Kademani v. Mayo Clinic et al
Filing
529
MEMORANDUM OPINION AND ORDER denying defendant's 445 Motion for Relief from Judgment (Written Opinion). Signed by Judge John R. Tunheim on December 3, 2012. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DEEPAK KADEMANI,
Civil No. 09-219 (JRT/FLN)
Plaintiff,
MEMORANDUM OPINION AND
ORDER DENYING DEFENDANT’S
MOTION FOR RELIEF
FROM JUDGMENT
v.
MAYO CLINIC,
Defendant.
James H. Kaster, Adrianna Shannon, Matthew H. Morgan, and Sarah W.
Steenhoek, NICHOLS KASTER, PLLP, 80 South Eighth Street,
Suite 4600, Minneapolis, MN 55402, for plaintiff.
David P. Bunde, Norah E. Olson Bluvshtein, Andrew F. Johnson,
David Gray Waytz, and S. Jamal Faleel, FREDRIKSON & BYRON, PA,
200 South Sixth Street, Suite 4000, Minneapolis, MN 55402; and Joanne L.
Martin, MAYO CLINIC, 200 First Street Southwest, Rochester, MN
55905, for defendant.
This is a breach of contract action that has been bifurcated at the parties’ request.
At the conclusion of the liability phase of the trial, the jury found that defendant Mayo
Clinic (“Mayo”) breached a Confidential Separation Agreement it had entered into with
plaintiff Dr. Deepak Kademani. Before the Court is Mayo’s motion for relief from
judgment pursuant to Federal Rule of Civil Procedure 60(b). Mayo’s motion is based on
its belief that Kademani testified falsely during the liability phase of the trial. For the
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reasons below, Mayo has failed to establish grounds for relief from judgment and the
Court will deny Mayo’s motion.1
BACKGROUND
Kademani, worked for Mayo as a surgeon but was placed on administrative leave
during a peer review of his practice in 2007. (Kademani Trial Tr. 287, 348, June 26,
2012, Docket No. 339.) The peer review ended without adverse conclusions or discipline
and Kademani and Mayo entered into a Confidential Separation Agreement where
Kademani agreed to resign and both parties agreed to not “disclose any information
concerning the disputes that arose between the parties.” (Fourth Aff. of Adrianna H.
Shannon, Ex. 4 & Ex. 5 at 1, 3, Oct. 23, 2012, Docket No. 436.)
Kademani subsequently received an offer of employment from Massachusetts
General Hospital (“MGH”).
(Kaban Trial Tr. 804:11-19, Sept. 17, 2012, Docket
No. 378.) Before Kademani’s appointment was finalized, a surgeon and professor from
Mayo contacted MGH’s Chief of Surgery and informed the Chief of Surgery that “I think
1
Mayo previously filed a motion for judgment as a matter of law, a new trial, or an
amended judgment on grounds separate from those raised in the present motion. (Def.’s
Renewed Mot., June 27, 2012, Docket No. 345.) However, the Court determined that it would
“wait to hear any post-trial motions until after the damages trial has concluded” and asked Mayo
to withdraw its motion and refile it after the second phase of the trial. (Twelfth Aff. of James H.
Kaster, Ex. 16 (E-mail to parties), Nov. 13, 2012, Docket No. 462.) In light of the Court’s
previous instruction to the parties, Mayo should have requested permission to file its motion for
relief from judgment prior to the damages phase. Nonetheless, because the motion is fully
briefed and its resolution may have some bearing on the damages phase of the trial, the Court
will resolve the motion at this juncture.
Because the Court will deny Mayo’s motion, it need not address Kademani’s argument
that relief under Rule 60(b) is not available after the first phase of a bifurcated trial.
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you should do your homework” with regard to Kademani. (Fourth Shannon Aff., Ex. 9
(Dep. of Dr. Michael Sarr (“Sarr Dep.”) 19:10-17).) Shortly thereafter, Dr. Leonard
Kaban, who is in charge of hiring at MGH, informed Kademani that Kademani might not
successfully complete the credentialing process and Kademani decided to withdraw his
application. (Kaban Trial Tr. 838:10-25, Docket No. 378.)
Mayo argued extensively during the liability phase of trial that Kademani had
failed to disclose information about his dispute with Mayo during the application process
and that he lost his opportunity at MGH due to his lack of candor, not due to Mayo’s
breach of the Confidential Separation Agreement.
(See, e.g., Fourth Shannon Aff.,
Ex. 13, (Bunde Opening Argument), at 159-61.) The present motion is based on Mayo’s
contention that Kademani lied about when, and to what extent, he disclosed information
to MGH.
At his deposition, Dr. Kaban testified that Kademani did not disclose the peer
review “upfront in the interview process,” but that Kademani did confirm that the peer
review had occurred “[a]t a subsequent time.”2 (See Fifth Decl. of David G. Waytz,
Ex. A (Dep. of Dr. Leonard Kaban) 42-43, Nov. 5, 2012, Docket No. 448.) Dr. Kaban’s
deposition testimony was read to the jury because he was not available to testify live.
