Fulton1 2

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 1 of 97
IN ARBITRATION
JAMES J. MURTAGH, JR., M.D.,
Claimant,
V.
FULTON-DEKALB HOSPITAL
AUTHORITY, EMORY
UNIVERSITY, EMORY
HEALTHCARE, INC ., GRADY
HEALTH SERVICES
COMPANY, INC ., JOHN DOES 1-10
SUBMITTED IN
CONFIDENTIAL
ARBITRATION
DECISION OF THE ARBITRATOR

Having reviewed the pleadings submitted by all parties on Emory University's and
Emory Helathcare, Inc .'s Response in Opposition to Dr . Murtagh's Six Pro Se Motions Filed
Between February 26 and March 5, 2007 and Emory's Motion for Sanctions and Memorandum
of Law in Support of the Same, and having held a hearing on Emory's Motion for Sanctions, the
Arbitrator decides as follows1.
Although the Parties Have Agreed to Conduct Discovery Pursuant to the

Georgia Civil Practice Act, Both Georgia and Federal Procedure Permit the
Imposition of Sanctions for Discovery Abuses .
This arbitration arises out of a Settlement Agreement ("Settlement Agreement") between

Dr . James Murtagh and Emory University and Grady Health Services (and other respondents,
jointly referred to as "Emory and Grady"). That Settlement Agreement states that the agreement
is to be arbitrated pursuant to the Federal Arbitration Act . (Settlement and Confidentiality
Agreement and Mutual Release dated August 10, 2001 at 13 .) However, the parties to this
arbitration also agreed that they would conduct discovery pursuant to the Georgia Civil Practice
Act . (December 21, 2006 Amended Consent Scheduling order at 2 .)
Dr. Murtagh contends that because the Settlement Agreement states that the arbitration
shall be conducted pursuant to the federal Arbitration Act, federal law governs procedure, and
thus, the Federal Rules of Civil Procedure would govern the imposition of sanctions in this
arbitration. Emory and Grady present no case law to the contrary, but neither is it disputed that
subsequent to the Settlement Agreement, the parties agreed that discovery would be conducted
pursuant to the Georgia Civil Practice Act . As such, the parties indicated a later intent that
Georgia procedure should govern . Accordingly, Georgia procedure does govern .
Georgia procedure provides remedies for abuses of the discovery process . Specifically,
O.C.G.A. 9-11-37 governs failures to make discovery, and subpart (b)(2)(B) allows a court to
grant an order "refusing to allow the disobedient party to support or oppose designated claims or
defenses, or prohibiting him from introducing designated matters in evidence," and subpart (C)
allows an order "striking out pleadings or parts thereof . . . ." O .C .G.A. 9-15-14(b) likewise
allows the assessment of "reasonable and necessary attorney's fees and expenses of litigation in
any civil action if . . .it finds that an attorney or party unnecessarily expanded the proceeding by
other improper conduct, including, but not limited to, abuses of discovery procedures available
under Chapter 11 of this title, the `Georgia Civil Practice Act .""
Even under federal law, there is ample basis under Rule 37 of the Federal Rules of Civil
Procedure to sanction a litigant for discovery abuses, including dismissal of claims, default
judgment and attorney's fees awards . Fed . R . Civ. P . 37(b)(2)(A)-(C) . No special procedure is
required for a motion for sanctions predicated on Rule 37, and thus, claims that Dr . Murtagh did
not receive proper notice for a Rule 11 sanctions motion under federal procedure are not
persuasive .
AU-23 266 3 0 Y ]
II. Dr. Murtagh Willfully Diso beye d The Arbitrato r's Discovery Orde r to
Produce Document s Responsive to Emory's Requests .
Because Dr . Murtagh willfully disobeyed the Arbitrator's order compelling production of
documents, sanctions of dismissal, default and certain attorney's fees are warranted pursuant to
O.C.G.A. 9-11-37 and 9-15-14(b) .
A.
Lega l Standard
Georgia courts have routinely held that the first step to obtaining sanctions under
O.C.G.A. 9-11-37 is a prior Order compelling that a party make certain discovery :
OCGA 9-11-37 is a two-step proceeding before the ultimate sanction of
dismissal or default judgment may be imposed . First, a motion to compel must be
filed and granted; second, after the party seeking sanctions notifies the court and
the obstinate part of the Tatter's failure to comply with the order granting the
motion to compel and of the moving party's desire for the imposition of sanctions,
the trial court may apply sanctions after giving the obstinate party an opportunity
to be heard and determining that the obstinate party's failure to obey was rvillful.
McConnell v. Wright, 281 Ga. 868, 869 (2007) ; see also Tenet Healthcare Corp . v . Louisiana
Forum Corp., 273 Ga. 206, 211 {2000} (same) . For instance, in Georgia Cash Amer., Inc . v.
Strong, 286 Ga. App . 405 (2007), the Georgia Court of Appeals affirmed a trial court's decision
to strike a party's defenses in arbitration where it was clear the party had withheld documents
during discovery . Id. at 414.

However, the Georgia Court of Appeals also has affirmed the sanction of dismissal for
withholding documents even where there was not a formal motion to compel or an order
compelling production . For instance, in Samara v . American Combustion, Inc ., 225 Ga. App .
771, 772 (1997) plaintiff failed to produce an agreement that was "relevant to the issues and
should have been produced in discovery . . . ." As in this matter, the defendant in Santora
ATE-2326636v1
ultimately received the document through third-party discovery, but otherwise would not have
known the document existed at all . Also as in this case, the plaintiff made a late claim of
privilege as a basis for failing to produce the documents, a claim rejected by the trial court . Id. at
773 . Finding that plaintiff "consciously and intentionally failed to turn over this document
relevant to [defendant's] discovery requests," the Court of Appeals held that the sanction of
dismissal was warranted even though plaintiff "had violated no order compelling him to produce
this document ." Id. Thus, in the case at hand, even if there had been no decision of the arbitrator
compelling production of these documents, which there was, dismissal as a sanction for
withholding responsive documents would be appropriate .
B.
An a lysis of Dr . M u rtagh 's Failure to Produce Documents
On December 12, 2005, the Arbitrator granted Emory's Motion to compel Dr . Murtagh to
produce documents responsive to its Requests for Production . (Emory's Mot . to Compel
Production of Certain Documents and Interrogatory Responses .) In that Order, the Arbitrator
directed that : "Dr . Murtagh is ordered to produce complete responses to . . . Emory's First
[Request for] Production of Documents, Nos . 1-5 ." (December 12, 2005 Order .) Emory
contends that after the December 12, 2005 Order, Dr. Murtagh withheld certain e-ails in
response to Emory's requests for production . The relevant document request directed Dr .
Murtagh to produce
any and all Documents prepared, distributed, published, redistributed, or
republished by you or at your request at any time since August 1, 2001 that
reference, relate to, or concern any Emory Entity, and Grady Entity, the
Settlement Agreement, the claims or allegations settled by the Settlement
Agreement" and production of "any and all Documents that you have authored,
co-authored, published, re-published, distributed, re-distributed, contributed to,
assisted, encouraged or participated in since August 1, 2001 that reference, relate
ATI-2326630v I
to, or concern any Emory Entity . . . jor] the claims or allegations settled by the
Settlement Agreement .
(Emary's Supp . Reply at 7 quoting Emory's First Request for Production of Documents and
Things, Req. 1 and 3 .)
1.
Dr. Murtagh withheld communications with Robert Searfoss

regarding Emory and Grady subsequently published on the
Internet .
Subsequent to the December 12, 2005 Order, Emory obtained discovery from a third
party, Robert Searfoss, which indicates that Dr . Murtagh sent to Searfoss and to others on
November 4 , 2005 a copy of an article that was purportedly published by the New Criminologist
website on November 5 . (Exs . K and L to Emory's Mot. for Sanctions .) The article, published
with the headline "Grady Hospital - More Corruption", describes Emary's purported efforts to
censor the student newspaper's reporting of alleged corruption at Grady hospital, and is largely
identical to the material in the e-mail sent by Dr . Murtagh to Mr . Searfoss the day before the
article was published .' (Id.)
Emory also obtained from Mr . Searfoss's files an e-mail from Dr . Murtag to Searfoss
dated April 23, 2005 that appears to have been reproduced to a significant degree in an article
entitled "Atlanta Corruption : New Whistleblower Emerges with Damning Evidence" published
on the New Criminologist website on April 24, 2005 . (Exs . 0 and P to Emory's Mot . for
Sanctions .) In both Dr. Murtagh's April 23 e-mail and the article published the next day, there
are identically worded allegations regarding purported misconduct of Grady and Emory . (Id.)
` A l ong with his production of documents, Mr. Searfoss submitted an affidavit dated February 5, 2007
swearing that the documents produced from his files are authen tic . Dr. Murtagh does not dispute t h e authenticity or
admissibi l ity of these documents .
,er r- 23 26 63 0v i
Even though this document was responsive to requests that were already the subject of an Order
compelling production, Dr. Murtagh did not produce the e-mail to Emory, and acknowledges that
that he withheld the e-mail, which he describes as a communication with his "professional
advisor, Mr. Searfoss ." (Pls . Reply to Emory's Response to Six Motions at 17, 18.)
2. Dr . Murtagh withheld additional communications with Robert

Searfoss and others regarding Emory and Grady.
Emory also learned for the first time from documents produced by Mr . Searfoss that Dr.
Murtagh had withheld a number of other communications to Mr . Searfoss and others that were
plainly responsive to Emory's Document Request and within the general subject matter of the
Arbitrator's Order compelling production of documents . (Ex . R to Emory's Mot . for Sanctions .)
As with the Dr. Murtagh's communications to Dr . Searfoss that later were published as articles
on the New Criminologist website, Dr . Murtagh does not deny that he knew that these
documents existed at the time his discovery obligations arose (see, e.g., Pl.'s Reply to Emory's
Resp . to Six Motions at 16-17 n .16), but rather argues that Emory's claims with regard to these
documents are "meatless" because in these communications Dr . Murtagh was "writing in
confidence to persons with knowledge of events and persons who had helped Dr . Murtagh
through his illness, and persons who provided evidence, support and assistance to the FBI" (id. at
16-17) . Likewise, Dr. Murtagh does not contest Emory's claim that Dr . Murtagh intentionally
withheld the documents that were ultimately produced by Mr . Searfoss, but claims that Mr .
Searfoss (and others to whom it has been revealed that Dr . Murtagh addressed these e-mails)
were acting as his "professional advisor[s]", and as such, the communications were confidential,
and not subject to production in response to Emory's requests . pls . Reply to Emory's Resp . to
Six Motions at 16 citing O .C.G.A. 24-9-27(c).)

3. Dr . Murtagh withheld additional materials related to Emory
and Grady transmitted to the Liberty Coalition subsequent to
entry of the Order compelling production of such documents.
Emory likewise contends that Dr . Murtagh failed to produce similar materials sent to the
Liberty Coalition (another organizafion/webs ite that publ ishes articles relating to alleged
whistleblower claims) on December 15, 2006 . Specifically, Emory contends that Dr. Murtagh
sent to the Liberty Coalition's webmaster an e-mail with two attachments, one of which
contained a number of the articles Dr . Murtagh had written about Emory . (Ex . B to Emory's
Supp. Reply.) As above, Dr. Murtagh failed to produce these documents in response to Emory's
discovery requests, even though he was under a prior Order by the Arbitrator to produce such
documents . Dr. Murtagh "acknowledge[s] forwarding the 28-pages of material to the Liberty
Coalition," but claims "it was not with the instruction that it should be posted ." (Dr. Murtagh's
Supp. Resp . at 4 .) However, in his cover e-mail to the Liberty Coalition, Murtagh tells the
Liberty Coalition's webmaster : "Here are some materials for the website . Please post in
particular" certain articles identified by URL . (Ex . B to Emory's Supp . Reply .)
C.
Dr. Mu rtagh provides no justification for these failure s to produc e

document s relevant to Emory's requests and subject to the
Arbitrator's Order .
Dr. Murtagh's arguments that the documents are subject to some privilege or, in the
alternative, are not relevant to Emory's requests, are not convincing . First, Dr . Murtagh has
articulated no priv ilege that would just ify withholding these document s pursuant to OM.C. G.A.
24-9-27(c) . Mr. Searfoss is not an attorney, and even to the extent Dr . Murtagh may assert that
ATI-2326630v 1
Mr. Searfoss advised him on "tax matters and entrepreneurial start-ups" (PIs . Reply to Emory's
Resp . to Six Motions at 15), none of the communications in question relate to those topics .
Moreover, as Emory argues, none of the communications between Mr . Searfoss and Dr. Murtagh
are listed on a privilege log, and Dr . Murtagh raised no objection to the subpoena of Mr . Searfoss
on the basis that the discovery sought could violate a privilege recognized by Georgia law .
(Emory's Reply at 7.) Thus, Dr. Murtagh's contention that the communications with Mr .
Searfoss are privileged and therefore exempt from discovery is without merit . See, e .g., Clayton
County Bd. of Tim Assessors v . Lake Spivey Golf Club, Inc ., 207 Ga. App . 693, 694-95 (1993)
(denying defendants' privilege claim under O .C .G.A. 24-9-27(c) where the statements
defendants sought to protect were "not the advice of a provisional advisor .")
Likewise, Dr . Murtagh's contentions that he did not believe that the documents were
relevant, or that his failure to produce them is excused by a contemporaneous change of counsel
representing him, are insufficient to explain the failure to make discovery as requested by Emory
and as Ordered by the Arbitrator . Even Dr . Murtagh concedes that his change in counsel is "not
an excuse for not promptly updating discovery responses," and Dr . Murtagh has not produced the
documents at any time since he retained new counsel . Emory obtained these documents only
through third-party discovery . Moreover, the documents withheld by Dr . Murtagh are more than
plainly relevant - they go the very heart of the issues in this arbitration : whether, as alleged by
Emory, Dr. Murtagh violated the Settlement Agreement through "multiple postings on the
Internet making _ . . disparaging and defamatory allegations against Emory University and Grady
Hospital ." (Emory Ans . and Am . Counterclaim at !J 41 ; see also id. ~ 47 and Ex . B to Anderson
ATI-2326630v l
Affidavit (describing the April 24, 2005 New Criminologist article about which Dr . Murtagh
ultimately withheld relevant communications) .)
Furthermore, the Arbitrator finds that Dr . Murtagh's failure to respond to Emory's
Requests for Production and Dr . Murtagh's concomitant violation the Arbitrator's Order was
willful . As Dr. Murtagh concedes, the documents were not accidentally withheld because of
mistake or clerical error . Nor does Dr . Murtagh argue that the documents were not known to
him or were not within his custody or control . Rather, Dr . Murtagh now says that, in spite of the
Arbitrator's Order to produce these documents, he instead withheld them (1) on the basis ova
privilege on which he has set forth no good-faith basis for reliance ; or (2) because he believed
that they were not relevant, and/or (3) because at the time some of the documents were withheld,
Dr . Murtagh was in the process of obtaining new counsel . Thus, it is clear from Dr . Murtagh's
defenses to Emory's allegations that withholding these documents was willful and not merely
negligent or careless . Accord ingly , under Georgia law, sanctions would be appropriate. See , e.g.,
Santora, 225 Ga. App . at 77 3 . In light of Dr . Murtagh's willful violation of the Arbitrator's
December 12, 2005 Order commanding production of documents responsive to Emory's

Requests, and in light of the centrality of these documents to the claims and defenses at issue in
the Arbitration, sanctions of dismissal and default are clearly appropriate . See, e .g., Georgia
Cash Amer., 286 Ga. App. at 414 .

