The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
By Order dated April 4, 2005, Magistrate Judge Frank Maas
denied Plaintiff's application for additional discovery
concerning discrepancies between patient data on Defendant Lenox
Hill Hospital's (the "Hospital") Invision system ("Invision") and
the Mediware system ("Mediware") maintained by an independent
contractor for the Hospital. (Discovery Order, dated Apr. 4, 2005
("Disc. Order") at 1-2.)
Plaintiff contends that there are 1,498 Mediware files that do
not have corresponding Invision files. (Memorandum of Law in
Support of Plaintiff's Rule 72 Motion, dated Apr. 15, 2005 ("Pl.
Mem.") at 2.) Pursuant to Rule 72 of the Federal Rules of Civil
Procedure, Plaintiff objects to the Magistrate Judge's ruling and
seeks an Order directing the Hospital to locate each of those Invision files for which a
Mediware file exists.*fn1 (Pl. Mem. at 2-3.) For the reasons
set forth below, Plaintiff's application is denied.
The Federal Magistrate's Act, 28 U.S.C. §§ 631-639, and Rule 72
of the Federal Rules of Civil Procedure provide the standard for
review of a magistrate judge's order. With respect to
nondispositive matters, a district judge shall "modify or set
aside any portion of the magistrate's order found to be clearly
erroneous or contrary to law." Fed.R.Civ.P. 72(a); see
also 28 U.S.C. § 636(b)(1)(A). A party seeking to overturn a
nondispositive ruling under the "clearly erroneous" standard
generally bears a "heavy burden." See Com-Tech Assocs. v.
Computer Assocs. Int'l, Inc., 753 F. Supp. 1078, 1099 (E.D.N.Y.
Pretrial discovery issues are nondispositive matters and are
reviewable under the "clearly erroneous" standard. See Hora v.
Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). A finding is
"clearly erroneous" if the reviewing court is left with the
"definite and firm conviction that a mistake has been committed."
Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United
States v. United Gypsum Co., 333 U.S. 364, 395 (1948)).
The Magistrate Judge found that Plaintiff "made no persuasive
showing that these [1,498 missing Invision] files are necessary
for [her counsel's] study to be statistically meaningful." (Disc.
Order at 1.) The Magistrate Judge further noted that the
Hospital's Director of Financial Applications had explained to
Plaintiffs' expert that there was no guarantee that the patient files on the Invision and Mediware systems would "ever be
totally `in synch' because the data on the Mediware system is
entered manually." (Disc. Order at 1-2.) The Magistrate Judge
concluded that the Plaintiff offered no evidence that "the
discrepancies result from a deliberate effort to skew the data."
(Disc. Order at 2.) Thus, the Magistrate Judge determined that
Plaintiff's requested remedies were not warranted. (Disc. Order
at 2.) This Court agrees with the Magistrate Judge.
In view of Plaintiff's failure to proffer any statistical
evidence regarding the importance of the missing information, the
Magistrate Judge's ruling was appropriate. Plaintiff's counsel's
conclusory assertion "that he does not think that these 1,498
files are insignificant" (Disc. Order at 1 (emphasis in
original)) is not persuasive because Plaintiff's counsel is not a
statistician. His ipse dixit is insufficient as a matter of
law. Accordingly, the Magistrate Judge's Discovery Order
precluding another round of discovery regarding the Hospital's
computer files was not "clearly erroneous." CONCLUSION
For the foregoing reasons, the Magistrate Judge's Discovery
Order is affirmed and Plaintiff's Rule ...