Thompson v. The Jamaica Hospital Medical Center et al

Filing 123

OPINION re: 98 MOTION for Summary Judgment filed by New York University Medical Center, NYU Hospital for Joint Diseases, NYU Hospitals Center, NYU Langone Medical Center, 101 FIRST MOTION for Summary Judgment , Costs and Fee s filed by The Jamaica Hospital Medical Center. The Defendants' motions for summary judgment are granted in part, and denied in part. It is so ordered. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 8/30/2016) (kko)

UNITED STATES DI STR I CT COURT
SOUTHERN DISTR I CT OF NEW YORK

---------------------------------------x
SEAN THOMPSON , M.D. ,
Plaintiff,

13 Civ . 1896
OPINION

-againstTHE JAMAICA HOSPITAL MEDICAL CENTER ,
NYU HOSPITALS CENTER, NEW YORK UNIVERSITY
MEDICAL CENTER , NYU LANGONE MEDICAL
CENTER , NYU HOSPITAL FOR JO I NT DISEASES ,
Defendants .

USDCSDNY
DOCU/'.-1ENf

A P P E A R A N C E S:

Attorneys for Plaintiff
FRIER LEVITT
84 Bloomfield Avenue
Pine Brook , NJ 07058
By :
Jonathan E. Levitt, Esq.
Michelle L. Gr eenberg , Esq.
Attorneys for Jamaica Hospital Defendants
MARTIN CLEARWATER & BELL, LLP
220 East 42nd Street
New York , NY 10017
By : Gregory B. Reilly, Esq.
Adam G. Guttell , Esq.
Attorneys for NYU Defendants
WILSON , ELSER, MOSKOWITZ , EDELMAN & DICKER LLP
150 East 42nd Street
New York , NY 1 00 17- 5639
By : Ri cki E. Roer, Esq.
William F. Cu sack , Esq.
Valerie L. Hooker, Esq.

Sweet, D. J.

Defendants Jamaica Hospital Medical Center ("JHMC")
and NYU Hospitals Center , New York University Medical Center,
NYU Langone Medical Center, and NYU Hospital for Joint Diseases
(collectively "the NYU Defendants" and together with JHMC " the
Defendants") have each moved pursuant to Rule 56 , F. R. Civ . P.
for summary judgment against Plaintiff Sean Thompson, M. D.
("Plaintiff" or "Dr. Thompson").

As set forth below , the

motions are granted in part , and denied in part.

Prior Proceedings

Dr . Thompson filed the complaint against the
Defendants on March 21, 2013 based on diversity jurisdiction,
alleging violations of New York Labor Law §§ 740 - 741, which
allows for whistleblower claims against an employer regarding
dangers to public health and safety.

By order of June 19, 2015 , in view of Plaintiff's
failure to comply with his discovery obligations as set forth in
a previous October 22 , 2014 Order Plaintiff was limited to
damages based on documents that had already been produced
1

pursuant to the Court ' s October 22, 2014 Order and Plaintiff was
required to produce a computation of his damages within two
weeks .

By opinion of November 20 , 2015 , the Plaintiff failed to

present additional evidence of damages in compliance with the
October 22 , 2014 Order and the June 19, 20 1 5 Opinion and was not
be permitted to submit any informat i on not already in evidence
about his damages.

The instant motions for summary judgment were filed on
February 8, 2016 .

They were argued and marked fully submitted

on April 14 , 2016 .

The Facts

Defendant JHMC offered Plaintiff the position of
Director of the Total Join Replacement Program ("TJRP " ) on May
14, 2010 .

(Reilly Deel. , Exhibit B.)

was approximately $250 , 000 .

Plaintiff ' s annual salary

(Reilly Deel . , Exhibit C . )

Plaintiff accepted this offer and began working as the Director
of the TJRP on or about September 1 , 2010 .

(Plaintiff's

Deposition Transcript , Reilly Deel ., Ex. B ("Pl . Tr.") at 60.)
Among other staff whom Plaintiff oversaw , there were five
medical residents who rotated through the service.
56 : 13-26 , 57 : 2-24 . )
2

(Pl.

Tr . at

Prior to being offered the position and accepting the
position, JHMC and NYU were not sure whether to hire Plaintiff
as the Director of the TJRP.

