Viera et al v. The City Of New York , et al

Filing 106

REPORT AND RECOMMENDATION re: 64 MOTION to Dismiss Voluntarily With Prejudice Plaintiff James Gosselin. filed by James Gosselin, 1 Complaint filed by James Gosselin, Josiy Viera. The Honorable Paul G. Gardephe, United States Dist rict Judge, has referred this matter to me to resolve plaintiff James Gosselin's motion to withdraw his claims with prejudice pursuant to Fed.R.Civ.P. 41(a)(2) (Docket Item ("D.I.") 64). (As further set forth in this Order.) Accordingl y, for all the foregoing reasons, I respectfully recommend that plaintiff Gosselin's motion to withdraw his claims with prejudice pursuant to Fed.Civ.P. 41(a)(2) (D.I. 64) be granted on the condition that (1) plaintiff Viera will not offer any d eposition testimony, affidavit or other evidence from Gosselin in support of her claims; (2) the statements set forth in Appendix A to this Report and Recommendation be deemed true in all subsequent proceedings in this matter, without prejudice to pl aintiff's right to object to the relevance or materiality of any statement and (3) Viera's expert be precluded from testifying to the statements set forth in Appendix B to this Report and Recommendation. I further recommend that defendants' request for other conditions be denied. Objections to R&R due by 1/27/2017 (Signed by Magistrate Judge Henry B. Pitman on 1/13/2017) Copies Sent By Chambers. (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
JOSIY VIERA and JAMES GOSSELIN,

:

Plaintiffs,

:

15 Civ. 5430 (PGG)(HBP)

:

REPORT AND
RECOMMENDATION

-againstTHE CITY OF NEW YORK and RICHMOND
UNIVERSITY MEDICAL CENTER,

:
:

Defendants.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

TO THE HONORABLE PAUL G. GARDEPHE, United States
District Judge,

I.

Introduction

The Honorable Paul G. Gardephe, United States District
Judge, has referred this matter to me to resolve plaintiff James
Gosselin's motion to withdraw his claims with prejudice pursuant
to Fed.R.Civ.P. 41(a)(2) (Docket Item ("D.I.") 64).

For the

reasons set forth on the recordings of two conferences I held in
this matter on July 15 and 29, 2016 and the additional reasons
set forth below, I respectfully recommend that Gosselin's motion
to dismiss be granted subject to certain conditions set forth
herein.

II.

Facts

The complaint alleges the following facts.
Plaintiff Josiy Viera is a deaf individual who communicates primarily through American Sign Language ("ASL").

At all

relevant times, she has resided with her fiancé, James Gosselin,
with whom she is raising eight children.
On or about December 1, 2014, Gosselin fell while
holding his infant son, A.G., and Gosselin, Viera and A.G. went
to Richmond University Medical Center's ("RUMC's") emergency
department for evaluation and treatment.

The complaint alleges

that RUMC "failed to provide an ASL interpreter for Ms. Viera,
and thereby failed to ensure effective communication with her in
a medical setting, by ignoring or denying her requests for
accommodation on an ongoing basis during her son A.G.'s medical
treatment" (Complaint, (D.I. 1) ("Compl.") ¶ 2).

RUMC diagnosed

A.G. with a broken leg and referred him to New York-Presbyterian
Hospital for further treatment.
Subsequent to the events of December 1, 2014, employees
of New York City's Administration for Children's Services ("ACS")
visited Viera and Gosselin on several occasions, apparently to
check on the safety of their children.

According to plaintiffs,

"[e]xcept for one instance, ACS never brought an ASL interpreter

2

[to] these meetings, despite requests from both Ms. Viera and Mr.
Gosselin.

Ms. Viera was unable to communicate with the ACS

agents, and felt helpless and terrified that her children would
be taken from her" (Compl. ¶ 3).
Plaintiffs commenced this action alleging that the
failure of both RUMC and ACS to provide an ASL interpreter
violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101
et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794; New York's Human Rights Law, N.Y. Exec. L. §§ 290 et seq.
and New York City's Human Rights Law, N.Y. Admin. Code §§ 8-101
et seq.
Defendants deposed Gosselin concerning the foregoing
alleged events.

In response to defense counsel's questioning,

Gosselin testified to an illustrious and valiant military history.

Gosselin testified that he served in the United States

Army for ten years and was attached to Echo Company of the 75th
United States Rangers Special Forces unit out of Fort Benning.
He further testified that he served three tours in Iraq, two
tours in Afghanistan and one tour in Egypt.

He claimed to have

served as a combat medic and a backup scout sniper.

Gosselin

also gave the following testimony:
Q.

