Author. “The Treatment of Attorney's Fee
Knhancements 1n Alabama and the Eleventh Circuit:
Justice! the Law!: My Ducats and My Daughter!" 20
Cumberland Law Review 769 (1990). Cordell Hull
Research and Writing Teaching Fellow, 1988-1989.
Member: Nashville, Tennessee, and American Bar
Associations; State Bar of Georgia. Practice Areas:
Insurance: Products Liability Medical Malpractice;
Hospital Neglgence; Personal Injury; Business

Litigation; Workers’ Compensation. Email: Bryan
Kissary

Dixie W. Cooper (Member) born Grove Hill,

Alabama, February 17,1963; admitted to bar. 1987,
Alabama: 1988. Texas: 1990. U.S. District Court.
Southern District of Texas: 1991, South Carolina:

133a
Apperdix E

1994, Tennessee; 1995, U.S. District Court, Middle,
Eastern and Western Districts of Tennessee.
Education: University of South Alabama (B.A.,
1984); University of Alabama (J.D., 1987). Pi Sigma
Alpha; Omicron Delta Kappa. Member, Trial
Advocacy Board. Member: Nashville and Tennessce
Bar Associations; State Bar of Texas; Alabama State
‘Bar; Tennessee Lawyers Association for Women;
Lawyers Association for Women; American Board of
Trial Advocates. Practice Areas: Medical
Malpractice; Hospital Neglgence; Personal Injury
Litigation. Kmail: Dixie W. Cooper

Margaret J. Moore (Member) born Opelika.
Alabama, July 21, 1967; admitted to bar, 1995,
Tennessee and U.S. District Court, Middle District of
Tennessee. Education: University of the South (BA.,
cum laude, 1989); University of Tennessee (J.D.,
1995). Former Member: Nashville Bar Association
(Secretary, 2001); Tennessee Bar Association; Harry
Phillips American Inn of Court. Practice Areas:
Medical Malpractice; Hospital Litigation; Personal
Injury Litigation. Email: Margaret J. Moore

Brian Cummings (Member) born Haddonfield, New
Jersey January 11, 1973; admitted to bar, 1998,
Tennessee; U.S. District Court. Middle, Eastern and
Western Districts of Tennessee. Education: Rutgers
University (B.A., with honors, 1995); Vanderbilt
University (J.D., 1998). Member: Moot Court;
Vanderbilt Bar Association Class Representative.
Member: Tennessee Bar Association. Practice Areas:
Medical Malpractice; Hospital Litigation; Products
Liability, Personal Injury. Email: Brian Cummings

134a
Appendix E

ASSOCIATES

Kimberlv__Silvus (Associate) born Clarksville,
Tennessee, December 7.1978; admitted to bar, 2005,
Tennessee. Education: Austin Peay State University
(BA., summa cum laude, 2001); University of
Durham (MA., 2002); University of Georgia (J.D.,
2005). Phi Kappa Phi; Omicron Delta Kappa; Order
ofthe Barristers. Member: Moot Court Board; Harry
Phillips American Inn of Court; Mock Trial Board.
Member, Nashville Women's Political Caucus.
Member: Nashville Bar Association. Practice Areas:
Medical Malpractice; Hospital Neghgence; Health
Care Litigation; Nursing Home Litigation. Email:
Kimberly Silvus

Alan S. Bean (Associate) born Nashville, Tennessee.
1981: admitted to bar, 2007, Tennessee. Education:
University of Mississippi (BA., Political Science,
magna cum laude); Vanderbilt University Law
School (J.D., 2007). Chief Justice, Moot Court Board,
Vanderbilt University Law, 2006-2007. Finalist,
Moot Court Competition, Fall 2005. Octofinalist.
Mock ‘Trial Competition, Spring 2005. ‘Trial
Advocacy Society, Spring 2005. Section Editor.
Obiter Dictum. Member: Tennessee Bar Association.
Practice Areas: Health Care; Medical Malpractice.
Email: Alan S. Bean

135a
Appendix E

Brian P. Manookian (Associate) born Tennessee;
admitted to bar, 2007, Tennessee. Education:
Lipscomb University (BA, magna cum laude, 2003);
Vanderbilt University (J.D., 2007). Dean's List
Recipient: Chancellor's Scholarship; Vanderbilt Law
and Business Certificate, 2007. Editor, Vanderbilt
Law Review, 2005-2007. Member, Vanderbilt Law
School Advocacy Society, 2004-2007. Member:
Nashville and Tennessee Bar Associations. Practice
Areas: Hospital Law; Medical Malpractice.

Catherine M. Corless (Associate) born St. Louis,
Missouri, April 27,1978; admitted to bar,2003,
Tennessee. Education: University of Central
Arkansas (B.S., 2000); Vanderbilt University (J.D.,
2003). Scholastic Excellence, Professional
Responsibility. President, 2002-2003, ‘Treasurer,
2001-2002. Vanderbilt Trial Advocacy Society.
Member: Tennessee Bar Association. Practice Areas:
Medical Malpractice; Hospital Litigation. Email:
Catherine M. Corless

Kelly R. Thomas (Associate) born Huntsville.
Alabama, January 31,1978; admitted to bar, 2003,
Tennessee; 2004, U.S. District Court, Eastern and
Middle Districts of ‘Tennessee. Education:
Jacksonville State University (B.S., cum laude,
2000); University of Alabama (J.D., 2003). Editor-in
Chief, Law and _ Psychology Review. Member:
Tennessee Bar Association. Practice Areas: Medical
Malpractice; Hospital Neghgence; HealthCare
Litigation; Nursing Home Litigation. Email: Kelly R.
Thomas

136a
Appendix i

Christopher J. ‘l'ardio (Associate) born Greenville,
Kentucky May 23,1979;admitted to bar, 2004,
Tennessee; 2005. U.S. District Court, Middle District
of Tennessee; U.S. District Court, Eastern District of
Tennessee. Education: University of Kentucky (B.A..
summa cum laude, with honors, 2001); Vanderbilt
University (J.D., 2004). Dean's List Phi Alpha
Delta. Legal Aid Society. Managing Editor, Journal
of Entertainment Law and Practice. Member:
Nashville, Tennessee and American (Member, Young
Lawyers Division) Bar Associations. Practice Areas:
Medical Malpractice; Hospital Litigation. Email:
Christopher J. Tardio

Christopher A. Vrettos (Associate) born Toms River,
New Jersey. September 5, 1977; admitted to bar,
2005, Tennessee; 2006, U.S. District Court, Eastern
District of Tennessee. Education: Duke University
(BA., 2000); Washington&Lee University School of
Law (J.D., cum laude, 2005). Phi Delta Phi. Member,
Harry Phillips American Inn of Court, 2006-2008.
Black Lung Clinic, 2003-2005. Winner, Washington
&Lee Chent Counseling Competition, 2004. Moot
Court Executive Board, 2004-2005. Member:
Nashville and American Bar Associations. Practice
Areas: Medical Malpractice; Hospital Litigation.
Email: Christopher A. Vrettos

Carol E. Davis Crow (Associate) born Houston,
Texas, February 21,1973;admitted to bar, 1998,
Texas; 2006, Tennessee and U.S. District Court,
Middle Dis

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2235%3A2. Public record. Not legal advice.