Finger, M.D. v. Jacobson, et al

RESPONSE/MEMORANDUM in Opposition

E.D. La.February 5, 2019

2042999v.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SIMON FINGER, M.D. VERSUS HARRY R. JACOBSON, M.D., DOUGLAS L. KOPPANG, JR., STEVEN T. JOHNSON, MEDCARE INVESTMENT CORPORATION, AND CARDIOVASCULAR CARE GROUP, INC. : : : : : : : : : : CIVIL ACTION NO. 17-CV-02893-JTM-DEK DEFENDANTS’ OPPOSITION TO PLAINTIFF’S SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, OBJECTION AND INCORPORATED MOTION TO STRIKE PLAINTIFF’S EXHIBITS B, C and D. NOW INTO COURT, through undersigned counsel, come defendants, Harry R. Jacobson, M.D. (“Dr. Jacobson”), Douglas L. Koppang, Jr. (“Mr. Koppang”), Steven T. Johnson (“Mr. Johnson”), MedCare Investment Fund V, L.P. (“MedCare”) and Cardiovascular Care Group, Inc. (“CCG” and collectively, “Defendants”), who respectfully submits this response and opposition to Plaintiff’s Supplemental Memorandum in Opposition to Motion for Summary Judgment [R. Doc. 62-3] and the Exhibits attached to the Affidavit of Joseph M. Bruno [R. Doc. 62-4].1 Federal Rule of Evidence 408 provides that evidence to prove or disprove the validity or amount of a disputed claim is not admissible when: (1) furnishing, promising, or offering--or accepting, promising to accept, or offering to accept--a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim… The protection of Rule 408 extends to legal conclusions, factual statements, internal memoranda, 1 Plaintiff’s counsel has not articulated how he is positioned to authenticate these third-party communications other than to state that they were provided in discovery. Case 2:17-cv-02893-JTM-DMD Document 64 Filed 02/05/19 Page 1 of 5 - 2 - 2042999v.1 and the work of non-lawyers and lawyers alike so long as the communications were “intended to be part of...negotiations toward compromise.” Marine Power Holding, L.L.C. v. Malibu Boats, LLC, No. CV 14-912, 2016 WL 4218217, at *3 (E.D. La. Aug. 8, 2016) (citing Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 295 (5th Cir. 2010)). “Litigation need not have commenced for Rule 408 to apply.” Id. “[T]he Rule 408 exclusion applies where an actual dispute or a difference of opinion exists, rather than when discussions crystallize to the point of threatened litigation.” Id. (citing Affiliated Mfrs., Inc. v. Aluminum Co. of Am., 56 F.3d 521, 527 (3rd Cir. 1995)). “[T]he question under the rule is whether the statements or conduct were intended to be part of the negotiations toward compromise.” Id. (citing MCI Commc'ns Servs., Inc. v. Hagan, 641 F.3d 112, 117 (5th Cir. 2011)). Despite the parameters of Rule 408 addressed above, Plaintiff has offered internal and external settlement communications involving the parties to prove Defendants’ liability and Plaintiff’s damage. As Plaintiff argues, “[i]t is unrealistic that CCG or Medcare genuinely believe or intended for their liability to Dr. Finger – one they were prepared to unilaterally pay $325,000, plus additional things of value – was resolved for the WARN Act check for $9,837.89.” [R. Doc. 62-3, p. 4]. These settlement communications are included as Exhibits B, C, and D in Plaintiff’s Supplemental Memorandum and should be inadmissible here. Exhibit B is an email string entitled “Dr. Finger – Transition Support Agreement Proposal” that identifies a settlement proposal discussed with Dr. Finger and contemplates conditions to settlement that contemplated, inter alia, a confidentiality provision, restrictive covenants, and applicable releases.2 In the Supplemental Memorandum, Plaintiff’s counsel has attempted to authenticate this email with his affidavit and, based on this email, attempted to prove liability or damages in violation of Rule 408. Additionally, Plaintiff counsel’s arguments 2 See R. Doc. 62-4, Exhibit B, pp. 4-5. Case 2:17-cv-02893-JTM-DMD Document 64 Filed 02/05/19 Page 2 of 5 - 3 - 2042999v.1 are directly at odds with the objections he expressed to the introduction of this email at Plaintiff’s recent deposition, wherein Plaintiff’s counsel raise the