Did you receive any awards from the military?

A.

Yes.
3

Q.

What did you receive?

A.

A Silver star and a Purple Heart. Good Service
Merit from the State of Connecticut. Good Service
Merit good [sic] from the State of Louisiana for
helping with Katrina. Good Service Merit from
North Carolina.

Q.

What is the Silver Star awarded for?

A.

Bravery and heroism.

Q.

When did you receive that award?

A.

2004.

Q.

And can you just tell me a little about the --

A.

I am not going to relive that, sorry. We were in
the battlefield. It was a very nasty time.

Q.

I just want to know basics.
in?

A.

Iraq. I saved a guy's life. It is no disrespect
towards you. I just don't want to relive that.

Q.

I understand.

What country were you

That's fine.

In 2004 when you received the award, where were
you when you actually received the award?
A.

I was given it in Fallujah at the Air Force base,
a little temporary Air Force base that they had
there. I officially got my documentation whenever
I came back to Fort Jackson, South Carolina right
at the beginning of 2005.

(Gosselin Dep. at 20-21).

Gosselin went on to claim that while

on active duty he was shot 14 times in both legs, that his leg
bones were fractured and that two metal rods were inserted in his

4

legs along with four screws and two pins.

He also claimed that

he was in a wheelchair for a year as a result of his injuries.
Subsequent investigation by defense counsel yielded
compelling evidence that Gosselin's testimony regarding his
military service was all a rather ignoble hoax.

An examination

of x-rays taken of Gosselin when he presented at RUMC's emergency
department disclosed no evidence of the wounds he claimed to have
suffered or the appliances he claimed were implanted.

In addi-

tion, a request to the National Personnel Records Center in St.
Louis for Gosselin's service record resulted in the following
response:

"We have reviewed [James Gosselin's] military person-

nel record . . . .

We were able to verify that the individual

served in the United States Army; however, no active duty was
performed other than for training purposes" (Exhibit to the
Letter of Anthony A. Lenza, Jr., Esq. to the Hon. Paul G.
Gardephe, dated May 13, 2016 (D.I. 46)).
Following the foregoing revelations, Gosselin sought to
withdraw his claims with prejudice pursuant to Fed.R.Civ.P.
41(a)(2).

In connection with the proposed withdrawal of

Gosselin's claims, Viera agreed that she would not call Gosselin
as a witness, nor would she rely on any of Gosselin's testimony
either at trial or in connection with any motions.

Although

defendants did not object to the withdrawal of Gosselin's claims
5

with prejudice and Viera's agreement not to call him or to use
his testimony, several disagreements remained concerning the
conditions that should attach to the dismissal.

Defendants

believed that some of Gosselin's testimony was favorable to them
and sought stipulations as to the facts asserted in that testimony.

Gosselin had also spoken with an expert retained by

plaintiffs, and defendants were also concerned that Gosselin's
testimony might be put before the fact finder through the testimony of the expert.

Defendants also sought to compel Gosselin to

respond to two requests to admit notwithstanding his Fifth
Amendment objection.

Finally, defendants sought to recover their

attorney's fees for the work resulting from Gosselin's claims.
In an effort to resolve the dispute, I held a conference with counsel on July 15, 2016 at which I directed defendants
to identify the specific facts to which they sought a stipulation
as a condition to the dismissal of Gosselin's claims.
One week later, defendants made written submissions
identifying the specific stipulations they sought.

RUMC sought

stipulations as to the following facts:
1.

Ms. Viera can read and write English (Gosselin
50-H Hearing Tr. 76:19-21).1

1

The citations refer to the source of the proposed
stipulated fact.
6

2.

In November 2014, Mr. Gosselin's primary means of
communication with Ms. Viera was signing 50% of
the time and texting 50% of the time (Gosselin
Dep. Tr. 30:16-20)

3.

Mr. Gosselin testified that he motions words with
his mouth while he signs to Ms. Viera which, she
understands approximately 33% of the time
(Gosselin Dep. Tr. 30:21-31:15).

4.

Prior to December 1, 2014, Mr. Gosselin did not
have any bad experiences at RUMC (Gosselin Dep.
Tr. 50:16-18).

5.

Prior to December 1, 2014, Mr. Gosselin is not
aware whether Ms. Viera had any bad experiences at
RUMC (Gosselin Dep. Tr. 50:20-51:2).

6.

On December 1, 2014 after 9:00PM, Mr. Gosselin
felt dizzy and fell while holding his infant son,
A.G., in his bedroom (Gosselin Dep. Tr. 33:1037:10).

7.

