Kaufman v. Columbia Memorial Physician Hospital Organization, Inc. et al

Filing 97

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that 79 Plaintiff's motion in limine (Dkt. No. 79-2) is GRANTED in part and DENIED in part; and the Court further ORDERS that 88 Defendant's motion in limine (Dkt. No. 88) is DENIED without prejudice. Signed by U.S. District Judge Mae A. D'Agostino on 8/7/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
STEWART A. KAUFMAN, M.D.,
Plaintiff,
vs.

1:11-CV-667
(MAD/CFH)

THE COLUMBIA MEMORIAL HOSPITAL, d/b/a
COLUMBIA MEMORIAL HOSPITAL,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

GLEASON, DUNN, WALSH & O’SHEA
40 Beaver Street
Albany, New York 1207
Attorneys for Plaintiff

RONALD G. DUNN, ESQ.
PETER N. SINCLAIR, ESQ.

GARFUNKEL WILD, P.C.
111 Great Neck Road
Great Neck, New York 11201
Attorneys for Defendant

ANDREW L. ZERLING, ESQ.
JASON HSI, ESQ.

Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court are Plaintiff's motion in limine, see Dkt. No. 79-2, and
Defendant Columbia Memorial Hospital's ("CMH") motion in limine, see Dkt. No. 88.
II. BACKGROUND
The Court assumes the parties' familiarity with the background of this case, as detailed in
its prior orders, and will discuss only those allegations and facts relevant to disposition of the
pending motions.

Plaintiff alleges that Defendant breached an employment agreement between them by: (1)
suspending him with pay on August 28, 2009; (2) suspending him without pay on October 18,
2009; (3) terminating him on January 27, 2010; and (4) denying his application for renewal of
medical staff privileges without affording him due process as required under CMH's bylaws.
Defendant has interposed an unjust enrichment counterclaim and alleges that it is entitled to
damages in the form of advance payments made to Plaintiff during his suspension.
In terminating Plaintiff's employment, Defendant cited the following provisions contained
in Section 11(b) of the employment agreement:
(b) This Agreement may be terminated without prior written notice
at any time by the Hospital for just cause, including, but not limited
to:
...
(ii).
A termination, suspension or non-renewal of your medical
staff privileges at the Hospital in accordance with the medical staff
bylaws, rules and regulations and policies of the Hospital.
...
(viii). Other conduct which in the fair and reasonable opinion of
the President (or designee(s) of the Hospital is such as to create a
threat to the health, safety or welfare of patients, demonstrates a
failure to carry out your professional responsibilities hereunder, or
is otherwise contrary to the best interest and welfare of the Hospital
and its patients.
In its pre-trial submissions, Defendant claims three independent bases for its
determination to terminate Plaintiff for "just cause": (1) Plaintiff's incompetence presented serious
risks to patient health and safety, as well as CMH's and its patients' best interests (Section
11(b)(viii)); (2) Plaintiff's failure to submit the requisite follow-up medical documentation
regarding his competence (Section 11(b)'s non-exhaustive "just cause" provision);1 and (3)

As discussed during the final pretrial conference, evidence regarding Plaintiff's failure to
submit the requisite follow-up medical documentation regarding his competence may only be
used to show that Plaintiff failed to perform his obligations under the contract (i.e., breach of the
implied covenant of good faith and fair dealing) or that Plaintiff failed to reapply for medical staff
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Plaintiff's failure to renew his medical staff membership and clinical privileges (Section 11(b)(ii)
and Section 4 ("As a continuing condition precedent to the Hospital's obligations under this
Agreement and prior to the provision of any services by you hereunder, you shall: . . . (iii) apply
for, be awarded and maintain in good standing, membership in the Hospital's Medical Staff with
appropriate privileges, in accordance with Hospital Policies")).
During the final pretrial conference held on August 6, 2014, the Court addressed several
issues raised in the parties’ respective pretrial submissions. The Court refers to and incorporates
the transcript of that conference herein.
III. DISCUSSION
A.

