United States District Court, E.D. New York
DR. ADDAGADA C. RAO, Plaintiff,
RAMON RODRIGUEZ and WYCKOFF HEIGHTS MEDICAL CENTER, INC, Defendants.
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
action, Plaintiff Dr. Addagada C. Rao asserts that Defendants
Ramon Rodriguez and Wyckoff Heights Medical Center, Inc.
("Wyckoff), discriminated against him on the basis of
race, national origin, and age in violation of federal,
state, and municipal law. (See Compl. (Dkt. 1).) The
court assumes the parties' familiarity with the factual
and procedural background of this action. The parties have
collectively submitted 19 motions in limine seeking
to preclude the admission of certain evidence at trial, to
narrow the legal and factual issues in dispute, and to remedy
certain alleged violations of discovery procedures. (Pl..
Mots, in Lim. ("Pl.. Mots.") (Dkt. 103); Defs.
Mots, in Lim. ("Defs. Mots.") (Dkt. 106); see
also Pl. Mem. in Supp. of Mots. in Lim. ("PL
Mem.") (Dkt. 104); Defs. Mem. in Supp. of Mots, in Lim.
("Defs. Mem.") (Dkt. 107).) For the reasons set
forth below, Plaintiffs 5 motions in limine
("Plaintiffs Motions") and Defendants' 14
motions in limine ("Defendants'
Motions") are GRANTED IN PART and DENIED IN PART, with
ruling on certain questions RESERVED until trial.
seeks to apply the doctrine of judicial estoppel to certain
facts concerning a letter allegedly authored by a group of
Wyckoff surgical residents (the "Resident's
Letter"). Plaintiffs four remaining motions request
evidentiary rulings and monetary sanctions based on
Defendants' alleged spoliation of evidence and other
discovery violations. The court finds that Plaintiff is entitled
to an adverse inference with regard to certain Wyckoff
physician term sheets. Plaintiffs remaining motions are
Judicial Estoppel and the Residents' Letter
First Motion requests that "defendants be
precluded from introducing [the Residents' Letter] as a
legitimate, non-discriminatory reason for plaintiffs
termination pursuant to the doctrine of judicial
estoppel." (Pl. Mem. at 7.) Discovery showed Rodriguez
received the undated Residents' Letter "as an
attachment to a forwarded email" on January 15, 2012,
meaning that it was received prior to Plaintiffs certified
termination letter on January 17, 2012. (Id. at 2.)
Plaintiff notes, however, that in previous employment
discrimination proceedings brought against the same
Defendants (the "Prior Proceedings"), Defendants
asserted that the Residents' Letter was received at some
point "between January 20 and 27, 2012."
(Id. at 3.) Plaintiff therefore seeks preclusion on
grounds of judicial estoppel.
court finds this argument to be without merit. The doctrine
of "judicial estoppel 'generally prevents a party
from prevailing in one phase of a case on an argument and
then relying on a contradictory argument to prevail in
another phase.'" New Hampshire v. Maine,
532 U.S. 742, 749 (2001) (quoting Pegram v.
Herdricbu 530 U.S. 211, 227 n.8 (2000)). Similarly, with
respect to statements made in separate proceedings, courts
should not "apply judicial estoppel where 'the
statements at issue [in the current and prior proceedings] do
not present an irreconcilable conflict.'"
Chevron Corp. v. Donziger, 833 F.3d 74, 128 (2d Cir.
2016) (quoting Rodal v. Anesthesia Grp. of Onondaga,
P.C., 369 F.3d 113, 119 (2d Cir. 2004)).
is no irreconcilable conflict in this instance. The court
agrees with Defendants that the precise date on which
Rodriguez received the Residents' Letter "was not at
issue" in the Prior Proceedings once it was established
that the date of receipt was no later than January 27, 2012.
(Defs. Mem. in Opp'n to PL Mots, in Lim. ("Defs.