At that time, Mr. Gosselin weighed 280 lbs
(Gosselin Dep. Tr. 40:8-10).

8.

Mr. Gosselin fell, forcefully landing on A.G.'s
legs Gosselin Dep. Tr. 38:18-40:7).

9.

At approximately 10:30PM, Ms. Viera drove Mr.
Gosselin and A.G. to RUMC for evaluation and it
took about ten minutes to drive to the hospital
(Gosselin Dep. Tr. 51:3-12).

10.

Mr. Gosselin did not communicate with Ms. Viera in
triage (Gosselin Dep. Tr. 59:8-10).

11.

The triage nurse did not know Ms. Viera was deaf
(Gosselin Dep. Tr. 59:16-20).

12.

The emergency physician informed Mr. Gosselin that
A.G.'s leg was broken and he needed to be transferred to another hospital for treatment (Gosselin
Dep. Tr. 85:19-87:5).

7

13.

Mr. Gosselin relayed this information to Ms. Viera
on his cell phone by typing it into Notepad
(Gosselin Dep. Tr. 87:6-88:4).

14.

Mr. Gosselin explained to Ms. Viera that A.G. was
being transferred to a different hospital, as RUMC
could not take care of A.G. and that A.G. had a
broken leg (Gosselin Dep. Tr. 87:6-88:4).

15.

The emergency physician held the x-ray up to the
light and pointed out the fracture to Mr. Gosselin
which Ms. Viera observed as well (Gosselin Dep.
Tr. 85:19-86:5, 93:25-94:18).

16.

Ms. Viera looked at the x-ray and after viewing
the x-ray, Ms. Viera signed 'Wow' to Mr. Gosselin
while at RUMC (Gosselin Dep. Tr. 94:2-18).

17.

The x-ray marked Gosselin 2 at Mr. Gosselin's
deposition clearly shows a broken leg bone
(Gosselin Dep. Tr. 84:3-18).

18.

The nurse showed Ms. Viera the bottle of Tylenol
and paperwork that said Tylenol on it before giving the medicine to A.G. (Gosselin Dep. Tr.
93:8-24).

19.

Mr. Gosselin informed Ms. Viera that the emergency
physician's opinion of the cause of his dizziness
was dehydration (Gosselin Dep. Tr. 92:13-22).

20.

Ms. Viera has not been back to RUMC since December
2, 2014 and she will not go back to RUMC (Gosselin
Dep. Tr. 100:16-20).

(RUMC Submissions (D.I. 72)).
The City sought stipulations to the following facts:
1.

Ms. Viera can read and write in English (Gosselin
50-H Tr. 76:19-21).

2.

After Mr. Gosselin informed Ms. Gayle-Curtis that
Ms. Viera was deaf during an interview on December
2, 2014 at New York Presbyterian Hospital, Ms.
8

Gayle-Curtis asked if Ms. Viera can read and
write, to which Mr. Gosselin responded that she
can (Gosselin 50-H Tr. 46:17-20).
3.

In November of 2014, Mr. Gosselin's communications
with Ms. Viera were composed of signing approximately 50% of the time and texting 50% of the time
(Gosselin Dep. Tr. 30:16-20).

4.

Mr. Gosselin is the primary point of contact with
the schools of his and Ms. Viera's children, other
than the schools for Ms. Viera's children who are
deaf, and he passes information on to Ms. Viera
from the schools (Gosselin Dep. Tr. 117:5-16).

5.

During his interview with Ms. Gayle-Curtis on
December 2, 2014, Mr. Gosselin told her, "Well
then, by the look on your face, I'd assume that
you're an idiot because you don't look smart to
me" (Gosselin Dep. Tr. 142:15-17).

6.

During her interview of Mr. Gosselin, Ms. Gayle-Curtis informed him that she needed to visit Mr.
Gosselin's and Ms. Viera's home that night
(Gosselin Dep. Tr. 146).

7.

Mr. Gosselin texted Ms. Viera before Ms. Gayle-Curtis arrived at the home to inform her that the
Administration for Children's Services had interviewed him and was coming to the home (Viera 50-H
Tr. 33:3-18).

8.

Approximately one hour later, Mr. Gosselin received a FaceTime call from Ms. Viera and numerous
text messages (Gosselin Dep. Tr. 151:4-13,
151:22).

9.

The messages Mr. Gosselin received stated 'ACS is
here. What's going on?' (Gosselin Dep. Tr.
152:2-3).

10.

Mr. Gosselin called Ms. Viera on Face Time, and
Ms. Viera held the phone so that Mr. Gosselin
could see Ms. Gayle-Curtis a foot inside the front
door, holding up her identification before pro9

gressing into the home (Gosselin Dep. Tr.
154:6-11).
11.

