Thompson v. The Jamaica Hospital Medical Center et al

Filing 66

OPINION AND ORDER #105595 re: 51 MOTION to Preclude . filed by New York University Medical Center, NYU Hospital for Joint Diseases, NYU Hospitals Center, NYU Langone Medical Center. The NYU Defendants' motion to dismiss or preclude pursuant to Rule 37 is therefore granted in part and denied in part, as set forth above. It is so ordered. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 6/19/2015) (ajs) Modified on 6/19/2015 (soh).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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SEAN THOMPSON,
Plaintiff,
13 Civ. 1896(RWS)
- against THE JAMAICA HOSPITAL MEDICAL CENTER,
NYU HOSPITALS CENTER, NEW YORK
UNIVERSITY MEDICAL CENTER, NYU LANGONE
MEDICAL CENTER, and NYU HOSPITAL FOR
JOINT DISEASES,
Defendants.

OPINION and
ORDER

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A P P E A R A N C E S:
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Attorneys for the Plaintiff
FRIER & LEVITT, LLC
84 Bloomfield Ave.
Pine Brook, NJ 07058
By:
Jonathan E. Levitt, Esq.
Michelle L. Greenberg, Esq.
Attorneys for the NYU Defendants
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
150 East 42nd Street
New York, NY 10017
By:
Ricki E. Roer, Esq.
William Fuger Cusack, III, Esq.

..,.,.,.._- ....

Defendants NYU Hospitals Center, New York University
Medical Center, NYU Langone Medical Center, and NYU Hospital for
Joint Diseases

(collectively, the "NYU Defendants") have moved

pursuant to Federal Rule of Civil Procedure 37(b) (2) to either
dismiss the damages claims against them or to preclude Plaintiff
Sean Thompson ("Thompson" or the "Plaintiff") from introducing
any evidence of damages against them, based on an alleged
violation of the Court's October 22, 2014 Order compelling
discovery.

For the reasons set forth below, the motion is

granted in part and denied in part.

Background and Prior Proceedings

This is a diversity case alleging state-law whistleblower
claims, brought by the Plaintiff, Sean Thompson, against five
hospital organizations that previously employed him.

On March

31, 2013, Thompson filed a Complaint alleging that he was
terminated from his employment at Jamaica Hospital 1 and his
faculty position at NYU because he brought patient care and
safety issues to the attention of his supervisors.
Dkt. No.

1.)

(Complaint,

Thompson alleged that this termination violated

Sections 740 and 741 of the New York Labor Law and demanded

Defendant Jamaica Hospital Medical Center is represented by different
counsel than the NYU Defendants and is not a party to this motion.

1

reinstatement in his former position, back pay and benefits,
costs and attorney's fees, punitive damages, and any other
relief the Court deems proper.

(Id. at 5-7.)

On September 24, 2014, the NYU Defendants submitted a
letter-motion to compel the Plaintiff to produce documents
supporting various aspects of his damages claims. 2

After oral

argument on October 15, 2014, the Court issued an Order
requiring the Plaintiff to produce the requested documents by
November 21, 2014

(the "October 22 Order" or the "Order").

In

specific, Thompson was ordered to produce a computation of
damages, including a formula for how the computation was
generated and supporting documents; documents related to his
claim for lost income, including tax returns from 2012 onwards
and information about attempts to secure other employment from
2010 onwards; documents relating to damages mitigation;
documents relating to lost malpractice, health, and dental
insurance premiums; and documents relating to his claim of lost
bonuses.

(Order, Dkt. No. 43.)

On November 26, 2014, after the

deadline set by the Order, the Plaintiff produced 57 pages of
documents.

(Affidavit of Michelle Greenberg, Dkt. No.

64

(the

"Greenberg Aff."), Ex. B.)
Viewing the production as insufficient, the NYU Defendants

2

The letter-motion is not available on ECF.

filed the instant motion on March 9, 2015, seeking Rule 37
sanctions against Thompson for failure to provide discovery in
response to the October 22 Order.

(See Memorandum of Law in

Support of Motion for F.R.C.P. Rule 37 Dismissal and Preclusion
Motion, Dkt. No. 52

(the "NYU Mem.") at 1.)

The NYU Defendants

seek either dismissal of the damages claims against them or, in
the alternative, to have Thompson precluded from introducing any
evidence of damages against them.