Standard of Review
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on

the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2
(1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude
evidence on a motion in limine only when the evidence is clearly inadmissible on all potential
grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-cv-5220, 1998 WL 665138,
*3 (S.D.N.Y. Sept. 25, 1998). Courts considering a motion in limine may reserve decision until
trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co.
v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, the court is
"free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as
"the case unfolds, particularly if the actual testimony differs from what was contained in the
[movant's] proffer." Luce, 469 U.S. at 41-42.

privileges. Defendant may not argue that this constituted an independent grounds for a finding of
just cause.
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B.

Plaintiff's Motion in Limine
1. Relevance of Competency Evidence
Plaintiff seeks to preclude Defendant from introducing any evidence regarding Plaintiff's

competency to safely practice medicine. Plaintiff contends that Defendant's failure to afford him
the due process protections set forth in CMH's bylaws obviates any inquiry at trial into his
competency and whether Defendant had just cause to terminate him. See Dkt. No. 79-2 at 5-6.2
As discussed in the final pretrial conference, the employment agreement does not, in every
circumstance, require compliance with the bylaws in order for CMH to terminate Plaintiff for just
cause. While the Court has found as a matter of law that the employment agreement and CMH's
bylaws require compliance with the Fair Hearing Plan set forth therein before Plaintiff's staff
privileges can be terminated or not renewed, no such requirement pertains to termination of the
employment agreement itself.3 As such, evidence of Plaintiff’s competence is relevant to
Defendant's contention that it terminated Plaintiff for just cause pursuant to Section 11(b)(viii)
and is admissible for that purpose. See Fed. R. Evid. 402. Accordingly, this aspect of Plaintiff's
motion in limine is denied.
2. Hearsay Objection to Competency Evidence
Plaintiff seeks to preclude certain out of court statements regarding his alleged
incompetency as inadmissible hearsay. Plaintiff asserts that Defendant may not introduce such

