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‘Father of Lung Transplant’ wins age discrimination case

University wins breach of contract claim

Angela Riley//April 6, 2009

‘Father of Lung Transplant’ wins age discrimination case

University wins breach of contract claim

Angela Riley//April 6, 2009

A famed surgeon known as the “Father of the Lung Transplant,” won a $525,000 verdict in his age-discrimination lawsuit against Washington University after a three-week trial in St. Louis Circuit Court.

Dr. Joel Cooper sued the university and his supervisor, Dr. Timothy Eberlein, for age-discrimination alleging the university asked him to step down when he turned 65 and took actions against him when he refused.

Eberlein was cleared of all wrong-doing by the jury. The jury also rejected Cooper’s breach of contract claim against Washington University.

In 1983, Cooper performed the first successful single-lung transplant, and then in 1986, he performed the first successful double-lung transplant. He also helped develop lung-volume reduction surgery, which helps restore lung function in patients with late-stage emphysema. He joined the university in 1988 and in 1997 became the chief of the Division of Cardiothoracic Surgery.

Eberlein joined the university in 1998 as the chairman of the department of surgery and is a well-known expert in breast cancer and was crucial in the development of the world-renown Siteman Cancer.

Testifying at the trial, were some of the other highly respected doctors and surgeons, G. Alexander Patterson, who replaced Cooper as the chief of the division of cardiothoracic surgery; Larry Shapiro, dean of the School of Medicine at Washington University; Dr. Eric Jacobsohn, a former associate professor of anesthesiology at the university; Dr. Larry Kaiser, president of The University of Texas Health Science Center; and Dr. Ralph J. Damiano, chief of cardiovascular surgery at the university.

The university maintained that Cooper was asked to step down as the division chief because he had a personal and operational deficit in his division. The university wanted Cooper to stay on, just not as the division chief, said defense attorney, Joe Conran, of Husch Blackwell Sanders, during the trial.

Cooper did admit in court that his clinical revenue was significantly lower than other division chiefs and senior cardiothoracic surgeons, but stated that his research, teaching and running of the division were more important than increasing his caseload.

What constituted as the bottom line in the division of cardiothoracic surgery was a question that was brought up constantly throughout the trial.

Both sides presented a plethora of documents collaborating their position.

Cooper had maintained that there was always a surplus in his division and that increased the reserves from $11 million when he started to $23.4 million in 2005. Documentation that he received from the department did not reflect that he had a deficit. The university contended that was because Cooper would add charitable contributions and subsidies from the medical school to the division’s bottom line. This was not a policy the university supported.

Conran said his goal in the trial was to “present the evidence and witnesses in a way that the jury would understand that the issues concerning Dr. Cooper didn’t relate to his age.”

Many different doctors in the division of cardiothoracic surgery testified. All collaborated that Cooper’s fiscal management was a concern in the department and something that was discussed with Cooper. 

“We believe the evidence that Dr. Eberlein coordinated and attempted to work with so many different people to deal with the issues regarding Dr. Cooper and his ongoing deficits was a key factor in finding in his favor,” Conran said. 

Cooper’s attorney Jerome “Jerry” Dobson, of Dobson, Goldberg, Berns & Rich, pointed out that there weren’t documents validating the university’s claims. Eberlein testified it was always the policy that bonuses were above the line expenses and considered as operational expenses. This policy was not reflected on the profit-loss statements given the division chiefs until the 2002 fiscal year. Eberlein said there were no e-mails, memos, agendas or meeting minutes that reflected this policy, only that it was talked about during personal conversations.

After about nine hours of deliberation, the jury of seven women and five men awarded Cooper $325,000 in actual damages and $200,000 in punitive damages in his age discrimination and retaliation claim against the university.

Dobson had asked the jury for $1.75 million in actual damages and for $12 million in punitive damages. Dobson said he arrived at that number because it is slightly less than 1 percent of the medical school’s $1.3 billion budget.

However, the jury found that Eberlein did not discriminate against Cooper and sided with the university for Cooper’s a breach of contract claim for the amount he believed the university owed him in deferred compensation. The agreement was designed to pay him $200,000 a year through 2008.

The university only paid Cooper through 2005 when he left to join the University of Pennsylvania Health Sciences as the Chief of the Division of Thoracic Surgery.  He alleged he was owed the money for the other years even though he was not at the university.

Conran said he plans on appealing the jury’s verdict against the university but declined to comment on what grounds.

Dobson said he was unlikely to appeal, although no final decision had been made.

According to Dobson, Cooper filed the lawsuit on principle, not just for the money he believed he was owed from the university.

“It has been one of the great privileges to represent Dr. Cooper,” he said. “Not only is he a great doctor and a surgeon but a great, kind and caring person. He is also very courageous. He could have walked away from this. He had a new job at the University of Pennsylvania. But he believed that he needed to stand up when he saw that something was wrong. He did this for other people.”

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