(Id.)

The motion was heard

on submission on May 20, 2015.

Applicable Standard

When a party fails to provide discovery in response to a
court order, Federal Rule 37(b) (2) allows the Court to impose a
variety of sanctions, from prohibiting certain claims and
defenses to staying proceedings to dismissal of the action in
whole or in part.

Rule 37 requires that any sanction be "just,"

in order to ensure that "the severity of sanction [] be
commensurate with the non-compliance."

Shcherbakovskiy v. Da

Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007).

A

district court has "wide discretion" in determining what
sanction is appropriate, Daval Steel Prods. v. M/V Fakredine,
951 F.2d 1357, 1365 (2d Cir. 1991), but dismissal should not be
imposed absent "willfulness, bad faith, or any fault" on the

part of the party that failed to comply.

Shcherbakovskiy, 490

F.3d at 140 (quotation omitted).

Analysis

A. Plaintiff Has Not Complied With the October 22 Order

As an initial note, it is undisputed that Thompson failed
to produce the required documents by the November 21, 2014
deadline set by the Order.

Thompson claims that he mailed the

documents on November 26 (Plaintiff's Brief in Opposition to NYU
Defendant's Motion to Dismiss, Dkt. No. 63 (the "Pl. Br."), at
3), while the NYU Defendants claim that they had still not
received the production by December 1, and that they only
received the documents at an unspecified later date.

(NYU Mem.

at 5.)
The parties differ on what the production contained.

The

NYU Defendants argue that "the only documents produced by
plaintiff were portions of his 2012 and 2013 federal tax forms."
(Id.)

Thompson argues that he "produced all outstanding

documents in his possession," and that the documents produced
contained "pay stubs, post-termination insurance premiums, and
tax returns."

(Pl.

Br. at 3.)

Inspection of the actual production, attached as Exhibit B

to the Affidavit of Michelle Greenberg, contradicts the NYU
Defendants' representations that Thompson "did not produce any
state tax records, applications, offers of employment, paycheck
stubs, employment contracts, or other documents related to any
income provided by any other employer." (NYU Defendants' Reply
Memorandum of Law in Support of Motion for F.R.C.P. Rule 37
Dismissal and Preclusion Motion, Dkt. No. 65 (the "NYU Reply
Mem. ") , at 4 . )

Thompson's production included New York and New

Jersey tax returns as well as his federal forms, plus insurance
information and what appear to be pay stubs and W-2s from his
post-termination employment.

The NYU Defendants' reply brief

does not dispute that Exhibit B to the Greenberg Affidavit
accurately reflects the production they received.
However, inspection of the production also establishes
Thompson's noncompliance with the October 22 Order.

His cover

letter to the production lists each of the seven categories of
documents in the October 22 order and follows them with specific
objections and responses, asserting that some are vague, some
unduly burdensome, and some require documents in the Defendants'
possession.

(Greenberg Aff., Ex. B. at 1-3.)

For each

category, Thompson reserves the right to supplement his response
at a later date.

(Id.)

Thompson had an opportunity to

challenge the appropriateness of the Order's terms last fall,
during the resolution of the NYU Defendants' motion to compel.

That motion having been granted, Thompson was obligated to abide
by its contents, not contest them further.
The documents produced by Thompson are responsive to three
of the seven categories from the October 22 Order, covering lost
income, lost malpractice premiums, and Thompson's mitigation
evidence.

(Id. at 1-2.)

On three additional categories,

covering lost health insurance premiums, lost dental insurance
premiums, and lost surplus bonuses, Thompson has not produced
anything because he asserts that all relevant documents are in
the Defendants' possession.

(Id. at 2-3.)

Thompson was also

ordered to produce "a computation of damages, including but not
limited to a specific formula indicating how [his] theory of
damages is supported, along with supporting documents," but
declined to do so.

Thompson asserted that the computation would

require information in the possession of the Defendants,
particularly concerning surplus bonuses, insurance, and
compensation.

(Id. at 1.)

Rather than include the formula

demanded in the Order, Thompson told the NYU defendants that
they could see generally the entire 57-page production.

(Id.)

It should not take a conference, a motion to compel, a
court order, and a motion for sanctions to generate a
computation of damages.