Pauline Marks , a hospital

administrator for JHMC , stated in an email on May 25 , 2010 that
based on conversations with Dr . Nad ir Paksima and Dr . Bruce
Flanz , Dr. Flanz believed that Plaintiff " would probably be too
much trouble. "

(Guttell Deel ., Ex. B, Bates No. JHMC 0211.)

Plaintiff alleges that during the his emp l oyment negotiations
that Dr . Paksima told him he was " mak i ng waves" by asking f o r
specific contract terms about the "financial, ancil l ary staff ,
marketing" efforts that JHMC would make to ensure the program's
success.

(Pl . Tr. at 47:10 - 48 : 8)

Plaintiff was eligible for a bonus of 80 % of a ll
revenue for the TJRP procedures in excess of the cost of his
salary and benefits .

(Pl . Tr. at 129:20-130:25.)

Therefore in

order to be eligible for a bonus , revenues for the TJRP wo uld
Id .

need to have exceeded $250 , 000 .

However, it is undisputed

that Plaintiff and the TJRP did not earn sufficient revenue to
warrant a bonus for Plaint i ff in any year in which he was
working f o r the Defendants .

(Pl . Tr. at 129 -1 32 . )

3

From September 1, 2010 to December 31, 2010, the TJRP
had 22 visits billing $53,000 and only collecting $7,000 of
those total bills.

(Dr. Angelo Canedo's Deposition Transcript,

Reilly Deel., Ex. A ("Canedo Tr.") at 118:18-119:6.)
Plaintiff's salary over that period of time was $81,000 and
payments of nearly $33,000 for malpractice insurance.

Id.

In

the 2011 calendar year, the TJRP had 67 visits billing $124,000
and collecting $20,700.

(Canedo Tr. at 119:21-24.)

Plaintiff's

salary over that period of time was approximately $249,380 and
$132,000 in malpractice insurance.

Id.

Jeanne Mancision, Director of Finances at JHMC,
emailed Plaintiff profit and loss data for TJRP as early as July
2011.

(Guttell Deel., Ex. A; Pl. Tr. 129:22-25; 130:2-25;

132:2-21; Canedo Tr. 119:23-120:4; 167:2-10; Reilly Deel. Ex.
F.)

Plaintiff advised Defendants about a number of patient
health and quality of care issues dealing with cleanliness and
sterility of the hospital.

These issues included trash and

flies in the operating room, mishandling of Operating Room
culture swabs with dirty and unsterile gloves, assisting in the
Operating Room with bloody gloves prior to the procedure, delays
resulting in prolonged anesthesia time and potential increases
4

in infection rates , lack of ste r i l e equipment for surgeries ,
patients laying in their own feces , and nursing issues .

(Pl .

Ex . G, NYUMC00312 , 000437 - 439 , 000515-5 1 6 , 000523 - 526 , 0 0 0 55 1552 ; Ex . E, Canedo Tr . at 65 : 6- 9 , 145 : 18 - 150 : 7 ; Ex . H, Thomps o n
Tr . 1 at 9 : 23 -1 0 : 17 , 1 3 : 22 -1 7 : 12 , 19 : 3 - 2 1: 8 , 24 : 15 - 26 : 10 , 120 : 4121:14 , Ex . I Thompson Tr . 2 at 333 : 2 1- 334:4 , 337 : 2 - 338 : 11 . )
Plaintiff al l eges that in response to his concerns about the
nurses and other s t aff in the hospi t al that Dr . Canedo told him
that he was " a young snot - nose surgeon who can ' t come here and
demand changes."

(Pl . Tr . at 14 :1 4 - 22.)

Dr . Canedo denied

making this statement "because that ' s not my exper i ence [w i t h ]
him . "

(Canedo Tr . at 183:4 - 7 . )

On February 2 , 2012 , Dr . Canedo sent a l ette r t o t h e
Chair of Orthoped i c Surgery , Dr . Nadir Paksima , conf i rming their
earlier conversation that the TJRP ' s "vo lume has been
insuffic i ent to c o ver the costs " and that the hospital would be
d i scontinuing the program .

