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Rao v. Rodriguez

United States District Court, E.D. New York

April 18, 2017

DR. ADDAGADA C. RAO, Plaintiff,


          NICHOLAS G. GARAUFIS, United States District Judge.

         In this 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.


         Plaintiff 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.[1] The court finds that Plaintiff is entitled to an adverse inference with regard to certain Wyckoff physician term sheets. Plaintiffs remaining motions are denied.

         A. Judicial Estoppel and the Residents' Letter

         Plaintiffs First Motion[2] 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.

         The 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)).

         There 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.

         B. Alleged Discovery Violations

         1. The Residents' Letter

         In 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 denied.

         Courts 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' Letter.

         2. Audio Recordings of Board Meetings on October 6, 2011, and January 5, 2012

         Plaintiff 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.

         a. The October 6, 2011, Board Meeting

         Plaintiff 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.

         b. The January 5, 2012, Board Meeting

         Second, 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.)

         A party 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)).

         The 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.

         3. Back-Up Audio Recordings of February 2012 Board Meetings

         Plaintiffs 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.)

         Plaintiffs 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).

         Plaintiff 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.

         4. Physician Term Sheets

         Plaintiffs 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 sheets.

         Plaintiff 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 ...

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