III.
Dr. Murtagh Comm itted P erjury .
Emory also alleges that Dr. Murtagh committed perjury on a number of occasions during
discovery in this case . As described below, the Arbitrator finds sufficient evidence of at least
one instance of perjury to support the imposition of sanctions against Dr . Murtagh.
A'T1-232663 0v 1 .
Dr . Murtagh gave a sworn statement in this Arbitration that he had nothing to do with the
creation or publication of the article on the New Criminologist website entitled "Grady Hospital
- More Corruption" discussed in Part TI above. His December 14, 2005 affidavit states "I did not
author or publish, assist in the authoring or publishing or encourage anyone else to author or
publish the New Criminologist article [entitled Grady Hospital -Mare Corruption] ." (Dec. 14,
2005 Aff.' 4 .) In his deposition, he testified that he had "absolutely nothing to do with" the
article . (Murtagh Dep . at 636.) Likewise, Dr . Murtagh's July 8, 2005 Affidavit flatly states that
"I have never written anything published in the New Criminologist except for an Op Ed about
sleep medicine ." (July 8, 2005 Aff. 1 33 .) However, the discovery obtained from Mr . Searfoss
as described above strongly suggests that Dr . Murtagh sent to Searfoss and to others on
November 4, 2005 material that was published by the New Criminologist website on November
5. (Exs . K and L to Emory's Mot . for Sanctions .) I f these documents are taken at face value, Dr .
Murtagh's sworn affidavits and deposition testimony appear to be untrue .
Perhaps Emory's most direct evidence of Dr . Murtagh's perjury relates to Dr . Murtagh's
statements regarding his association with Emory student Kevin Kuritzky (the student whose
alleged story is relayed in the April 24, 2005 New Criminologist Article entitled "Atlanta
Corruption : New VAiistleblower Emerges with Damning Evidence") . Dr . Murtagh gave a sworn
statement in his July 8, 2005 Affidavit that he was not acquainted with Mr . Kuritzky prior to
April 25, 2005 . (Murtagh July 8, 2005 ~ 14_) The precise date of Dr . Murtagh's acquaintance
with Kuritzky is significant because of the April 25 publication of the New Criminologist article .
The statement in Dr . Murtagh's July 8 affidavit tends to support his contention that he could not
have been involved with the publication of the April 25, 2005 article . However, as subsequently
AT] -232663 0v 1
10
confirmed by the existence of the April 24, 2005 e-mail to Mr. Searfoss, and by Dr. Murtagh's
subsequent (and apparently truthful) deposition testimony that he met Mr, Kuritzky about one
week before he sent the April 24 e-mail, Dr . Murtagh's August affidavit (stating that he hadd not
met Mr. Kuritzky until April 25, 2005) appears to be false . Dr . Murtagh's participation in the
preparation of the April 25 New Crirninologist article is a material fact in this case, and his claim
that he merely misspoke about such an important date is not credible .
IV. Dr. Murtagh May Have Manipulated Documents .
Emory also contends that Dr . Murtagh may have manipulated certain documents . The
first document is purportedly a January 30, 2001 e-mail from an unknown author to Dr . Murtagh.
(Ex . J to Emory Mot . for Sanctions .) The e-mail purports to threaten Dr . Murtagh and directs
him to "blest stop complaining and trying to bring the great Grady down with you!!! I" (Id.)
However, Dr. Murtagh also has produced in discovery a version of the document that is
otherwise identical except that it states "D]ust stop complaining and trying to bring the great
Emory down with you!!!!" (Id. Ex. I (emphasis added) .)
Emory contends that the existence of both e-mails shows that Dr . Murtagh has altered the
document . Indeed, Dr. Murtagh does not deny that he "did prepare a draft of a document
discussing the e-mail in which 'Grady' was inadvertently replaced for the word `Emory"' and
expanded on this at the hearing, stating that the mistake may have been the result of a "find and
replace" operation on Dr . Murtagh's computer. (Dr . Murtagh's Reply at 15 .) Dr. Murtagh goes
on to assert that "the mistaken copy was never used in any pleading, and certainly has no
relevance to the six motions" then under discussion . (fd.) However, Dr. Murtagh did attach the
version of the document that references Emory to his Petition to Remove Emory's Counterclaims
a,Ti-232 66 30v t
ll
from Arbitration as Exhibit QQ {filed 212612047 .} Dr. Murtagh further contends that because it
"is an item from prior to the 2001 Settlement Agreement" that it should not matter whether he
altered the document . This argument clearly misses the point that any alteration of this evidence
would be relevant to Emory's Motion for Sanctions without regard to the apparent original date
of the e-mail .
Emory also contends that Dr . Murtagh manipulated an e-mail from Emory employee
James Fowler (Director of Emory's Center for Ethics) . In June 2004, Mr. Fowler apparently
wrote to Dr. Murtagh and another recipient that
[y]ou have been sending me e-mails regarding Senator Walker's indictment and
the large number of charges against him . I know that this has been a matter of
great concern to you and to many at Grady . Because Hospital is beyond my
jurisdiction, and the situation there is beyond my ability to investigate, and
because the situation is now under criminal investigation, I will not seek to
become an investigator or spokesman on this issue .
(Ex . F to Emory's Mot . for Sanctions .) Emory contends that Dr . Murtagh has produced five
different versions of this e-mail and that he has "manipulated" the document . (Emory Mot. for
Sanctions at 15 .) However, Emory does not contend that the substance of the e-mail or its time,
date or the names of the recipients have been changed . Rather, Emory appears to contend that
the various versions of the e-mail look different, are formatted differently, and in some cases
include an additional e-mail in which Dr . Murtagh forwards Mr . Fowler's response to someone
else . (Id.) Although it is not clear why Dr . Murtagh has produced so many d ifferent cop ies of
the e-mail, it seems clear that neither the substance nor the identifying information (time, date,
recipients, etc .) of the e-mail have been altered in any way . Furthermore, Gregory Freemyer, a
computer forensic expert, testified that such variations were possible without manipulation .
RTI-2326630v {
12
Emory provided other examples of emails, which look suspicious on their face (see Mot.
for Sanctions at 13-17) , but without more, they cannot be said to have been fabricated or
otherwise manipulated . Cf. Bouve & Mohr, LLC v. Banks, 274 Ga . App . 758, 762 (upholding
sanctions imposed where there was clear evidence of spoliation. Accordingly, the Arbitrator
finds that while there are suspicious circumstances surrounding various documents, Emory has
not met its burden of proving that Dr . Murtagh intentionally altered or fabricated these
documents .
VI. Arbitrator Orders Default and Attorney's Fees For Motion to Compel,
Motion for Sanctions and Good-Faith Efforts to Resolve .
The Arbitrator thus finds multiple discovery abuses including intentionally withholding
in the Arbitration multiple responsive and material documents, even after being ordered to do so
by the Arbitrator, and committing perjury during discovery taken for the arbitration . These
specific abuses are consistent with the Arbitrator's finding that Dr . Murtagh's overall conduct
has been to pursue the Arbitration in a vexatious manner . 2 Pursuant to O.C .G.A. 9-11-37 and
9-15-14(b) the Arbitrator therefore sanct ions Dr. Murtagh as follows :
1 . Dr. Murtagh's claims in Arbitration, if any remain, are dismissed ;
2 Given Dr . Murtaugh's repeated, willful violation of the Arbitrator's December 12, 2005
Order commanding production of documents responsive to Emory's Requests - documents
central to the claims and defenses at issue in the Abitration ; given Dr . Murtaugh's perjury in
discovery in the Arbitration ; and given Dr . Murtaugh's violation of the court order in related
litigation, there is a clear pattern of delay and willful conduct by Dr . Murtaugh, and there is no
basis upon which to believe that a lesser sanction would deter future misconduct by him .
Accordingly, even if the procedure in this Arbitration were governed by Federal Rule of Civil
Procedure 37, the sanction of dismissal or default would be appropriate . See e .g., Phipps v .
Blakeney, 8 F.3d 788, 791 (1 I`h Cir . 1993) .
ATI-2325630v
13
2 . Dr. Murtagh's defenses to the Arbitration are stricken, and a decision of default
on all claims against him entered ; and
3 . Dr. Murtagh must pay Emory's and Grady's reasonable costs and expenses,
including attorney ' s fees , relating to its Motion to Compel , dec ided on December 12, 2005, all
good-faith efforts to resolve subsequent discovery issues related to the motion to compel and
December 12, 2005 Order, as well as those fees related to Emory's Motion For Sanctions .
Though Emory has submitted its costs and expenses more generally, it has not itemized
them pursuant to paragraph three above . Accordingly, if Emory or Grady seek such costs and
expenses, Emory and Grady should submit those to the Arbitrator for consideration on or before
July 15 , 2008.
4
Dated : Juner~~ 2008
Richard H . Deane, Jr .
JONES DAY 1420 Peachtree Street, N .E .
Suite 800
Atlanta, GA 30309-3053
Telephone : (404) 521-3939
Facsimile : (404) 521-8330
Neutral Arbitrator
A7I-2326630v 1
14
IN ARBITRATION
JAMES J. MURTAGH, JR ., M .D.,
Claimant,
V.
AUTHORITY, EMORY
UNIVERSITY, EMORY
HEALTH SERVICES
SUBMITTED IN
CONFIDENTIAL
ARBITRATION

It is hereby decided that Dr . Murtagh's "Alternative Motions to Strike Emory's Purported
'Motion for Sanctions' as Not in Compliance with Applicable Rules, to Summarily Deny Such
`Motion' for Lack of Jurisdiction and as Moot, to Stay Proceedings on Emory's `Motion' for
Sanctions, and for a Continuance of Hearing on Emory's `Motion"' are DENIED .
In light of the nature of both the conduct alleged in Emory's Motion for Sanctions and the
relief sought therein, the Arbitrator requests that Dr . Murtagh identify within three (3) days of
this Order three (3) dates in the next 21 days that he could attend a hearing on Emory's
Motion in person at the offices of Jones Day in Atlanta. Such dates may include Saturdays if
necessary to accommodate Dr . Murtagh's work schedule .
Dated : April 15, 2008
JONES DAY
142 Peachtree Street, N .E.
Suite 800
Telephone : (404) 521-3939
Facsimile : (404) 521-833
Neutral Arbitrator
ATL-23 [ R63 6v {
IN ARBITRATION
JAMES J. MURTAGH, JR., M.D,,
Claimant,
V.
FULTONT-DEKALB HOSPITAL
AUTHORITY, EMORY
UNIVERSITY, EMORY
HEALTHCARE, INC., GRADY
F EALTHCARE, INC., GRADY
HEALTH SERVICES
COMPANY, INC ., J OHIN DOES 1-10
SUBMITTED INN
eON r IDE: T tAL
AP- 3i `rRA,1" [C)N
DECISION OF THE ARBI TRATOR

In his Motion for Recusal of the Arbitrator and Disclosure of Information Related to
Potential Conflicts ("Motion"), Plaintiff Dr . James J . Murtag , Jr, claims that "[djacuments
recently obtained . . . through production from [defendant] Emory reveal that Arbitrator Dean
has a conflict or the appearance of a conflict that requires recusal" and contends therefore that
the Arbitrator should recuse himself . (Motion at 2 .) In the alternative, Dr . Murtagh's Motion
requests that "at minimum there should be a full disclosure of all potential conflicts, including
the extent of the friendship and past and on-going relationships between the Arbitrator and Kent
Alexander, and a full disclosure of any ex pane communications between Mr . Alexander and the
Arbitrator, and Dr . Murtagh should be allowed discovery on the evidence Emory possesses
regarding, any potential conflicts of interest ." (Motion at 4 .)
The original basis tar fir. MurtaCh':; Motion, filed as Exhibit A to the Motion, was a
certification filed by Mr . Deane on April 6. 2000 in his capacity as United States Attorney for te
Northern District of Georgia . The certification was filed in the case captioned :Wu ttagh a=. .Fjnnory
L]'niversiy; Julia P. Kokko; Gvr-cald ff'. Statnn, Jr_, Civil Action No . 1 :99-cv=?5644EC, and states
that :
I have reviewed the Amendment to the Complaint, as well as documentation
pertaining to the allegations concerning Samuel M . Aguayo, .U ._ in the
Amendment to the Complaint .
On the basis of the information now available with respect to the matters referred
to in the Amendment to the Goplaint, defendant Samuel M . Aguayo, M .13., was
acting within the scope of his employment by the united States at the time of the
events alleged in the Amendment to the Complaint .
(Motion Exhibit A .) Dr. Murtagh claims in his N-latzan to have learned of this certification for
the first time in September 2007 by receiving the document in a production made by defendants
Emory University and Emory Hea thcare, Inc . {"Emory") . (Motion at 2 .) Dr. Murtagh contends
that this certification indicates that "Arbitrator Deane had reviewed and made decisions
regarding Plaintiffs' underlying case in 2000 while Mr . Deane was the U .S . Attorney," and that
'-[t]his information was not revealed by E ory or the Arbitrator prior to Plaintiffs' discovery ."
(Id.) Dr. Murtagh's Motion states that that the certification is "contrary to Emory's statement of
the potential conflicts, ., which Ur. Murtagh gleans from the document attached to the Motion as
Exhibit B . That document is a July 25, 2005 e-mail from Emory's counsel to the Arbitrator with
carbon copies to counsel -for all parties, which states in relevant part :
Richard : I also had one other request I meant to raise on the phone . Would you
mind making a wr itten disclosure of the past relationships you have had -wi th the
parties and/or thei r c ounsel . I know you have already g iv en an oral disclosure
that included (1) you worked in the US Attorne y s office during a period of time
that overlapped with Kent Alexander' s working i n the office and therefore
worked with M r. Alexander, [and,i (2) you were the US A ttorne y at the t ime the
qui torn action i nitiated by Dr . Murta gh was fi led but are not aware of the
specifics of the case .
AT 1 -23 i4_76j_V1
(Motion Exhibit B .) Dr . Murtagh's Motion cites the rules of the American Arbitration
Association (AAA) regarding Disclosure (Rule 15) and Disqualification (Rule 16) but appears to
contend that the Arb itrator should rule on the elation in t ie .first instance .
Emory's Opposition
Emory argues that Dr. Murtagh was aware at the time Mr . Deane was engaged as the
Arbitrator that he had served as the U .S. Attorney at the time of at least one of Dr . Murtagh's
prior lawsuits against Eon-- and attached to its opposition an e-mail exchange between Mr.
Deane and Dr . Murtagh's counsel at the time of the engagement . (Opposition Exhibit E.) 'rhe
Arbitrator stated in an August 4, 2005 e-mail :
I will also speak to the issues raised in your prior email regarding my association
with any of the parties or issues . I will include reference to this issue in the letter,
but I would like more information about the qui tam that was mentioned . I have
no recollection of any such and don't know if the matter would have come to my
attention or not . Are any of the substantive issues from the qui tam left to be
resolved by me or do all of the issues arise out of the settlement ., Also, since you
are all more familiar than I am with that litigation, do your records indicate that
took any action with regard to the matter or are you[] aware of any such from
your involvement in that litigation?
(2'd.) In an Au gust 5 , 2005 response, Dr. Murtagh's counsel references a case captioned United
States ex rel . Diane F Chverr and James J Murtagh, M. D. v. Emory UF1ZvLYSlj~%, N.D.G . Case
No. 1 :99-CV-2909 and states that it was the understanding of Dr. Murtagh's counsel that "the
qui tam action was resolved at the time the parties entered into the Settlement Agreement in
August 2001 and that the United States had previously declined to."
intervene (Id.)
Emory also attaches to its opposition the August 12, 2QOS engagement letter between the
Arbitrator and the parties, in which the Arbitratorr made the following disclc3sufft :
Further, in an effort to assist in determining possible canfliets . I have advised you
that [ previously worked in the U. S. attorney's office during a period of time that
overlapped with Kent Alexander, the General Counsel at Emory t .niversity'. You,
in turn, have advised me that during my tenure as U .S. Attorney Dr . Murtagh filed
AT t231 0-763v I
a qui tam action . I have no specific recollection of and such action and do not
know if I took and action relative to that matter . You have advised that the matter
was settled and that notwithstanding the qui tm-n, you all agree to my service as
arbitrator .
None of you has raised an issue in light of these disclosures- and I am, therefore,
prepared to proceed with this matter .
(Opposition Exhibit F.) Emory argues hat as a result of these disclosures, Dr. Murtagh was
"well aware that Mr . Deane was the C? . S . Attorney at the time of the Kokko Action and the
Ko ko Action Certification, which was served on his counsel ." (Opposition at 8 .) Intending to
show Dr . Murtagh's prior receipt of these documents, Emory attaches to its Opposition a copy of
the certificate of service indicating service of not the certification but of a related Motion to
Dismiss filed in the same case by the U .S . Attorney's office and served on counsel for Dr .
Murtagh on April 10, 1999. (Opposition Exhibit A.)
Emory further contends that Dr. iVFurtagh's Motion is ttntimely-, alleging that Dr . Murtagh
received the certification not only when it was executed by Mgr . Deane's office in April 2000 but
also again when Emory produced a copy of the certification in a January, 2007 production of
documents. (Opposition at 8.) Emory argues that even if Dr . Murtag had not received the
certification until September '2007 as alleged in the Motion, Dr . Murtagh still "waited until
January- 2008, four months after his alleged `discovery' of the contlict, to even raise the issue ."
Ct~ ~~
Defendants the Fulton-Dekalb Hospital Authority and Grady Health Services Company, Inc . feted a
Response to Plaintiff Dr . James Murtagh's Motion for Recusal of Arbitrator and Disclosure of Information Related
to Potential Conflicts on January 25, 2f3 W In that paper, the Grady Defendants adopt the arguments set forth by
Emory in their response filed January 23, 2008 .
r1I '1-2 3 10 763v 1
Dr. Murtagh's Reply

On reply Dr. Murtagh refers not only to the certification that was the basis of his prior
motion, but also to the motion to dismiss filed by the t1.S . Attorneys Office in the same matter.
which was attached to Emory's Opposition as Exhibit A. Dr. Murtagh claims that this document
[r]eflects that in addition to having filed, in his prior role as United States
Attorney, a certification authorizing the United States to defend one or more
parties named as defendants by Dr . Mut-ta h in prior related litigation, the
Arbitrator also filed, or approved the filing of, a motion to dismiss Dr . XWs
gI'1 's
claims in that litigation .
(Reply at 2 .) Dr . Mur[agh claims that this motion to dismiss "must have been in the files of te
Emery Defendant,-, and their counsel, who unlike Dr. Murtagh's counsel, have not changed
during the course of the litigation in question ." (Id . at 3.) Dr . Murtagh argues that because
neither the certification nor the motion to dismiss were referenced in Mr_ Deane's disclosure, the
disclosure was insufficient .