(Rei l ly Deel ., Ex . F . )

On February

3 , 2 0 12 , Dr . Joseph Zuckerman , Chair of Or t hoped i cs at NYU , met
wi t h Plaintiff and told Plaint i f f that the TJRP was being
discontinued because of " the v o l ume of the cases " whic h was a
" financia l reason ," Plaintiff a ll eges t h at Dr . Zuckerman noted
t h e other reason was " the who l e i dea of me being difficult , you
know , to get along with. "

(Pl. Tr . at 346 : 2 - 11 . )
5

On February 17, 2012,

Dr. Zuckerman confirmed by

letter what they had discussed on February 3 , 2012 that JHMC
"de cided to discontinue the joint replacement initiativeu
(Re illy Deel., Ex. G.)

because of issues with funding.
deposition,

In his

Dr. Zuckerman testified that JHMC told him that the

reason they ended the TJRP was because "the volume and growth of
the program did not fulfill the expectations.u

(Dr . Joseph

Zuckerman's Deposition Transcript, Reilly Deel., Ex. L
("Zuckerman Tr.u ) at 34 :5-10. )

On March 6 , 2012 Plaintiff wrote to Dr. Zuckerman
confirming that he understood his position could no l onger "be
s upp orted because of financial reasons.u

(Reilly Deel., Ex. H.)

Defendants allowed Plaintiff to remain employed at the hospital
through June 2012 .

(Pl . Tr. at 7:23-24.)

Since leaving JHMC and NYU, Plaintiff has been
employed with Forest Hills Hospital, Queens Long Island Medical
Group, Sall Myers , and Thompson Medical for a combined income of
more than $500,000 per year .

(Pl . Tr. at 244-255.)

After the TJRP was terminated,

J HMC continued to hire

general orthopedic surgeons, who "might in theory do an elective

6

case" of a total joint replacement surgery.
163:10-17.)

(Canedo Tr. at

However, Dr . Thompson did not want to stay on in

general orthopedics because "Dr. Thompson was very clear that he
did a specialty fellowship [in total joint replacement]
reason."

for a

(Canedo Tr. at 163 : 20- 2 5 . )

The Summary Judgment Standard

Summary judgment is appropriate only where "there is
no genuine issue as to any material fact and ... the moving
party is entitled to a judgment as a matter of law."
Civ. P. 56(c) .

Fed. R .

A dispute is "genuine" if "the evidence is such

that a reasonable jury could return a verdict for the nonmoving
party ."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248

(1986) .

The relevant inquiry on application for summary

judgment is "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law ."
at 251-52.

Id .

A court is not charged with weighing the evidence

and determining its truth, but with determining whether there is
a genuine issue for trial.

Westinghouse Elec. Corp. v . N.Y.

City Transit Auth ., 735 F. Supp . 1205, 1212 (S . D. N.Y . 1990)
(quoting Anderson, 477 U.S. at 249) .

"[T]he mere existen c e of

s ome alleged factual dispute between the parties wil l not defeat
7

an otherwise proper l y supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact ."
Anderson , 477 U.S. at 247 - 48

(emphasis in original) .

Plaintiff's Claim Under NY Labor Law§ 740 Is Time Barred

Plaintiff in this action brought claims under both NY
Labor Law § 740 and § 741 .

An action under § 740 must be

brought "within one year after the al l eged retaliatory personnel
action was taken."

N. Y. Lab . Law§ 740(4) (a) .

The parties

agree that Plaintiff 's claim arose on February 3 , 2012 when he
was notified that his position would be terminated in June 20 1 2 .
(Pl . Tr. at 7:20 - 24 .)

This is because the claim begins to

accrue when the employee is given a notice of termination for
retaliat o ry reasons and not the actual terminat i on date .
Dykstra v . Wyeth Parm. , Inc.,
2012) .

454 F. App ' x 20 , 23 (2d Cir .

Here , Plaintiff filed his complaint on March 21 , 2013 ,

more than one year after his claim began to accrue on February
3 , 2012 .

Plaintiff also brought a c l a im under § 741 , a related
statute , which requires that he bring the action "within two
years after the alleged retaliatory personnel action was taken ."
N. Y. Lab. Law§ 740(4) (d) .

