Opinion
Civil Action No. 97-2600 (JBS).
March 21, 2005
Barbara E. Ransom, Esq., PUBLIC INTEREST LAW CENTER OF PHILADELPHIA, Philadelphia, PA, Richard L. Bazelon, Esq., BAZELON, LESS FELDMAN, P.C., Marlton, NJ, Attorneys for Plaintiff.
J. Freedley Hunsicker, Jr., Esq., DRINKER, BIDDLE REATH, LLP, Philadelphia, PA, Attorney for Defendant National Collegiate Athletic Association.
John B. Langel, Esq., BALLARD, SPAHR, ANDREWS INGERSOLL, LLP, Voorhees, NJ, Attorney for Defendant Temple University.
Gordon E. Allen, Esq., OFFICE OF THE IOWA ATTORNEY GENERAL, Des Moines, IA, Jack Jay Wind, Esq., MARGULIES, WIND, HERRINGTON KNOPF, Jersey City, NJ, Attorneys for Defendant University of Iowa.
OPINION
This matter comes before the Court upon Defendant Temple University's motions for summary judgment and for sanctions, in which both Defendant National Collegiate Athletic Association and Defendant University of Iowa seek to join. The principal issue presented here is whether concealment by Plaintiff (the late Michael Bowers) and his counsel of Plaintiff's serious ongoing drug abuse and treatment, while pursuing judicial claims herein for alleged discriminatory denial of participation in intercollegiate athletics, where drug abuse caused Plaintiff's death several years before such disclosure of drug addiction was finally made, warrants imposition of a sanction and compels the entry of summary judgment in favor of Defendants. The Court must determine whether a significant breach of Plaintiff's duty of seasonable supplementation of discovery responses, governed by Rule 26(e)(2), Fed.R.Civ.P., has occurred, and, if so, whether dismissal or some other sanction is warranted under Rule 37. Defendant University of Iowa also renews its prior motion for summary judgment on the issue of Eleventh Amendment immunity. For the reasons discussed herein, this Court will permit Defendants National Collegiate Athletic Association and University of Iowa to join Temple's summary judgment motion and motion for sanctions. In addition, this Court grants the motion for sanctions and motion for summary judgment of Temple University.
I. BACKGROUND
This case involves the National Collegiate Athletic Association's ("NCAA") implementation and enforcement of policies concerning the initial eligibility of student athletes. The Complaint, filed May 23, 1997, stated that Bowers was perceptually impaired, and thus disabled within the meaning of the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act ("Rehab Act") and the New Jersey Law Against Discrimination ("NJLAD"). It further alleged that the NCAA's initial eligibility requirements, including its core course requirements, discriminate against individuals with learning disabilities and that Plaintiff was denied initial eligibility qualifier status to play Division I football his freshman year in college because the NCAA did not accord "core course" status to his special education courses — courses he was required to take as a result of his learning disability.
Plaintiff also asserted claims under the Sherman Act, which this Court dismissed as against all Defendants on June 8, 1998.
Chapter 14 of the NCAA's bylaws contained a provision concerning the core course requirements that read:
Courses that are taught at a level below the high school's regular academic instructional level (e.g., remedial, special education or compensatory) shall not be considered core courses regardless of course content.
NCAA Bylaw 14.3.1.3. This Chapter caused the United States Department of Education's Office of Civil Rights and the United States Department of Justice — more than a year before Michael Bowers filed his October 1995 application to be considered as a qualified student athlete for Division I or II competition — to warn the NCAA that these bylaws may violate the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. In response, the NCAA made changes to the initial eligibility criteria for those student-athletes first entering Division I schools on or after August 1, 1995.
The Office of Civil Rights ("OCR") expressed its "serious concerns" that the initial eligibility requirements were on their face discriminatory toward student athletes with disabilities in a teleconference with the NCAA and followed up with a letter. OCR advised the NCAA that colleges and universities that received federal financial assistance and public colleges and universities that applied the bylaws "may violate the Rehabilitation Act and Section 504."
A public entity may not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity being offered.See Plaintiff's Appendix, OCR Letter, A-186 to A-189 (citing 28 C.F.R. § 35.130(b)(8) at A-187).