However, citing AAA Rule 16 and the Settlement Agreement that is the basis of the
claims in Arbitration, Dr. Murta gh also claims (for the first time on Reply;) that "the dec ision on
Dr. Murtagh's Motion to Recuse must be made by the AAA, not the arbitrator ." Rule 16
provides that " uJPon objection of a party to the continued service of an arbitrator, the AAA
shall determine whether the arbitrator should be disqualified . . . ."2
Discussion
The August I 0, "d01 Settlement Agreement between the Parties (the "Settlement")
requires that the arbitration "shall be gove rned by the United States Arbitra tion Ac t, 9 U .S.C.
sections 1-16 , and judgment upon the a ward rendered by the arbitrator may be entered by the
2 " Emory has refused to submit the arbitration to the AA A, and Dr . Murtah's counsel reports that the AAA
will not review the matter without the consent of both parties . Because Dr . ~turtagh's opening paper clearly sought
Z:
decision by the Arbitrator on this issue and that paper h as no t been withdrawn, end because there appears to be no
means for obtaining a decision from the AAA, the Arbitrator will decide the recusal Motion in the first instance .
A r 1 -23 10763v t
United States District Court for the Northern District of Georgia ." (Settlement I3 .) The pct
itself does not address recusal . However, discussion of the circumstances, requiring disclosure
and disqualification often arises in cases presenting motions for the vacatur of arbitration awards
pursuant to 9 U.S.C. 10.
Although this Arbitration w as never submitted to the AAA, the parties agreed in the
Settlement to conduct the Arbitration in conformance with the AAA rules . (See Settlement TI I-: II)
The Supreme Court has observed that the AAA
require an arbitrator to "disclose any
circumstances likely to create a presumption of bias or which he believes might disqualify him a
an impartial Arbitrator ." Commonwealth Coatings Corp . v . Continental Casually Co., 393 U .S .
145, 149 (1968) ((quoting then AAA Rule 18) . The current AAA Rule governing disclosures is
substantially the same as the one set forth by the Supreme Court in Commonwealth Coatings :
Any person appointed or to be appointed as an arbitrator shall disclose to the
AAA any circumstance likely to give rise t oju,sfzfcrhle doubt a s to the arbitrator's
impartiality or independence, including any bias or any financial or personal
interest in the result of the arbitration or any past or present relationship with the
parties or their representatives . Such obligation shall remain in effect throughout
the arbitration .
(AAA Rule 15 (emphasis added) .) Courts reviewing arbitration results have reached similar
conclusions regarding the standards for disclosure of potent ial conflicts of interest . See .Power
Services Asso c., Irrc , v. UNC l Lfe tculf Servicing, inc. , 338 F . Supp. 2.d 1375, 135 (N .D . Ga . 2004)
(collecting cases) . In Poiti!er Services, the U .S . District Court f or the Northem District of
Georgia concluded from the AAA rules, the Supreme Courts Op inio n. in Comnrpnwerrlth
Coatings, and other st ate cases revie xing arbitration results that the required disclosures are
th o se that "crate an impression, reasonable i nference or presumption of bias." Id.
C'aunsel for Dr . Murtagh rightly noted during the hearing on this matter that the
requirement of impartiality is e speci all y important i n Arbitration . The Supreme Court. in
AV-23 10763 v
Commonwealth Coatings observed that "'we should, if anything, be even more scrupulous to
safeguard the impartiality of arbitrators than judges, since the former have completely,tree rein
to decide the law as well as the facts and are not subject to appellate review ." 393 U.S. at 149.
Flowe--er, the Arbitrator's possible involvement as L .S.Aftorney in Dr. Murtagh's prior lawsuits
against Emory was or should have been known by Dr. Murtagh at the time of the Arb i trator's
di sclos ure, and in a nd event does n ot fairly create an imp ress ion, reasonable inference or
presumption of bias .
First, the Arbitration record saws that Dr . Murtagh was on notice of the U .S. Attorney's
possible involvement in the lawsuits about which Dr . Murtagh complains . Paragraph 2 of
the Settlement ident ifies a number of lawsuits and other claims, each of which Dr. M:urtagh
agreed as part of that Settlement to dismiss with prejudice . Among those matters were:
[A]n action captioned James J . Murtagh, Jr..,~lV( .D. v . EmoKy University, Manual
Martinez- Malclonado M .D. Juha P . Kakico M.D_ Ph .D , and Gerald W. Statfln
.D
:1
Jr., :1 . filed in the Superior Court of DeKalb County of the State of Georgia on
or about August 3 0, 1999, Civil Action NO. 99-9971-4 . which action was
removed to the United States District Court for the Northern District of Georgia .
Atlanta Division, on or about November 3, 1999, and which is captioned James J.
Murtagh. Jr., M .D . v. Ezor~- University, Manual h'Iartinez-Maldonado IvI .U
United S tates of America as partially substituted for Juha P . Kok:ka. M ..D,,,,P D.,
and Gerald W. Statan, M.D_, and Samuel M , Agu a r, M.D. Civil Action No .
1 :99-CV-286-A- EC:
an action captioned United States of A merica ex red. Diane F. Owen and James 1.
Mur#a Jr.. M .D . v. Emfl y University- filed in the United States District Court
for the Northern District of Georgia, Atlanta Division, on or about November 9 .
1999, Civil Action -No . I :99-2909-TW"I` (the "Qui Torn Ac tion"')
(Settlement ~ 2.e.-f.) The first of these actions is the case identified in Dr. M:urta~;~i's Motion for
Recusal (the "K .okko Matter-). The second of these actions i s t he qui lam action -referenced in
Dr . Murtagh's counsel's ire-enga ennent e-rnail . (Opposition Exhibit E .) These actions appear
ATt-23s7s3vi
to have been filed or removed ~Nithin a week of each other in the C Y.S. District Court for the
Northern District of Georgia, and %Nrere clearly prosecuted by Dr . Murtagh contemporaneously,
Dr. Murtagh does not complain about the Arbitrator's disclosure with regard to the qui
tarry action . Rather, he contends that the disclosure in Mr . Deane's engagement letter and in the
e-mail by Emory's counsel was insufficient to put Dr . Murtag on notice of the U.S. Attorney's
action with respect to the Kokko Matter . The Power Services opinion is instructive here . In that
case, the arbitrator disclosed that his law firm had a number of current engaggements on behalf of
the corporate parent of one of the parties to the arbitration as well as a number of other
subsidiaries of the corporate parent . 338 F . Supp. 2d at 1377. However, the Poiver Set-Vices
arbitrator did not disclose that several decades earlier he had personally represented the corporate
parent . Id. at 1378. The losing party in the arbitration asked the district court to vacate the
award, alleging that the arbitrator failed to disclose that he previously represented the corporate
parent an that this failure was materially misleading . Judge Duffey reasoned that "'[i]f a party
goes forward with the arbitration, having actual knowledge . . . of facts that reasonably should
have prompted further, limited inquiry, it may not later claim bias based upon the failure to
disclose such facts .," 3 3$ F. Supp . 2d at 1381 (quoting JP. Steven,s & CO., Inc . v. Rytex ( :'carp .,
34 N.Y.2d 123, 129 (IKY, 1974)). There, knowledge of the arbitrator's firm's ongoing
relationship with the corporate parent and other subsidiaries put the parties on notice of facts that
required further inquiry to prevent waiver of the conflict claim .
In the same way, the Arbitrator's disclosure of his Off-ice's possible involvement in the
qui tam case should have prompted further inquiry by Dr . Murtagh, and in the absence of that
inquiry Dr . Murtagh waived the right to later assert the purported conflict that would have been
discovered by such inquiry .' Indeed, Dr . Murtagh need only have looked at the Settlement
Agreement upon which his claims in Arbitration -were based to realize that the Kbkk-o matter and
the qui tam suit were both pending in the Northern District at the same time, thus raising the
possibility that the U .S . Attorney may have played a role in both cases . In fact, the U .S.
Attorney's Office's involvement in the Kokko matter is all the more apparent since the caption
cited in the Settlement agreement clearly indicates that the United States had been substituted as
a party in that case. {SeL Settlement 2 .e .) Yet this substitution (and the United States' motion
to dismiss the lawsuit) is the essence of the activity that fir . Murtagh now claims gives rise to a
potential conflict of interest that requires recusal .`~ As in Power Se rvices, even though
information that would have led to this discovery appears to have been at all times available to
him, Dr . Murtagh "made no further inquiry and elected to proceed with the arbitration in the face
of information suggesting at least an appearance of impartiality on the part o f the arbitrator."
338 F . S tiPP- ? d at 1382 .

Nor does the timing of Dr. Murtagh's Motion support its credibility . Dr. Murtag,h claims
he first became aware of the Arbitrator's prior involvement in the Koko matter in September,
2007 . Assuming this vvere true, fir . Mua-ta.gh u-aited roughly four mont.lis to file this N-lotion, and
during that time his counsel appealed to the Arbitrator's authority on a number of occasions
despite Dr. Murta h's apparent awareness of the facts that are the basis of his Motion . Dr.
Murtagh's counsel sought the authority of the Arbitrator to schedule depositions ( 9f 18'?D0 7 e3 In an e-mail to counsel for both part i es prior to engagement, the Arbitrator asked the parties to look into
this issue : "since you are all more familiar than i am with that litigation, do your records indicate that I took action
with regard to the matter or are you aware of any such from your involvement in that litigation? I -would like to have
a little more clarification on this point ." (8/4/2005 c.-mail from It . Deane to T . Duffield, J . Breen, 't-_ Eichelberger et
a l ., Emery Opp . Ex. E .)
4 During a telephonic hearing on this issue and in his Reply brief ; Dr . Murtagh also identified a case fir .
Mu ash filed against the Veterans Administration Medical Center, Civil Action No . 1,00-CV-2219 . The Arbitrator
has not been presented with any evidence indicating that the [ .. .5 . Attorney's Office was involved in that litigation or
indicating any particular involvement by Mr . Ueane .
A'I't -23 l0763 . 1
mail to the Arbitrator), filed with the Arbitrator Opposition to Emory's Motion for a
Protective Order (9;'20/2 007), reported to the Arbitrator certain alleged violations of the
Settlement Agreement by Emory after the contempt hearing (I Os 16/2007), and in one of his
various e-mail oppositions to Emory's request for a ruling on its Motion for Sanctions argued
that certain issues "are clearly spelled out as the province of the Arbitrator" (12/03/2007 e-mail
to the Arbitrator) . In a separate December 3, _'(307 e-mail to the Arbitrator, Dr . Murtagh's
counsel requested an opportunity to file supplemental briefing in opposition to Emory"s Motion
for Sanctions on the basis that . .deposition testimony and discovery responses obtained since the
response was filed [make a . . . a supplemental response [I necessary so that the Arbitrator would
be fully informed on all of the material facts and applicable legal argument ."
At no time during any of these communications did Dr . Murtagh's counsel raise any
concern about the. Arbitrator's -impartiality or independence ." And by these requests, Dr .
Murtagh implicitly acknowledged the Arbitrator's authority despite his admitted awareness
during this time of the facts leading to his January 2008 Motion . Because "we do not want to
encourage the losing party to every arbitration to conduct a background investigation of each of
the arbitrators in an effort to uncover evidence of a former relationship with the adversary" (id .
quoting ~ierit Ins. Go. v . LcJatherhy Ins. Co ., 714 F .2d 673, 683 (7th Cir. 1983)), the Arbitrator
finds that the disclosure of the Arbitrator's possible involvement in Dr . Murtagh's qui tam action
put Dr. Murtagh on notice that additional inquiry might be required . Dr . Murtagh's decision to
continue the Arbitration despite this disclosure (and for at least four months after learning of the
purported conflict about which he now complains) effectively waived the right to object to the
Arbitrator's service on that basis now .
Moreover, the Arbitrator's personal involvement in these matters was ministerial and
insubstantial, and as such, simply does not "reasonably support a inference of bias ." Power
Services, 338 F . Supp. 2d at 138 (quoting Seligman v . Allstute Ins. Co ., 1 95, Misc . 2d 55i, 557,
756 N .Y.S. 2d 403 (N.Y . Sup . Ct. 2003)) . It is well known that Assistant U .S . Attorneys manage
most of the Office's thousands of cases on a day-to-day basis, and the Arbitrator has no reason to
believe that fir. Murtagh's lawsuits were any different than the vast majority of cases that are
delegated largely to the assistants . Given the structure and workload of the office, it is not
surprising that the Arbitrator, as U.S. Attorney, had no more than a de minimis involvement in
any of the matters Dr . Murtagh has identified, and has no personal recollection of any of them .
Indeed, Dr. Murtagh, as the plaintiff in the K okko matter, was in a much better position than the
Arbitrator to be aware of the purported conflict at the time the Arbitrator was engaged . Under
these circurnstances, what fir . Murtagh describes as a'-'ceiated disclosure" regarding the Koko
matter simply "does not provide an inference of impartiality . . . [because] (i]t was too remote to
do so ." Power Services, 338 F . Supp . 2d at 1382. Under AAA Rule 15, the Arbitrator's prior,
ministerial involvement in fir . Murtagh's prior lawsuits against F mory in conjunction with the
Arbitrator's duties as U .S . Attorney for the Northern District of Georgia simply does not give
rise to a'`justifable doubt as to the Arbitrator's impartiality or independence ."
This is particularly true since the U .S . Attorney's Office's involvement in the Kokko
matter did not even address the merits of Dr . Murtagh's claims . The certification Dr. Murtagh
identified in his opening paper indicates only that the Arbitrator reviewed the complaint and that
"based on the informat io n n o w available" one of the named defe nd ants "was acting within the
scope of his employment by the United States at the time of the events alleged in the
Amendment to the Complaint ." (Motion Exhibit A .) Likewise, the Rule 1?(2b)(I ) and (6) motion
ATt -231076-3v I
to dismiss Dr . Murtagh identifies in his Reply was based not on the merits of Dr . Murtagh's
slander claim against the federal employee but on the procedural "failure to exhaust the
jurisdictional prerequisites of [a Federal Tort Claims Act] once the United States was
substituted as a defendant, and the'-slander exception to the R'I'GA ." (Reply E\hibit at 2-)
Thus, the U.S . Attorney's Office took no position on whether Dr . Murtagh's slander
claim was supported b y the facts . Rather, the Office argued, as a matter of law, that the district
court lacked jurisdiction to hear the case because the exhaustion requirements of the FTCA were
not met, andd that the case should be dismissed because the FTCA expressly excepts intentional
torts from its waiver of sovereign immunity . (See .Icy.) Any decision on this motion would have
assumed the truth of the facts as stated in the Amended complaint, and it is clear that "[a] court's
taskk in ruling on a 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not
to assay the- weight of the evidence which might be offered in support thereof ." Official C'rnrcj.
Ofthe tlnsc>cYurecl Creditors of Color Tile, Inc . v. Coopers & Lyhrand, L.L.P., 322 F .3d 147, 158
(2d Cir. 2003) .
Moreover, the matters about which fir . Murtagh now complains were resolved entirely by
the Settlement, and the substantive issues at stake in these matters are not in any way at issue in
the Arbitration . ' Rather, the claims before the Arbitrator relate to conduct that is allegedly in
violation of the Settlement itself, conduct that by definition could not have occurred until after
' As Cou n sel for Dr. :t'(urtagh noted during the hearing, Emzsry referenced in its Answer and Amended
Counterclaims the lawsuits filed by Dr . Murtagh against rttary . (Emory Ans . and Am . Counterclaims T 20 .)
However, mere reference to these lawsuits in a section of its Amended Counterclaims entitled "Events Leading to
the Settlement Agreement" does not put the substance of those lawsuits at issue in the Arbitration . ?.s Emory
explained in a footnote to the introductory section of its Amended Counterclaims, .:[t]his background information ."
which included identification of Dr . Murtagh's iav%Ysuits, "i3 being provided to explain why the confidentiality, nondisparagernent, and non-publication provisions are critical components of the Settlement Agreement . . . (Id. at 1
& n .2 .)
AT[-23107630
I3
Chi parties executed the Settlement Agreement and thus could not have occurred until afterr the
resolution of the litigation on which Dr . Murtagh bases his Motion .
Likewise, although merely instructive here . nothing in the disqualification provisions of
Georgia's Rules of Judicial Conduct would support a contrary- result . Canon 3E of thejudicial
rules, like A-AA Rule 1 5,. finds conflict that would require recusal only where a judge's
"impartiality might reasonably be questioned ." Canon 33E(I) (emphasis added) . As discussed
above, the Arbitrator's involvement in the Kokko matter does not give rise to a reasonable
inference of bias . The Canon does enumerate certain specific instances in which recusal is
required, but the closest the enumerated instances come to describing the events in this case is
Canon 3E(1 ) (b):
the judge semed as a lawyer in the matter in controversy, or a lawyer with whom
the judge previously practiced law served during such association as a lawyer
concerning the matter_ -
Cation ;E(1)(b) (emphasis added) . However, this Rule is plainly concerned with instances in
which the judge has served as a lawyer in the wane proceeding that later comes before him or her
as a judge . As discussed above, the Arbitration does not relate to the claims at issue in the Kokko
matter, but rather to alleged violations of the Settlement . The judicial rules plainly could have
prohibited judicial service inn matters that merely relate to persons or entities that had been parties
to proceedings in which the judge had participated as an attorney, but neither the spirit nor thee
letter of the rules require recusai under such circumstances,
Dr. Murtagh's Alternative Request for Relief
In the -alternative to recusal, Dr . Murtagh requests that "at minimum there should be a full
disclosure of all potential conflicts, including the extent of the friendship and past and on-going
relationships between the Arbitrator and Kent Alexander, and full disclosure of any ex pat-te
AT t- 23 r0763v I
13
communications bet-,,,Ten Mr . Alexander and the Arbitrator, and Dr. Murtagt should be allowed
discovery on the evidence Emory possesses regarding any potential conflicts of interest ."
(Motion at 4 .) However, the AAA Rules' requirement that the Arbitrator disclose "any
circumstance likely to give rise to justifiable doubt as to the arbitrator's impartiality or
independence" continues "ire effect throughout the arbitration ." ( AA A Rule 15(a) .) Thus, if
there were any circumstance to report under this provision, such would already have been
disclosed . Likewise, there has been no evidence presented which would otherwise support Dr .
Murtaugh's alternative requests for relief
Conclusion
For the foregoing reasons, Dr . l urtagh's Motion for Recusal is DENIED. Dr. 1Vlurtagh's
alternative request for relief is likewise DEFIED for the reasons set forth above .
Dated : March 1 3, 204$