Kademani testified at trial that he told Dr. Kaban about the peer review at Mayo
before MGH made an offer of employment. (Kademani Trial Tr. 415:15-22, Sept. 17,
2
While the timing of various events that occurred in somewhat close succession is not
absolutely clear, Dr. Kaban appeared to testify that the “subsequent time” was after MGH
offered Kademani, but before the phone call from Mayo that constituted a breach of the
Confidential Separation Agreement. (See Kaban Trial Tr. 805:8-12, 817:8-20, Docket No. 378.)
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2012, Docket No. 377.) Kademani’s counsel reminded Kademani that his testimony
regarding the timing of his disclosures appeared to be inconsistent with the testimony
offered by Dr. Kaban and Kademani asserted his belief that Dr. Kaban’s recollection was
incorrect.
(Id. 416:3-12.)
Kademani had also been made aware of the potential
inconsistency between his and Dr. Kaban’s recollections at a deposition prior to trial.
(See Fifth Waytz Decl., Ex. B (Dep. of Dr. Deepak Kademani) 278-79.) Kademani
testified in greater depth at trial regarding the nature of his disclosures to MGH,
particularly in response to cross-examination by Mayo’s counsel. (See Kademani Trial
Tr. 467, 475-76, Docket No. 377.)
During discovery for the damages phase, the parties deposed Dr. Kaban for a
second time.3 Counsel for Mayo told Dr. Kaban that Kademani had testified that “before
he even came out to interview with you that he told you about all of these issues.” 4 (Fifth
Waytz Decl., Ex. C (Second Dep. of Dr. Leonard Kaban) 139:20-22.) Counsel for Mayo
then asked Dr. Kaban if Kademani’s testimony was true and Dr. Kaban asserted that
Kademani had lied. (Id. 140:3-6.) Dr. Kaban further asserted that Kademani’s version of
the story did not make sense because he recalled that MGH had increased its offer to
3
In a November 19, 2012 order, the Court affirmed a protective order relating to the
second deposition of Dr. Kaban and held that evidence Mayo elicited at the second deposition
regarding Kademani’s purported lack of candor during the application process will be
inadmissible at the damages phase. (See Memo. Op. and Order at 5 n.3, Nov. 19, 2012, Docket
No. 494.)
4
It is not clear that this was an accurate description of Kademani’s testimony because
Kademani testified that he told Dr. Kaban about the peer review before he received an offer of
employment. (Kademani Trial Tr. 415:15-22, Docket No. 377.)
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Kademani, which it would not have done if Kademani had already disclosed his issues at
Mayo. (Id. 106:14-107:1, 140:6-12.)
In addition to Dr. Kaban’s second deposition, Mayo points to documentary
evidence that it contends casts doubt on Kademani’s testimony regarding his disclosures
to MGH.
For instance, on February 20, 2008, after having offered Kademani the
position, Dr. Kaban wrote to MGH’s director of credentialing and enthusiastically
requested Kademani’s appointment. (Id., Ex. E.) Mayo also notes that the first piece of
documentary evidence demonstrating that Kademani disclosed his issues at Mayo to
MGH is a letter Kademani forwarded to MGH on March 2, 2008. (Id., Ex. G.)
ANALYSIS
I.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 60(b) allows a court to relieve a party from a final
judgment for a number of reasons, including “newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to move for a new trial
under Rule 59(b)” and “fraud . . . , misrepresentation, or misconduct by an opposing
party.” See Fed. R. Civ. P. 60(b)(2) & (3). Rule 60(b) allows for “’extraordinary relief
which may be granted only upon an adequate showing of exceptional circumstances.’”
U.S. Xpress Enterps., Inc. v. J.B. Hunt Transport, Inc., 320 F.3d 809, 815 (8th Cir. 2003)
(quoting United States v. Young, 806 F.2d 805, 806 (8th Cir. 1987)). Rule 60(b) motions
are viewed with disfavor due to the sanctity of final judgments. Rosebud Sioux Tribe v.
A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984). That said, Rule 60(b) is necessary to
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“maintain[] the integrity of the trial process” and to ensure that “justice be done in light
of all the facts.” Id. (internal quotation marks omitted).
II.
DISCUSSION
Mayo’s central argument is that “Dr. Kaban’s post-trial testimony, when
considered in light of all the circumstantial evidence presented at trial, constitutes clear
and convincing evidence that [Kademani] lied at trial.” (Def.’s Memo. in Support at 13,
Nov. 5, 2012, Docket No. 447.)
Mayo contends that “[Kademani]’s perjury . . .
constitutes grounds for relief under [Rule] 60(b)(2) as newly discovered evidence” and
that there is also sufficient evidence to warrant relief under Rule 60(b)(3). (See id. at 1315.) Neither argument is persuasive, and the Court will address them in turn.