In September 1995, Plaintiff Michael Bowers was a student athlete entering the twelfth grade at Palmyra High School in New Jersey. Although IQ testing placed him in the above-average range, testing done by Dr. Stanley Halpern dated February 21, 1995 indicates that Michael Bowers had a diagnosed specific learning disability that affected his organization and processing skills, requiring that he have extra time to take tests, and help with study habits as well as organizational skills. (Pl.'s Appendix, A-190 to A-193.) Michael Bowers's educational program was designed each year by an Individual Educational Program ("IEP") Team. The IEP team determined that Bowers would learn best in small group settings; consequently, of the twenty-four academic classes that Bowers had in his four years of high school, only three were in the regular education setting. (Id. at A-199 to A-200.)
Michael Bowers died in June 2002 and his mother, Kathleen Bowers, has been substituted as Plaintiff, as the representative of her deceased son.
In October of that year, Bowers determined that he was not interested in being recruited by or playing football at Temple University, (Def.'s Ex. B to Summary Judgment Motion, Deposition of Michael Bowers at 208), and Temple decided that it did not want to pursue Bowers as a scholarship athlete for its football team, having determined that he was neither big enough nor skilled enough. Nevertheless, Bowers applied to Temple on August 5, 1996 when he was not admitted elsewhere. (Id. at 208-11, 411.) According to Bowers, he applied to Temple because he believed "it was the only option [he] had left as far as going to a Division I school or four-year school period." (Id. at 409-11.) Despite his untimely application, Temple admitted Bowers for the Fall 1996 semester. (Id. at 411-12.)
Bowers, however, chose not to matriculate at Temple in the Fall 1996 semester, as he was scheduled to have back surgery in November of that year. (Id. at 167-68, 178-79, 547-48.) In addition, Bowers thought that, given his late admission and delayed sitting for his placement tests, the semester would already be two weeks underway by the time he learned the results of those tests and what classes he would be taking. (Id.) Rather than begin college at a disadvantage, Bowers decided to postpone the start of his freshman year until the Spring 1997 semester, thus postponing his initial eligibility to play on the football team in 1997. (Id.; Def.'s Ex. C to Summary Judgment Motion, NCAA Manual at Bylaw 14.3.4.1, 14.4.3.1, 14.5.1.2.)
Bowers started at Temple as a first semester freshman at the end of January 1997. (Def.'s Ex. B to Summary Judgment Motion, M. Bowers Dep. at 234-35.) Under the NCAA regulations, he could being practicing with the football team at the end of the Fall 1997 semester, provided that he completed two semesters and passed twenty-four credit hours of classes. (Def.'s Ex. C to Summary Judgment Motion, NCAA Manual at Bylaw 14.3.4.1, 14.4.3.1, 14.5.1.2.)
Michael Bowers performed well academically during his first semester in college (Spring 1997), at which time he was a Dean's List student. (Def.'s Ex. B to Summary Judgment Motion, M. Bowers Dep. at 564.) After this semester, however, his grades dropped dramatically. During the Fall 1997 semester, Bowers took four courses, failed two, received a B minus in one and an incomplete in the fourth. (Id. at 463, 563-64.) Bowers registered for classes for the Spring 1998 semester but never showed up. (Id. at 556-57, 562-63, 567.) He registered for four classes in the Fall 1998 semester but did not attend those classes and did not take his final exams. (Id. at 472-73; 567.) Bowers was subsequently found ineligible by the NCAA Initial Eligibility Clearinghouse to play Division I football because he did not satisfy the NCAA's core course requirements.
On May 23, 1997, Bowers filed a Complaint in this Court against the NCAA, the NCAA Initial Eligibility Clearinghouse ("Clearinghouse") and a number of individual defendants. In June 1997, Bowers sought a preliminary injunction, seeking to have himself declared eligible to play Division I football. The preliminary injunction was denied on August 14, 1997 and Bowers later amended his Complaint to add Temple University, the University of Iowa ("Iowa"), American International College and ACT, Inc. as defendants.
This case was originally assigned to former District Judge Stephen M. Orlofsky. Following Judge Orlofsky's resignation, effective September 1, 2003, this case and others were reassigned to the undersigned.
Following the close of discovery in this case, Temple and the other Defendants moved for summary judgment, arguing, inter alia, that Bowers was not a "qualified individual with a disability" within the meaning of the ADA or "otherwise qualified" within the meaning of the Rehab Act because his small size and poor skills made him ill-suited to be an offensive lineman in a Division I football program. The Court denied the motions for summary judgment. See Bowers v. National Collegiate Athletic Association, et al., 118 F. Supp. 2d 494 (D.N.J. 2000). In addition, Defendant University of Iowa moved for summary judgment, arguing that it is entitled to immunity under the Eleventh Amendment. That motion was also denied by former Judge Orlofsky. See Bowers v. National Collegiate Athletic Association, et al., 2001 WL 1772801 (D.N.J. July 3, 2001).
