WILLIAM T. LAWRENCE, District Judge.
Before the Court are three motions: the Plaintiff's Motion to Exclude the Opinions and Testimony of Defendants' Proffered Expert, Gary Skoog, PhD (Dkt. No. 140); the Defendants' Motion to Exclude and Objection to Plaintiff's Proffered Experts (Dkt. No. 142); and the Defendants' Motion for Clarification (Dkt. No. 154). The motions are fully briefed and the Court, being duly advised, rules as follows.
The Defendants (collectively, "the Hospital") move to exclude the opinions offered by all four of Plaintiff Dr. Talal Hamdan's experts. Dr. Hamdan offered the opinions of Dr. Marc R. Stauffer, Dr. Craig M. Walker, and Dr. Barry S. Weinstock, all of whom, like him, are interventional cardiologists. George V. Launey, PhD, relying on the opinions of these three interventional cardiologists, then calculated Dr. Hamdan's past and future economic loss as a result of the facts underlying this lawsuit.
The Seventh Circuit has recently reaffirmed the standard that district courts must use to determine if expert testimony is admissible at trial:
Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3d 405, 409 (7th Cir. 2014) (internal citations omitted). With this standard in mind, the Court turns to the Hospital's objections, beginning with the Hospital's objections to the three interventional cardiologists' opinions.
The pertinent portion of Dr. Stauffer's opinion is as follows:
Dkt. No. 142-3 ¶ 8. The Hospital argues that Dr. Stauffer's opinions are not "expert" opinions. It notes that he simply offers "factual data that any lay witness employer could offer with respect to any employee." Dkt. No. 142 at 7. With regard to Dr. Stauffer's expert opinion that $600,000 is Dr. Hamdan's maximum earning ability, the Court agrees with Dr. Hamdan that this is an appropriate expert opinion. See Dkt. No. 146 at 12-13 ("That opinion requires the kind of special knowledge that experts have and that jurors have never encountered before. It depends upon knowledge of the earning ability of interventional cardiologists in the area generally, and upon the reimbursement rates for various procedures. It depends upon experience in hiring physicians in various specialties . . ."). This is an appropriate expert opinion.
Dr. Hamdan further notes that "[t]he point of Dr. Stauffer's submission was to allow Dr. Launey to determine Dr. Hamdan's `residual earning capacity,' as an offset to the loss of his earning capacity in the national market." Id. at 11. In other words, the point of Dr. Stauffer's opinion is to provide the amount of money that must be offset from Dr. Hamdan's economic loss amount in order to account for his mitigation of damages, i.e., the fact that he found new employment. The Hospital argues that this opinion is not needed in light of Dr. Hamdan's "voluntary resignation" from Heart Partners. A bit of background it needed with regard to this "voluntary resignation" claim before the Court can properly resolve the Hospital's motion.
In 2014, the Hospital moved for summary judgment on Dr. Hamdan's 42 U.S.C. § 1981 claim, arguing, in part, that he was not harmed by any alleged discrimination. See Dkt. No. 99 at 23 ("Dr. Hamdan did not suffer any impairment or loss to his alleged contractual interest as a result of any alleged discrimination."). It also argued that Dr. Hamdan could not recover damages as a result of his voluntary resignation from Heart Partners. See id. ("It is further undisputed that Dr. Hamdan . . . voluntarily resigned his employment with Heart Partners and relinquished his privileges at IUHN."); id. at 13, n. 4 (noting that "Dr. Hamdan voluntarily resigned from Heart Partners and relinquished his privileges at all Indiana hospitals, including IUHN in October 2012" and "Dr. Hamdan was not asked to resign from Heart Partners, but did so voluntarily purely of his own choice"). Dr. Hamdan disagreed and argued that he did suffer damages as a result of his alleged discrimination:
Dkt. No. 101 at 20-21. He also noted that "[o]nce the legal harm to Dr. Hamdan is shown in this fashion, the measure of the damages he suffered is a separate matter. The plaintiff will bear the burden of showing that denial to him of the benefits of the contractual relationship caused specific monetary and other damage." Dkt. No. 113 at 21, n. 3.