To avoid confusion, anytime the Court references a specific page number for an entry
on the docket, it will cite to the page number assigned by the Court's electronic filing system.
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As discussed during the final pretrial conference, the question of whether Plaintiff failed
to apply for renewal of his staff privileges or whether Defendant determined not to renew
Plaintiff's staff privileges without due process is a question for the jury to decide. Should the jury
determine that it was the latter, Defendant may not rely on Sections 11(b)(ii) and 4 of the
employment agreement to justify its termination of Plaintiff's employment.
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evidence to prove the truth of the matter asserted – i.e., whether Plaintiff was actually competent
to practice medicine. See Dkt. No. 79-2 at 6-7 (citing Fed. R. Evid. 801, 802). Without having
the benefit of the disputed exhibits themselves, or the context in which Defendant seeks to
introduce them into evidence, the Court is not in a position to make a definitive ruling at this
time. However, the Court notes that, as a general proposition, Defendant will be permitted to
introduce evidence that it contends demonstrates that it's opinion regarding Plaintiff's competency
was "fair and reasonable," such that it had "just cause" to terminate Plaintiff. Based on the
foregoing, this aspect of Plaintiff's motion in limine is denied without prejudice.
3. Expert Testimony on Competency
Plaintiff seeks to preclude Defendant from introducing statements from other doctors
regarding their opinion as to his competency to practice medicine. Plaintiff contends that
Defendants should be precluded from presenting the testimony of Albert Galaburda, M.D.,
Jacquline Chang, M.D., Aaron Nelson, PhD, and Norman Chapin, M.D., on the grounds that
Defendant has not proffered these witnesses as experts or provided a timely Fed. R. Civ. P.
26(a)(2) disclosure. See Dkt. No. 79-2 at 7-8.
The law in the Second Circuit is clear that treating physicians and other medical
professionals can testify as to their opinions without being disclosed as expert witnesses:
Courts in this Circuit have regularly held that treating physicians
may testify as to opinions formed during their treatment, including
causation, severity, disability, permanency and future impairments,
without the obligation to submit an expert report. See, e.g.,
Zanowic v. Ashcroft, No. 97 Civ. 5292, 2002 WL 373229, at *2
(S.D.N.Y. Mar.8, 2002) ("There can be no serious dispute that, as a
treating physician, Dr. Giovinazzo was free to testify to opinions he
formed in the course of treating [plaintiff], without regard to the
disclosure requirements of Rule 26(a)(2)."); see also Smolowitz v.
Sherwin–Williams Co., No. 02 Civ. 5940, 2008 WL 4862981, at *4
(E.D.N.Y. Nov.10, 2008) (noting that some cases suggest "that
treating physicians may render expert opinion testimony regarding
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causation even without submitting a detailed report"); NIC Holding
Corp. v. Lukoil Pan Americas, LLC, No. 05 Civ. 9372, 2007 WL
1467424, at * 1 (S.D.N.Y. May 16, 2007) (observing that "treating
physicians often are allowed to express their opinions as to the
causes of an injury, based on their training and experience").
Manganiello v. Agostini, No. 07 Civ. 3644, 2008 WL 5159776, *12 (S.D.N.Y. Dec. 9, 2008).
That is not to say, however, that the physician's testimony is without parameters:
"[T]he key to what a treating physician can testify to without being
declared an expert is based on his personal knowledge from
consultation, examination and treatment of the Plaintiff, 'not from
information acquired from outside sources.'" Id. (emphasis added)
(internal citation omitted). Thus, treating physicians "cannot be
limited to solely factual testimony," id., and they "may testify as to
opinions formed during their treatment, including causation,
severity, disability, permanency and future impairments." Williams
v. Regus Mgmt. Group, LLC, 2012 WL 1711378, at *3 (S.D.N.Y.
May 11, 2012) (emphasis in original) (internal citation omitted).
Therefore, treating physicians are "permitted to offer opinion
testimony on diagnosis, treatment, prognosis and causation, but
solely as to the information he/she has acquired through observation
of the Plaintiff in his/her role as a treating physician limited to the
facts in Plaintiff's course of treatment." Spencer, 2011 WL
4383046, at *4 (emphasis in original).
Barack v. American Honda Motor Co., Inc., 293 F.R.D. 106, 109 (D. Conn. 2013).
While Dr. Chapin has never been among Plaintiff's treating physicians, as a representative
of CMH, his opinion is relevant and admissible for the purpose of determining whether CMH had
a fair and reasonable opinion sufficient to terminate Plaintiff for cause. Based on the foregoing,
this aspect of Plaintiff's motion in limine is denied without prejudice. However, Plaintiff may
renew his application to limit the scope of these witnesses' testimony at trial in accordance with
the foregoing standards.
4.

Malpractice Settlement Agreements as Evidence of Incompetence

Plaintiff seeks to preclude Defendant from introducing evidence regarding his malpractice
settlement history. See Dkt. No. 79-2 at 8-9. In response, Defendant states that
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the Hospital intends to introduce evidence of Dr. Kaufman's
settlement history with third parties as independent confirmation of
the reasonableness of the Hospital's termination decisions–i.e., there
was sufficient reason to believe that Dr. Kaufman posed a threat to
patient health or safety, or that his conduct was contrary to the
interests of the Hospital.
Dkt. No. 94 at 21.
It is well settled that "[a] settlement neither requires nor implies any judicial endorsement
of either party's claims or theories." Bates v. Long Island Railroad Co., 997 F.2d 1028, 1038 (2d
Cir.), cert. denied, 510 U.S. 992 (1993). See also Perez v. Westchester Co. Dept. of Corr., 587
F.3d 143, 148 (2d Cir. 2009) ("The settlement did not constitute an admission of liability.").
Further, Federal Rule of Evidence 408 governs the admissibility of settlement agreements:
(a) Prohibited Uses. Evidence of the following is not admissible –
on behalf of any party – either to prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
(1) furnishing, promising, or offering – or accepting, promising to
accept, or offering to accept – a valuable consideration in
compromising or attempting to compromise the claim; . . .
Defendant argues that Rule 408 does not apply because it "does not seek to litigate any
claim or dispute concerning Dr. Kaufman in connection with the alleged malpractice." Dkt. No.
94 at 21.
In light of the foregoing principles, the Court finds that it would be impermissible for
Defendant to use evidence of Plaintiff's malpractice settlements to bolster its position that he was
not competent. Notwithstanding Defendant's representations to the contrary, admitting evidence
of Plaintiff's malpractice settlement history would necessarily devolve the trial of the instant
matter into a series of mini-trials over prior allegations of malpractice. Moreover, the probative
value of such evidence would be substantially outweighed by prejudice, confusion, and delay.