In November of 2000, Temple filed third-party complaints against third-party defendants University of Memphis, University of Massachusetts, and Delaware State University. These third party defendants responded by filing or joining in motions to dismiss, which this Court ruled upon in late 2001 and early 2002. These defendants subsequently exercised their right to appeal and the district court issued a stay in early 2002. (March 6, 2002 Opinion and Order of Judge Orlofsky.)
Meanwhile, on December 20, 2001, the University of Iowa filed a notice of appeal of Judge Orlofsky's July 3, 2001 ruling and Plaintiff, by motion, sought dismissal on the grounds that the appeal was untimely. This motion was referred by the Third Circuit Court of Appeals to the merits panel by Order dated February 25, 2002 and Iowa's appeal was ultimately dismissed as untimely by the Court of Appeals on August 20, 2003. See Bowers v. National Collegiate Athletic Association, 346 F.3d 402, 410-12 (3d Cir. 2003).
In May 2004, Plaintiff's counsel disclosed, for the first time, that Bowers was addicted to drugs for years prior to his death in June 2002 from a drug overdose. (Def.'s Appendix at P-1769-77.) The history of Plaintiff's drug use is complex and convoluted but nevertheless central to the issues presently before the Court. The record reflects that Bowers began using marijuana in 1991 at age 13 and then used it approximately every six months thereafter. (Id. at 2091; Def.'s Reply Ex. B to Summary Judgment Motion, Deposition of John O'Brien, M.D. at 25.) After his back injury in 1996, Bowers began abusing percocet and other prescription painkillers. (Def.'s Appendix at P-1783, P-1819, P-1822, P-2091, TU1138-45.) Between September 1996 and March 1997, Bowers received at least nineteen different prescriptions for painkillers including percocet, hydrocodone and Tylenol with codeine. (Id. at P-1783, TU1138-41, TU1145.) Bowers continued to take these painkillers for months, even though he was no longer in pain. (Id. at P-2091.) Then, around August 1998, he began use of heroin and cocaine. (Id. at P-2093.) Two months later, Bowers entered his first drug rehabilitation program. (Id. at P-2087-2122.)
With the matter back at the district court, Magistrate Judge Rosen conducted a case management conference on February 6, 2004, after which he issued a scheduling order that resumed factual discovery, directing that it be completed by May 31, 2004, and began expert discovery.
In October 1998, unbeknownst to defense counsel, when this lawsuit was well underway, Bowers underwent two weeks of intense, inpatient treatment at Seabrook House for his heroin addiction. (Id. at P-2087-2112.) Following his release from Seabrook House, Bowers attended a daily outpatient drug treatment program at the Seabrook House facility in Cherry Hill, New Jersey, attended therapy sessions with counselor Rick Ciurlino and began a controversial drug treatment program with Lance Gooberman, M.D. (Id. at P-1982; Def.'s Ex. D, Deposition of Kathleen Bowers at 15-16.) On April 3, 1999, Bowers was hospitalized at Burlington Memorial Hospital, then Rancocas Hospital, after attempting to commit suicide by hanging himself. (Def.'s Appendix at P-1793, P-1915-75.)
Seabrook House is a nationally recognized inpatient drug and alcohol rehabilitation center, located in Bridgeton, New Jersey.
From June 1999 until the time of his death in June 2002, Bowers continuously underwent inpatient and outpatient treatment for depression, bipolar disorder and heroin addiction. His course of treatment consisted of the following: (1) drug treatment by Dr. Lance Gooberman from June 4, 1999 until his death (Def.'s Appendix at P-1979-2070); (2) inpatient treatment at Rancocas Hospital's MICA Unit for bipolar disorder and polysubstance abuse from November 5, 1999 to November 26, 1999 (Id. at P-1809-53); (3) daily outpatient drug treatment at Zurbrugg Hospital from November 26, 1999 to October 2000 (Def.'s Ex. D to Summary Judgment Motion, Deposition of Kathleen Bowers at 16-17); (4) treatment for depression and anxiety by Dr. Alan Rosenzweig from December 7, 1999 to May 29, 2001 (Def.'s Appendix at P-2071-86); (5) inpatient drug treatment at Bergen Regional Medical Center from March 10, 2000 to March 14, 2000 (Id. at P-2123-39); and (6) two weeks of inpatient drug treatment at Zurbrugg Hospital in October 2000, followed by daily outpatient drug treatment at Zurbrugg Hospital from October 2000 until December 2001. (Def.'s Ex. D to Summary Judgment Motion, K. Bowers Deposition at 17-18.) Meanwhile, neither Mr. Bowers nor his attorneys revealed anything about his drug abuse and treatment.