Richard H. Deane, Jr .
JONES DAY
14?0 Peachtree Street, N .E .
Suite 00
Telephone : (404) 521-3939
Facsimile : (404) 521-8330
Neutral Arbitrator
art-z3 ; rn 63v i
14
ENT ARBITRATION
JAMES J . MURTAGH, JR.. M .D,
Claimant,
v
FU IaTON-I)EKALS HOSPITAL
AUTHORITY, EMORY
Ui~d1VERSITY, FNM0RY
HFALTHCARE, INC., GRADY
HEALTHCARE, INC., GRADY
HEALTH SERVICES
SUBMITTED IN
CONFIDENTIAL
ARBITRATION
COMPANY, ENC., JOHN DOES I-k 0

It is hereby Decided that :
1.
Dr . Murtagh's Motion for Extension of the Discovery Period is GRANTE D in

part. Non-expert discovery is extended 45 days from the date of this Decision .
2.
Emory University's Request to Extend Deadlines for Expert Discovery and

Dispositive Motions (deferred by the Arbitrator's February 14, 2007 Decision) is
GRANTED in part. Expert discovery deadlines are extended 45 days from the
close of non-expert discovery . Dispositive motions are due 30 days after the close
of expert discovery .
3
Emory University's Request for Costs Incurred by Dr. Murtagh switching counsel
is UEN ED_
4.
E ory University's Request for no further Discovery Extensions or Switching of

Plaintiff Counsel is DENIED. In the event Dr . Murtagh changes counsel, absent
extenuating circumstances, the Arbitrator will not contemplate any further
extensions .
:Art-2279366vt
5 . Dr, Murtagh's Petition to Remove Emery's Counterclaims from the Arbitration

and to Eliminate Secrecy in these Proceedings is DENIED.
6 . Dr. Murtagh's Motion for Sanctions and Finding of Contempt and to Compel
Discovery Pursuant to Both Georgia and Arbitration Rules is DENIED .

7. Dr. Murtagh's'Vlotion to Move Torts Not Arbitrable to a Georgia Court of Law is
I)ENTTEI7.
8 . Dr . Murtaph's Motion to Correct the Judicial Record is DENIED .
9 . Dr. Murtagh's Motion that Defendants Cease and Desist Ongoing Tortuous
Activity a nd Violations of Judicial Seal s, Confidentiality, and Injunctions, and
Contract Breaches is DENIED .

10 . The following decisions have been made with respect to Dr . Murtagh's Document
Requests :
(a) First Document Request Numbers 4 -- 6
(i} Emory's counsel has represented that there are no further
documents that meet the terms of these Requests . Dr. Murtagh has
offered no factual basis to contest Emory's assertion . Therefore, it
is found that Emory has fulfilled its discovery obligation with
respect to these Requests .
(b) First Document Request Numbers 7 - 9
Emory is ordered to produce all documents in its possession,
custody, or control that are responsive to this Request .
(c) First Document Request Number 10
(i) Emory is ordered to -produce all documents in its posse ss ion,
custody , orr controI that are responsive to rev ised Request No . 10
re fiardl . ess of whether such documents have been previously
produced .
(d) First . Doc ument Request Number I 1
are- V.79 ss 6v j
(i)
Emory i s orde red to produce all do cuments in its possess ion,

custody, o r control that are res ponsi ve t o this Request i ncluding
those private medical or mental health records that were provided
or shown to third parti es in the St. Paul litigation.
(e) First Document Request Numbers 12 -14

(r) Emory is ordered to produce all non-FERPA protected documents
in its possession, custody, or control that are responsive to this
Request . Should Dr_ Murtagh obtain and produce a FERP.A waiver
from Mr . Kuritzky, Emory is also ordered to produce all FERPA
protected documents in its possession, custody, or control that are
responsive to this Request .
(f)
First Document Request Numbers 15 - 16, 19

(.i) Emory ' s counsel has represented that there are no further
documents that meet the terms of these Requests. Dr. Murtagh has
offered no factual bas is to contest Emory's assertion . Therefore, it
is found that Emory has fulfilled its d iscovery obligation with
respect to these Requests .
(g)
F irst Document Request N umber 22

(i) Emory is ordered to produce all documents in its possession,
custody, or control that are responsive to this Request .
(h) First Document R equest Num ber 29

(i) Emory's objection to this Request is GRANTED on the grounds
that the Request does not seek information relevant to this
litigation . Emory is relieved from its discovery obligations with
respect to Request 29 .
(i) First Document equest Number 34
(i) Emory's objection to this Request is GRANTED on the grounds
that the Request does not seek information relevant to this
litigation- Emory is relieved from its discovery obligations with
respect to Request 34,
(j j Second Document Request Number 12
(i ) Emory has not provided any documentation to indicate that the
documents produced in the fit . Paul litigation weree produced under
a protective order or are otherwise subject to any privileges
precluding production . Emory is ordered to produce all documents
A rI - 2379366vI
in its possession, custody, or control that are responsive to this
The Arbitrator h received Dr . Murtagh's Supplemental to His Petition for

Reconsideration of the k anorabte Arbitrator" s August 3, 2 006 Decision and to Consider New
Evidence and Request for an Expedited Ruling, and has therefore reserved ruling on Claimant
James J . Murtagh'.1M .D_'s Petition for Reconsideration of the Honorable Arbitrator's August 3,
2006 Decision and to Consider New Evidence . I ' Defendants desire a response to the
Supplemental Reply filed July 10, Defendants shall respond no later than July 24, 2 007, or
othenvise shall advise the Arbitrator hat they do not intend to respond to the Supplemental
Reply .
Dated : July /
a'eI -z2 f9,--cf;vl
2007
l
Richard H . Deane, Jr.
JONES DAY
1420 Peachtree Street, N.E .
Suite 800
Atlanta, GA 30309-3 053
Telephone : (404) 5 2 1-3939
Facsimile: (404) 52 1 -833
Neutral Arbitrator
CERTIFICATION
I hereby certify that a copy of the foregoing was mailed postage prepaid this 1 th day of
July, 2007 to the following :

Todd D . Wozniak
Lindsay Camp Edelmann
Greenberg Traurig, LLP
3290 IVarthside Parkway
Suite 400
Atlanta, Georgia 30327

Theodore B . Eichelberger
Al SLDIl & Bird, L LP

One Atlantic Center
1 201 West Peachtree Street
Atlanta, Georgia 30309-3424
J, Clayton Cullota
Culotta and Cullota LLP
P .C). Box 844
Jefferson, Indiana 4'1 13 1
William Q . Bird
The Bird Law Firm
2170 DeFoor Hills Road
Atlanta, Georgia 3U3 18
;r~
Richard H . Ueane, Jr.

Neutral Arbitrator
ATI-22393645. I
f~
IN ARBITRATION
JAMES 3. MURTAGH, JR ., 1VI.D.,
Claimant,
V.
AUTHORITY, EMORY
UNIVERSITY, E 4iORY
HEALTHCARE, ENG ., GRADY
HEALTHCARE, IN C ., GRADY
HEALTH SERVI CES
SUBMITTED IN
CONFIDENTIAL
ARBITRATION

It is hereby Decided that Claimant James J . Murtagh M .D .'s claims for rescission against
Grady Healthcare, Inc . and Grady Health Services, Inc . are DISMISSED.
It is hereby Decided That Emory University's Motion for Partial Judgment on the
Pleadings is GRANTED in part and DENIED in part. Emory University's Motion for Judgment
on the Pleadings is GRANTED with respect to Claimant James J . Murtagh M .D.'s claims of
defamation based on actions that occurred prior to November 30, 2003. Based o Claimant
James J. Murtagh M .D.'s assertion that Claimant's Intentional Infliction of Emotional Distress
claims are based on the totality of the alleged conduct and not solely on allegations of
defamation, Emory University's Motion for Judgment on the Pleadings is DENIED with respect
to Claimant James J . Murtagh M .D.'s Intentional Infliction of Emotional Distress claims . The
Arbitrator also DENIES Emory University's Motion for Judgment on the Pleadings on
Claimaint's Intentional Infliction Emotional Distress claims as otherwise defective as a matter
of law. Claimant James .T. Nlurtagh M .D . has not asserted any RICO claims to date, and
Respondents may argue that such a claim may not be advanced if Claimant James J. Murtagh
aTIz 237598V i
M.D . ever asserts such . Accoxdingly . Emory University's Motion for Judgment on the Pleadings
is DENIED except as expressly stated herein.
Though no specific relief was requested in Claimant Jarnes J . Murtagh M .D.'s counsel's
July 21, 2006 email regarding submissions to the undersigned, the point raised is significant .
The undersigned agrees with counsel that it is in the best interest of the parties and the process
that all communications by parties with the Arbitrator be through counsel .
Dated: August 2 1 , 2006
~"
~.
JONES DAY
142 Peachtree Street, N. E.
Suite 800
Telephone : (404) 521-3939
Facsimile : (404) 5 2I-8 33
Neutral Arbitrator
A'1'I-223 7>98 v 1
's
CERTIFICATION
I hereby certify that a copy of the foregoing was mailed postage prepaid this 21st day of
August, 2006 to the following :
Todd D . Wazniak
Todd C . Duffield
King & Spalding LLP
191 Peachtree Street
Attorneys for Defendant Emory University
Theodore B . Eichelberger
Alston & Bird, LLP
One Atlantic Center

1201 West Peachtree Street
James Joseph Breen
The Breen Law Firm
5755 North Point Parkway

Suite 39
Alpharetta, GA 30022
Jay Lukowski
Kaplan & Lukowski, LLP
333 Sandy Springs Circle
Suite 200
Atlanta, GA 30328
i
Richard H . Dean, Jr .
Neutral Arbitrator
A'rI2237598vi
~.., ..
~l
`
r
THE BREEN LAW FIRM, P .A.

Attorneys and Counselors at Law
James Joseph Breen

Member of Florida & Georgia, Bars
5755 North Point Parkway, Suite 39, Alpharetta, Georgia 30022

Tel . No . 770-740-0008 ibreen@ b reenIaw.com
Fax : 770-740-9109
September 1, 2005
VIA EMAIL
Neutral Arbitrator
Jones Day
Suite 800
1420 Peachtree Street
Red Arbitration of James J . Murtagh, M .D . v. Emory and Grady

Dear Mr . Deane:
This letter identifies and summarizes Dr . Murtagh's pending claims and
requests . It is my understanding that you have been provided with copies of prior
communications between the parties pertinent to this arbitration, including but not
limited to, Dr . Murtagh's September 2003 Arbitration Demand stating his claims as
of that time, his December 2003 Complaint for damages in Superior Court and
letters from me, as Dr . Murtagh's counsel, transmitting copies of his Complaint to
Emory and Grady and stating that it shall constitute an amendment and addition to
the claims stated in Dr . Murtagh's September 2003 Arbitration Demandl in the
event that arbitration of the Complaint was compelled . Dr. Murtagh's claims before
the Superior Court were farther articulated in Dr . Murtagh's Affidavit of Additional
Information Pertinent to the Statute of Limitations Issues, a copy of which has been
provided to you . Finally, Dr. Murtagh has filed his Amended Complaint with the
superior Court and will provide a copy to you . Accordingly, in the event that these
arbitration proceedings go forward, Dr . Mwrtagh requests awards in his favor with
respect to each of the claims he has made thus far, as well as those stated herein .
1 Emory and Grady each raised Dr. Murtagh's unresolved September 2003 Arbitration Demand as one of the
reasons that the Court should compel arbitration .
Richard H . Deane,lz-,
September 1, 2005
Page 2 of 7
i.
Preliminary Matters.
a.) Fraud in the inducement as to the Settlement Agreement and its
Paragraph 13 Arbitration Clause . Dr . Murtagh has filed his Amended
Complaint in the Superior Court stating claims for declaratory and
injunctive relief that he does not believe are properly the subject of
arbitration, and as the Court permitted in the Consent Scheduling
Order. A copy of Dr. Mu1-tagh's Amended Complaint will be provided
to you . In it, Dr. Murtagh seeks a declaratory judgment that the
Settlement Agreement, including the Paragraph 13 Arbitration Clause,
was induced by fraud on the part of Emory and Grady and is
rescinded . Dr . Murtagh believes that, under applicable law, the issues
of fraudulent inducement and rescission are determined by the Court .
However, in the event that the Court determines that this or any claim
or request for relief stated in the Amended Complaint should be
determined by the Arbitrator, Dr . Murtagh requests that he be granted
such awards and relief in arbitration as are related to any of the matters
that the Court determines must be arbitrated .
b.) Waiver of Emo 's Arbitration Rights . Dr . Murtagh unsuccessfully
asserted before the Superior Court that arbitration had been waived in
the present case because, at least Emory, had pursued certain rights
and remedies in the judicial process that were inconsistent with its
right to compel arbitration . Dr. Murtagh believed that the "judicial
process" waiver issue was properly a matter to be determined by the
Court . There exists, in addition to the waiver issue already determined
by the Court, an issue as to whether Emory waived its right to arbitrate
during the arbitration process itself by refusing to cooperate in , and by
delaying, the selection of a neutral arbitrator and thee commencement
of the arbitration process following its receipt of Dr . Murtagh's
September 2003 Arbitration Demand . Dr. Murtagh believes that this
waiver issue should be determined by the Arbitrator . Accordingly, Dr.
Murtagh asserts and intends to present evidence that Emory waived its
right to arbitrate the disputes between the parties by failing and
refusing to comply with the Settlement Agreement's Arbitration
provisions following its receipt of Dr . Murtagh's September 2003
Arbitration Demand and by pursuing remedies in a separate "John
Doe" action after it knew that Dr . Murtagh was the "John Doe" in
Richard H . Deane,lr .
September 1, 2005
Page 3 of 7
question. Dr . Murtagh also asserts that Grady has, at all times, acted in
concert with Emory and pursuant to a common interest, and is bound
by such waiver .
c.) Request for stay f arbitration proceedings pending determination

