Popat v. Levy et al

Filing 174

ORDER granting in part and denying in part 146 Motion for Discovery; granting in part and denying in part 148 Motion for Discovery. Signed by Hon. H. Kenneth Schroeder Jr. on 3/1/2022. (KER)

Case 1:15-cv-01052-EAW-HKS Document 174 Filed 03/01/22 Page 1 of 8

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SAURIN POPAT, M.D.,
Plaintiff,
v.

15-CV-1052W(Sr)

ELAD LEVY, MD.,
THE STATE UNIVERSITY OF NEW YORK
AT BUFFALO
UNIVERSITY AT BUFFALO SCHOOL
OF MEDICINE AND BIOSCIENCE,
UNIVERSITY AT BUFFALO
NEUROSURGERY GROUP,
UNIVERSITY AT BUFFALO
NEUROSURGERY, INC.,
and
KALEIDA HEALTH,
Defendants.

DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Elizabeth A.
Wolford, in accordance with 28 U.S.C. § 636(b), for all pretrial matters. Dkt. #17.

Plaintiff Saurin Popat is a medical doctor specializing in otolaryngology
and the Director of Head and Neck Surgery for Delaware Medical Group, P.C.
(“Delaware Medical”). Dkt. #60, ¶¶ 32-33. On December 18, 2013, upon
recommendation by defendant Elad Levy, M.D., Chair of Neurosurgery at State

Case 1:15-cv-01052-EAW-HKS Document 174 Filed 03/01/22 Page 2 of 8

University of New York at Buffalo School of Medicine and Bioscience (“UB Medical
School”),1 plaintiff was appointed to the position of Clinical Assistant Professor of
Neurosurgery at UB Medical School. Dkt. #60, ¶ 18 & Dkt. #108-1, p.142. By letter
dated July 23, 2014, Dr. Levy terminated plaintiff’s position with the Department of
Neurosurgery at UB Medical School effective August 29, 2014. Dkt. #108-1, p.144. Dr.
Levy claims that he terminated plaintiff from his position because of plaintiff’s attempt to
schedule a collaborative surgery when Dr. Levy would be away and because plaintiff
deviated from the agreed upon protocol during that surgery on July 22, 2014. Dkt. #1105, p.3.

Plaintiff’s second amended complaint alleges that Dr. Levy terminated
plaintiff in retaliation for his complaints of a hostile work environment and discrimination
based upon race and national origin and that Dr. Levy subsequently exerted pressure
upon other doctors to stop referring patients to plaintiff and interfered with plaintiff’s
employment relationship with Delaware Medical. Dkt. #60. Plaintiff asserts the following
causes of action: (1) discrimination on the basis of race and national origin and hostile
work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e, et. seq. (“Title VII”); (2) retaliation in violation of Title VII; (3) discrimination on
the basis of race and national origin, retaliation, and interference with plaintiff’s
employment relationship with Delaware Medical in violation of the New York State

1

Dr. Levy is also Chair of Neurosurgery at Kaleida Health and Chair of Neurosurgery for
University at Buffalo Neurosurgery (“UBNS”), which is part of UBMD, the single largest medical
group in Western New York, with more than 500 physicians in 18 medical specialties. Dkt. #60,
¶ 11.

-2-

Case 1:15-cv-01052-EAW-HKS Document 174 Filed 03/01/22 Page 3 of 8

Human Rights Law, Executive Law § 290, et seq., (“NYSHRL”); (4) discrimination and
retaliation in violation of 42 U.S.C. § 1981; (5) discrimination and retaliation in violation
of 42 U.S.C. § 1983; and (6) common law tortious interference with contract,
employment and prospective economic advantage. Dkt. #60. Plaintiff claims loss of
wages, benefits, pecuniary opportunities and promotional opportunities and seeks an
award of front-pay, back-pay, compensation for loss of future salary and benefits and
an award of punitive damages, as well as damages for mental anguish, humiliation,
embarrassment and emotional injury. Dkt. #60. Dr. Levy and UBNS assert a
counterclaim for slander. Dkt. #92.

Currently before the Court is defendants’ motion to preclude plaintiff from
introducing billing records from Delaware Medical and to preclude plaintiff’s expert
witness, Dr. Richard Wall, from testifying regarding damages based upon such records 2
because the records were not produced prior to plaintiff’s expert disclosure and were
overly redacted so as to render it impossible for defendants to review. Dkt. ##146, 148
& 149. Defendants argue that plaintiff has had open access to the records but ref uses
to allow defendants to view sufficient information so as to investigate whether the
records relate to referrals from UBNS. Dkt. #146-1, ¶ 35. Defendants argue that plaintiff
has created a scheme whereby Defendants are unable to
obtain the complete billing records from any source. Dr.