NCAA regulations require drug testing of all student athletes. (Def.'s Ex. C to Summary Judgment Motion, NCAA Manual at Bylaw 18.4.1.5, 31.2.3.) Athletes who test positive for banned substances are excluded from participation in the athletic program. (Id.) Marijuana, cocaine and heroin are all included on the list of banned substances. (Id. at Bylaw 31.2.3.1.) As an NCAA member institution, Temple has adopted these regulations and specifically prohibits all student athletes from using controlled substances. (Def.'s Ex. E to Summary Judgment Motion, Temple University Student-Athlete Handbook at 17-18.) Temple requires all student athletes to certify compliance with the NCAA regulations annually. (Def.'s Ex. F to Summary Judgment Motion, Form 96-3a.)
Defendant Temple University filed the instant motions for summary judgment and for sanctions, maintaining that it is entitled to judgment as a matter of law because, as a result of Plaintiff's drug use, Michael Bowers was neither "a qualified individual with a disability" nor "otherwise qualified" to play football as a student athlete. This Court heard oral argument on January 13, 2005.
II. DISCUSSION
A. Temple University's Motion for Sanctions
Defendant Temple University moves for sanctions, seeking to dismiss Plaintiff's Complaint for "repeated misleading, untruthful and highly prejudicial conduct with respect to discovery during the past six years of litigation." Temple argues that nearly seven years after this case was first filed, it only recently learned that Michael Bowers repeatedly lied during his numerous depositions and failed to provide complete answers to Defendants' discovery requests, including failing to identify, let alone produce, hundreds of pages of responsive medical records. This newly discovered evidence is relevant to both his liability claim and his new damage claim, asserted by his mother, that he became a heroin addict because of Defendants' discrimination. This lying by the decedent and concealment by Plaintiff's counsel, Temple contends, irreparably prejudices the Defendants.
1. Legal Standard
Defendants seek dismissal of this case as a sanction for the misconduct of Michael Bowers and his attorneys in failing to provide truthful, complete discovery and supplementation regarding Bowers's serious drug addiction during the years before his death. Dismissal of an action for failure to comply with the Federal Rules of Civil Procedure is an "extreme" sanction.National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976). Courts have recognized, however, that such an extreme sanction is warranted in cases where a plaintiff has acted in "flagrant bad faith" and his counsel "has behaved with callous disregard of [her] responsibilities." Id.; see also Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1992) ("dismissal is . . . reserved for those cases where there is a clear record of delay or contumacious conduct . . .");Venable v. Equifax Credit Info. Svcs., 1994 WL 268264, *6 (E.D. Pa. June 13, 1994) ("[t]here are cases in which a plaintiff has behaved in a manner so grossly unfair to defendants and so blatantly defiant towards the court that dismissal is warranted").
It is well-settled that courts possess the inherent power to dismiss actions based upon litigation misconduct and fraudulent testimony. As one district court in the Third Circuit has explained:
The inherent power [to dismiss a case] arises from the very nature of the judicial institution, and is incidental and necessary to the fair and efficient operation of the courts. Thus, the power of the courts to impose silence, decorum, and respect, and to require submission to rules of fair play is universally acknowledged to be vested in courts so as to achieve the orderly and expeditious disposition of cases.Derzack v. County of Allegheny, 173 F.R.D. 400, 411 (W.D. Pa. 1996), aff'd without op., 118 F.3d 1575 (3d Cir. 1997) (citations and quotations omitted). The United States Supreme Court has also recognized that the "sanctioning scheme" set out in the statutes and rules governing the litigation process does nothing to displace, limit, or substitute a court's "inherent power to impose sanctions for bad faith conduct. . . ."Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). The Court stressed that such inherent power "can be invoked even if procedural rules exist which sanction the same conduct" and that the scope of the inherent power in such a situation is not delimited by the scope of an overlapping rule. Id. at 49-50.