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See Fed. R. Evid. 403. Based on the foregoing, this aspect of Plaintiff's motion in limine is
granted.4
5. Promissory Note
Plaintiff seeks to preclude Defendant from introducing evidence regarding a promissory
note executed between the parties, the purpose, terms, and payment of which are not at issue here.
See Dkt. No. 79-2 at 9-10. Defendant asserts that evidence of the promissory note is relevant to
the parties' course of conduct, as it pertains to a balancing of the equities for Defendant's unjust
enrichment counterclaim. See Dkt. No. 94 at 22. During the final pretrial conference, Defendant
also argues that evidence of the promissory note is admissible to impeach Plaintiff's credibility.
The Court finds that the promissory note is not relevant to any of the claims or defenses at
issue in this trial. See Fed. R. Evid. 402. Even assuming that it were relevant, the prejudice of
such evidence would substantially outweigh any probative value. See Fed. R. Evid. 403.
Accordingly, this aspect of Plaintiff's motion in limine is granted.
C.

Defendant’s Motion in Limine
Defendant seeks exclusion of evidence relating to the issue of discrimination. Defendant

argues that since Plaintiff's age and disability discrimination claims were dismissed on summary
judgment, Plaintiff is precluded from introducing any evidence of discrimination during the trial
of the remaining state law claims for breach of contract and unjust enrichment. Defendant further
contends that Plaintiff should be precluded from introducing such evidence because any probative
value is substantially outweighed by jury confusion and prejudice. See Dkt. No. 88.

This is not to say that all evidence relating to instances of Plaintiff's alleged malpractice
is inadmissible. For example, if there were allegations of medical malpractice relevant to the time
period at issue in this litigation, which Defendant was aware of at the time of Plaintiff's
termination, then such evidence may be admissible.
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As an initial matter, Defendant is of course correct that Plaintiff's discrimination claims
were dismissed by the Court. However, it is nearly impossible for the Court to rule on
Defendant's motion in limine due to the lack of specificity in Defendant's motion. On this basis,
Defendant's motion is denied. Wechsler v. Hunt Health Sys., Ltd., 381 F. Supp. 2d 135, 150
(S.D.N.Y. 2003) (finding that a motion in limine seeking to exclude certain evidence lacked
sufficient specificity to allow the court to rule where it failed to specify which evidence should be
excluded). Nevertheless, the Court will reserve judgment on the ultimate admissibility of
evidence of discrimination, and provides the following guidance to the parties in advance of trial.
In awarding Defendant summary judgment on Plaintiff's discrimination claims, the Court
found that, as a matter of law, Plaintiff had failed to adduce evidence of discrimination sufficient
to defeat summary judgment on his statutory employment discrimination claims. The Court did
not, as Defendant suggests, find that Defendant's employees' motives in terminating Plaintiff were
unassailable. The Court expects the focus of this trial to be on the issue of whether Defendant
had just cause to terminate Plaintiff. To the extent that Plaintiff seeks to introduce evidence
tending to show that Defendant's opinion regarding Plaintiff's competency was not fair and
reasonable, but was motivated by discriminatory animus, such evidence is relevant to the just
cause inquiry. However, evidence regarding the discrimination claims themselves (i.e., that
Plaintiff's complaint included claims of employment discrimination which were dismissed by the
Court prior to trial) would not be admissible. Based on the foregoing, Defendant's motion in
limine is denied without prejudice.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
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ORDERS that Plaintiff's motion in limine (Dkt. No. 79-2) is GRANTED in part and
DENIED in part; and the Court further
ORDERS that Defendant's motion in limine (Dkt. No. 88) is DENIED without
prejudice; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Date: August 7, 2014
Albany, New York

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