United States District Court, S.D. Indiana, Indianapolis Division
TALAL S. HAMDAN, M.D., Plaintiff,
INDIANA UNIVERSITY HEALTH NORTH, LLC, f/k/a CLARION HEALTH NORTH, LLC, et al., Defendants.
ENTRY ON VARIOUS MOTIONS
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.
I. Defendants' Motion to Exclude and Objection to Plaintiff's Proffered Experts
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:
Expert testimony is admissible at trial if the testimony is relevant to a fact in issue, is based on sufficient facts or data, and is the product of reliable scientific or other expert methods that are properly applied. Fed.R.Evid. 702. The Supreme Court in Daubert [ v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)] interpreted Rule 702 to require that district courts, prior to admitting expert testimony, determine whether the testimony is reliable and whether it will assist the trier of fact in determining some fact that is at issue. That is, the district court serves as a "gatekeeper" whose role is to ensure that an expert's testimony is reliable and relevant.
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.
A. Dr. Stauffer
The pertinent portion of Dr. Stauffer's opinion is as follows:
In early 2013, Talal S. Hamdan, M.D. (Dr. Hamdan) was employed by me through Palma Ceia Heart and Vascular until the present. Dr. Hamdan was able to earn Six Hundred Thousand Dollars ($600, 000.00) in 2013 based upon a hospital-supported contract. Dr. Hamdan will earn approximately Three to Four Hundred Thousand Dollars ($300, 000.00-$400, 000.00) between 2014 and 2016. Thereafter, Dr. Hamdan's maximum earning ability in this practice will be Five to Six Hundred Thousand Dollars ($500, 000.00-$600, 000.00).
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:
As a result of the racially motivated complaints, the Defendants' failure to properly protect him from racial harassment, the filing of two adverse actions, the peer review proceedings and defamation, Dr. Hamdan incurred and paid in excess of $300, 000.00 in attorneys' fees [to defend the peer review]; thousands of dollars in moving expenses to relocate to Florida; the cost of a home in Florida while his Indiana home remained unsold; the expense to locate new employment, loss of revenue from device manufacturers (for teaching, lecturing, consulting, serving as an investigator) and hundreds of thousands of dollars in lost wages, plus significant financial losses of income in the future as well as emotional pain and suffering.
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:
However, in light of Dr. Hamdan's resignation from Heart Partners and voluntary relinquishment of his privileges with the Hospital, he cannot recover damages from the Hospital for "thousands of dollars in moving expenses to relocate to Florida; the cost of a home in Florida while his Indiana home remained unsold; [or] the expense to locate new employment." Dkt. No. 101 at 20. Dr. Hamdan admitted in his deposition that he "asked for a resignation" from Heart Partners, that it "was purely [his] choice" to do so, and that he relinquished his hospital privileges because he had decided to pursue a job in Tampa, Florida. Dkt. No. 99-2 at 40, 43, 45, 54.
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. Essentially, Dr. Hamdan's argument is that Heart Partners was being non-committal during his contract negotiations and he "became concerned that he was being pushed out of the group, and that his contract would not be renewed." Dkt. No. 146 at 6. Thus, he tendered a letter of resignation to Heart Partners, citing several breaches of his employment contract.
In its Reply-filed after the Court's Entry on summary judgment, the Hospital seizes on the Court's footnote and argues as follows:
[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.... As a result, Hamdan's proffered expert testimony by Dr. Stauffer and Dr. Weinstock pertaining to Hamdan's alleged damage to his clinical practice after his voluntary resignation in October 2012 is irrelevant and should be excluded.
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). Accordingly, Dr. Stauffer's expert opinion that Dr. Hamdan's maximum earning ability in Tampa, Florida is $600, 000 will not be excluded.
B. Drs. Walker and Weinstock
The Hospital also objects to the opinions of Drs. Walker and Weinstock. Dr. Walker opined as follows:
Interventional cardiologists who are qualified to lecture, speak, teach and serve as an FDA investigator and who are committed to supporting these services earn between $250, 000.00 and ...