See Design Strategy, Inc. v. Davis, 469

F.3d 284, 295 (2d Cir. 2006).

That computation is required in a

plaintiff's initial disclosures pursuant to Rule

2 6 (a) ( 1) (A) (iii) , and requires both a dollar amount sought and
some analysis explaining how that figure was arrived at.
Max Impact, LLC v. Sherwood Grp.,

See

Inc., No. 09 Civ. 902, 2014 WL

902649, at *5-6 (S.D.N.Y. Mar. 7, 2014).

When a case such as

this one has progressed into discovery, a more detailed
calculation becomes necessary.
Strategy, 469 F.3d at 295.

See id.; see also Design

Thompson was required to make this

showing; merely gesturing at a large set of documents is not
sufficient.

See Design Strategy, 469 F.3d at 295.

As with

Thompson's other objections and reservations, the time to
contest the appropriateness of the computation requirement was
at the motion to compel stage, or at the time of initial
disclosures.

When the October 22 Order was issued, it was

Thompson's responsibility to comply.
In sum, Thompson's production was insufficient to comply
with the October 22 Order, at least inasmuch as it did not
include a damages calculation, and perhaps in not including
further documents.

B.

Further Production and Preclusion Are Warranted

The Second Circuit has laid out several factors useful for
district courts making a discretionary Rule 37 sanctions
determination, including 1) the willfulness of the noncompliant

party and the reason for noncompliance, 2) the efficacy of
lesser sanctions, 3) the duration of the period of
noncompliance, and 4) whether the noncompliant party had been
warned of the consequences of noncompliance.

Antonmarchi v.

Consol. Edison Co. of N.Y., Inc., 514 F. App'x 33, 35 (2d Cir.
2013) .

In this case, the objections and responses in Thompson's

cover letter, combined with his repeated refusal to provide a
damages calculation against the NYU Defendants, show at least
prima facie evidence of willful noncompliance.

The length of

the period of noncompliance is arguable, lasting from the
issuance of the October 22 Order at a minimum and from the
filing of initial disclosures at a maximum.
The NYU Defendants ask the Court to dismiss Thompson's
claims against them or, in the alternative, to preclude Thompson
from offering any evidence of damages against them.
at 1.)

(NYU Mem.

Such drastic sanctions are not appropriate here.

"Dismissal [under Rule 37) constitutes a denial of access to
justice; if the disciplined party had a valid claim, dismissal
results in injustice to that party and a windfall to its
adversary.

It therefore should be resorted to only to the

minimum extent necessary to induce future compliance and
preserve the integrity of the system."

Litton Sys., Inc. v.

AT&T, 91 F.R.D. 574, 576 (S.D.N.Y. 1981); accord Metro Found.
Contractors, Inc. v. Arch Ins. Co., 551 F. App'x 607, 609-10 (2d

Cir. 2014).

Precluding any evidence of damages against the NYU

Defendants would have a functionally similar effect; while
Thompson might win reinstatement if he ultimately prevails at
trial

(See Complaint, Dkt. No. 1, at 7), granting the preclusion

the NYU Defendants seek would cut him off from virtually all
other relief against them.
Although Thompson missed the deadline set by the October 22
Order and made an incomplete production, he did partially
comply.

Where a party has made a substantial effort to comply

with a discovery order but was deficient in certain respects,
lesser sanctions are generally appropriate.

See, e.g.,

Ulyanenko v. Metro. Life Ins. Co., 275 F.R.D. 179, 185-86
(S.D.N.Y. 2011).
Thompson is therefore precluded from offering any documents
not yet produced in discovery as evidence of damages against the
NYU Defendants.

He may of course use any evidence he has

already produced, or produces within two weeks, any documents he
acquires from the Defendants or third parties, or any documents
acquired subsequent to the entry of this Opinion and Order.

3

Thompson must also produce his computation of damages within two
weeks, relying on the documents he has produced or acquired
through discovery.

Thompson may also offer his 2014 tax returns, which would not have been
generated at the time of the October 22 Order.

3

Conclusion

The NYU Defendants' motion to dismiss or preclude pursuant
to Rule 37 is therefore granted in part and denied in part, as
set forth above.

It is so ordered.

New York, NY
June/
2015

f

U.S.D.J.