Beyond inherent authority to impose a dismissal sanction, the Federal Rules of Civil Procedure grant explicit authority to do so where a party, an attorney, or both conceal or unreasonably delay disclosure of highly relevant facts. Rule 26(e)(2) imposes upon the parties to a litigation a "duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(2). Failure to do so can bar the "use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed," Fed.R.Civ.P. 37(c)(1), and subject the non-disclosing party to other appropriate sanctions under Rule 37(b)(2)(A), (B) or (C), including "[a]n order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence." Fed.R.Civ.P. 37(b)(2)(B) or "[a]n order striking out pleadings or parts thereof . . . or dismissing the action or proceeding or any part thereof," Fed.R.Civ.P. 37(b)(2)(C) (emphasis added). Moreover, the authority to fashion an appropriate sanction under Rule 37 falls within the sound discretion of the district court.Newman v. GHS Osteopathic Inc., 60 F.3d 153 (3d Cir. 1995).
Temple argues that the information not disclosed and the resulting prejudice to Defendants requires nothing less than dismissal under the guidelines set forth by the Third Circuit inPoulis v. State Farm Fire Cas. Co., 747 F.2d 863 (3d Cir. 1984). In Poulis, the Third Circuit articulated a series of factors to be considered and balanced by the district court in determining whether the extreme sanction of dismissal is proper. Those factors include: (1) the extent of the party's responsibility; (2) prejudice to the adversary; (3) any history of abuses; (4) willfulness or bad faith; (5) alternative sanctions; and (6) the merit of the claims or defenses. See id. at 868. "Not all of these factors need be met for a district court to find dismissal is warranted." Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1998); accord, Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). Instead, a court must consider and weigh all six of the Poulis factors in the context of the specific facts of a case to determine whether dismissal is appropriate. Hicks, 850 F.2d at 156; Ware, 322 F.3d at 221-22. "The critical factor is willfulness or bad faith, although dismissal may, in select situations, be fitting even absent willfulness or bad faith." Sheppard v. Glock, Inc., 176 F.R.D. 471, 473 (E.D. Pa. 1997) (citing Estate of Spear v. Commissioner of I.R.S., 41 F.3d 103, 112 (3d Cir. 1994)). Given the form of sanctions requested by Defendants, the Court now turns its attention to a consideration and weighing of thePoulis factors.
2. Extent of the Party's Responsibility
Temple argues that Bowers himself was responsible for failing to provide Temple with a clear and complete picture of his medical history as well as his history of on-going drug abuse and psychiatric treatment. His responses to Temple's initial discovery requests regarding his medical treatment also failed to paint an accurate picture. For example, in his answers to Temple's interrogatories, Bowers claimed that he had been treated only by Dr. Switenko. (Def.'s Ex. D to Sanctions Motion at ¶ 15.) However, Bowers signed his "Response to Interrogatories" on October 28, 1998, the day after he was discharged from a two-week inpatient institutionalization at Seabrook House. (Id.; Appendix at TU0961.) His answers, compiled with the aid of his attorneys, made no mention of Seabrook House or addiction to painkillers and illegal drugs. Bowers failed to supplement his discovery responses during the intervening years of litigation, despite his continuous inpatient and outpatient treatment for psychiatric problems and drug abuse from October 1998 until his death in June 2002, as the record now clearly illustrates.
Moreover, Temple contends that Bowers repeatedly gave false answers to questions regarding his medical treatment under oath at depositions held on November 30, 1998, January 11, 1999 as well as on March 26, 1999. (See, e.g., Def.'s Ex. B to Summary Judgment Motion, M. Bowers Dep.; Def.'s Ex. G to Sanctions Motion, M. Bowers Dep. at 256-60.; Def.'s Ex. F to Sanctions Motion, K. Bowers Dep. at 15-16.) The record does not reflect any confusion on the part of Bowers in testifying about his past medical treatment; he never requested clarification of a question nor did his answers vary in any way. Defendants asked Bowers whether he had been treated by any other physician or psychiatrist other than Dr. Switenko. Bowers's response was consistently "no." (Def.'s Ex. G to Sanctions Motion, M. Bowers Dep. at 256-60, 488.) Those answers were lies.
Plaintiff's counsel argues, in reply, that the record reflects that Michael Bowers did not answer any questions falsely at his deposition. Instead, counsel suggests Defendants' lawyers never asked him the questions which they now wish they had; defense counsel did not ask Bowers about drug addiction or press him on the extent of his depression, anxiety, or other medical problems. Moreover, Plaintiff's counsel argues that there is no evidence that Michael Bowers consulted with any "psychiatrist" or "psychologist" at Seabrook House. Similarly, Plaintiff argues that there is no evidence that Dr. Gooberman was a psychologist or psychiatrist, nor that he treated Michael Bowers "for depression."