On November 5, 2014, the Court ruled on the parties' cross-motions for summary judgment. The Court denied the Hospital's motion for summary judgment with regard to Dr. Hamdan's § 1981 claim, noting that § 1981 was broad enough to encompass the type of harm Dr. Hamdan alleged, but that "what damages he may be allowed to recover for this alleged harm is an issue for trial." Dkt. No. 147 at 19. Then, the Court noted the following in a footnote:
Id. at 19, n. 3.
Turning now to the motion at bar, in Dr. Hamdan's Response—filed before the Court ruled on the parties' cross-motions for summary judgment—he argues that he did not voluntarily leave Heart Partners, but rather, was "effectively forced out of Heart Partners, even as his privileges to practice at the Hospital . . . were being constructively revoked." Dkt. No. 146 at 4-5; see also id. at 8 (noting that his employment with Heart Partners ended due to "a termination or a constructive termination, not a `voluntary choice to resign.'"). He has submitted a supplemental affidavit, Dkt. No. 146-4 at 87-93, in support of this claim that paints a different picture than a "voluntary resignation" with regard to his employment with Heart Partners.
In its Reply—filed after the Court's Entry on summary judgment, the Hospital seizes on the Court's footnote and argues as follows:
Dkt. No. 152 at 3. To begin, the Hospital is incorrect in stating that "[t]he Court agrees that Hamdan's voluntarily resignation from his employment in Indiana in order to take a position in Tampa, Florida would effectively `cut-off' his post-resignation damages." Id. (emphasis added). The Court's Entry simply noted that because it appeared that Dr. Hamdan voluntarily moved to Florida, he cannot recover relocation expenses as part of his damages. It said nothing about a complete bar to his post-resignation damages. Indeed, Dr. Hamdan is entitled to argue that he has suffered reputational damages—which resulted in the loss of future income—despite his move to Florida.
That said, the issue of "offset" remains; some amount of money—to account for Dr. Hamdan's employment—should be offset from his potential damages. This could either be the amount he will earn in Florida (if he was "constructively terminated") or the amount he could have earned had he remained employed in Indiana (if he "voluntarily resigned"). The Court believes that whether Dr. Hamdan was "effectively forced out" of Heart Partners is an issue best left to a jury. The Court assumed based on the briefing before it that Dr. Hamdan voluntarily resigned from Heart Partners. However, the issue was not fully developed on summary judgment, and the Court agrees with Dr. Hamdan that it did not need to be. Accordingly, Dr. Hamdan may, if he believes the evidence warrants it, assert at trial that he was constructively discharged from Heart Partners and therefore he is entitled to recover the expenses associated with his relocation to Florida. It will then be up to the jury to determine what the circumstances of his relocation were and whether the requirements of constructive discharge are satisfied. See, e.g., Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008) (setting out methods of proving constructive discharge).
The Hospital also objects to the opinions of Drs. Walker and Weinstock. Dr. Walker opined as follows:
Dkt. No. 142-4 ¶¶ 12, 20. Dr. Launey used these figures to calculate Dr. Hamdan's future economic loss in "non-patient care services." Dr. Weinstock opined as follows:
Dkt. No. 142-5 ¶¶ 17, 19. Dr. Launey used these figures to calculate Dr. Hamdan's future economic loss in patient care.
To begin, the Court notes that the Hospital, incorrectly, argues that "[t]he Court's Order [on summary judgment] regarding Hamdan's external defamation claim demonstrates that Dr. Walker's and Dr. Weinstock's projections of `lifelong diminution of [Hamdan's] professional standing and thus his earning capacity' would not assist a trier of fact and should be excluded as well." Dkt. No. 152 at 7. The Hospital is referring to the Court granting its motion for summary judgment with regard to Dr. Hamdan's defamation claim premised on the republication to Dr. Kovacs, the Chairman of the Institutional Review Board at Indiana University. In its Entry, the Court noted that the Hospital could not be held liable for defamation for this claim because it informed Dr. Kovacs, truthfully, that Dr. Hamdan was undergoing peer-review; it noted that Dr. Kovacs was not "informed of the particular allegedly-defamatory statements contained in the Cath Lab employees' complaints." Dkt. No. 147 at 27. To assert, however, that this precludes Dr. Hamdan from asserting that he will experience lifelong reputational damages as a result of being wrongly subjected to peer review is incorrect. Dr. Hamdan is free to assert at trial that he has incurred career-long reputational damages due to the "black mark" left by the choice of the Hospital to submit him to peer review and issue two adverse actions against him. See Dkt. No. 146 at 10 ("As the Hospital well knows, physicians are always asked whether they have previously been the subject of an adverse action or peer review proceeding in these situations. In addition, the Hospital knows that it is required to answer similar questions about physicians who have made application elsewhere."). The Court's Entry on summary judgment does not preclude these damages.