Mr. Gosselin estimated that Ms. Gayle-Curtis spoke
to his and Ms. Viera's children on December 2,
2014 for 'just a few minutes' (Gosselin Dep. Tr.
160:9).

(Letter from Lauren A. Lively, Esq. to the undersigned, dated
July 21, 2016 (D.I. 71)).
Plaintiff responded to defendants' submissions by
letter dated July 28, 2016 (Letter from Andrew Rozynski, Esq. and
Leah Wiederhorn, Esq. to the undersigned (D.I. 73)).

Without

conceding relevance or materiality, plaintiff agreed to most of
the proposed stipulated facts but objected to a few.

Accord-

ingly, I convened a conference on July 29, 2016 to attempt to
resolve the disputes concerning the proposed stipulated facts and
the disputes concerning the other proposed conditions to the
dismissal.

III.

Analysis

A.

Proposed
Stipulated Facts

In her July 28, 2016 response (D.I. 73), plaintiff
Viera agreed to stipulate to all of defendants' proposals (without conceding relevance or materiality) except as discussed
below.
10

1.

RUMC's Proposed
Stipulated Facts

With one exception, and without conceding relevance or
materiality, plaintiff does not otherwise object to RUMC's
proposed stipulated facts.
At the July 29 conference, plaintiff objected to the
phrasing of RUMC's proposed stipulated fact no. 9, and RUMC
agreed to change the proposed stipulation to follow Gosselin's
testimony more closely.

The parties agreed that RUMC's proposed

stipulated fact no. 9 be amended to read, "At early ten maybe
10:30-ish, Ms. Viera drove Mr. Gosselin and A.G. to RUMC for
evaluation and it took about ten minutes to drive to the hospital."

With that amendment, plaintiff agreed to all of RUMC's

proposed stipulated facts, without conceding relevance or materiality.

2.

The City's Proposed
Stipulated Facts

Plaintiff had more numerous objections to the City's
proposed stipulated facts.

At the outset of the July 29 confer-

ence, plaintiff objected to the City's proposed stipulated facts
nos. 2, 4, 5, 8 and 11.

11

Plaintiff objected to the City's proposed stipulated
fact no. 2 primarily on the ground that it did not accurately
reflect all of Gosselin's testimony concerning his response to a
question posed by an ACS worker.

I suggested that the proposed

stipulated fact be amended to follow Gosselin's actual testimony
more closely, but Viera persisted in her objection.

I conclude

that the proposed stipulated fact should be taken as true as a
condition to the granting of Gosselin's motion to withdraw his
claims because it accurately reflects testimony provided by
Gosselin.

Accordingly, in addition to the facts to which the

parties have stipulated, the dismissal of Gosselin's complaint
should be conditioned on the following fact being deemed true:
After Mr. Gosselin informed Ms. Gayle-Curtis that Ms.
Viera was deaf during an interview on December 2, 2014
at New York Presbyterian Hospital, Ms. Gayle-Curtis
asked if Ms. Viera can read and write, to which Mr.
Gosselin responded yeah, but sign language -- I mean
deaf people and hearing people, the words are different. [Ms. Gayle-Curtis was] like what do you mean. So
[Mr. Gosselin] said they don't use apostrophe, they
don't use stuff like that, they don't leave words out.
The foregoing incorporates the potentially relevant portion of
Gosselin's 50-H testimony word for word.
Plaintiff Viera withdrew her objections (other than
materiality and relevance) to the City's proposed stipulated fact
nos. 4 and 5 at the July 29 conference.

12

The City agreed to rephrase its proposed stipulated
fact no. 8 to read, "After Ms. Gayle-Curtis departed, Mr.
Gosselin received a FaceTime call from Ms. Viera and numerous
text messages."

With that revision, plaintiff Viera withdrew her

objections, other than relevance and materiality.
Finally, Viera objected to the City's proposed stipulated fact no. 11.

I proposed amending the proposed stipulated

fact as follows to adhere more closely to Gosselin's actual
testimony:

"Mr. Gosselin estimated that Ms. Gayle-Curtis tried

to speak to his and Ms. Viera's children on December 2, 2014 for
just a few minutes" (Gosselin Dep. Tr. 160:9).
sisted in her objection.

Plaintiff per-

I conclude that the City's proposed

stipulated fact no. 11, as set forth above, should be taken as
true as a condition to the granting of Gosselin's motion to
withdraw his claims because it accurately reflects testimony
provided by Gosselin.

B.