of rescission and waiver issues . In the event that it is determined that
Dr . Murtagh is entitled to trial by jury as to some or all of his claims,
then arbitration of those same claims will be unnecessary .
Accordingly, Dr . Murtagh requests that arbitration be stayed pending a
determination of the rescission and waiver issues .
d. Request for relief as to claims and allegations in Dr . Murta h's
Original Complaint, Amended Complaint, September 2003 Arbitration
Demand and Additional Claims . To the extent that it is determined that
Dr . Murtagh is not entitled to a judicial determination or trial by jury
on any or all of his claims and allegations, Dr . Murtagh requests the
award of damages, other non-injunctive remedies, and other
appropriate relief with respect to the matters pled in his Original
Complaint, his Amended Complaint, his September 2003 Arbitration
Demand and such additional claims that he brings in this arbitration
proceeding .
II. Breach of the 2001 Settlement Agreement .
a.) Emory and. Grady have each repeatedly breached the ir obligations
to, i n good faith, prov ide favorable references w ith respect to Dr.
Murtagh . Their acts include, but are not lim ited to, Dr . Alexander's
and other Grady and Emory representat ives' refusal to timely and
truthfully respond to reference requests, Emory and Grady
representatives falsely communicating to callers that Dr . Murtagh
was never employed or was an ob ject of disrepute such that he
could not be discussed, and otherwise communicating by action,
word, deed and innuendo false negative information and
impressions about Dr . Murtagh . These actions commenced at least
as early as June 2002 and have been comm itted continuously since
then.
Richard H . Dane, Jr .
September 1, 2005
Page 4 of 7
b .) Emory and Grady have each repeatedly breached their obligations

under the Paragraph 19 non-disparagement clause by filling the
public record with, and otherwise communicating, false and
demeaning statements about Dr .Murtagh's mental competency and
ability to practice medicine and by false statements about adverse
peer reviews of Dr. Murtagh. This includes the statements in the St .
Paul litigation, on Emory controlled web sites, statements to other
physicians and employees at Emory and Grady and the statements
alleged by Dr . Murtagh in his Original Complaint and Affidavit of
Additional Information . Emory physicians with official knowledge
of the Settlement Agreement and the disputes between the parties
further breached Paragraphs 7, 8, and 18 by disclosing information,
including false and disparaging statements that Dr . Murtagh had
been subjected to adverse peer review, to Emory physicians who
were not authorized access to this information, including to Dr .
Ahmed, in or before January 2003 . Similarly, Grady Chief of
Borad of Trustees Robert Brown made repeated disclosures in
violation of the confidentiality and non-disparagement provisions,
including to Manuel Maloof in or about October 2002 .
c.) Emory and Grady have breached their implied duties of good faith
and other obligations under the Settlement Agreement by
repeatedly publishing false, disparaging and/or negative
information about Dr. Murtagh and about the Settlement and prior
issues between the parties such that Dr . Murtagh's reputation would
be severely and irreparably damaged . Moreover, the actions of
Emory and Grady constituted a waiver of any rights they may have
otherwise had to enforce the provisions of Paragraphs 7, 8 and 18
with respect to Dr. Murtagh .
d.) Upon information and belief, Emory also failed to comply with its
obligation to investigate and correct its fitness for duty and other
specified policies and procedures pursuant to Paragraph 14 of the
Settlement Agreement .

September 1, 2005
Page 5 of 7
III . Tort Claims .
a .) Emory and Grady have each falsely represented repeatedly that Dr .

Murtagh was the subject of adverse peer review proceedings about
his mental competency, "DNR" issues and his ability to practice
medicine . In addition, both Emory and Grady falsely represented in
court proceedings and to Dr . Murtagh that each of them had in fact
conducted peer review proceedings relating to him when in fact
they never did. This egregious fraud has damaged Dr . Murtagh and
has precluded him from working in his profession . The false
statements were intentional, were intended to cause Dr. Murtagh
and others to rely upon them and were reasonably relied upon to
Dr . Murtagh's detriment and damage .
b.) Emory's and Grady's actions with respect to Dr . Murtagh have
been part of a larger effort to silence individuals who desire to
report misconduct and patient care and safety issues to government
investigators and officials and to assist them in identifying other
witnesses and evidence . This includes their use of judicial process
in an effort to use the Settlement Agreement in an unlawful
manner, and in a manner inconsistent with the exceptions to
Paragraphs 7, 8, and 18 that are implied by law and which permit
Dr . Murtagh's conduct and without which the agreement would be
invalid . These actions further include, false statements to
government investigators, Bell South employees and others to the
effect that Dr . Murtagh is a computer "hacker" or "spoofer" and
that he has committed criminal acts relating to Emory's computer
systems .
c.) Dr . Murtagh is entitled to damages for defamation, defamation per

se, slander, slander per se, libel and libel per se with respect to each
and every malicious, false or disparaging statement made by Emory
or Grady representatives since at least September 12, 2002, the one
year period preceding the Demand for Arbitration . Each such
defamatory remark was made by, or at the direction or with the

September 1, 2005
Page 6 of 7
encouragement of, officials of Emory and Grady occupying

positions sufficient to cause Emory and Grady to be responsible for
such statements . This includes, but is not limited to, defamatory
statements made by Robert Brown, then Grady's Board Chairman .
d.) Dr. Murtagh is entitled to damages for tortious interference with his
advantageous business and professional relationships caused by
Emory's and Grady's intentional, wrongful, false, defamatory and
disparaging statements and communications to persons and entities
with which Dr . Murtagh possessed business and professional
relationships.
e.) Dr. Murtagh is entitled to punitive and exemplary damages because

Emory's and Grady' actions have been intentional, willful, wanton,
outrageous and designed to destroy Dr . Murtagh's ability to
practice medicine and to assist government in matters of public
interest
f.) Dr . Murtagh is entitled to damages for Grady's and Emory's
intentional infliction of emotional distress caused by their actions .
g.) Dr . Murtagh is entailed to an award of attorneys fees and costs

because of Emory's and Grady's bad faith actions pursuant to
O .G .C .A. 13-6- 1 1 .
IV.
Other Claims .
a .) Emory's and Grady's actions constitute a continuation of their
wrongful retaliation against Dr . Murtagh in violation of 31 U .S .C.
3730 (h) and, therefore, Dr . Murtagh is entitled to an award of
"reinstatement with the same seniority status such employee would
have had but for the discrimination, 2 times the amount of back
pay, interest on the back pay, and compensation for any special
damages sustained as a result of the discrimination, including
litigation costs and reasonable attorneys' fees ." Accordingly, Dr .
Murtagh will seek an award under 31 U.S.C. 3730 (h) and a

September 1, 2005
Page 7 of 7
'
finding that he is entitled to pursue these claims before the United

States District Court . This claim is stated in an abundance of
caution in the event of a determination by the United States District
Court with jurisdiction over this claim that it is subj ect to
arbitration . Dr. Murtagh does not waive his light to seek judicial
relief for this claim .
b .) Dr . Murtagh reserves the right to assert additional claims and
amend his claims, including but not limited to an action under the
"R.LC.O" statutes of the United States and Georgia in the event
that discovery in these proceedings establishes that the actions of
Emory and Grady were part of a pattern of unlawful activity
contemplated by those statutes .
In the event that you have any questions, please contact me .
i cerely,
C~James J . Breen
Cc (Via Email) :
Theodore B. Eichelberger, Esq .
Todd D . Wozniak, Esq.
IN THE SUPERIOR COURT OF FULTON

STATE OF GEORGIA
V
JAMES J. MURTAGH, M.D .,
Plaintiff,
Civil Action
File No. 2004-CV-94259
V.
AUTHORITY, EMORY
UNIVERSITY, EMORY
HEALTH SERVICES
COMPANY, INC., JOHN DOES
1-10
FILED UNDER SEAL PURSUANT

TO COURT ORDER DATED
JANUARY 31, 2005
Defendants .
ORDER GRANTING DEFENDANTS'
MOTIONS TO COMPEL ARBITRATION
Having reviewed the pleadings and heard oral argument in this case, the
Court hereby orders the following :
(1) All of the claims in Plaintiff's Complaint are subject to the parties'
arbitration agreement contained in paragraph 13 of their August 10,
2001 Settlement Agreement . Defendants have not waived their right
to require arbitration of Plaintiff's claims . Plaintiff's claims,
therefore, are all hereby compelled into arbitration .
(2) Any further proceedings on Plaintiff's Complaint in this Court are
hereby stayed .
(3)
The Defendants' Counterclaims and Amended Counterclaims for

injunctive relief are not subject to the arbitration agreement, as they
fall within the exclusionary language of paragraph 13 of the August
10, 2001 Settlement Agreement, and therefore may proceed in this
Court.
(4) The parties shall submit a proposed scheduling order to the Court for
the disposition of Defendants' Counterclaims and Amended
Counterclaims no later than July 25, 2005 .
(5)
Emory University's motion to pay settlement funds into the Court's

registry is denied without prejudice so that Emory University may
raise the issue again with the arbitrator se . `cted by the parties .
}
SO ORDERED, this
~ y
day
A t,
~.i4ly Ol
~
~y !r o
at
rI
1 /'~
~q
-Y~~
~J ~ ~
q
r-7 --k
. . r~ . ..J~
S . Tusan, Judge
aor Court of Fulton County
of Georgia
Proposed by :
Todd D . Wozni
King & Spas r.
191 Peachtr e
Atlanta, Ge zgi
T: (404) 572 Attorneys for Defendants
Emory University and Emory
Healthcare, Inc .
2
~.
SETTLEMENT AND. CDNTFIDENTIALITY AGREENIENT

AND .M'UTUAL RELEASE
This Settlement and Confidentiality Agreement and Mutual R-elease ~the
. "Agreemen n i s entered into by and between Emory University ("Emory" or "the

. U'niversity'}, 'tee Fulton-DeKalb Hospital Authority ("Grady Hospital'), and dames r,
Murtagh, 3r., M.D . ("Murtagh"}, referred to collectively as "the-parties." This Agreement
is intended to (1) serve as a compromise between the parties for the compl pte and-'Anal
settlement of any and all differences and alb pending or potential claims and causes of
acti on between them ; and (2), effectuate Murta gh's resignation from the faculty of Em ory
and-Emory' s and Grady Nospita7 's payment of compensation to Murtagh is retu rO for his
agreement to resign pursuant to the terms recited belovci .
WHEREAS, Murtagh is- an individual over the age of twenty-one (2 l) and
competent in all respects to enter into this Agreement ; and
WHEREAS, Murtagh is a member of the faculty . of Emory Univasity, serving as a

tenured Associate Professor in the School of Medicine ; and
WHEREAS, Murtagh's supervisor relieved Murtagh of his duties on December 20,
1999 and requested that Murtagh have a fitness for ,duty exam ination. Mur#.agh was placed
and remains on leave. with full salary and fringe benefits pending the detelMination af,his
fitness for duty ; an d

WHEREAS, Murtagh has initiated many lawsuits and governmental or
administrative claims involving Emory University and certain individuals (including
':t3 84i3 v4-IVI 0101725 PM
~ William J. Casarella, M .D., Gerald W. Statoa, Jr., M:D., David M. Guidot, MD.) and one
lawsuit against Grady Hospital, some of which are still pending ; and
WHEREAS, Murtagh sued Emory and Grady Hospital alleges that he was
retaliated against by Emery and Grady Hospital -due to his efforts to investigate and/or
participate in a Qui Tam action; and
WHEREAS, the parties wish to resolve all of their disputes and litigation matters ;
and
WHEREAS, the parties agree that notbi .~g contained in this agreement sha'll'"
constitute or be regarded as an admission of wrongdoing or liabilit.y by either party and am
parties expressly deny any wrongdoing or liability;
NOW, THEREFORE, in consideration of the premises recited above' which are . .
considered a part of this Agreement, the mutual promises contained in this Ageernent, and
other good and valuable cons ideration, the receipt and sufficiency of w hich. m h ereby
acknowledged, the parties agree as follows:
1 .'
Payments to M urta gh . Murtagh will be paid the sum of $ tO,a00.OQ
("Initial payznent'~ within five ( 5) business days fa]]owing-Murtagh's execution of this

Agreement and satisfaction of all requirements set forth in paragraph 2 . Transfer of the
Initial payment shall be made by electronic transfer as follows : to the account of Raymond
James & Associates, Inc ., account number 40776559,for the benefit of James I. Muttagh,
Jr ., account number 5 03 00529, Citibank N .A., ,D .B.A . No . 021000089 in the sin -o#'
$325,000 .00; to the escrow account of G reene, Buck3ey , Jones & .Mc-Que.en,-SunTms#
213 8 4i 5 v 4.811 0101 7:33 PM
- ai
~~ .
Sank, Atlanta, A.B .A. No. 061-000104, account number 880098-57167 in the sum. of
$425,000:00. Unless otherwise directed by order of an Arbitrator pursuant to paragraph 13
or other court ordex, Emory will pay Murta gh the sum 'of S $5 ,UOQ.40 per year-for ten years
commencing on July 24, 2002 -('Installment Paymenfis'~ . Each Installment Payment
thereafter . shall be on July 24 of #he' succeeding years, with the last being on July .24, 2011.
The parries hereto agree that Grady Hosp ital is not respons~'~le for payment of any portion
of any Installment Payment
If Dr. Murtagh seeks judicial review of any arbitration award In favor of Emory
made pursuant to paragraph 13, Emory may withhold an amount equal to the award from
any Installment Payment due to Dr . Muxtagh and pay -said amount into winterest bearing
escrow accoun# where it will beheld pending the outcome f judicial review. If the award
is sustained, the movies held in escrow shall be paid to Emory . If the award is reversed,
modified or altered, the movies, less any amount due to Emory and interest thereon, shall
be paid to Pr. Murtagh.