Turning now to the Hospital's arguments, essentially the Hospital argues that Drs. Walker and Weinstock's opinions are speculative and the monetary figures they offer are groundless, "bottom-line" figures, "plucked out of thin air." The Hospital takes issue with the fact that neither referenced Dr. Hamdan's past income—which was much lower than that which either affiant proposed—in opining on what his future economic loss might be, nor do either base their opinions on established compensation data from a reputable source, such as the Medical Group Management Association ("MGMA"). Moreover, the Hospital disagrees that Dr. Hamdan, prior to being subjected to peer review, was at a "breakout" point in his career, or in a super-elite category of interventional cardiologists who are able to make millions of dollars in patient care and non-patient services.
To begin, the Court disagrees with the Hospital that the figures contained in both affidavits have no bases. Both Drs. Walker and Weinstock base their opinions on their own earnings and that of their colleagues, their familiarity with Dr. Hamdan—including his skill level and talent—and their years of experience in the medical field, including providing patient care and non-patient services. In this regard, their figures certainly are not, as the Hospital argues, plucked out of thin air. See, e.g., Dkt. No. 145 at 15 ("By contrast, Dr. Walker and Dr. Weinstock relied on their own experiences in their professional work—participating, both nationally and internationally, in precisely the activities for which they were making income projections."); id. at 21 ("And this is not based on speculation; it is based on their knowledge of his [Dr. Hamdan's] training and the actual results of his work, combined with their professional judgment about how he stood in his field.").
This is not to say, however, that the figures contained in Drs. Walker and Weinstock's opinions necessarily are an accurate prediction of Dr. Hamdan's future income; that will ultimately be a question for a jury to decide. As one district court has noted, "[t]here is a fine line between a court finding that proffered expert testimony is `unpersuasive' (and capable of being submitted to a jury) and when a court concludes that evidence is wholly `unreliable' (and properly excludable under Daubert)." Fail-Safe, L.L.C. v. A.O. Smith Corp., 744 F.Supp.2d 870, 887 (E.D. Wis. 2010); see also Dkt. No. 146 at 22 (Dr. Hamdan noting that "impossibility in the testimony can be explored through cross-examination"). While the Hospital is free to disagree with the figures contained in both opinions, disagreement does not preclude their introduction to the jury. The issues the Hospital has with Drs. Walker and Weinstock's opinions can be addressed during a rigorous cross-examination, but the Court does not find the opinions to be so unreliable that they should not be submitted to the jury.
Finally, the Hospital objects to Dr. Launey's report. Dr. Launey calculated the loss to Dr. Hamdan's past and future earning capacity in two categories of medical services:
Dkt. No. 142-6 at 3. He used the figures provided by Drs. Stauffer, Walker, and Weinstock— those for the residual earnings offset, non-patient care services, and patient care—to compute Dr. Hamdan's future economic loss. Dr. Launey "estimated three totals: the maximum estimate, the minimum estimate and the range midpoint estimate." Id. He computed the loss amount "to age 67 (the earliest age to receive full Social Security benefits) and age 70 years (the average age of retirement for cardiologists)," and came up with a range of "future loss," from a low of $10.2 million to a high of $56.6 million. Id. at 3-4.