2

Dr. Wall reviewed detailed billing records for 46 patients who were treated by plaintiff in
conjunction with UBNS. Dkt. #154-1, p.5. Assuming that plaintiff would have performed most of
the procedures that UBNS performed with other surgeons subsequent to July 22, 2014, as he
had prior to that date, Dr. Wall opines that plaintiff lost $634,766 revenue from 2015 through
2019 and would lose an additional $4,096,722 in revenue over the course of the next twenty
years. Dkt. #154-1, pp.5-7.

-3-

Case 1:15-cv-01052-EAW-HKS Document 174 Filed 03/01/22 Page 4 of 8

Popat’s employer contends that only Dr. Popat is aware of
the referrals from UBNS. Dr. Popat then refuses to identify
the patients that were referred by UBNS under the guise that
doing so would be a HIPAA disclosure. Defendants thus
cannot obtain the billing records or even contest the billing
records because there is simply no information that confirms
these records are in fact relating to patients who may have
been referred from UBNS surgeons. The scheme has further
created a scenario whereby Dr. Popat, and only Dr. Popat,
can verify the referrals were in fact from UBNS providers.
Dkt. #146-1, ¶ 63. Moreover, defendants argue that plaintiff has failed to disclose any
billing records for referrals that occurred following 2014, despite admitting at his
deposition that he continues to receive referrals from other providers at UBNS. Dkt.
#146-1, ¶ 67. In the event that the Court declines to strike plaintiff’s expert witness,
defendants request that plaintiff be compelled to produce the records unredacted
except for patient name, address and date of birth from 2010 through the present and
appear for a supplemental deposition. Dkt. #146-1, ¶ 70. Defendants further request
that the Court allow them to depose Michael S. Haar, M.D., principal of Delaware
Medical, before the deposition of Dr. Wall and prior to the deadline for defendants’
expert disclosure. Dkt. #146-1, ¶ 70. Defendants also seek attorneys’ fees for the costs
of motion practice with respect to the billing records. Dkt. #146-1, ¶ 71.

Plaintiff responds that the records at issue were maintained by a nonparty, Delaware Medical, and that he disclosed Linda Gallitto, a m ember of the billing
staff at Delaware Medical as a potential witness in his initial disclosures. Dkt. #150,
¶¶ 4-5. Plaintiff further responds that he disclosed the billing records produced by
Delaware Medical upon receipt in accordance with the protective order, which requires
redaction of HIPAA protected information and that defendants have failed to
demonstrate that the information at issue is not HIPAA protected information. Dkt.
#150-23, pp.4-5. Plaintiff also argues that he should not be responsible f or defendants’
failure to enforce their subpoena against Delaware Medical or their inability to identify

-4-

Case 1:15-cv-01052-EAW-HKS Document 174 Filed 03/01/22 Page 5 of 8

which patients had been referred by UBNS. Dkt. #150, ¶ 7 & Dkt. #150-23, p.6. Plaintif f
notes that although the subpoena requests information from 2010 through the present,
defendants’ discovery demands only covered 2010 through July 22, 2014. Dkt. #150,
¶ 15. More specifically, plaintiff argues that billing records related to referrals
subsequent to July 22, 2014 are not responsive to defendants’ request for documents
supporting his claim of damages. Dkt. #150, ¶ 17. In any event, plaintiff notes that
defendants have failed to comply with the Court’s directive that UBNS provide a list of
all patients referred by UBNS physicians to plaintiff.3 Dkt. #150-23, p.3. Without this
information, plaintiff argues that Delaware Medical is unable to produce billing records
for such individuals. Dkt. #150-23, p.7.

Defendants reply that it is clear that plaintiff chose to withhold billing
records until his deposition was complete and, when the records were finally produced,
to redact them so as to make it impossible for defendants to verify them or challenge
the conclusions of plaintiff’s expert regarding damages resulting from lost referrals. Dkt.
#153, ¶¶ 14-16. Defendants continue to argue that the redaction of the billing records is
beyond what is reasonably necessary to comply with HIPAA, particularly given the
protective order. Dkt. #153, ¶ 19.

Rule 26(a) of the Federal Rules of Civil Procedure requires a party,
without awaiting a discovery request, to provide, inter alia, a computation of each
category of damages claimed, as well as documents or other evidentiary material upon
which such computation is based. Fed. R. Civ. P. 26(b)(1) provides, in relevant part:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
3

By Decision and Order entered November 3, 2020, the Court directed UBNS to provide
plaintiff with a list of all patients referred by UBNS physicians to plaintiff from January 1, 2012
through the present. Dkt. #114, p.17.

