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Graves v. Indiana University Health

Court of Appeals of Indiana

June 5, 2015

Bertram A. Graves, M.D., Appellant-Plaintiff,
v.
Indiana University Health, f/k/a Clarian Health Partners, Inc., Richard Kovacs, M.D., and Edward Ross, M.D., Appellees-Defendants

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[Copyrighted Material Omitted]

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Appeal from the Marion Superior Court. The Honorable Heather A. Welch, Judge. Trial Court Cause No. 49D12-1009-PL-39308-001.

ATTORNEY FOR APPELLANT: Adam Lenkowsky, Roberts & Bishop, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEES: L. Alan Whaley, Stephen E. Reynolds, Ice Miller LLP, Indianapolis, Indiana.

Bradford, Judge. Vaidik, C.J., and Kirsch, J., concur.

OPINION

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Bradford, Judge.

Case Summary

[¶1] On March 7, 2012, Appellant-Plaintiff Dr. Bertram A. Graves, M.D. filed a second amended complaint against Appellees-Defendants Indiana University Health, f/k/a Clarian Health Partners, Inc., Dr. Richard Kovacs, M.D., and Dr. Edward Ross, M.D. (collectively, " the Appellees" ). In the second amended complaint, Dr. Graves raised claims of breach of contract, violation of his civil rights, and intentional infliction of emotional distress. The Appellees subsequently filed for summary judgment. Dr. Graves then filed a motion requesting the trial court to compel the Appellees to respond to certain discovery requests. He also filed an amended affidavit which stated his opposition to the Appellees' motions for summary judgment. The Appellees subsequently sought to strike certain portions of Dr. Graves's amended affidavit.

[¶2] On September 30, 2014, the trial court denied Dr. Graves's motion to compel. The trial court also subsequently denied Dr. Graves's motion to reconsider the denial of his motion to compel. On November 10, 2014, the trial court granted the Appellees' motion to strike and their motion for summary judgment.

[¶3] On appeal, Dr. Graves contends that the trial court abused its discretion in denying his motion to compel the IU Health to comply with certain discovery requests and in granting IU Health's motion to strike portions of Dr. Graves's amended affidavit. Dr. Graves also contends that the trial court erred in granting

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summary judgment in favor of the Appellees. Finding no abuse of discretion or error by the trial court, we affirm.

Facts and Procedural History

[¶4] Initially, we note that this is the second time that the instant matter comes before this court on appeal. The underlying facts, as set-forth in our opinion on the parties' first appeal, are as follows:

Dr. Graves is a cardiologist who worked for Clarian Health Partners (" Clarian" ), which later became known as Indiana University Health (" IU Health" ), from 1992 through August 1, 2009.[1] On that date, [IU Health] revoked his cardiology privileges. Dr. Graves contends that Drs. Kovacs and Ross played a role in the revocation of his privileges, by providing false information to peer review committees and improperly reviewing allegations against Dr. Graves.
On September 7, 2010, Indianapolis MOB, LLC (" MOB" ), which is a corporate landlord, sued Dr. Graves for breaching his lease of office space by failing to pay rent. Dr. Graves, in turn, filed a third-party complaint against [IU Health] on November 30, 2010, alleging breach of contract when it did not renew his cardiology privileges, and alleging a substantial loss of income and the inability to pay his rent to MOB. Dr. Graves filed his first amended third-party complaint on December 27, 2010, to attach a copy of his contract with [IU Health].
On January 27, 2011, the trial court granted MOB's motion to sever the third-party complaint from its lawsuit against Dr. Graves. After over a year of delay regarding how the parties would proceed, on March 7, 2012, Dr. Graves filed a " Second Amended Complaint" against Clarian/IU Health under a separate cause number from the original MOB lawsuit. App. p. 116. This complaint for the first time named Drs. Kovacs and Ross as defendants. Under a caption heading that Dr. Graves labeled as " Breach of Contract," he alleged that his employment by [IU Health] was governed by certain bylaws, a code of conduct policy, a peer review policy, and a corrective action policy. Id. at 117. Dr. Graves further alleged that, in 1995, his cardiology privileges were " summarily suspended" under the orchestration of Dr. Ross, using false allegations against Dr. Graves. Id. Dr. Graves also alleged that, in 2006 or 2007, Dr. Ross refused to assist Dr. Graves in having his privileges restored. As for Dr. Kovacs, Dr. Graves alleged that he " maliciously and in bad faith" reviewed allegations made against Dr. Graves during peer reviews of Dr. Graves and that he was " instrumental in the elimination" of Dr. Graves's privileges. Id. at 118. Finally, Dr. Graves alleged [IU Health] breached its contract with him by eliminating his privileges without cause and without adequate notice, and also that it breached various policies related to termination of his privileges.
On September 6, 2012, Drs. Kovacs and Ross filed a motion for judgment on the pleadings. The sole argument in the motion was that Dr. Graves had failed to state any claim against them for breach of contract because they were not party to any contract with Dr. Graves. In response, Dr. Graves asserted that the facts alleged in the second amended

