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

REPLY to Response to Motion

E.D. La.February 13, 2019

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SIMON FINGER, M.D. v. 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 SECTION: “H” (3) PLAINTIFF’S REPLY MEMORANDUM IN RESPONSE TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT Plaintiff SIMON FINGER, M.D., respectfully supplements his reply memorandum in response to defendants’ opposition to his supplemental memorandum regarding defendants’ Motion for Summary Judgment (R. Doc. 42). Plaintiff’s supplemental memorandum, filed by recently enrolled counsel, introduces further evidence and argument regarding the non-specific bankruptcy release in the matter of In re: LMCHH PCP, LLC, et al. (LAEB Case No. 17-10353) (the “Bankruptcy case”). Defendants’ opposition (R. Doc. 65) to plaintiff’s supplemental memorandum in opposition to summary judgment invoke Federal Rule of Evidence 408 to strike Exhibits B, C, and D, which are letters to and from defendants contemporaneous with the confection of the bankruptcy plan. (R. Doc. 62-4, at pp. 4 – 8). Defendants’ raise no similar objection to plaintiff’s supplemental pleading or Exhibit “A”, a 9/18/15 email from Jacobsen to Harry Beck. I. Evidence Referencing Settlement Negotiations is Admissible to Interpret a Settlement Agreement or Impeach a Witness’s Credibility. Federal Rule of Evidence 408 does not bar admission of plaintiffs’ Exhibits B, C, and D, because the exhibits are not offered for purpose of proving “validity or amount of a disputed Case 2:17-cv-02893-JTM-DMD Document 69 Filed 02/13/19 Page 1 of 3 2 claim.” F.R.E. 408(a). Rule 408 contemplates that evidence of conduct or statements made during compromise negotiations may be admitted “for another purpose, such as proving a witness’s bias.” F.R.E.(b). The U.S. Fifth Circuit Court of Appeals has found that where “letters [reflecting settlement negotiations] were not used to establish liability, but, rather, to interpret the parties’ settlement agreement”, they are admissible. Basha v. Mitsubishi Motor Credit of Am., Inc., 336 F.3d 451, 454 (n.4) (5th Cir. 2003) (citing Westchester Specialty Ins. Services, Inc. v. U.S. Fire Ins. Co., 119 F.3d 1505, (11th Cir.1997) (admitting settlement agreement “for the permissible purpose of resolving a factual dispute about the meaning of the settlement agreement”); Central Soya Co., Inc. v. Epstein Fisheries, Inc., 676 F.2d 939, 944 (7th Cir. 1982) (explaining that evidence regarding a settlement may be admissible to demonstrate the settlement's terms). II. Plaintiff’s Exhibits B, C, and D are offered for a Permissible Purpose. Plaintiff’s Exhibits B, C, and D are offered to show Defendants intent (or lack of intent) that the WARN Act Release in the Bankruptcy case apply to the claims in this lawsuit. Defendants’ underlying motion for summary judgment (R. Doc. 37) places the fact issue of the meaning of the Bankruptcy Plan squarely before the court. Vital to interpreting the Bankruptcy plan is the defendants’ intent regarding the scope of the release. The exhibits at issue are offered to show that the Defendants’ conduct before and after the Bankruptcy Plan was confected reflect their belief of that the claim asserted by Dr. Finger in this case was separate and distinct from the relatively minor WARN Act claim at issue in the Bankruptcy case. Exhibits B, C, and D are not offered to prove whether or not the claim, or value thereof, is valid—nor would they be sufficient to do so at trial. The context in which these Exhibits are offered—in opposition to defendants’ dispositive motion—further erodes defendants’ contention that these exhibits are offered to prove liability or Case 2:17-cv-02893-JTM-DMD Document 69 Filed 02/13/19 Page 2 of 3 3 damages. Defendants’ argument to the contrary, without explanation or citation, is wrong. III. Conclusion For reasons stated herein, and those stated in plaintiff’s original opposition to summary judgment (R. Doc. 42) and Supplemental Memorandum in Opposition to Summary Judgment (R. Doc. 62-3), the Bankruptcy Plan was never intended to release Dr. Finger’s claim in this case. Because there is no specific discharge or release of the claims in this lawsuit, res judicata cannot apply and summary judgment should be denied. Respectfully submitted, BRUNO & BRUNO, LLP /s/ Daniel A. Meyer JOSEPH M. BRUNO (#3604) DANIEL A. MEYER (#33278) 855 Baronne St. New Orleans, LA 70113 Telephone: (504) 525-1335 Facsimile: (504) 562-6775 jbruno@brunobrunolaw.com dmeyer@brunobrunolaw.com CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the above and foregoing upon all counsel of record by placing same in the United States mail, properly addressed and with first-class postage, or by facsimile or other electronic transmission this February 12, 2019. /s/ Daniel A. Meyer Daniel A. Meyer Case 2:17-cv-02893-JTM-DMD Document 69 Filed 02/13/19 Page 3 of 3