While the Hospital advances some specific, technical arguments that can be addressed on cross-examination, the thrust of the Hospital's motion to exclude Dr. Launey's opinions is that they are based on speculative, inaccurate data—the three interventional cardiologists' opinions. As noted above, however, the Hospital can address its disagreements with those opinions on cross-examination; they are not so unreliable as to preclude the jury from hearing them. The same rings true with Dr. Launey's report; the Hospital is free to challenge his assumptions, his sole reliance on the opinions expressed by the interventional cardiologists, and his lack of using any other data source on cross-examination. The Court does not find his opinions to be so unreliable, however, as to preclude the jury from hearing them.
The Hospital's Motion to Exclude and Objection to Plaintiff's Proffered Experts (Dkt. No. 142) is
Dr. Hamdan moves to exclude the expert opinions of the Hospital's expert, Dr. Gary Skoog. Dr. Skoog offered a rebuttal report to Dr. Launey's report regarding Dr. Hamdan's alleged loss of earning capacity; he opined that Dr. Hamdan did not suffer any loss of earning capacity due to the facts underlying this lawsuit. Dr. Hamdan argues that Dr. Skoog's opinions are unreliable for a variety of reasons.
First, Dr. Hamdan objects to the following part of Dr. Skoog's report:
Dkt. No. 141-2 at 18. Dr. Hamdan notes that this issue is "hotly contested" by the parties and that if "Dr. Skoog was purporting to decide for himself . . . that Dr. Hamdan had left `voluntarily,' that would be a serious usurpation of the jury's function, and completely inappropriate for an expert witness." Dkt. No. 141 at 6. As noted above, the Court agrees that whether Dr. Hamdan voluntarily resigned from Heart Partners and voluntarily moved to Florida is an issue for the jury to decide.
Next, Dr. Hamdan objects to Dr. Skoog's use of—and reliance on—an affidavit from Dr. Spencer B. King III. Dr. King disagreed with the figures and opinions set forth by Dr. Hamdan's experts, opining, in relevant part, the following:
Dkt. No. 141-2 at 133, ¶¶ 11, 12, 17.
First, Dr. Hamdan argues that Dr. King is "an expert in the wrong field[.]" Dkt. No. 141 at 3. Dr. King is an interventional cardiologist; Dr. Hamdan is "an interventional cardiologist sub-specializing in peripheral vascular procedures." Dkt. No. 141 at 6. While the Court recognizes the difference between the types of procedures an interventional cardiologist performs and those that an interventional cardiologist sub-specializing in peripheral vascular procedures performs,
The same rings true with Dr. Hamdan's argument regarding Dr. Skoog's use of data from the MGMA. Dr. Hamdan explains that data from the MGMA is "generally sound and is often used by personnel offices to set compensation levels[.]" Dkt. No. 141 at 7. The Hospital describes it as "the `go-to' source for information on physician compensation[.]" Dkt. No. 145 at 9. However, Dr. Hamdan objects to the MGMA data because it does not contain specific information on the compensation of interventional cardiologists specifically performing peripheral vascular procedures; he thus argues that Dr. Skoog's reliance on this data renders his opinions unreliable. The Court disagrees and finds Dr. Skoog's reliance on a compensation model for interventional cardiologists is wholly appropriate given that Dr. Hamdan is an interventional cardiologist. If Dr. Hamdan wishes to press this issue further—as well as the lack of "differentiation between skill and reputation levels of individual physicians" in the MGMA data—he is free to do so on cross-examination. Dkt. No. 141 at 3.
Finally, Dr. Hamdan objects to Dr. Skoog's use of his prior earnings data. Essentially, Dr. Hamdan argues that he was on the verge of a "breakout" in his career, and that his past earnings are a poor benchmark for what he was going to earn in the coming years. Again, Dr. Hamdan is free to challenge Dr. Skoog's failure to consider his forthcoming "breakout"—or the possibility that he was underpaid—on cross-examination. The Court agrees with the Hospital, however, that "Dr. Skoog's use of prior earnings history in this case is a trustworthy and reliable methodology[.]" Dkt. No. 145 at 11.
Thus, Dr. Hamdan's Motion to Exclude the Opinions and Testimony of Defendants' Proffered Expert, Gary Skoog, PhD (Dkt. No. 140) is
The Hospital filed a Motion for Clarification of the Court's Entry on summary judgment (Dkt. No. 154). The motion seeks clarification of the following: 1) which allegedly-defamatory statements the Court found for which the Hospital can be held liable; and 2) whether the Court imputed the Cath Lab employees' bad-faith motivation to the Hospital. The Court will address each issue, in turn, below.