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complaint sufficiently stated a cause of action against Drs. Kovacs and Ross for tortious interference with a contract, namely between Dr. Graves and [IU Health]. On November 5, 2012, Drs. Kovacs and Ross filed a response to this assertion, arguing that any claim for tortious interference with a contract was barred by the two-year statute of limitations for such a claim. Dr. Graves did not have a chance to respond to this statute of limitations argument because the trial court granted the motion for judgment on the pleadings on the same day that it was filed, November 5, 2012. The trial court's order mentioned only Dr. Graves's alleged failure to state a claim and not the statute of limitations argument. On December 6, 2012, the trial court denied Dr. Graves's motion to correct error. It also denied Dr. Graves's motion to amend his complaint to more clearly state a claim against Drs. Kovacs and Ross for tortious interference with a contract.

Graves v. Kovacs, 990 N.E.2d 972, 974-75 (Ind.Ct.App. 2013) (footnote omitted). On appeal, we concluded that Dr. Graves was not given an adequate opportunity before the trial court to address the statute of limitations issue. Id. at 978. We therefore reversed the trial court's order granting judgment on the pleadings in favor of Drs. Kovacs and Ross without offering an opinion on the merits of the statute of limitations issue, and remanded the matter to the trial court for further proceedings. Id.

[¶5] On remand, the Appellees filed for summary judgment. On September 12, 2014, Dr. Graves filed a motion to compel the Appellees to respond to certain discovery requests. On September 26, 2014, Dr. Graves submitted an amended affidavit in opposition to the Appellees' motions for summary judgment. The Appellees subsequently sought to strike certain portions of Dr. Graves's amended affidavit.

[¶6] On September 30, 2014, the trial court denied Dr. Graves's motion to compel. The trial court also subsequently denied Dr. Graves's motion to reconsider the denial of his motion to compel. On November 10, 2014, the trial court granted the Appellees' motion to strike and their motion for summary judgment. Specifically, the trial court determined that the Appellees were protected by peer-review immunity, Dr. Graves had not established discrimination, and the claims against Drs. Ross and Kovacs were time-barred. This appeal follows.

Discussion and Decision

[¶7] On appeal, Dr. Graves contends that the trial court abused its discretion in denying his motion to compel IU Health to comply with certain discovery requests, abused its discretion in granting IU Health's motion to strike portions of Dr. Graves's amended affidavit, and erred in granting summary judgment in favor of the Appellees.

I. Denial of Dr. Graves's Motion to Compel

[¶8] Dr. Graves contends that the trial court abused its discretion in denying his motion to compel IU Health to comply with certain discovery requests. Upon review, we review a challenge to a trial court's discovery order for an abuse of discretion. See State v. Int'l Bus. Machines Corp., 964 N.E.2d 206, 209 (Ind. 2012). " An abuse of discretion has occurred if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law." Smith v. Ind. Dep't of Correction, 871 N.E.2d 975, 987

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(Ind.Ct.App. 2007) (citing McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993)), trans. denied.

[¶9] In September of 2014, Dr. Graves filed a motion requesting the trial court to compel IU Health to respond to certain discovery requests. Specifically, Dr. Graves requested that the trial court order IU Health to " provide documentation that is non-redacted in response to the discovery request." Appellant's App. p. 323. In making this request, Dr. Graves asserted that he could not properly respond to IU Health's motion for summary judgment without " the proper completion of discovery." Appellant's App. p. 324.

[¶10] IU Health subsequently filed a response in opposition to Dr. Graves's motion to compel. In this response, IU Health outlined the history of the parties' discovery dispute, with the relevant portions reading as follows:

INTRODUCTION
After having done nothing to advance his discrimination case against Defendants for nearly a year, Plaintiff has filed a Motion to Compel raising issues with discovery in a transparent attempt to delay summary judgment. However, the majority of the documents Plaintiff requests have already been produced to him. Defendants have produced over 2,000 pages of documents including medical staff policies, exhibits and transcripts from the Health Care Provider Peer Review proceedings, Plaintiff's medical staff file, Cardiovascular On Call Schedules, documents listing On-Call ECHO Readers, and Heart Station Weekly Reading Schedules for the heart lab that Plaintiff worked in. The remainder of the documents Plaintiff seeks are not relevant nor reasonably calculated to lead to the discovery of admissible evidence, and Defendants properly objected to these requests over a year ago. Plaintiff's Motion to Compel should be denied.