Opp'n") (Dkt. 113) at 1.) The parties therefore had
no need to conduct "attendant document discovery with
e-mail' searches." (Id. at 2.) "[I]t
was not until Dr. Rao filed this lawsuit that Defendants had
reason to confirm the precise date that Mr. Rodriguez
received the letter." (Id.) Defendants'
current position-that Rodriguez received the Residents'
Letter on January 15, 2012-does not conflict with their
position in the Prior Proceedings that the letter was
received on or before January 27, 2012. Plaintiffs First
Motion is therefore denied.
Alleged Discovery Violations
The Residents' Letter
addition to the judicial estoppel argument, Plaintiffs Second
Motion seeks "to preclude the use of the [Residents'
Letter] for any  purpose, including as 'after acquired
evidence, '" based on Defendants' "very
late production and prior withholding of the emails and
attachments" pertinent to the letter's drafting
history. (PI. Mem. at 8, 10.) Plaintiffs Second Motion is
are authorized to order preclusion or other sanctions
"[i]f a party fails to provide information or identify a
witness" in violation of discovery procedures,
"unless the failure ... is harmless."
Fed.R.Civ.P. 37(c)(1) (emphasis added). Even if Plaintiff is
correct that production was belated, he has failed to show
that he was harmed by the delay. There is no dispute that the
evidence in question was produced before the close of
discovery. (PL Mem. at 8; see also Defs. Opp'n
at 8-10.) Plaintiff could therefore have sought additional
discovery based on those materials, had he so desired.
Plaintiff has failed to establish cause for preclusion or
other discovery-based sanctions regarding the Residents'
Audio Recordings of Board Meetings on October 6, 2011,
and January 5, 2012
asserts that Defendants spoliated audio recordings of certain
meetings of the Wyckoff Board of Trustees (the
"Board"). (PL Mem. at 10-12.) Plaintiffs Third
Motion seeks sanctions relating to recordings of meetings
held on October 6, 2011, and January 5, 2012. (Id.
at 13-14.) The court denies Plaintiffs Third Motion with
regard to both meetings.
The October 6, 2011, Board Meeting
seeks an order precluding Defendants from introducing a
statement allegedly made by Plaintiff at the October 6, 2011,
meeting-a statement that was not included in the meeting
minutes-which relates to Defendants' asserted
non-discriminatory basis for Plaintiffs termination.
(Id. at 13.) Defendants profess that they "have
no intention of using any evidence pertaining to the October
2011 and January 2012 Board meetings, " arguing that
these meetings "are not relevant to any claim or defense
in this action." (Defs. Opp'n at 12.) The court
therefore denies Plaintiffs request on grounds of mootness.
The January 5, 2012, Board Meeting
Plaintiff points to the January 5, 2012, meeting, at which
the Board allegedly discussed a complaint against Wyckoff
physician Dr. Parvez Mir. (Pl. Mem. at 13-14.) The
"anonymous written complaint" (the "Anonymous
Complaint") alleged that Mir had "made several
racially  sensitive remarks against physicians and staff at
the hospital." (Pl. Opp'n to Wyckoff Mot. for Summ.
J. (Dkt. 87) at 21.) Plaintiff alleges that the Anonymous
Complaint was brought up at the January 5, 2012, meeting
"only to the extent of the trustees not wanting to
discuss it on the record." (Id.) Plaintiff
seeks "an order directing [any related] disputed facts
to be taken as established ... ? or at least  an adverse
inference, " as well as "payment of  reasonable
expenses, including attorneys' fees" on the basis of
Defendants' alleged spoliation. (Id. at 14.)
seeking sanctions for spoliation must show:
(1) that the party having control over the evidence had an
obligation to preserve it at the time it was destroyed; (2)
that the records were destroyed with a culpable state of
mind; and (3) that the destroyed evidence was relevant to the
party's claim or defense such that a reasonable trier of
fact could find that it would support that claim or defense.