Each Installment Payment shall be made by :ek c#ronic transfer as follows :
$75,600.00 to the account of Raymond James & Associates, inc., account number
40776559 for the benefit of lames J . Murtagh, Jr ., account number 5030 0529, Citibank,
N.A., A .B.A . No. 021000089 and $ lU,D00 .40 to the account of Greene, Biickley, hones &
.McQueen, SunTrust Bank, Atlanta, A .B.fA. No . 451-400104, account No . $8009 857.G7 .
2138015 w+-8r10/01 70M
-3-
Of the "foregoing total payments to Murtagh, $Q shall be allocated t6the .-seftlement

ofthe Qui Tam action .
Murtagh acknowledges that be is and shah remain solely responsible for. the
payment of all taxes, whether federal or state, associated with payments he receives or is
entitled to receive under this Agreement; and he hereby indemnifies and holds Fancary and
Grady Hospital and their past ;pr~esent,'and future officers, directors, trustees, agents,
employees and representatives, and *the successors thereof, harmless for the amount of any
such tax and/or penalty or interest associated with nonpayment thereof.
2. Dismissal of Claims and Lawsuits . To the extent he is permitted to do so
by law, within fire ~ 5} days of execution of this Agreement by all parties, Murtagli '?ri11
dismiss; with prejudiceX, and provide documentation of same to Emory and/or Grady
Hospital, all pending claims, lawsuits, appeals, governmental or admuiistrafive claims,
including those to medical boards and-licensing organizations, involving Emory
University, Grady Hospital and their current or former personnel, including but not limited
to the following matters (to the extent not already moot) :
a. a Complaint filed with the Office of Equal Opportunity Programs on May
14, 1998 ;
b, a. Charge of Di scrimination filed with the Equal Employment OpporftmitY

Commission on June 11, 1998, charge number 110982979 ;
2133011 y4-M 01017 :0 PM
c . a Complaint filed with the Office of Civil Rights on or about August 4,

1 999, OCR # 04-40-2224;
d.
a Complaint filed with the Office of Civil Rights on or about February 4,

2000, OCR # 44-00-057 ;
e, an action captioned James 3. Murtagh~ Jr.. M.D . v. Emory University,

Manue] _MartinezrMal donada M .D ., Juha P. Kokko. M.D.: Ph.D ., and
Gerald W . Stators. Jr., M.D ., filed , in the Superior Court of DeKalb County of'
the State of Georgia on or about August 3 0, 1999, Civil Action N0.. 999971-4. which action was removed to the United States District Court for the
.
Northern District of Georgia, Atlanta Division, on or about November 3,
1999, and which is captioned James J . Murta a h. Jr.. M.D. v. Emorv
University, Manuel Martinet-Maldo n ado, M .D.. United States -of America ,
as Partially su b stituted for Mariuel Martinez-Maldonado . M.D . . Juha P .
Kokko, IVI .D., Ph.D., and Gerald W . Staton. M.D.. and Samuel M. Aguayo
M.D .; Civil Action No. 1 :99-CV-28b4-A-JEC ;

an action captioned United States ofAmezica ex rel. Diane F. Owen and
James J. Murta gh. Jr.. M . D ,v. Emorv University, filed in ffie United States
District Court for the Northern District of Georgia, Atlanta division, on or
'
in the event that Murtagh's action or claim cannot by law be dismissed rAnth preiudict, then Murtagh shall
sake all steps necessary and available to him to terminate any further processing of the action or claim and shall not
ret"ile the action ar claim.
2i58Dn .cv4- 8t 1tHUi 7:a5
PM
-~-
about November 9, 1999, Civil Action No. 1 :99-2909 ,'3'W'T (the "Qui Tim
Action');
9
an,actian captioned James 7. Murtagh. Jr.. M.D. v. Fulton-:DeKalb Hospital

Authority. Emory University . Wi ll iam J.'Casarella . David Guido Gerald
Staton. and other presently unknoAn individuals filed in- the United States
District, Court for the Northern District of Georgia, Atlanta division, on or
about December 9, 1999, Civil Action No. 1 :99-CV-315'x;
h,.
the Notice of Charge of D iscrimination filed with the Equal EMPJO.VM ent
opportunity Commission on April 25 , 2000, charge.nujj ber 1 JOA02 42 2;
i . an action captioned James J. Murtagh. Jr.. M.D. v. William ~, Casarella,

unknown individuals filed
David Guidot: Gerald Staton and other resents
m
hi the Superior Court of Fulton County, Fulton County, Georgia, on
December 20, 2000, Civil Action No .
zooacv -320,25;-
an. action captioned lames J . Murta gh, Jr. v . Veterans Administration

Medical renter filed in the United' States District Court for the Northern
District of Georgia, Atlanta Division, on -or about August 25, 2000, Civil
Action. No. 1 :00-CV-2219;

k.
a proceeding filed with the Composite State Board by leners from Dr.
Murtagh dated July 17, DODO, and November 19, 2000 ;

Dr. Murtagh shall have no further voluntary contact -with the American Association
of University Professors ("AAUP") (except for a -closure le#ter)'aid the National Mental
2138015 v4411 MI 7:0 -PM
r5-
. .. . _ -_ -~- , .. .
. ... ._ . . _ ._ ._, .. ~ .~.. _.. _ ~r .....,._~.,,. ._ . . ._.
HeaYtU Association of Georgia with respect to any facts or-Circumstances relating in any
way to .his employment at Emory, .the litigation and disputes described above, or this
Agreement. If contacted .by anyone from either organization, he shall provide a copy of
Exhibit D and make no further comment except to request they take no fuither action on
his behalf. The provisions of paTagrapl s ?and 8, infra, otherwise appTy .to any
communications with these organizations .
Emory shaIlsimilarly dismiss with prejudice and withdraw all claims, demands,
counterclaivas or judgments, if any, presently pending agai i stMurtagh. F.nwry, fui-thex
agrees not to execute on any bills of costs presently pending, and to notify the court such
bills of cost have been . "satisfied."'

Unless compelled by law to do so or as set forth in paragraph 9, Emory and Grady
Hospital will not initiate any further contact with -or provide the Composite State board -of
Medical Examiners of Georgia ("Board') with information regarding the events giving
rise -to this litigation and disputes i dentified above or based upon conduct preceding the
date of execution of th is Agreement . Unless compelled by law to do so yr asset forth in
Paragraph 9, Murtagh will not initiate any further contact with or provide the Board with
information regarding Emory, Grady Hospital or their current or past personnel regarding
events giving rise to this litigation and disputes identified above or based upon conduct
preceding the date of execution of this Agreement .

3. '
Release of Claims bI AZurta ga h. Murtagh for himself and any other person
or entity who could now or her-er assert a -cla im in his name or on his -behalf, incl uding
21380i 5 v4-81 i 014i 7:25 F M
-7
immediate farni~y, his agents, representatives, heirs, ,ex-autors, beneficiaries,,

Agreement, '
administrators, guardians, assigns (for purposes of this
collectively
Ivliartagh")2, hereby irrevocably and unconditionally releases, acquits, -and forever
discharges completely and for all purposes Emory, including its schools, depart#nen#s, and
Related Entities [an Emory "Related Entity" is defined as any entity presently owned or
operated or staffed in whole or in part by Emory University, including those listed on
Exhibit H and any and all clinics or other facilities operated by those entities or under their
names]; and all of its. past and present officers, directors, trustees, employees, physicians,
res i dents, faculty, students, representatives, agents, attorneys, and persons acting by,
through, under or in concert with any of them (Emory and, all of the foregoing are
collectively referred to as the "Emory Entities"~ from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages, actions, ,
causes of action, suits, rights, demands, costs, losses, debts and expenses (including
attorneys' fees and costs actually incurred), of any nature whatsoever, known or unknown,
suspected or unsuspected, which Murtagh now has, owns or holds, or .claims to have, own
or hold, or which Murtaah at any time heretofore had, owned or held, or claimed to have
had, owned or held, against any one or more of theEmory-Entities in law or-equity for
events that occurred prior to the execution of this Agreement . Murtagh warrants that this
is a General Release, and that there has been no assignment or transfer of any claims
released in this paragraph, except for the annual payments recited in paragraph 1 above .
a Imtnediaie :amity members and agents shall be included in the -definition of Murtagh only if authorized -explicitly,
2139015 v4 .Sli 0/017 :35 P M
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Expressly excluded from this Agreement is a workers' compensation claim Murtagh has
pending against the Veterans' Affairs Medical Center, Employee Compensation Appeals
Board Docket-No . 2400-004I, Murtagh specifically represents and agrees that his claim
against the Veterans' Affairs Medical Center is not against and gives him . no right to
recovery from Em ory or any of its personnel. Murtagh does -not release any rights to funds .
in his 403.(b) account at'Emory to which-he would otherwise be entitled as . a former
employee of Emory .
''
Murtagh_ hereby irrevocably and unconditionally releases, acqu i ts, and-forever

discharges completely and for all purposes Grady Hospital, including 't'he Grady Health
System and all of its divisions, departments and Related Entities ja Grady Hospital
"Related Entity" is defined as any entity that comprises the Fultvn-Dekalb Hospital
Authority d/b/a Grady Health system, including but not limited to Grady Memorial
Hospital, Crestview-Nursing Facility, Hugh Spalding Children's H ospital, Georgi a Poison
'Center, Infectious Disease/Ponce De Leon Center, Neighborhood Health Centers and any
and all clinics operated by those entities or under their names) and all of ids past and
present officers, directors, trustees, employees, physicians, faculty, students, residents,
representatives, agents., attorneys, and persons acting by, through, under or in concert with
any of them (Grady Hospital and all of the foregoing are collectively referred to as the
"Grady Hospital Entifies"D from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, -causes of action, -suits,
impiicidy, by law or otherwise to act or speak on bebalf of Murtagh or if they otherwise are ttprttsentativ es, heirs,
213 8415 v44110103 7:2 5 FM
__9 _
rights, demands, cost, losses ; debts and expenses (including attorneys' fees aid costs
actually incurred), of any nature whatsoever, known or unknown, suspected or
unsuspected, which Murtagh now has, owns or holds, or claims to have ; own or hoed, or
which Murtagh at any time heretofore had, owned or held, or claimed to have had, owned
or held, against any one or more of the Grady Hospital Entities in law or equity for events
that occurred prior to the execution of this Agreement . Murtagh warrants that this is a
Genera] Release, and that there has been no assignment or transfer of any claims released
in this paragraph .
Murtagb also hereby releases, waives, and forever discharges his right to any portion of any settlement, judgmerit, award, fee or other recovery attributable td Emoty or
Grady Hospital, or their acts or conduct, in any manner as a Relator under the qui tam
provisions of the False Claims Act, 31 U .S .C. 3730, in any future lawsuits or
administrative actions arising from, or in any way related to, any transactions or
occurrences, involving the Parties (in whole or in past) from the beginning of time to the
date of execution of this Agreement, including, but not limited to, any sight to receive
attorneys' fees .
4.
No Other Lawsuits or Claims . ?Vlurtagh agrees not to fide any lawsuits,
claims or grievances seeking monetary recovery or any other relief and asserting any
claims that are released in paragraph 3, and i rrevocably and uncandii ionally. waives any
executors, beneficiaries, administrators, guardians or assigns .
W8015 v4-8/1D/DI 7:25
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LO
and all rights to recover any relief and damages concerning any claims that are released m
paragraph 3 .
Murtagh represents that he does not presently have a Iegal or administrative claim
pending against any of the Emory Entities in any court, agency or administrative body
which has not been previously identi fied in paragraph 2 or 3, and that be has not heretofore assigned or transferred, or purported to assign or transfer, to any person or
entity, any claim or any portion thereof, or interest therein, and agrees to indemnify,
defend and hold the Emory Entities harmless from and against any and all claims, based
on or arising out of any such assignment or transfer, or purported assignment or transfer,
of any . c]aiins or any portion thereof or interest there in.
Murtagb- further represents that he- does not presently have a ]egol or administrative
claim pending against any of the Grady Hospital Entities in any court, agency -Dr
acUninistrative body which has not been previously identified in paragraph 2 or-3, and 6at
he has not heretofore assigned or transferred; or purported to assign or transfer, to any
person or entity, any claim or any portion thereof, or interest therein, and agrees to .
indemnify, defend and hold the Grady Ho spital Entities ' harmless from and against an y and
all claims, based on or arising out of any such assignment or transfer, or purported
assignment or transfer, of any claims or any portion thereof or interest therein.
5. Release of Claims by Emory and Grady Hospital
. Emory and its trustees,
officers and agents and employees acting in their official capacity on behalf of Emory
("Emory . Releasors"~ hereby irrevocably nd uncond itionally rc]ease, acquit and forever
21 3 80 2 5 v4- 8r10lD] 70 PM
-11-
discharge completely and for all purposes Mum-gh, his attorneys, agents, -estate,
successors, and assigns from any and all charges, complaints, claims, liabilities,
obligations, promises ; agreements, controvers i es, daina ,~es; actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses fincIuduig attorneys' . fees and-costs
actually - incurred), of any nature whatsoever, known or unknown, suspected or

unsuspected which 'they now have, own or bold, or claim to have, own or hold, or which
they at any time heretofore bad, owned or held, or claimed to have had, owned or held,
against them in law or equity for events that occurred prior - to the- ex--cutian ,ofthis
Agreement arising out of Murtagh's employment with Emory or any claims, charges or
suits itemized in pa ragiaph 2, with the . exception of any acti ons arising out of any
malpractice or other patient care related claims against Murtagh or Emory or Grady as a
result of alleged medical malpractice by Murtagh while at Emory or Grady Hospital .
Emory and Grady Hospital warrant and represent that they are not aware of the existence
of any alleged actions arising out of any malpractice or other patient-care related claims
against Murtagh. Emory agrees that in the event such a claim is made it will handle tie
claims management process as it pertains to Murtagh in the same manner it would with
any other physician formerly in its employ .
Emery Releasers warrant that, with the exceptions set forth above, this is a General
Release, and that there has been no assignment or transfer of any claims released in this
paragraph.
2 13 601 5v4-871/0 17 :25 -PM
Grady Hospital and its trustees, offers and agents acing in flipir official-capacity
an-behalf of the Hospital ("Grady Hospital Releasors") hereby ~~vocably and

unconditionally release, acquit and forever discharge completely and for aU purposes
Murtagh, his attorneys, agents, estate, successors and assigns from any and all charges,
complaints, claims, liabilities, obligations, promises . 'agreements, controversies, damages,
actions ; causes of action, suits, rights, demands, costs, losses, debts and expenses
(including attorneys' fees and costs actually incurred), of any nature whatsoever, known or
unknown, suspected or unsuspected which they now have, own or hold, or claim to have ;
own or hold, or which they at any time heretofore had, owned or held, or claimed to have
had, owned or head, against Murtagh in Saw or equity for events that occurred prior to the
execution of this Agreement, with the exception of any actions arising out of any
malpractice or other patient care related claims against Murtagh . Grady ag-ces that in the
event such a claim is made, it will handle the claims management-ppocess as it pertains to
Murtagh as it would for any other physician formerly on staff . 4Grady Haspa#al Releasors
warrant that, with the exceptions set forth above, this a General Release, and that there has
been no assignment or transfer of any claims released in this paragraph .
6.'
Resign ation and Future Employment Murtaih voluntarily resigns his
tenured faculty position and all affiliated appointments with Emory University and Crrady
Hospital effective upon the tendering of the Initial Payment, pursuant to paragraph X
above . Murtagh shall submit to the Chairman of the Department of Medicine a i t of
resignation, - effe ctive upon the date of his execution of this A greement, .in the form
2 i 3 sn1 s. A -ar V0 rot 7 : 2 s -?M
-13-
attached hereto as Exhibit "A". Murtagh vvaives any rights he has or in the future may
have to employment, staff privileges or any other business relationship with Emory and its
schools- departments, and Affiliated Entities, and Grady Hospi tal and its, divisions,
depart jiients, and Related Entities, and warrants that he has not submitted an appli cation
for employment or staffprivileges to any school, depa;-t tien#, or Affiliated Entity of
Emory . or Related Entity of Grady Hospital that is pending. Notwithstanding the
foregoing, noth ing in this Agreement shall prohib it Murt &gh from entering into a bus iness
relationsh ip with Sleep Sciences of Georg ia Inc. or any Emory officers, directors, tiu stees ;
employees, phys icians, res i dents, faculty, students, representatives; ag'ents or attorneys in
their personal capacity . Murtagh understands and agrees that no such business
relationship shall in any way be associated with Emory or-use any Emory facilities or the
Emory name . Murtagh specifically agrees not to seek or accep# at any time' in the future
any employment, educatianal3 or other business relationship (including crcdentialii& staff
privileges, consulting opportunities, or -educational or othi :r training program participation)
with Emory University, Grady Hospital or any Emory Affiliated Entity or Grady Related
Entities 4 Emary's "Affiliated Entities" shall be defmed as any institution that is owned or
operated in whole or in substantial part by Emory and/or staffed or funded in substantial
part by Emory and currently consists of those entities listed in xhibitH as amended from
time-to-time by Emory pursuant to this definition, as well as any and all clinics orother
facilities operated by the listed entities or under their names mow or in the future .
Nlurtaglu Sha11 be permi tted to attend-continuing me dical .educationtosuses at -Eraary and its A ffill isted
2I sBOts va-snaoi
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Notwithstanding tie. foregoing, in the event that Emary or Grady Hospital acquires for
ownership or operational purposes an entity at which Murtagh is employed, has an
educational or other business relationship (including credentials, staff privileges,
consulting opportunities, or educational or other training program parricjpation), murtagh
shall not be required to resign pursuant to this Agreement. Murtagh understands that he
shall not in the future be appointed to the Emary faculty or receive staff privileges at
Grady or a Grady Related Entity .
7.
Confidential! ty. The parties agree 'and represent that, from and after July
1 3, 2401, each of them has not and will not, directly or indirectly, except as specifically
required by a lawful subpoena, discovery request, or other Iega l :Drocess or consented to in
writing by the other party, provide or communicate to any person or entity, or directly or
indirectly cause to be provided or rommunicated to any person orentity, any information
that concerns or relates to the terms and conditions of this Agreement, or the parties'
performance hereunder . Emory and Grady Hospital may discuss with their administrators
and supervisory personne l information that conce rns or relates to the terms . and conditions
of this Agreement, or the parties' performance he-reundcr, so far as necessary to effectuate
Entities if, but only if, (1) the course is designated as Continuing Med ical Education', (2) it is open to the general
medical community, and (3) the course a: its sub ,s taatiaI equivalent is not available elsewhere in Metropolitan
.
Atlanta
4 Emory agrees that Murtagh is -not prohibited from entering into a business relationship with Sleep Sciences
of Georgia, Inc., so long as such business relationsh ip does not in any way associate Murtagh with Emory or any of
its Affil i ated entities (including, but not limited to, C.*awtord Long Hospital), enable Murtagb to become involved in
the care of Emary 'Uaiversity patients under -c ircurnsiaac es in which the patient -could reasonably believe that the mare
is be ing performed by a physician employed or otherwise affilsated with Esnory, perform services on the property of
Emory University or any of its Affiliated entities {including, but not limited to, Crawford Long Hospital), -conduct
Emery researc h , or seek or accept staff priviI ges, credentialing, consulting opportunities, 4-.ducational or otber
training program opportunities at Emory or any of its Affiliated Entities.
2138815 v4-SlIOMt 7:d5 -PM
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the terms and conditions of this AgTeement and other necessary personnel and
administrative 'decisions . The parties may state that their disputes with each other have
been resolved on mutually agreeable terms and, if asked, that Nlurtagh has resigned his
employment and appointments with Emory .
8.
No Publication. Murtagh shall not author, co-author, publish, -contribute to,
assist, :encotuage or participate in any "Publication" at any time in the future, and further
represents that be has not done so since July 23, 2U01 . `.`Publication" means and shall refer
to any book, lecture, paper, report, article, interview, press release, story, case study, Jetter,
movie, screenplay, radio or television (broadcast or cable), progrwm ; lecture, seminar,
class, documentary, iniernet publication, email, biography,, historical survey, chapter . of a
book, oral or written statement, videotape, draft of any of the foregoing, use or replaying
or redistributing of any existing Publication, or any such other work referring or relating in
any way to infomrtion that (i) concerns or relates to the existence of or the facts,
allegations, and circumstances related to any lawsuit or other claim or investigation ever
filed, initiated or otherwise pursued by Murtagh against Emory, Grady Hospital -or their
personnel or Related Entities or (ii) concerns or relates to the fact of or terms or conditions
of this Agreement, or the parties' performanceher-eunder. - To the extent t hat 1Viurtagh is
required to provide any information concerning the aforementioned claims and litigation
in response to inquiry by a potential employer or licensing or credentialing agency, he