Plaintiff's
Expert

Defendants also argued that the withdrawal of
Gosselin's claims and his testimony impacted the admissibility of
plaintiff's expert's testimony because, in preparing her report,
plaintiff's expert had spoken to Gosselin, Gosselin was present

13

when the expert interviewed Viera and the expert had expressed an
opinion on Gosselin's ability to communicate using ASL.

The

defendants' principal concern was that the expert would indirectly put Gosselin's testimony before the fact finder.

Defen-

dants sought either to preclude the expert from testifying or to
re-open her deposition at the expense of either Gosselin or
Viera.
Plaintiff retained Dr. Judy A. Shepard-Kegl as an
expert to testify to Viera's communication abilities; among other
credentials, Dr. Shepard-Kegl holds an M.A. and a Ph.D. in
linguistics and a number of certifications from the National
Registry of Interpreters for the Deaf.
addresses:

Dr. Shepard-Kegl's report

"Ms. Viera's use of interpreters; [h]er primary and

preferred mode of communication; and [h]er capacities with
respect to the use of American Sign Language and of alternate
communication modes such as speech, lipreading, reading, and
writing in English" (Undated Report of Dr. Judy A. Shepard-Kegl
("S-K Report", at 2).
Dr. Shepard-Kegl's report opens with a description of
the alleged events that give rise to this action, most of which
are not in dispute.2

2

The report then goes on to discuss a

For example, there is no dispute that the plaintiffs and
(continued...)
14

number of general principles concerning communication and communication assessment tools; this discussion does not involve the
facts of this case.

The final section of Dr. Shepard-Kegl's

report is comprised of her assessment of Viera's communication
abilities, including the results of several tests administered by
Dr. Shepard-Kegl.

Dr. Shepard-Kegl did not assess Gosselin's

abilities in ASL, although she did observe his signing while he
was with Viera during the latter's assessment, and her conclusion
addresses Viera's communication skills.

She does, however, make

the following statement concerning Gosselin in her report:
A look at Ms. Viera's communication skills has
revealed that critical information could not have been
shared with her effectively via any form of English -speech, writing, reading, lipreading, etc.; or [sic]
could she share information via English. While her
fiancé Could converse with her about shared topics, he
is not competent to interpret for her. In watching the
DWI video, he failed to understand exactly the kind of
signing she comprehends best. Her underage children
were no more competent to do so. As friends and family
they are also not considered qualified under the law
because they are not impartial.
(S-K Report at 78).

2

(...continued)
their infant son presented at RUMC's Emergency Department on
December 1, 2014, no dispute that RUMC did not provide an ASL
interpreter, no dispute that ACS personnel subsequently visited
Viera at home and no dispute that, with one exception, the ACS
employee who performed the home visits was not accompanied by an
ASL interpreter.
15

After hearing extensive argument on July 29, I concluded that defendants' applications either to preclude Dr.
Shepard-Kegl or to reopen her deposition, as conditions to the
dismissal of Gosselin's claims, should be denied because defendants failed to demonstrate how the revelations concerning
Gosselin's deposition testimony called Dr. Shepard-Kegl's conclusions into question or justified further inquiry.

Defendants

argued that in Gosselin's interactions with Dr. Shepard-Kegl, he
may have exaggerated certain facts or understated his own abilities to communicate in ASL.

Although this possibility exists, it

existed even before the discovery that Gosselin appeared to have
exaggerated his military service.

At the time he met with Dr.

Shepard-Kegl, Gosselin was a party with an interest in the
outcome of the case and had the interest, that all parties have,
to shade the facts in his favor.

Gosselin's interest in under-

stating his own abilities in ASL in order to enhance the likelihood of prevailing on the merits has never changed, and defendants had the same incentive and ability to cross-examine Dr.
Shepard-Kegl concerning Gosselin's possible exaggeration of
facts, or understatement of his ASL skills, even before the
discovery of Gosselin's apparent perjury.

The discovery that

Gosselin might have fabricated his military exploits does not
alter the bases on which defendants could have cross-examined Dr.
16

Shepard-Kegl.

Stated differently, because Gosselin's purported

military exploits played no role in the formation of Dr. ShepardKegl's opinion, the revelation that Gosselin's claimed heroics
are probably fabrications does not warrant the preclusion of Dr.
Shepard-Kegl or the re-opening of her deposition.
However, there are two statements in Dr. Shepard-Kegl's
report that appear to have originated with Gosselin.