To prevail under Rule 60(b)(2), which addresses newly discovered evidence, the
moving party must demonstrate that: (1) the evidence was discovered after trial; (2) due
diligence was exercised to discover the evidence; (3) the evidence is material; (4) the
evidence is not merely cumulative or impeaching; and (5) the evidence is such that a new
trial would probably produce a different result. Schwieger v. Farm Bureau Ins. Co. of
Neb., 207 F.3d 480, 487 (8th Cir. 2000). Mayo’s claim falls short for a number of
reasons, any of which is independently sufficient to deny its request for relief under
Rule 60(b)(2).
First, there is no “newly discovered evidence.” Whatever conflict exists between
Dr. Kaban’s testimony and Kademani’s testimony existed at trial. Dr. Kaban’s assertion
at his second deposition that Kademani “lied” was a more explicit way to highlight the
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conflicts in the testimony, but nothing new was discovered by virtue of Dr. Kaban’s
assertion. Even if Dr. Kaban’s assertion constituted “newly discovered evidence,” the
Court would deny Mayo’s motion because any conflict between Kademani and
Dr. Kaban’s recollections was apparent prior to the liability phase of the trial and Mayo
could have been more diligent in attempting to obtain additional discovery from
Dr. Kaban prior to the liability phase.
Further, because the jury already heard the
competing testimony of Dr. Kaban and Kademani, Dr. Kaban’s additional, explicit
assertion that Kademani “lied” would likely have been immaterial. Finally, because any
conflict was already before the jury, Dr. Kaban’s assertion is merely impeaching. 5
Mayo’s claim under Rule 60(b)(3) fares no better. To prevail under Rule 60(b)(3),
the moving party must demonstrate by clear and convincing evidence that the opposing
party’s fraud, misrepresentation, or misconduct “prevented the movant from fully and
fairly presenting its case.”
Atkinson v. Prudential Prop. Co., 43 F.3d 367, 372-73
(8th Cir. 1994). Mayo has not presented clear and convincing evidence that Kademani
testified to facts that he did not believe to be true. That fact that the testimony of two
witnesses seems inconsistent and one accuses the other of lying is not nearly sufficient to
obtain relief from judgment. See Simpson v. Suliene, No. 08-CV-54, 2008 WL 4279938,
at *2 (W.D. Wis. Sept. 17, 2008) (“Factual disputes occur in the context of litigation all
5
Further still, Dr. Kaban’s assertion that Kademani lied would likely be inadmissible
because it is impermissible, speculative opinion testimony. See, e.g., United States v. Harris,
471 F.3d 507, 511 (3d Cir. 2006) (“[W]e follow our sister circuits and hold that asking one
witness whether another is lying is inappropriate. Such questions invade the province of the jury
and force a witness to testify as to something he cannot know, i.e., whether another is
intentionally seeking to mislead the tribunal.”).
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the time. Very rarely it is appropriate for a court to take sides and make a determination
regarding a party's credibility; that is an issue normally reserved for the jury.”). And the
fact that documentary evidence may tend to support one witness’s version of the events
does not approach clear and convincing evidence that a witness knowingly engaged in
fraud, misrepresentation, or misconduct. If a party could obtain relief from judgment any
time one witness thought that another witness had lied and the party could point to
evidence tending to support one witness’s version of the events, few judgments would be
safe.
Mayo relies heavily on Rosebud Sioux Tribe, which is easily distinguishable from
the present case. In Rosebud Sioux Tribe, the court granted relief from a civil judgment
when a key witness later provided grand jury testimony that dramatically contradicted
testimony he had given in a deposition prior to the civil trial. See 733 F.2d at 514-17
(“The grand jury testimony flatly contradicts the testimony [the witness] gave in two
other proceedings . . . . [H]is inconsistent stories demonstrate that he is a liar and, as
such, a witness whose testimony is to be discredited.”). In that case, the later testimony
constituted newly discovered evidence and also clear and convincing evidence of
misconduct. In order for Rosebud Sioux Tribe to be analogous to the present case,
Kademani himself would have needed to say “I lied” in a second deposition. The
situation at hand is categorically different.
Mayo has neither presented newly discovered evidence warranting relief from
judgment under Rule 60(b)(2), nor has it presented clear and convincing evidence of
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fraud, misrepresentation, or misconduct warranting relief from judgment under Rule
60(b)(3). Therefore, the Court will deny Mayo’s motion for relief from judgment.6
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Mayo’s motion for relief from judgment [Docket No. 445] is
DENIED.
DATED: December 3, 2012
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
6
Kademani asks the Court to strike Mayo’s allegations of perjury from the record on the
ground that the allegations constitute scandalous material because they unnecessarily reflect on
Kademani’s moral character. See Crow v. Wolpoff & Abramson, Civ. No. 06-3228, 2007 WL
1247393, at *3 n.2 (D. Minn. Apr. 19, 2007). Mayo will not be permitted to make such
accusations at the damages phase, but the Court does not find that the allegations are so
derogatory, frivolous, or unnecessary as to warrant striking them from the record. Cf. Stanbury
Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (“[M]otions to strike . . . are viewed with
disfavor and are infrequently granted.”) (internal quotation marks omitted).
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