Chin v. Port Auth. of N.Y. & N.J.. 685 F.3d 135,
162 (2d Cir. 2012) (quoting Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)).
court declines to impose sanctions on Defendants. As
discussed below in Section II. A.1, Plaintiffs claims find no
relevant support in either the Anonymous Complaint or in the
Board's alleged failure to investigate. The court
therefore declines to impose sanctions based on the
destruction of allegedly related evidence from the January 5,
2012, Board meeting.
Back-Up Audio Recordings of February 2012 Board
Fourth Motion accuses Defendants of failing to timely produce
and accurately label back-up audio recordings of certain
Board meetings in February 2012. (Pl. Mem. at 14-15.) Based
on these alleged discovery violations, Plaintiff "seeks
an order compelling production of these audio files before
the trial"; a preclusion order "barring defendants
from using any of these back-up audio files at trial for any
purpose, without affecting plaintiffs right to use these
audio files"; an order directing that Plaintiffs version
of any related disputed facts "be taken as
established"; and "payment of reasonable expenses
including attorney's fees, " (Id. at 16.)
Fourth Motion is denied. Plaintiff was present for two of the
three cited meetings, but alleges only that "statements
were made by him" and "about him . . .,
thereby rendering back-up ... digital audio recordings of
these meetings discoverable and produceable." (Pl. Mem.
at 15 (emphasis added).) Plaintiff has failed to allege any
relevant content, however. He has therefore failed
to show that the alleged discovery violations caused any
harm. Plaintiff is thus not entitled to sanctions with regard
to those recordings. See Fed.R.Civ.P. 37(c)(1).
was not present for the Board meeting on February 16, 2012,
but he alleges that, based on a "prefatory email, "
the meeting "appears ... to have been very much about
[him] to a significant degree." (Id.) The cited
"prefatory email, " a short and cryptic message
sent from Rodriguez to Board Chairman Gary Goffner the
morning of the Board meeting, does not clearly indicate an
agenda or even general topics for conversation. (See
Feb. 16, 2012, Email (Dkt. 105-41) at ECF p.7.) Defendants
dispute that the audio recording for that meeting was
responsive to any of Plaintiffs discovery requests, and point
out that Plaintiff never made a motion to compel production
of the recording even after becoming aware of its existence
in June 2015, well before the close of discovery. (Defs.
Opp'n at 17-18.) To the extent that the recording is
non-responsive, there is no actionable discovery violation.
To the extent that Plaintiff became aware of a potential
discovery violation in 2015, he ought to have resolved the
issue at that time. The court sees no adequate justification
to impose sanctions on the eve of trial.
Physician Term Sheets
Fifth Motion alleges that Defendants impermissibly withheld
Wyckoff term sheets for certain physicians employed both at
Wyckoff and at Plaintiffs private medical practice. (Pl. Mem.
at 17-22.) Plaintiff characterizes Defendants' actions as
"presumptive spoliation." (Id. at 17.)
Based on these alleged violations, Plaintiff seeks: (1) an
order precluding Defendants from arguing "that any of
the surgeons in the Wyckoff Surgery Department did not have
the right to bill and retain their [Medicare] Part B revenue
components for surgeries performed by them at Wyckoff during
the relevant period"; (2) "payment of reasonable
expenses, including attorney's fees, of the motion";
and (3) "permission to inform the jury of the
withholding of material evidence." (Id. at
23-24.) The court finds Plaintiffs argument persuasive, but
declines to grant the requested relief. Instead, the court
grants an adverse inference regarding the missing term
has offered a concerning narrative: not only did Defendants
allegedly fail to produce certain employment-related
documents, despite testimony from former Wyckoff employees
that such documentation is preserved as a matter of course,
but an arguably responsive document later appeared in state
proceedings involving the same parties. (Id. at
17-22.) Defendants have offered technical arguments as to the
term sheets' relevance (Defs. Opp'n at 19)-which the
court finds non-dispositive, in light of Plaintiff s
proffered testimonial evidence (see PL Mem. at
17-22)-as well as to the responsiveness of the ...