At pages 4

and 5 of her report, Dr. Shepard-Gosselin states:
[B]oth the hospital and ACS often attempted to force
James Gosselin or Ms. Viera's children to interpret
instead of properly accommodating Ms. Viera's disability. In the case of using Mr. Gosselin as an interpreter, we also see the wholly inappropriate use of a
family member who, until the ACS investigation determined no evidence of abuse of neglect [sic], was also
under investigation for abuse and neglect.
*

*

*

Near weekly surprise visits were held, but none where
Ms. Viera had any communication access except via her
husband or, in the absence of her husband, one of her
young children. None of these individuals were competent to interpret.
To the extent the foregoing statements reflect historical facts,
Dr. Shepard-Kegl should be precluded from testifying to them
because she has no first-hand knowledge of those facts.

17

C.

Requests to Admit

Defendants also seek to condition the dismissal of
Gosselin's claim on his responding to the following requests to
admit:
1. The genuineness of the attached FOIA response
from the National Personnel Records Center dated April
29, 2016 documenting that James Gosselin never performed active duty for the United States Army other
than for training purposes.
2. The fact that James Gosselin never performed
active duty for the United States army other than for
training purposes.
Gosselin has refused to respond to a request for these admissions, citing his Fifth Amendment privilege against self- incrimination.

Defendants claim that the fact that Gosselin testified

about his military history operates as a waiver of his Fifth
Amendment privilege.
Defendants application to require responses to these
requests to admit as a condition of the dismissal of Gosselin's
claims should be denied.

As a threshold matter, the requests

have no relevance if Gosselin's claims are dismissed.

Once

Gosselin is out of the case, and given plaintiff's agreement not
to rely on his testimony, the fact that he probably lied about
his military record has no relevance to the alleged facts that
give rise to Viera's claim nor does that fact relate to Viera's

18

credibility.

In short, once Gosselin is out of the case, the

fact that he probably lied about his military record has nothing
to do with the remaining issues.
Moreover, Gosselin has not waived his Fifth Amendment
privilege.

Defendants' contention that his deposition testimony

itself is a waiver is based on flawed logic.

Defendants' argu-

ment is based on the proposition that "[a] witness who fails to
invoke the Fifth Amendment against questions as to which he could
have claimed it is deemed to have waived his privilege respecting
all questions on the same subject matter."

United States v.

O'Henry's Film Works, Inc., 598 F.2d 313, 317 (2d Cir. 1979).
Defendants argue that by testifying about his military history,
waived his Fifth Amendment privilege with respect to the two
requests to admit set forth above.
There is no reasons to believe and no claim that
Gosselin committed any crime before his deposition.

Assuming

that Gosselin did lie at his deposition regarding his military
record, his perjury did not occur until he made the false statements themselves.

Because Gosselin's testimony concerning his

military record (assuming its falsity) was itself the crime of
perjury, that testimony itself could not be a waiver of the Fifth
Amendment privilege.

As a matter of logic, the privilege against

self-incrimination cannot be waived through a party's failure to
19

assert the privilege until the potential for criminal liability
exists.

If it was false, Gosselin's testimony, under oath,

concerning his military record was itself a crime.

If Gosselin

subsequently and voluntarily admitted that his testimony was
false, he would have waived his Fifth Amendment privilege, but
there is no claim that he did so.

There are no statements by

Gosselin subsequent to his deposition testimony admitting the
falsity of that testimony and, therefore, no waiver.
Because there is no evidence of any conduct by Gosselin
subsequent to his deposition that could constitute a waiver,
Gosselin's Fifth Amendment objection to the requests to admit is
well founded.

D.

Attorney's Fees

Defendants also seek to condition the dismissal of
Gosselin's claims on Gosselin reimbursing them for at least some
of their attorney's fees.
To the extent defendants seek fees under Rule 41(a)(2),
their claims are barred by Colombrito v. Kelly, 764 F.2d 122 (2d
Cir. 1985).

In that case, like this one, the plaintiff had

withdrawn his claims with prejudice pursuant to Rule 41(a)(2),
and defendants sought a fee award as a condition of the dis-

20

missal.

In reversing an award of fees by the District Court, the

Court of Appeals explained:
The reason for denying a fee award upon dismissal
of claims with prejudice is simply that the defendant,
unlike a defendant against whom a claim has been dismissed without prejudice, has been freed of the risk of
relitigation of the issues just as if the case had been
adjudicated in his favor after a trial, in which event
(absent statutory authorization) the American Rule
would preclude such an award. Here, there is no question that the dismissal is with prejudice as to [plaintiffs], leaving [defendants] wholly free of the risk of
[plaintiff]-supported suits stemming from adjudication
of the merits. We would not want to discourage such a
salutory disposition of litigation by threatening to
award attorneys' fees if a plaintiff did not complete a
trial. See [Larchmont Eng'g, Inc. v. Toggenburg Ski
Ctr., Inc., 444 F.2d 490, 491 (2d Cir. 1971)]; Arthur
v. Starrett City Associates, supra, 98 F.R.D. at 505.
*