shall be permitted to state only that the claims and lawsuits have been resolved and the
terms of the resolution are confiden#iaj . AQurta i2h shall also be allowed to proviide the
213BOi5 v4-8f10f01 723 PM
-1 ~
potential employer or licensing or credentialing agency copies f Exhibits B & C to this

Agreement
9 . Response to Inquiries . Murtagh will ~direc# all inquiries fog references,
credentialirig, and privileges to be sent to the Chairman of the Department ofMedicine,
who shall respond to all such inquiries by sending a copy of the Emary letter attached
hereto as Exhibit "B" along with the Grady Hospital memo which Grady will provide him
and which is attached hereto as Exhibit "C" to the inquiring party . Murtagh shall be given
an original of Exhibits B and C for his own use.
in the event Murtagh, Emory or Grady are asked by a credentialing or licensing
agency for information regarding Murtapb ' s employment ;Aith.mory or practice at Grady
they shall respond by providing the documents attached hereto as Exhibits B, C and D . If
the credentialing or licensing agency requires additional information, they shall be directed
to the public record and nothing further shall be said by ~4urtagh, Emory oi~ Grady, unless
compelled by law to do so .
10 . Disclosure Required . Notwithstanding the rtstrictions in paragraph 7, the
parties may disclose the confidential information described n paragraph 7 of this
Agreement to their own legal counsel, insurance comers, brokers and underwriters, tax
advisor(s), federal ; state and .ioca] tax authorities, and immediate family, who then shall be
informed of and bound by the provisions of paragraphs 7 and 8 of this Agreement

11 , Le g a l Process to Murtagh . In the event Murtagh receives a subpoena or
other legal process seeking disclosure of any information referred to in paragraph 7 of this
213Sfl l 5 v.4-SllOlfll7Y5 PM
-17-
Agreement, he shall immediately -give written notice by facsimile or overnightcourier to

Ernory c/o the Senior Vice President and General Counsel, Emory University, 401
A dmini strati on Building, Atlanta, G e orgia 30322, and to Grady H ospital c/6'Vi-oe
President and General Counsel, G rady Health System, 80 Butler Street, Atlanta, Georgia
30303 . Murtagh agrees that unless compelled by law to -do so, he will not disclose any
such information in response to a subpoena or other legal process without first receiving
confirmation that notice has been received and allowing Emory and/or Grady Hospital a
reasonable opportunity to challeng e such subpoena or process if they elect to do. so.
7Z. Legal Process tdEmorv or Gradv Hospital . Ii the event Emory or Grady
Hospital receives a subpoena or. other legal process seek ing disclosure of any infoimation
refeired to in paragraph 7 or 16 of this Agreement, they shall immediately ;give written
, notice by facsimile or overnight courier to Edward D . Buckley, III or Charles R.-Bliss, Greene, Buckley, Jones & ' McQueen, Suite X400, Marquis u Tower, 28 5 Peachtme Center
Avenue, N .E ., Atlanta , Georgia 303.Q3, facsimile . (404) 522-3b77. Emory and Grady
Hospital agree that unless compelled by law to do so they will not disclose any such
information in response to a subpoena or other legal process without first receiving
confirmation that notice has been received and allowing Murlagh a reasonable opportunity
to challenge such subpoena or process if he elects to do so .
13 . Arbitration . The parties agT-ee that any controversy or claim arising out of
or relating to this Agreement shall be determined by a confidential, binding arbitration in

accordance with the applicable rules of the American Arbitration Association ("AAA "} by
2138015 v4-8/1 010 3 3 . 5 PM
18-

,
an arbitrator mutually acceptable to the parties . The parties are not required to limit their
selection of an arbitrator to the choices provided by AAA or any other organization that
provides arbitration services: The arbitration shall be commenced within 45 days of
selection of the arbitrator unless otherwise agreed by the paxties . The parties' respective
rights and obligations under this Agreement shall be governed by Georgia law, except to
the extent Georgia choice of law rules would require application of another State's
substantive law . The arbitration, including the selection . of an arbitrator, if necessary, shaU
be governed by the United States Arbitration Act, 9 U.S.C. sections 2-16, and judgment
Upon the award rendered by the arb itrator may be entered by the United States District
Court for the Northern District of Georgia. The- arbitrator may award any relief he or she
deems appropriate consistent with applicable state or federal . law, i nc3uding, but 'not
. limited to, equitable relief and monetary damages . . Except as noted below the part ies
waive any right to bring an action, suit, or proceeding before any court, jury,
administrative body, or agency, or in any forum other than before an arbitrator as
described above, arising out of or related to this Agreement .
The parties recognize and agree that in the event of an alleged violation of
paragraphs 7 or 8 of this Agreement, prompt judicial intervention may be required to
..
protect the respective parties' rights. Accordingly, the parties specifically reserve the right
to seek judicial enforcement (including a temporary restraining order or other injunctive
relied of paragraphs 7 and 8 of this Agreement in the event of any all~g-ed violation of
2138415 v44/10/01 70 PM
-39-
either prov ision . In the event any such judicial review is sought, ail pleadings -shall be.
filed under seal .
14 , Police Re A ew. Emory, through its General Counsel in cbnsvltatiflh with
Hunter R. Hughes, III, Esq ., agrees to select and retain a nationally recognized_eXTeM
approved by Mr . Hughes, who has knowledge of AAUP guidelines to conduct a review of

Emnry:'s. policies and procedures go verning (I ) fitness for duty exams ; and (2) leave of
absence, suspension and termination of tenured faculty .
].5 . Jo int Press Release. Emory and Dr. Murtagh agree to a joint press release
concerning the resolution of these claims in the form attached hereto as Exhibit "D",
16. _ Records. Dr. Murtagh's official Human Resources file at. Er sory will'
contain no disparaging references . Emory's School of Medicine files concerning Murtagh
will -be placed under seal .and will not be released to anyone in whole or in part except as
required by legal process. In the e vent any such records are to be rele weti, Murtagh's
attorney, but not Murtagh, shall be entitled to review the records to be released . To the
extent practicable, Murtagh's attorney shall be. permitted a reasonable opportunity lo
review the records to be released before they aze released . In no event shall Mumgh-or
his attorney have access to any privileged documents belong ing to or.in the pos smi on of
Emory .
1 7.
Patents. Emory shall convey to Mumgb all of its rights, title and interest,
or so much ~s 'it has, in the following patents to which 3Vluriae h is identified as the
:136Ui5 v4 .8 11 0/01 7::5
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"inventor" : #5,744,306 ; #5,6S8,6b9 ; and 45,518,901, pursuant to a letter attached as

Exhibit "E" .
18. ' I\Ton-Disparagement
a.
Non-Disparagement by Murtagh
4 .,
IVlurtagh shall not make any oral or written statement or engage in conduct
of any kind that either directly or indirectly di sparages, criticizes, defames, or otherwise
casts a negative c h aracterization upon Emory or any of the Emory Entities and/or Grady or
the Grady Related Ent ities, as those terms are defined herein, nor shall h e direct,
encourage; ar assist anyone else to do so, unless compelled bylaw to do so.' Mur tagh
agrees not to engage in any oral or written
com unication or conduct calculated to take
advantage of the name and prestige of Emory and/or Grady Hospita] in the expression of
his personal views or- to convey that he has an ongoing relationship with or permission to
speak or act on behalf of Emory or its schools, departments, or Affiliated Entities, and/or
Grady Hospital or its Related Entities . Similarly, Emery and Grady agree not to state or
imply that they have an ongoing relationship with or permission to speak or act on behalf
of Murtagh, except as set forth in paragraph 9 above . * Murtagh agrees that he shall not
have the title of, refer #o himself as, or have the right to recei*c the benefits of an Emory
Professor Emeritus .
zi 3 eatsva-$1 ;0roirs -rM
-21-
MurtaZa agrees not to voluntarily assist or encourage any peon or entity to pUrM
any claim of any nature against Emory or any Emory Entity and/or Grady HospiW or
GT'ady Related Entity far any con-duct preceding execution of this Agreement
b.
Non-Disparagement by Emory and Gradv Hospital

nless compelled to do so by law, Emory and Grady Hospital agree
that they will make no official statement that disparages Murtagh . Emory agrees to-issue a
memorandum in. the form attached hereto as Exhibit "F-1" to those individuals identited'
by Murtagh in -Exhibit "G" if the indivi duals are employed by Emory when this
Agreement is executed . Grady agrees to issue a memorandum in the-form attachedhereto

as Exhibit "F-2" to those individuals identified by Murtagh in Exlm*bit "G" if the
individuals are employed by Grady when this Agreement is executed . Emory and Grady
rnayy also send the memos to other employees and/or officials . Murtagh will not use any
Emory employee as a reference if that 'person is not listed on x.]vbit "G ."
Furthermore, Emory and Gray Hospital agree not to voluntarily assist or
encourage any party to pursue any claim of any nature against Murtagh for . any conduct
preceding execution of this Agreement.
19.
No W aiver. A party's failure to take action in response to a breach of this
Agreement shall not be construed as a waiver of the right to take action in response to any
subsequent breach or of any rights or privileges under this Agreernent .
233$015
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20, Agreement as a Wbo1e. The language of all parts of this Agreement shall
in all cases be construed as a whole, according to'its fair meaning, and not stricfly for or
against either party .
Effectuation of Agreement. The parties agree that, without receiving any
further consideration; they will each sign and deliver any documents and take any other
actions *as may reasonably be necessary in the fixture to effectuate the provisions of this
Agreement. Notwithstanding the foregoing, nothing in this Agreement shall require
Fariory and/or Grady to make any payments to anyone or any entity in excess of the total
Amount set forth in paragraph 1 . To the extent that any currently pending action controlled
by Murtagh, excluding the workers' compensation claim listed in paragraph 3 above, but
not listed in paragraph Z above, is not dismissed or withdra-wn by Mustagh, and it comes to
{he attention of Emory or Grady Hospital, Murtaggh, upon riatice, shall cooperate in the
dismissal or withdrawal of said action . Similarly, to the extent Emory or Grady Hospital
has control of any currently pen ding action against Ivlurtagh ; not listed above, and it comes
to the attention of Murtagh, Emory or Grady Hospital, upon nonce, shall dismiss or
withdraw said action against Murtagh . Emory, Grady or Murtagh may consult with Mr .
Hughes as necessary to effectuate this Agreement .
22 . Counterparts . This Agreement may be executed in any number of

counterparts and by each party on separate counterparts, each of which, when so executed
213eoI 5 V44n 0rai 7 :25 PM'
-23-
and deli vered; shall be an or iginal, and all such coun terparts together shall rronsti-tute one
and the same agreement .
23 . Attorneys' Fees and Costs . The parties agree that each of them shall be
responsible for their own attorneys' fees, costs, and expenses incurred in connection with
the under]ying matter and the negotiation and preparation of this Agreement, except as set
forth in paragraph I above.
7.4.
Entire A g i-eement. Thi s Agreement sets forth the entire agreement and
understanding between the parties on the subject matter hereof and me rges all pri or
discussions and negotiations between them . This Agreement maybe amen ded, modified,
or supp lementsd only by a written instrument executed by the parties affected thereby , and
shall be bind ing upon their respective heirs, beneficiaries, successors and assigns .
25. Headings. Paragraph headings are for ease of reference only and are not
intended to have legal effect or significance .
SO AGREED, this A!.day of August, 2001 .

ReAewed
bis
J. rt g1, Jr ., M .
243 s0 i s v4..3I i 0/0 t 7 :25TM
-24-
~e/by:
En1axY
UNIVERSITY
Reviewed and Approved byt
By : Kent B . Alexander
Mic el W . ]ohnsto
C nsel for Emory University
91
Its: . Senior Vice President and General

Counsel
THE FULTON-DEX4LE HOSPITAL

AUTHOR ITY
By. Timothy Jefferson", Esq.

Its: Vice President of Legal Affairs
213-9015 v4-8110/01 7aS PM
-25-
i
Case 1:09-cv-00752-HTW
Document 1-2 Filed 03/19/09 Page 79 of 97
SO AGREED, This I'~&y ofAugu st, 2001 .

.
THE FULTON-DEK .4J B HOSPITAL

AUTHORITY
~ .
James J . Nlurtayh, Jr., M M .
By:
. azby fef on, Esq.. . . .'
Its : Vi ce President of Legal Afrfairs
ENIDRI' UNNERSITY
. ~~
By : Kent B . Alexan der .

Its : Senior Vice President and General
Counsel
-?4-
August 10, 2001
R Wayne Alexander, M .D., Ph.D.

R Bruce Logue .Professar and Chair
Dcpart nent of Medicine
.
.
Emory University School of Medicine

RE: My Resignation
Dear Dr,- Alexander..

I hereby voluntarily resign my empl oym ent and tenured faculty -position
(Associate Professor of Medicine) with Emory University. . In addition, Y
.
voluntarily resign all affiliated appointments and other relationships
with Finary . Uxuversi ty and Grady Memorial Hospital. These resignations
.
are effective immediately.
Sincerely,
James J. Murtagh, M .D.
2_1380I 5 y4-81i-0101 7 :215 PM
EXXHIBl3' A
[EMORY LETTERHEAD)
August ___, 2001
To Whom It May Concern:
Dr. James Murtagh served as a faculty member of the Pulmonary Division

of the Department of Medicine of the Emory University School of Medicine from 1991
until his voluntary r esig nation in August, 2001 . E
Emory initially hired Dr. Miz tagh as an
Assistant Professor on September 1, 1991 . In 1 995, Dr. Murtagh was promoted to
Associ ate Professor of Medicine with tenure .
Emory hired Dr. Murtagh after his employment as a productive researcher at the
National Institutes of Health. He was awarded tenure after four years . Emory was
awarded grants by the National Instixiites of Health naming Dr . Murlagh -as the principal
investi~Ratar . For several years, Dr. Murtagh maintained a resear-ch laboratory at -the
Atlanta Veterans Adniinistration Hospital, and his scientific works were published in
eminent journals. At the same time, be maintained a dull clinical load .
.
While ass igned to the Atlanta Veterans Administration Hospital . Dr. Murtagh
He
submitted
four
served as the Director of the Molecular Core Fac ility..
invention
disclosures to Emory related to innovative molecular techniques ; from which three United
states Patents have beg granted . Dr. Murtagh served as scientific advisor to $oehringerM annbeim Corporation from 1993 to 1994 . During his assignment at the VA, Dr.
Murtagh was also the Chief ofthe VA Resp iratory Therapy Program and Chief of the
'pulmonary Clinic. Dr. Murtagh later served in the MICU of Gra4y Memorial Hospital
, and was named the Chief of the Grady Pulmonary Clinic and the thief of the Urady
P ulmonary Function Lab . Dr . Murtaeh is a member ofAlpha Omega Alp ha, a national
medi cal honor society . Dr. Murtagh also is a member of the Southern Section of the
American Society of Clinical Investigation.
.
From late December ] 999 through his voluntary resignation in August 2001, Dr.
Murtagh was on a paid leave of absence .
.
Sincerely,
R. Wayne Alexander, M .D ., Ph.D .