This Court is unmoved by Plaintiff's counsel's argument that essentially seeks to deflect culpability by asserting that defense counsel is out of luck because they did not use the "magic words" in deposition questioning. Nothing in either Dr. Switenko's records or Bowers's own answers, or deposition testimony, would have put Defendants on notice that Bowers was suffering "severe depression" or that he was addicted to drugs. Dr. Switenko's records establish only that the doctor diagnosed Plaintiff with adjustment reaction with depressive features, not severe depression. (Def.'s Reply Ex. A to Sanctions Motion, Deposition of John O'Brien, M.D. at 122.) Moreover, when asked at his deposition what emotional harm he had suffered, Bowers responded: "Depression. I had to take antidepressant medication because everything I worked for was demolished; anxiety medication." (Def.'s Ex. G to Sanctions Motion, M. Bowers Dep. at 256.) When asked what symptoms of depression he was experiencing, Bowers responded: "Down all the time, loss of appetite, anxiousness." (Id. at 260.) This testimony did not suggest that Bowers was suffering from "severe depression," nor that he was using illegal drugs. Indeed, it would have seemed insulting and perhaps even oppressive if defense counsel, upon hearing about mere depression, started to inquire about illegal drug use, drug addiction or drug treatment. In addition, Bowers consistently represented that he saw only his treating physician, Dr. Switenko. (Id. at 256-60, 488.) At his 1999 depositions, Bowers testified that he had stopped taking antidepressants because he no longer needed them. (Id.) Bowers also testified that he had not seen Dr. Switenko since November 1998. (Id.)
In addition, Plaintiff argues that Michael Bowers bears no personal responsibility for failing to update his interrogatory responses, as no evidence has been presented of any personal knowledge or understanding of the Federal Rules of Civil Procedure. Again, the Court is unmoved. While Michael Bowers may not have understood the Federal Rules of Civil Procedure, his attorneys most certainly did. As discussed below, Ms. Ransom certainly had this knowledge long before the March 2002 stay in this case was entered, yet she waited years — until approximately two years after her client's death — to disclose it.
3. Prejudice
With respect to the second Poulis factor, Temple argues prejudice both to itself and to this Court. Temple contends that the failure of Bowers and his counsel to timely provide information detailing Bowers's drug use and medical treatment severely and irreparably prejudices Temple's ability to adequately prepare a defense to Plaintiff's claims. This Court agrees.
"Prejudice," for the purpose of the Poulis analysis, does not require a finding of irreparable or "irremedial harm." Ware, supra, 322 F.3d at 222. Rather, "the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial." Id. (citation omitted). Furthermore, prejudice includes "the burden that a party must bear when forced to file motions in response to the strategic discovery tactics of an adversary." Ware, 322 F.3d at 223 (citation omitted).
Here, the information about Bowers's drug use and psychiatric problems, which is relevant to both Plaintiff's liability and damages claims, was produced after more than six years of litigation and two years after Bowers's death, leaving Temple unable to question Bowers about that substance abuse or have him examined by its own experts. Based on these failures in disclosure, Temple had no independent basis for investigating any drug use or deeper psychiatric problems by Bowers or account for any additional damages in preparing its defense and structuring its litigation strategy. Moreover, the actual firsthand source of information that would form the basis of Temple's defense against Bowers's damages claim — Bowers, himself — is unavailable, resulting in a situation akin to the spoliation of evidence and warranting sanctions. See Walters v. General Motors Corp., 209 F. Supp. 2d 481, 492-93 (W.D. Pa. 2002) (granting summary judgment based on destruction of evidence within the plaintiff's control because the destruction of the evidence "effectively precludes defendant from refuting plaintiff's allegations").
The Court does not suggest that the unavailability of the Plaintiff due to death is the same as spoliation of evidence such as the typical loss of important documents or items, see, e.g., Scott v. IBM Corp., 196 F.R.D. 233, 247 (D.N.J. 2000) (holding that spoliation sanctions for avoidable loss of crucial evidence are within the inherent power of the court). The point is simply that due to Plaintiff's counsels' conduct in failing to produce requested medical information, Defendants are unable to question the late Mr. Bowers whose death occurred several years after Plaintiff's counsel breached this duty.