HISTORY OF DISCOVERY REQUESTS AT-ISSUE

Plaintiff paints an unclear and incomplete picture of the exchanges between the parties concerning Plaintiff's discovery requests and Defendants' responses. Defendants initially responded to Plaintiff's discovery requests in August 2013 -- producing hundreds of pages of documents while objecting to certain requests in seeking " all records" of some doctors for a 17-year period as overly broad, unduly burdensome, vague, and not relevant. After a brief discussion of the discovery dispute in November 2013, Defendants heard nothing from Plaintiff until after filing their Motion for Summary Judgment on the July 15, 2014 deadline for dispositive motions. Following Plaintiff's renewed interest in discovery in late August 2014, Defendants have expeditiously responded to Plaintiff's letters requesting documents, producing over 2,000 pages of documents within 16 days, including documents that had already been produced to Plaintiff's counsel before his withdraw. The following is a chronology of the discovery activity in this case.
On June 21, 2013, Plaintiff served his First Request for Production of Documents. (Ex. A, Plaintiff's First Request for Production of Documents.) After Plaintiff, through counsel, agreed to an initial extension, Defendants responded on August 23, 2013, producing several

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pages of documents, stating additional documents would be produced upon entry of a protective order, and objecting to some of the requests in their entirety. (Ex. B, Letter from Stephen E. Reynolds to Adam Lenkowsky, dated July 17, 2013; Ex. C, Letter from Stephen E. Reynolds to Adam Lenkowsky, dated August 23, 2013; Ex. D, Defendants' Response to Plaintiff's First Request for Production of Documents.) After the Court's entry of the Agreed Protective Order, on September 12, 2013, Defendants produced 679 additional pages of documents responsive to Plaintiff's discovery requests. (Ex. E, Letter from Stephen E. Reynolds to Adam Lenkowsky, dated September 12, 2013.)
On November 1, 2013, Plaintiff's counsel sent a Rule 26(F) letter seeking the following: (a) the identities of doctors whose names were redacted from medical records; and (b) documents responsive to Plaintiff's Request Nos. 15-19, which sought " all records" including work schedules of physicians assigned to the ECHO schedule, emergency room, catheter lab, and cardiology consult call between 1992 and 2009. (Ex. F, Letter from Adam Lenkowsky to L. Alan Whaley and Stephen Reynolds, dated November 1, 2013.) In response to the letter, Defendants' counsel called Plaintiff's counsel on November 11, 2013 to obtain clarification as to which unredacted physicians' names were being sought. (Ex. G, Affidavit of Reynolds ¶ ¶ 3 & 4.) Plaintiff's counsel believed his client was only seeking the names of doctors on the peer review committees -- not the treating physicians -- but stated he would confirm with his client and confirm that with Defendants. (Ex. G, Affidavit of Reynolds ¶ 5.) After that, Defendants heard nothing from Plaintiff or his then-counsel regarding discovery until just recently. (Ex. G, Affidavit of Reynolds ¶ [¶ ] 6 & 7.)
On August 27, 2014, after being granted an extension of time to respond to Defendants' Motion for Summary Judgment, Defendants' counsel received a letter from Plaintiff, dated August 25, 2014, seeking supplementation of Defendants' discovery responses served over one year ago. (Ex. H, Affidavit of Whaley ¶ 3; Ex. I, Letter from Bertram Graves, M.D. to L. Allen Whaley dated August 25, 2014). That same day, Defendants' counsel responded to Plaintiff, seeking clarification as to the supplemental documents he was seeking and stating that Defendants would respond to his other supplementation requests as quickly as reasonably possible. (Ex. J, Letter from L. Allen Whaley to Bertram Graves, M.D., dated August 27, 2014.) As promised, just a few days later, on September 3, 2014, Defendants' counsel sent a follow-up letter via hand-delivery to Plaintiff addressing his specific discovery requests, offer to deliver or make the additional documents available for pickup at Ice Miller's offices given that most of the documents are sensitive and confidential, and asking that Plaintiff provide his email address and telephone number to facilitate quicker communication. (Ex. K, Letter from L. Allen Whaley to Bertram Graves, M.D., dated September 3, 2014.) Having received no response from Plaintiff, on September 5[, 2014,] Defendants' counsel mailed Plaintiff another letter advising him that the additional documents were now ready to be delivered to him or picked up by him. (Ex. L, Letter from L. Allen Whaley to Bertram Graves, M.D., dated September 5, 2014.)
On September 10, [2014,] Defendants received a letter from ...

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