The Hospital seeks clarification as to the specific statements "the Court is entertaining as a basis for Plaintiff's defamation claim in order that it might elicit and/or present evidence in defense of those specific communications." Dkt. No. 154 at 3. It argues that the Court's Entry on summary judgment "is silent with respect to which of the statements emanating from the Cath Lab employees can serve as the foundation for a finding of respondeat superior liability for them." Id. at 1.
Tracking Dr. Hamdan's allegations, the Court noted in its Entry on summary judgment that "Dr. Hamdan has alleged that he was defamed by the Cath Lab employees' false complaints[.]" Dkt. No. 147 at 25. For clarification sake, at this point, the only allegedlydefamatory statement that is no longer actionable is Dr. Hamdan's defamation claim premised on the Hospital's republication to Dr. Kovas. See id. at 27. That is to say, all of the complaints made by the Cath Lab employees—noted in the Court' Entry on summary judgment—that Dr. Hamdan alleges were false and/or misleading remain actionable.
The Hospital seeks clarification on this issue, as noted above, so it can prepare for the upcoming trial in this cause; however, it also seeks clarification because it believes that some of the still-actionable defamatory statements are time-barred
That said, whether or not certain allegedly-defamatory statements are time-barred is an issue of law that should be decided prior to the trial in this cause. Pursuant to Federal Rule of Civil Procedure 56(f), therefore, the Court hereby gives notice to Dr. Hamdan that it will consider summary judgment on this issue. See Fed. R. Civ. P. 56(f)(3) ("After giving notice and a reasonable time to respond, the court may . . . consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute."). The Court believes that the Hospital has clearly articulated its position in its briefs.
The next point of clarification the Hospital seeks is "whether the Court imputed the Cath Lab employees' motivation behind their complaints (good faith vs. bad faith) to IUHN under the doctrine of respondeat superior when considering immunity for both the defamation and IIED claims." Dkt. No. 154 at 4. In its Entry on summary judgment, the Court declined to find that the Hospital was immune under federal and Indiana law, finding that issues of fact remain as to whether or not the Hospital's actions were taken in good faith.
In its motion for summary judgment, the Hospital argued that it was entitled to immunity under 42 U.S.C. § 11112:
In his response, Dr. Hamdan argued that "the Hospital is liable for the defamatory statements of its employees under the doctrine of respondent superior, which provides that vicarious liability may be imposed upon an employer for the wrongful or tortuous acts of an employee while acting within the scope of his or her employment." Dkt. No. 113 at 26. He then noted that "[c]onspicuously absent from the Hospital's argument is the pertinent language of 42 U.S.C. § 11111(a)(2), which provides immunity for those providing information to a professional review body, `unless such information is false and the person providing it knew such information was false' (emphasis supplied)." Id. at 26. In response to this argument, the Hospital argued that Dr. Hamdan failed to show that the Cath Lab employees' complaints were "false and made without belief or grounds for belief in their truth." Dkt. No. 118 at 14. The Court disagreed with the Hospital, noting that there was sufficient evidence that the Cath Lab employees had knowingly submitted false information via their complaints and that the Hospital itself questioned the veracity of these complaints.
Now, in its motion for clarification, the Hospital argues that the bad faith of the Cath Lab employees cannot be imputed to the Hospital under respondeat superior. Moreover, it argues that "Indiana law presumes good faith" on the part of the Hospital. Dkt. No. 166 at 9. It notes that it
Dkt. No. 154 at 5-6. The Court recognizes this; however, it has been less than clear from the parties' briefs how the immunity statute interplays with the doctrine of respondeat superior. Therefore, the Court would like additional briefing on this issue so it can properly rule on whether or not the Hospital is immune from Dr. Hamdan's defamation claim even under a respondeat superior theory. Accordingly,
For clarity's sake, the Court has resolved the pending motions as follows:
In light of the additional briefing that is needed in this case, the Court, on its own motion,
SO ORDERED.