Plaintiff claims that despite the evidence in the record of Plaintiff's use of prescription drugs and depression, Defendants elected not to request a psychological or psychiatric evaluation of Michael Bowers about these matters, did not request a psychological or psychiatric evaluation of him by their own experts, and never attempted to obtain any discovery or take any deposition testimony from Dr. Switenko. Any prejudice, therefore, according to Plaintiff's counsel, is the result of Temple's own conscious decision to ignore and minimize Michael Bowers's emotional distress claims.
With respect to Temple's claims that it is prejudiced by its inability to have its own expert witnesses examine Bowers, Plaintiff argues that despite what it characterizes as a wealth of evidence available to Defendants in 1998 and 1999 that Bowers's emotional distress claim was serious, Defendants never requested a mental examination of Mr. Bowers prior to the original April 1999 discovery cutoff. Furthermore, Plaintiff contends that Temple's own expert, Dr. Carla Rodgers, does not suggest in her report that her opinion concerning Bowers's mental state and causation of his drug problem was in any way impaired by her failure to examine him.
Plaintiff also rejects Temple's spoliation of evidence argument, maintaining that Defendants had four days to depose Bowers and possessed ample evidence supporting Plaintiff's claim of emotional distress to warrant a request for a mental health examination. The information that Defendants had regarding Bowers's emotional state during the initial phase of discovery, however, did not reasonably suggest that a medical examination was warranted. It was not until after Bowers's death and the disclosure of this information that such an examination could be said to be reasonably desired by Defendants.
In 1999, Temple moved for summary judgment, arguing that Bowers was not a "qualified individual with a disability" under the ADA or "otherwise qualified" under Section 504 of the Rehab Act based on his skills and low weight as an offensive lineman. Had Temple possessed this additional information related to Plaintiff's substance abuse, the University would undoubtedly have raised these additional facts as a basis for undermining Plaintiff's status as a "qualified individual with a disability" or that he was "otherwise qualified" for participation in intercollegiate athletics. However, Bowers's active concealment of these facts precluded Temple from raising this issue at that juncture and that concealment continues to prejudice Defendants.
4. History of Abuses and Willfulness/Bad Faith
Temple argues that Mr. Bowers's answers to Temple's discovery were untruthful, if not intentionally misleading. He disclosed receiving treatment from only one physician, neglecting to mention that he underwent two weeks of intense, inpatient drug treatment for an addiction to heroin. (Def.'s Ex. D to Sanctions Motion, ¶ 15.) Indeed, Bowers was released from a drug rehabilitation facility the day before he verified and served his responses to Temple's First Set of Interrogatories. (Id; Def.'s Appendix at P-2122.)
Rather than remedying this omission in later deposition testimony, the late Mr. Bowers compounded it. During his January 11, 1999 and March 26, 1999 depositions, Bowers denied receiving treatment from any other physician or psychiatrist. (Def.'s Ex. G to Sanctions Motion, M. Bowers Dep. at 256-60, 488.) However, according to Michael Bowers's medical records, in the months leading up to his deposition, Bowers had received daily outpatient drug treatment, attended several therapy sessions and began a controversial drug treatment program. (Def.'s Appendix at TU1003-1010, P-1982; Def.'s Ex. F to Sanctions Motion, K. Bowers Dep. at 15-16.) Temple argues that Bowers also failed to supplement his discovery responses during the intervening years of litigation. The medical records Temple received for the first time on May 10, 2004 clearly were covered by Temple's first request for production of documents in 1998. (Def.'s Ex. E to Sanctions Motion at 1.) Also, Bowers did not supplement his responses to Temple's interrogatory asking him to identify all of his treating physicians, even though he continuously underwent inpatient and outpatient treatment for depression and drug addiction from more than a half dozen medical providers from October 1998 through his death in June 2002. (Def.'s Appendix at P-1790-1853, P-1915-75, P-1979-2139, TU1014-1066; Def.'s Ex. F to Sanctions Motion, K. Bowers Dep. at 15-18.) Bowers's failure to supplement his discovery responses violated Federal Rule of Civil Procedure 26(e), which requires seasonable supplementation or correction to include information subsequently acquired. For obvious reasons, providing this information five years later was not "seasonable." Moreover, Temple's interrogatories themselves required Plaintiff to supplement his answers: "These interrogatories are continuing and any information secured subsequent to the filing of your answers, which would have been includable in the answers had it been known or available, is to be supplied by supplemental answers." (Def.'s Ex. C to Sanctions Motion at 5, ¶ 16.) This failure, Temple argues, warrants dismissal. See, e.g., Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 2000) (failure to supplement discovery responses without substantial justification warrants sanctions under Fed.R.Civ.P. 37, which includes exclusion of evidence or dismissal of the action).