-5-

Case 1:15-cv-01052-EAW-HKS Document 174 Filed 03/01/22 Page 6 of 8

in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within the scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(e) requires a party to supplement initial disclosures and responses to
discovery demands in a timely manner. Any person from whom discovery is sought may
move for a protective order from the Court to protect that party from inappropriate
disclosure. Fed. R. Civ. P. 26(c)(1). The Court notes that it has endorsed two stipulated
protective orders during the course of this litigation - the most recent of which was
specifically enumerated as a “Stipulated HIPAA Protective Order.” Dkt. ##97-98 & 143144.

The Court also notes that this is the fifth decision pertaining to discovery
disputes among the parties, with two additional discovery motions (Dkt. #158, 160),
currently pending. Counsel for the parties should be collectively embarrassed at their
inability to craft an appropriate protective order and proceed with discovery of such
basic information without the involvement of the Court. The obvious acrimony of the
parties toward each other is no excuse to burden the Court with an issue that counsel
should have been able to manage with nothing more than basic professional courtesy.
However, given the reputations of the attorneys and medical professionals involved in
this matter, the Court has every confidence that all legal and ethical obligations
pertaining to confidentiality of protected health information will be observed.

Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure requires
disclosure of a computation of each category of damages claimed by a party, who must
also make available for inspection and copying the documents on which such
computation is based. Rule 26(e) of the Federal Rules of Civil Procedure requires a
party to supplement its disclosures in a timely manner. Rule 37(c)(1) of the Federal
-6-

Case 1:15-cv-01052-EAW-HKS Document 174 Filed 03/01/22 Page 7 of 8

Rules of Civil Procedure provides that if a party has failed to provide information as
required by Rule 26(a) or (e), the party is not allowed to use that information unless the
failure was substantially justified or is harmless. Notwithstanding the mandatory
language of the rule, the Court of Appeals has instructed district courts to exercise their
discretion to consider less drastic alternatives to avoid such a harsh remedy. See
Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988); Outley v. City of
N.Y., 837 F.2d 587, 591 (2d Cir. 1988). In exercising such discretion with respect to a
request to preclude expert testimony, the district court should consider: (1) the party’s
explanation for the failure to comply with discovery obligations; (2) the importance of the
testimony at issue; (3) the prejudice that the opposing party would suffer as a result of
having to prepare to meet such testimony; and (4) the possibility of a continuance.
Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006). Despite the Court’s
frustration with the party’s inability to agree upon an acceptable protective order, in light
of the importance of the calculation of damages to plaintiff’s ability to prosecute his
claims and the current procedural posture of the case as set forth above, which affords
defendants sufficient time to access the information necessary to assess Dr. Wall’s
opinion as to plaintiff’s damages so as to obviate any claim of prejudice, the Court
determines that preclusion is not warranted.

In accordance with 45 C.F.R. § 164.512(e): 4 (1) within 10 days of the entry
of this Decision and Order, plaintiff shall disclose the name and date(s) of service of
any patient that was referred to him by any UBNS provider between 2010 and the
present; (2) within 10 days of the entry of this Decision and Order, UBNS shall disclose
the name and date of referral and/or date(s) of service of any patient that it referred to
plaintiff between 2010 and the present; (3) within 60 days of the entry of this Decision
and Order, defendants shall serve an updated subpoena upon Delaware Medical

4

45 C.F.R. § 164.512(e)(1)(i) allows a covered entity to disclose protected health
information in the course of any judicial proceeding in response to a court order.

-7-

Case 1:15-cv-01052-EAW-HKS Document 174 Filed 03/01/22 Page 8 of 8

directing Delaware Medical to disclose certified billing records for any patient identified
by plaintiff and/or UBNS, with patient name, address and date of birth redacted; (4)
within 90 days of the entry of this Decision and Order, defendants may depose plaintiff,
at plaintiff’s expense, with respect to such referrals and certified billing records; (5)
within 90 days of the entry of this Decision and Order, defendants may serve an
updated subpoena upon Delaware Medical to depose a representative of Delaware
Medical with respect to such referrals and certified billing records; and (6) defendants’
expert disclosure shall be due within 30 days of the completion of said depositions. The
parties shall not use or disclose the certified billing records for any purpose other than
this litigation and shall return or destroy the certified billing records at the conclusion of
this litigation.

SO ORDERED.
DATED:

Buffalo, New York
March 1, 2022
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

-8-