following speaking objections:3 I have to object to any intent or to guess what this guy is saying. I have no clue what he’s saying. … I read it and there’s nothing in here about guaranteeing the seven-year contract. … I know what you’re trying to do and I have to object. I object to it. … I know what you’re trying – I know you too well. I object to trying to get this witness to make any inference whatsoever as to what was in the mind of Mr. Beck. Whereas Plaintiff’s counsel repeatedly objected to any discussions about this email during Plaintiff’s deposition, admitted that he had “no clue” what was being said in the email, and objected to trying to get the witness to make “any inference whatsoever as to what was in the mind of Mr. Beck,” Plaintiff’s counsel has now attempted to authenticate the email, attempted to infer what was in the mind of Mr. Beck, and attached this email in order to prove the viability of Plaintiff’s claim. Importantly, however, the genesis of this email was to address Plaintiff’s settlement requests. As Plaintiff explained in his deposition:4 I was looking for a large payment that would compensate me for what I had lost in terms of direct costs, like the hospital and Southern Surgical and enough money to get me back into practice to the level that I was before, and that’s what I was looking for. I never said, you know, let’s talk about 90 days. That would not have been something I would have come up with or agreed to. Similarly, Exhibit C includes settlement discussions that Plaintiff relies upon to argue in his Supplemental Memorandum that “it is plain from the Defendants’ own words and actions that 3 Exhibit A – Excerpt of Plaintiff’s Deposition, p. 118:22 – 121:10. 4 Exhibit A – Excerpt of Plaintiff’s Deposition, p. 123:10-17. Case 2:17-cv-02893-JTM-DMD Document 64 Filed 02/05/19 Page 3 of 5 - 4 - 2042999v.1 they knew they had liability to Dr. Finger, they understood the facts and the basis for that liability, and as a consequence possessed all necessary information to confect a specific and clear release of any claim that Plaintiff had in this case in the Disclosure Plan.”5 Moreover, in an off- the-record communication during Plaintiff’s deposition, Plaintiff’s counsel objected to any discussion of the letter attached to the Supplemental Memorandum as Exhibit D, arguing that the letter was a settn lement communication. As a result of these objections, the letter was not presented at Plaintiff’s deposition. As the January 24, 2017 provides, “In order to avoid litigation, he would like compensation for these financial losses and damages to his reputation in the amount of Three Million Dollars ($3,000,000.00),” as well as additional financial considerations as set forth therein.6 As set forth above, Plaintiff has offered Exhibits B, C, and D to prove Defendants’ liability and Plaintiff’s damages in violation of Rule 408 and in order to dissuade the Court from ruling on the relevant issue: Plaintiff’s release of CCG and MedCare. Accordingly, this Court should grant this Motion to Strike and/or Objection and not consider Exhibits B, C, and D for purposes of Defendants’ summary judgment. 5 R. Doc. 62-3, p. 5 (emphasis not included). 6 R. Doc. 62-4, p. 7-8. Case 2:17-cv-02893-JTM-DMD Document 64 Filed 02/05/19 Page 4 of 5 - 5 - 2042999v.1 Respectfully submitted, TAYLOR, PORTER, BROOKS & PHILLIPS L.L.P. By:/s/ Jonathan A. Moore___________ Brett P. Furr (#17572) Thomas R. Peak (#14300) Jonathan A. Moore (#34686) 450 Laurel Street, 8th Floor (70801) P.O. Box 2471 Baton Rouge, LA 70821 Phone: (225) 387-3221 Fax: (225) 346-8049 Brett.furr@taylorporter.com Tom.peak@taylorporter.com Jonathan.moore@taylorporter.com Counsel for Defendants CERTIFICATE I hereby certify that on the 5th day of February, 2019, a copy of the foregoing was this date filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all counsel by operation of the Court’s electronic filing system. /s/ Jonathan A. Moore ________________________ Jonathan A. Moore Case 2:17-cv-02893-JTM-DMD Document 64 Filed 02/05/19 Page 5 of 5