Plaintiff seeks to apply the two 8

year limitations period for § 74 1 to both his § 741 and his §
740 c laims because he brought the two claims concurrently.
Plaintiff argues that the legislative intent was to apply the
two-year limitations period of§ 740(4) (d) to concurrent cla ims
of § 740 and § 741 because § 741 was passed later and amended §
740.

Plaintiff argues that the le g isla ture meant to apply this

two-year limitations periods to cases bringing both claims
concurrently since the purpose of the bill was to avoid
significant risks to public health.

New York Bill Jacket, 2002

A.B. 9454 , Ch . 24.

However , the l egislature did not state that the twoyear limitations period applied to cases in which § 740 and §
741 are brought concurrently , which it could have done while
amending the statute to add§ 741.

The more natural reading of

the statutory text is to bar claims brought under § 740 that
exceed the one -year limitations period articulated in §
740(4) (a), even when the plaintiff also brings a c laim under§
741.

Ge ldz ahler v . New York Medical College , 746 F.Supp.2d 618 ,

630 (S .D.N.Y. 2010)

(d ismissing a c laim under§ 740 as time

barred while allowing a concurrent claim under § 741 to
proceed).

Therefore, Plaintiff's§ 740 claims are time barred

and dismissed from this action.

9

Plaintiff's§ 740 and§ 741 Claims Are Dismissed Because He Was
Terminated for Non-Retaliatory Reasons

Plaintiff has a l leged that he was terminated from his
position at JHMC and NYU in retaliation to his complaints about
imp o rtant quality of care issues.

Plaintiff has alleged that he

compla ined of a number of patient and qua l ity of ca re
deficiencies , including sanitary and infe ct i on control practices
at JHMC.

These issues included trash and flies in the operat ing

room , mishandling of Oper ating Room c ulture swabs with dirty and
unsteril e gloves, assisting in the Operating Room with bloody
gloves prior to the procedure, de l ays resulting in prolonged
anesthesia time and p o tential increases in in fect i on rates , la ck
of ster ile equipment f o r surgeries, patients la y ing in their own
feces , and nursing issues.

( Pl. Ex. G, NYUMC003 1 2 , 000437 - 439 ,

000515 -51 6 , 000523 -52 6 , 000551 -552; Ex . E, Canedo Tr . at 65:6 - 9 ,
145 : 18-150:7 ; Ex. H, Thompson Tr. 1 at 9 : 23 - 10 : 17 , 13: 22 -17:12,
1 9 : 3 - 21 : 8 , 2 4:15-2 6 : 10 , 120 : 4 -1 2 1:14, Ex. I Thompson Tr. 2 at
333 : 21- 334 : 4 , 337 : 2 - 338 : 11 . )

Even if these issues impacted overal l public he a lth or
safety concerns and violated a specific law, rule, or regu l at i on
as required under § 740 and § 741 , these claims do not survive
summary judgment because there was another valid reason why

10

Plaintiff was terminated :

the low vo l ume of patients and

revenue that Plaintiff generated for the hospital .

Both statutes provide an except i on for any potentially
retal i atory termination that was based on other grounds .

Under

§ 740(4) (c) , it is a complete defense to a retaliatory claim
under § 740 if "the personne l action was predicated upo n grounds
other than the employee ' s exercise of any r i ghts protected by
this section. "

N. Y. Labor Law§ 740(4) (c) .

Similar l y u nder

741 , "it shall be a defense that the personne l action was
predicated upon grounds other than the employee ' s exercise of
any rights protected by this section. "

N. Y. Labor Law§ 741(5)

Other actions have held that poor performance is a
valid reason apart from retaliation for whistleb l owing that
serves as a complete defense to claims under § 740 and § 741 .
See Timberlake v . New York Presbyterian Hosp ., No 05 - cv- 56167 ,
2009 WL 3122580 , at *6 (S . D. N. Y. Sept. 29 , 2009)
(insubordination and performance issues were a complete defense
to claims of reta l iation for whistleblowing under§ 741(5) ) ;
Luis o v. Northern Westchester Hosp. Center , 65 A . D. 3d 1 296 ,
1298 , 886 N. Y.S.2d 216 (2d Dep ' t 2009)

11

(same) .