R. Bruce Logue Professor and Chair
Department of Medicine Emary University School of Medicine
2 131o j 5 v4_811010 i 70 PM
EX HIR01 3 1 T B
[G RADY LETTER HEAD]
Physician Performance Assessment Report
Physician' `Tame :
James J . Murtagh, Jr.
DeparimeptJSpecia lty; ,
Pulmonary/Critical Care
Facility:
Grady Hospital
Staff Status :
Former/Inactive
Date:
Admissi on Activity
Estimated number o f inpatient adrhi ssions (7im what dates)
Estimated number a# ' outpatient admissions . {Jun what dates)
.
Estimated number, of consults (Jim what dates)
Top five Diagnostic/Procedures with Numbers of Cases .
, no patient has filed any ]ego] action o r made any claim for
As o {.
damages concerning care provided by Dr . Murtagh.
.
No trends have been identified during review of procF :diir~es concerning infection control
involving this physician .
No trends have been identified in drug utilization reviews involving this physician.
No trends have been identified in Med i caid or Medicare hospital denials involvi ng this
physician.
21 38I 115 v4-8110/01 7:25 PM
EBrT C
In December of 1999, Dr . Murtagh ' s practice of medicine at G rady ended, '
213$fl15 v44110101 7:215 PM .
Director of Credentialkg
Grady Memorial Hospital
PRESS RELEASE
Emory. Univers ity, Grady Memorial Hospital and Dr . James Murtagb announced.today that they
have reached a resolution of all disputes between them as mutually agreeable terms.
7i3 80?S
va &A O/Dl 7 ;2S PM
EXHIBIT -D
EMORY
UNIVERSITY
Office of Re search
- .
. ----
RoYlins Research Center
] 5 ] 0 Clifton Road, Suite G65

Phone 404l727-3889
Fa.-,6 4U/727-1094
July 27, 2001

Jdames, J . Murta gh, M.D.
511 Calibre Woods Drive '
Ati an'ia, GA 30329
RE;
Intellectual Property: U.S. Patent N os. 5, 5 18,9D 1 , 5,688,669 and 5,744 .306
Emory Universitybp vention Disclosure N umber : 97034
Dear Dr. Murtagh:

This letter is to release and to assign' any rights that Emory University (,,Emory7 may
.
have in . and to the above- i dentified Intellectual Property {hereinafter "IP'~ *ta you su~jact
to the. following terms :
1.
This release and assignment i s effective only upon the receipt aid
acim avv]ed gemeut by Emory's Office of Technology Transfer ofthis letter
executed b y you. The effective date of this agreement is . tbe Acknowledgement
Date by Ernory's Office of Technology Transfer given below.
2.
The 1F released-and assigned is subject to the rights f any ihind parties such -as
. sponsors and is limited solely to non-obvious and novel inventions fully. disclosed
and enabled in the US Patents identified as IP above and to which you bave -sole
and/or j oint inventorship claims and rights .
3 . You a-gree to assume all liability for damages that may arise from your practicing
or commercializing the above-identified IP . Emory shall not be liable to you for
any loss, claim, or demand by you or made against ~ou by any other party, due to
or arising from your practising or commercializing the technology, You shall
indemnify, defend and hold harmless Emory, its trustees, agents, students, and
other employees from any claim asserted against them arising from your
practicing and commercializing the technology.
4 . The release and assignment ofrights -granted herein isconditional upon and
.
subject to a right and royalty fr ee license retained by Emory on behalf of itself
acid dory research collaborators to make, use and -practice the 1P identified
A n -equ, c l oppor.u n iry, affirTnct iVe action -un ive rs ity
James J . Murtagh, M.D.

July 27, 204]
.
Page 2 of 2
above for research, clinical and -educational purposes only . Fuither, if the IP
resulted in'whale -or in part from work performed under funding from the Federal
Government- the release and assignment of rightigrantsd here is conditional
upon Emo~y obtaining prior approval from the funding Federal agency to assign
such rigbis.
This release and assignment ofrights and interest shall be governed by and
interpreted in accordance with the laws of the-State ofGeorgia .
.
If you have any questions regarding the status of the TP or the prose6tion/mainienancc
details related to patents included in the IP, including any applicable due dates, please
contact either Mary Miller or David Perryman at Needle & Rosenberg, P .C. (404-6g85.
Sincerely .
Frank Stout
Vice President for Research Administration
3 accept
and
es
agree
to all terms i n this release
7,
and
assignment letter.
~nagh,
Received and Ackn owledged by the Office of Technology Transfer

A, (,C.: --_ Ac3mowltd gement D ate:
Mary L. Severson, Ph.D., J.D.
Assistant Vice President and Director,
O ffi ce of Techno2oey -Transfer
2-21x
.
MMMORAr'DU M
'.
TO:
FROM:
DATE :
RE: Dr. James Murtagh
Emory Univers ity, Grady Memorial Hosp ital and Dr . Murtagh have resalved all of the
disputes between them on confidential terms . Dr. Murtagh has voluntarily resigned his positions
and appointments at Emory . Any and all oral or written inquiries received -by anyone at Emory
regarding Dr . Murta gh must be directed to the Chairman of the Department of Medicine for
response, without further comment to-the person making such inquiry. No one except the
Chairman of the Depar tment of Medicine is authorized to speak on behalf of Emvey when
responding to inquiries regard ing Dr. Murtagh, In the , event you are asked to give Dr. Murtagh a
reference, , you may do so only in your indivadual' capacity and not. on Emory letwhead,
Thank you for your cooperat ion in this matter.
2136015 v4400101
7w5S pM
EXI IBIT F-]
. .
MEMORANDUM
TO:
FROM:
DATE:
RE:
Dr. James Murtagh .
Fmory University, Grady Memorial Hospital and Dr . Murtagh have resolved all*
of the disputes between them on confidential terms . Any and all oral or written inquiries receivedd
by anyone at Grady regarding Dr . Murtagb must be directed to Mr . Timothy Jefferson, Esq . for
.
response, without further comment to the person making such inquiry . No one except Mr .
Timothy Jefferson, Esq, is authorized to speak on behalf of ~Grady Memorial Hospital when
responding to inquiries regarding Dr . Murtagh.
.
Thank you for your cooperation in this matter .
2138015 v4 -u twoi
:s
-7 PM
3'7' F-2
RECIPIET*TS OF EXHIBIT F
Dr. William Casarella
Dr. Jesse Roman
Ms. Jennifer DeS imabe
Dr. Juba Kokko
Dr. Wayne Alexander
Dr. Kathy GriendIfug
Mr. Timothy Jefferson
Dr. William Season .
Diedre Davis
Dr. Christine La2fas .
Dr. Joseph Bono
Dr,l~aller
Nellie Cameron
Caroline Mancao
Rebecca Fiveash
Carolyn Nelson
Dr. William Chace

Jimmy B. Wil liams
Dr. Rebecca Chopp
Dr. Eric Honig
D r. Roland Ingram
21 3 80] 5 vA-81i4/p1 7:~5 PM
=MIT G
Dr. Clint Lawrence

Dr. Alan Plummer
Dr: Gerald Staton
Dr. Aguayo
Dr. Michael Duffel
Dr; Hurray Gilman
Dr. Jeffrey R Pine
Dr. Jesse Roman-Radrigaez

Dr. Robert Aranson
Dr. David Bower
Dr. David Guidot
Dr. Kenneth L6eper
Dr. A4arc Moss
Dr. Rafael Perez
Dr. Bonnie Boles
Dr. Fernando AoZgninn

Eric Honig
Hurray Gilrnan
Dennis Liotta
William Mitcb
David Bower
Robert Po11et
John Bugge
2138015 v4 .8134131 7 :226 PM
EXHIBIT G
Dr. James Fow]er

Dr. Curtis Lewis
Dr. Carlos Del Rio. Jeff Lena:x
Dr
2139015 v4-811 0101 i:25 FM
ZB
1T
EMORY RELATED ENTI MS*
[* The definition of "Emory Related Entities" incitides any and all clinics 'or other facilities
operated by the following entities or under their names .
Emory University, its S6 QflIS, operating units, institutes, -centers and departMents, including, but
not limited to :
Empty University School o#' Medicine
Rollins School of Public Health at Emory University ' .
. Hell Hodgson Woodruff-School ofNw-singat Emory University
Emory College
Oxford College
Candler School of Theology at Emory University
Ernory School of Law
Roberto C. Goizueta Business School at Emory Univers ity

Gradu at e School of Arts and Sciences at mary University
Emory Children's Center

Emory University Hospital
Crawford Long Hospital

Yerkes Regional Primate Research Center
Druid Hills Bookstore
Emory Medical Television Network

Evening at Emory
Emery, etc .
213801 5 V4 -arI Araz 7 : .4
PM
EXHIBIT H
Blomeyer Fitness Center

Clifton Casualty
Michael C. Carlos Museum

Center for Ethics in Public Policy and the Profess ions
Center for International Programs Abroad

Center for International Studies
Center for the Study ofHealtb, Culture and Soc iety
Center for Teaching and Curriculum
'
Emerson Center for scientific Computation

Graduate Institute. of the Liberal Arts
Halle Institute for'Global Education
institute for Women's Studies
The Jane Fonda Center
My House/Project Prevent
Emoxy Un iversity Health Sci ences Center Library
Winship Cancer Institute
Emary Healthcare, Inc .
The Emory C1 C' Inc .

Emory Pediatrics, LLC
W esley Woods Center of Emory University, Inc .
Wesley Woods Geriatric Hospital
Wesley Woods Long Team Car-e, Inc. {alicla Build T errac e}
2 1 38015 v4411
0/0 1 7J 5 PM
EXMBIT H
Foundation of Wesley Woods, Ync:

Wesley Woods, Inc.
Wesley Homes, I 3jc: (including . but not T imita to, its following facilities :.' St. John ?owes;
Lamer Gardens, Branan Lodge, Branan Towers, and Asbury Harris pwarib Towers)
Wesley Woods Long, Terzia Hospital, Inc.
Wesley Woods of Newnsn.peachtree City, Inc .
'
Wesley Woods of Athens, Inc .

Atlanta Senior Care
The Marcus Developmental Center
Select Hospital of Crawford Long Hospital
Cra-%-ford Long Hospital Medical Group, LLC
Emory Health Alliance Network

The Woodruff Foundation '
Robert W. Woodruff Health Sciences Center Fund, Inc .
The Lettie Pate Evans Foundat i on
the Joseph B.. Whitehead Foundation
The Car]yle ' Fraser Heart Center
The Childhood Autism Diagnostic and Educat ion Foundation
WebEBM, Inc .
The Georgia Cancer Coalition

Georgia First, Inc.
Gambro Healthcare of Georgia, Inc . '
EmTech BioSciences
i 1 3841 .4 Y4-0 410 1 7 :25 PM
OM
IT H
Emory Vi sion Correction Center

GeoVax, Inc..
NuTec '
InteiV ent
Health South
MD Technologies
EFP Bioventures, Inc .
'
EmTec Bi QVentures
FOB, Inc :
Valero
BioAmide
The Carter Center
Centers for Disease Control and Prevention (in Metropolitan Atlanta) ~

EHCA, LLC
Emery Cariersville Medical Center
Emory Dunwoody Medical Center
Emory Eastside Medi cal Center
Emory Northlake Regional Medi cal Center

Emory Parkway Medical Center
Emory Peachtree R e gional Hospital
EHCA Johns Creek
D r. Murtagh is n ot prohibited from applying to CDC for reseanh ganU, nor from availing himself of ed u czti oaa3
opportunities there to whi ch be would otherwise be -entitled t o attend as a rricj nbts of The jnedtcal - coj=urgty.
2 13 015
va-e11 a01
7 :25 PM
VOMIT 11]
Children's Healthcare of Atlanta (including, but not limited to, Childrtm's Healthcare of
Atlanta at Egleston Hospital, Children's Healthcare of Atlanta at Scottish Rite Hospital, and the
children's Healthcare clinics)
Veterans Affairs Medical Center (Atlanta)
The Grady Health System (including, *b ut not limited to, Grady Memori al Hospital, Hughes
Spalding Hospital and The Grady Health System clinics).
Emory Medical Care Foundation
. .
F=ory' Adventisi Hosp ital

Adventist Health System
Emm7 Medical Laboratories

Emory Medical Geneti cs Laboratories
Clifton Corridor T;anspoi-tation Management Authority
Glenn School for Young Child;en
Luce Center
Emory Conference Center Hotel
Emary Inn
Crawford Lang-CPI, I.LC
Inc
Houston Mill House, .
Emory University Women's Club
Fund for Theological Education ; Inc .
Georgia Association for Pastoral Counseling
Glenn Memorial United Methodist Church

Emory Egleston CDC Clifton Childcare Center
Emory Federal Credit Union
2138015 v4 -anao 17 :2 s F-M
- EXHO7T 13
The Atlanta Project, Inc.
" Autism CenterlWalden Early Childhood Pro grams

Task Force _for Child Survival and Development
Nursing Servi ce, Inc.
African Studies Ass'ociation

American Academy of Religion
American Research Center in Egypt
Americas Theological-Library Association / Center for Electronic Resources in geology
Aquinas Center of Theology
Atlanta Theological Association

Drepung Loseling Monastic Instituti on
Georgia Humaniti es Council

Lutheran Theological Center in Atlanta
Mission R esource Center
National Faculty of Humanities, Ans : and Sciences
Ronald McDonald Childhood Cancer Center
Soci ety of Biblical Literature
Urban Training Organization of Atlanta
. Villa International
Hi ghl ands Biological Station

University Center in Georgi a
app I86.2
_3 380 15 v4 .611 410 1 7-2 s
pM
E=B IT H

Fulton1 2

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Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 1 of 97

DECISION OF THE ARBITRATOR

Although the Parties Have Agreed to Conduct Discovery Pursuant to the

This arbitration arises out of a Settlement Agreement ("Settlement Agreement") between

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 2 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 3 of 97

during discovery . Id. at 414.

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 4 of 97

An a lysis of Dr . M u rtagh 's Failure to Produce Documents

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 5 of 97

Things, Req. 1 and 3 .)

Dr. Murtagh withheld communications with Robert Searfoss

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 6 of 97

2. Dr . Murtagh withheld additional communications with Robert

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 7 of 97

Six Motions at 16 citing O .C.G.A. 24-9-27(c).)

Dr. Mu rtagh provides no justification for these failure s to produc e

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 8 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 9 of 97

December 12, 2005 Order commanding production of documents responsive to Emory's

Cash Amer., 286 Ga. App. at 414 .

Dr. Murtagh Comm itted P erjury .

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 10 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 11 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 12 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 13 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 14 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 15 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 16 of 97

COMPANY, INC ., JOHN DOES 1-10

Dated : April 15, 2008

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 17 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 18 of 97

DECISION OF THE ARBI TRATOR

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 19 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 20 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 21 of 97

r1I '1-2 3 10 763v 1

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 22 of 97

Dr. Murtagh's Reply

disclosure was insufficient .

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 23 of 97

require an arbitrator to "disclose any

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 24 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 25 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 26 of 97

338 F . S tiPP- ? d at 1382 .

A'I't -23 l0763 . 1

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 27 of 97

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Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 29 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 30 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 31 of 97

Dated : March 1 3, 204$

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 32 of 97

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 33 of 97

COMPANY, ENC., JOHN DOES I-k 0

Dr . Murtagh's Motion for Extension of the Discovery Period is GRANTE D in

Emory University's Request to Extend Deadlines for Expert Discovery and

E ory University's Request for no further Discovery Extensions or Switching of

Case 1:09-cv-00752-HTW Document 1-2 Filed 03/19/09 Page 34 of 97

5 . Dr, Murtagh's Petition to Remove Emery's Counterclaims from the Arbitration