*

*

Our reading of Rule 41(a)(2) does not altogether
foreclose fees in the event of a dismissal with prejudice. Conceivably such an award might be one of the
appropriate "terms or conditions" authorized by Rule
41(a)(2), e.g., if a litigant had made a practice of
repeatedly bringing potentially meritorious claims and
then dismissing them with prejudice after inflicting
substantial litigation costs on the opposing party and
the judicial system. In any event, this is not such a
case.
Colombrito v. Kelly, supra, 764 F.2d at 134-35 (footnote omitted).
There is no evidence that Gosselin has engaged in the
type of practice identified by the Court of Appeals as poten-

21

tially warranting an award of fees as a condition to dismissal
under Rule 41(a)(2).
As an alternative, defendants rely on the Court's
inherent powers to support an award of fees.
fails under Colombrito.

This argument also

As explained in that case, an award of

fees to a prevailing party runs contrary to the American Rule.

A

litigant may, however, seek an award of fees under the Court's
inherent power when a party commences an action frivolously and
in bad faith.

"The bad faith exception permits an award [of

fees] upon a showing that the claim is entirely without color and
has been asserted wantonly, for purposes of harassment or delay,
or for other improper reasons.

Neither meritlessness alone nor

improper motives alone will suffice."

Colombrito v. Kelly,

supra, 764 F.2d at 133 (internal quotation marks and citations
omitted).
Although defendants claim that Gosselin's apparent
perjury at his deposition renders his claims frivolous, defendants' argument is without merit because Gosselin's apparent
perjury bears no relationship to the merits of the action.

In an

apparent effort to burnish his credibility, Gosselin appears to
have lied about his military service -- a matter that has nothing
to do with the merits of this action.

Moreover, there is no

dispute that the events that are central to this action -22

defendants' failure to provide an ASL interpreter for Viera
during the visit to RUMC and during ACS home visits -- did, in
fact, occur.

Finally, Gosselin's decision to withdraw his claims

with prejudice does not give rise to an inference that his claims
were frivolous; rather, it was an attempt to prevent Viera from
being adversely affected by Gosselin's perjury.

Once Gosselin's

apparent perjury was disclosed, his credibility was profoundly
damaged and there was a risk of spill-over prejudice to Viera.
If anything, Gosselin's decision to withdraw his claims is an
acknowledgment only of the irremediable damage he did to his own
credibility.

There is, therefore, no basis for an award of fees

under the frivolous-and-bad-faith exception to the American Rule.

IV.

Conclusion

Accordingly, for all the foregoing reasons, I respectfully recommend that plaintiff Gosselin's motion to withdraw his
claims with prejudice pursuant to Fed.Civ.P. 41(a)(2) (D.I. 64)
be granted on the condition that (1) plaintiff Viera will not
offer any deposition testimony, affidavit or other evidence from
Gosselin in support of her claims; (2) the statements set forth
in Appendix A to this Report and Recommendation be deemed true in
all subsequent proceedings in this matter, without prejudice to
plaintiff's right to object to the relevance or materiality of
23

any statement and (3) Viera's expert be precluded from testifying
to the statements set forth in Appendix B to this Report and
Recommendation.

I further recommend that defendants' request for

other conditions be denied.

V.

OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections.

See also Fed.R.Civ.P. 6(a).

Such objections (and

responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the Honorable
Paul G. Gardephe, United States District Judge, 40 Centre Street,
Room 2204, and to the Chambers of the undersigned, 500 Pearl
Street, Room 1670, New York, New York 10007.

Any requests for an

extension of time for filing objections must be directed to Judge
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL

Gardpehe.

RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE
REVIEW.

Thomas v. Arn, 474 U.S. 140, 155 (1985); United States

v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank
v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair

24

Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714
F.2d 234, 237-38
Dated:

(2d Cir. 1983)

(per curiam).

New York, New York
January 13, 2017

Respectfully submitted,

lL....:z.«._._
HENRY PITMAN
United States Magistrate Judge
Copies transmitted to:
All Counsel

25

APPENDIX A
1.

Ms. Viera can read and write English.