Here, Plaintiff 's claims are dismissed because he was
terminated for the non-retaliatory reason that the program he
was running suffered from low volume and insufficient revenue to
maintain the program.

Plaintiff was eligible for a bonus in

year in which revenue for the TJRP exceeded the cost of his
salary and benefits , yet Plaintiff did not earn sufficient
revenue to warrant a bonus in any year work ing for Defendants.
(Pl . Tr. at 129:20 - 132 : 25 . )

In fact,

Plaintiff and the TJRP never brought in

enough revenue to support its costs .

From September 1 , 2010 to

December 31 , 2010 , the TJRP had 22 visits billing $53 , 000 and
only collecting $7 , 000 of those total b ill s.

(Dr . Angelo

Canedo ' s Deposition Transcript, Reilly Deel ., Ex . A ("Canedo
Tr ." ) at 118 : 18 - 119:6 . )

Plaintiff ' s salary over that period of

time was $81 , 000 and nearly $33,000 in malpractice insurance .
Id.

In the 2011 calendar year , the TJRP had 67 visits billing

$124,000 and collecting $20 , 700.

(Canedo Tr. at 119:21-24 . )

Plaintiff ' s salary over that period of time was approximately
$249,380 and $13 2 , 000 in malpractice in surance.

Id.

Plaintiff claims he was not aware of these issues with
volume and revenue until the program was terminated in February
2012 , but this claim is be li ed by the documentary evidence .
12

Jeanne Manc i s i on , Di rector o f Fi na n ces at J HMC , ema il ed
Plaint i ff profit and loss data for TJRP as early as July 2011 ,
which showed that the TJRP was not s u ppor t ing its costs .
(Guttel l Deel ., Ex . A; Pl. Tr . 129 : 22 - 25 ; 130 : 2 - 25 ; 132 : 2 - 2 1;
Canedo Tr . 1 1 9 : 23 - 120 : 4 ; 167 : 2 -1 0 ; Re ill y Deel . Ex . F . )

For these reasons , s ummary j u dgmen t i s granted for
Defendants because Plaintiff was terminated f or the non retal i atory reason t h at his program was earn i ng significantly
less than its costs .

Defendant is Not Entitled to Attorneys' Fees Under §740(6)

Defendant moved for attorneys '

f ees under§ 740(6) ,

wh i c h provi des that "[ a ] court , in it s d is cretio n, may a l so
order that r easonable attorneys ' fees and court costs and
disbursements be awarded to an emp l oyer " i f t h e claim " was
without bas i s in l aw or in f act. "

However , th i s motion is

denied because Pla i nti ff' s c l a i ms were based in l aw and fact .
While Plaint i ff ' s claims do not survive th i s s ummary judgment
motion , his claim under § 741 was t i me l y and the concerns he
raised about pat i ent h ealth and qua l ity of care including issues
with severa l nurses , s t er il ity pract i ces , and i nfection risks

13

were non - frivolous claims under the statute.
Defendants ' motion for attorneys '

For those reasons ,

fees is denied .

Plaintiff Named Improper NYU Defendants But the Case is
Dismissed on Other Grounds

The NYU Defendants argue that Pl aintiff has failed to
name his legal employer , New York Univers i ty ("NYU") , the on l y
NYU entity that can be properly named in th i s action .

I nstead

of naming the Unive r sity , Pl aint i ff named NYU Hosp i ta l s Center ,
New York University Medical Center , NYU Langone Medica l Center ,
and NYU Hospital for Joint Diseases .

However , these entities

are not sufficient , even if they are trade names for the
University or are corporations connected to , but separate from ,
the University .

These trade names and unrelated corporations

cannot remain as proper Defendants in this action , but the case
is already dismissed on other grounds .

Under the New York Constitution , "a ll corporations
shall have the right to sue and shall be subject to be sued in
all courts in like cases as natura l persons ."

N. Y. Const . Art .

10 , § 4 ; see also , N. Y. Bus. Corp. Law§ 202(a)(2) .

However , a

plaintiff cannot bring an action against a business operating
under a trade name .

Kingvision Pay-Per - View , Ltd. v . Nunez , No .

14

05 - CV- 2 93 1 , 2 007 WL 281575 1, at*

(E .D . N. Y. Sept . 25 , 200 7 ) ;

Ragin v . Harry Mack Lowe Real Estate Co ., I nc ., 1 2 6 F . R . D. 475 ,
4 80 (S.D . N. Y. 1 98 9 ) ; Pro vo st y v . Lydia E . Hall Hosp ., 91 A . D. 2d
65 8 , 65 9 , 457 N. Y. S . 2d 106 (2d Dep ' t 1 98 2 ) ; Marder v . Betty ' s
Beauty Shoppe , 3 8 Misc . 2d 687 , 687 - 88 , 239 N. Y. S . 2d 923 , 92 4 (2 d
Dep ' t 1962) .

Se v eral Defendants wo u l d be dismi ssed from this acti o n
be c ause they are trade names and n o t individuals or entities
c apab l e o f suing o r being sued .

New York Universi t y Medi c al

Center , NYU Lang o ne Med i c a l Center , and NYU Ho spital for J o int
Di seases are not l egal entities amendable to suit .
56 . 1 Statement ,

at

~~

4 - 5.)

1

(NYU Ru l e

NYU Hosp i ta l s Center is a d omestic

n o t - for-profit co rporation and can be sued as a legal e n tity .
(NYU Rule 5 6 . 1 St a tement ,

at~

5. )

Howev er , Plainti ff ' s

p o sit i on was as a member o f t h e fa c ulty of the Sc ho o l of
Medici ne and Pl aint i ff was n o t empl o yed by the NYU Ho spi t als
Center .

(NYU Ru l e 5 6 . 1 Statement ,

at~

17 . )

Pla i nt i ff ' s

employment contract states that he is a member of t he facult y

1

The parties re l y on Sculerati v . New York Univers i ty et al ., No . 1 26439/02 ,
2003 W 2126237 1, at * 1 n . 1 (Sup . Ct . N. Y. Cnty . May 16 , 2003) to support
L
their positions . Plaintiff argues that the case stands for the proposition
that NYU Medical Cente r " is t he commonly use d name of the campus of NYU . "
However , the case also notes in the same footnote that the School of Medicine
" is an admin i stra ti ve unite of NYU ." Id . Furthe r , NYU was also a named
defendant in Sculerati , which is why the cas e did not n eed to addre ss the
issue presented here .

15

New York University School of Medicine and does not state that
Plaintiff's employer is the NYU Hospitals Center .

(NYU Rule

56 .1 Statement , Ex. B.)

Courts have allowed parties who have not named the
proper entities to have additional discovery into the
appropriate entity to sue and refused to dismiss a claim for
stating a trade name instead of a proper legal entity .

Ragin v .

Harry Mack Lowe Real Estate Co ., Inc., 126 F.R.D. at 480-481;
Darby v . Compagnie Nat. Air France, 132 F.R.D. 354, 355
(S.D .N. Y. 1990)

(allowing Plaintiff to amend his complaint to

name the proper legal entity since the proper defendant already
had notice of the suit) .
notice of the suit .

Here, the proper entity, NYU, had

The NYU Defendants argue that they notified

Plaintiff in their answer that only NYU was Plaintiff's employer
and therefore the only legal entity that cou l d properly be sued .
(NYU Defendants' Answer , NYU Rule 56 .1 Statement, Ex. P at
10-22.)

~~

However, Defendants ' answer states that "Plaintiff was

employed by the NYU School of Medicine, a division of New York
University, a component of NYU Lang one Medical Center ."

It was

plausible that Plaintiff believed he had named NYU Langone
Medical Center as a proper party.

Further, Plaintiff's

employment contract included information about hospital
responsibilities at the NYU Hospitals Center, which is a valid
16

legal entity named in th is suit that would support a good-faith
belief that Plaintiff had named a proper party.

Despite these potential good-fai th mistakes, Plaintiff
did not name the appropriate legal entity as his employer in
this action.

However, summary judgment is granted on other

grounds as noted above.

In view of the grant of summary

judgment to Defendants, NYU is deemed by the court to be a party
defendant against which the complaint is also dismissed.

17

Conc1usion

The Defendants ' motions for summary judgment are
granted in part , and denied in part.

It is so ordered .

New York, NY
Augustj , 2016
0

ROBERT W. SWEET
U . S.D . J .

18