2.
In November 2014, Mr. Gosselin's primary means of
communication with Ms. Viera was signing 50% of the time and
texting 50% of the time.
3. Mr. Gosselin testified that he motions words with his
mouth while he signs to Ms. Viera, which she understands approximately 33% of the time.
4.
Prior to December 1, 2014, Mr. Gosselin did not have any
bad experiences at RUMC.
5.
Prior to December 1, 2014, Mr. Gosselin is not aware
whether Ms. Viera had any bad experiences at RUMC.
6. On December 1, 2014 after 9:00PM, Mr. Gosselin felt
dizzy and fell while holding his infant son, A.G., in his bedroom.
7.

At that time, Mr. Gosselin weighed 280 lbs ..

8.

Mr. Gosselin fell,

forcefully landing on A.G. 's legs.

9. At early ten maybe 10:30-ish, Ms. Viera drove Mr.
Gosselin and A.G. to RUMC for evaluation and it took about ten
minutes to drive to the hospital.
10.
triage.
11.

Mr. Gosselin did not communicate with Ms. Viera in

The triage nurse did not know Ms. Viera was deaf.

12. The emergency physician informed Mr. Gosselin that
A.G. 's leg was broken and he needed to be transferred to another
hospital for treatment.
13. Mr. Gosselin relayed this information to Ms. Viera on
his cell phone by typing it into Notepad.
14. Mr. Gosselin explained to Ms. Viera that A.G. was being
transferred to a different hospital as RUMC could not take care
of A.G. and that A.G. had a broken leg.
26

15. The emergency physician held the x-ray up to the light
and pointed out the fracture to Mr. Gosselin which Ms. Viera
observed as well.
16. Ms. Viera looked at the x-ray and after viewing the
x-ray, Ms. Viera signed 'Wow' to Mr. Gosselin while at RUMC.
17. The x-ray marked Gosselin 2 at Mr. Gosselin's deposition clearly shows a broken leg bone.
18. The nurse showed Ms. Viera the bottle of Tylenol and
paperwork that said Tylenol on it before giving the medicine to
A. G.
19. Mr. Gosselin informed Ms. Viera that the emergency
physician's opinion of the cause of his dizziness was dehydration.
20. Ms. Viera has not been back to RUMC since December 2,
2014 and she will not go back to RUMC.
21. After Mr. Gosselin informed Ms. Gayle-Curtis that Ms.
Viera was deaf during an interview on December 2, 2014 at New
York Presbyterian Hospital, Ms. Gayle-Curtis asked if Ms. Viera
can read and write, to which Mr. Gosselin responded yeah, but
sign language -- I mean deaf people and hearing people, the words
are different.
[Ms. Gayle-Curtis was] like what do you mean.
So
[Mr. Gosselin] said they don't use apostrophe, they don't use
stuff like that, they don't leave words out.
22.
In November of 2014, Mr. Gosselin's communications with
Ms. Viera were composed of signing approximately 50% of the time
and texting 50% of the time.
23. Mr. Gosselin is the primary point of contact with the
schools of his and Ms. Viera's children, other than the schools
for Ms. Viera's children who are deaf, and he passes information
on to Ms. Viera from the schools.
24. During his interview with Ms. Gayle-Curtis on December
2, 2014, Mr. Gosselin told her, "Well then, by the look on your
face, I'd assume that you're an idiot because you don't look
smart to me."

27

25. During her interview of Mr. Gosselin, Ms. Gayle-Curtis
informed him that she needed to visit Mr. Gosselin's and Ms.
Viera's home that night.
26. Mr. Gosselin texted Ms. Viera before Ms. Gayle-Curtis
arrived at the home to inform her that the Administration for
Children's Services had interviewed him and was coming to the
home.
27. After Ms. Gayle-Curtis departed, Mr. Gosselin received
a FaceTime call from Ms. Viera and numerous text messages.
28. The messages Mr. Gosselin received stated 'ACS is here.
What's going on?'
29. Mr. Gosselin called Ms. Viera on Face Time, and Ms.
Viera held the phone so that Mr. Gosselin could see Ms. Gayle-Curtis a foot inside the front door, holding up her identification before progressing into the home.
30. Mr. Gosselin estimated that Ms. Gayle-Curtis tried to
speak to his and Ms. Viera's children on December 2, 2014 for
just a few minutes.

28

APPENDIX B

1.
[B]oth the hospital and ACS often attempted to force
James Gosselin or Ms. Viera's children to interpret instead of
properly accommodating Ms. Viera's disability.
In the case of
using Mr. Gosselin as an interpreter, we also see the wholly
inappropriate use of a family member who, until the ACS investigation determined no evidence of abuse of neglect [sic] , was also
under investigation for abuse and neglect.
2. Near weekly surprise visits were held, but none where
Ms. Viera had any communication access except via her husband or,
in the absence of her husband, one of her young children.
None
of these individuals were competent to interpret.

29