Temple also contends that Plaintiff's counsel acted in bad faith by engaging in a game of discovery "hide and seek." Temple argues that Plaintiff's expert reports, served on August 2, 2004, suggest that Plaintiff's counsel were aware of Bowers's drug use many years before revealing that information to Defendants. At oral argument, both Ms. Ransom and Mr. Bazelon admitted to this Court that they had become aware of their client's drug use prior not only to the time this information was revealed to opposing counsel but also prior to the original stay in this case. In fact, Ms. Ransom admitted to learning of her client's drug use in late 1999 and the record evidence suggests she may have known as early as October 1998, while Mr. Bazelon stated that he became aware in early 2001. The record now reflects that Plaintiff's counsel sent Bowers to Dr. Roberts in February 1999 and failed to provide Defendants with the medical records that were provided to both Dr. Roberts and Dr. O'Brien for their evaluations of Bowers from February 1999 through March 2002. Dr. Roberts' report, based upon three examinations of Bowers between February 1999 through September 2000, revealed that Bowers suffered from serious psychological problems and an addiction to drugs; it chronicled Bowers's numerous hospitalizations for depression and drug rehabilitation. (Def.'s Ex. I to Sanctions Motion, Carol H. Roberts' Expert Report.) Dr. O'Brien's report, based on examinations in 2001 and 2002, stated that Plaintiff's counsel referred Bowers to develop an "opinion regarding the presence or absence of any psychiatric [or] substance abuse [diagnosis]." (Def.'s Ex. J to Sanctions Motion, John O'Brien's Expert Report.)
Plaintiff's counsel thus knew that Bowers had serious psychological problems, had long-suffered from an addiction to painkillers, heroin and other illicit drugs and had been hospitalized several times for that addiction. Ms. Ransom confirmed at oral argument that she became aware of Bowers's addiction in 1999, and Mr. Bazelon confirmed his knowledge as of 2001. However, counsel waited until 2004 to provide Temple and the other Defendants with this information. Plaintiff's counsel thus multiplied, in bad faith, the prejudice to Defendants by willfully failing to disclose all information in their possession.
In opposition to this motion, Plaintiff argues that Temple has not complained about any discovery violations other than the alleged nondisclosures that are the subject of this motion, thereby failing to establish a pattern of abuses. Plaintiff also argues that Defendant fails to establish any bad faith on the part of Michael Bowers or his attorneys. Instead, Plaintiff argues that the most that can be said is that Plaintiff's counsel did not supplement Plaintiff's responses to certain interrogatories and document requests as soon as the new information became available. Plaintiff argues that there is only a duty to "seasonably" amend discovery responses under Fed.R.Civ.P. 26(e), not to do so "simultaneously." See Scott Fetzer Co. v. Dile, 643 F.2d 670, 674 (9th Cir. 1981) (observing that Rule 26(e) does not require a "simultaneous supplementation" of interrogatory responses). Plaintiff maintains that the information that is the subject of this motion was produced promptly after Magistrate Judge Rosen's February 6, 2004 scheduling order, and sufficiently in advance of the close of discovery to allow Defendants to depose any of the doctors who treated Michael Bowers. Thus, Plaintiff contests Temple's assertion of bad faith.
This Court is extremely troubled by the actions of Plaintiff's counsel in this case. While this matter was stayed in early 2002, at which time an appeal to the Third Circuit was taken, that stay did not relieve counsel of their continuing obligation to disclose information as vital to Plaintiff's cause of action as this in a case that was, and had been since its inception, so vigorously litigated. Long before the temporary stay in March of 2002, Plaintiff's counsel knew of their client's struggles with controlled substances and his treatments and diagnoses. It was not, however, until the stay was later lifted and discovery resumed in 2004 that counsel saw fit to share this information with Defendants. By then, the one individual who could shed light on the true history of his own drug use — Michael Bowers — was gone. In this case, a would-be student athlete, litigating his bar from eligibility due to the NCAA's academic requirements, was in fact a habitual drug user who had become addicted to prescription and illegal drugs, and thus ineligible to compete in any event. Counsel could simply not have failed to appreciate the pivotal importance of disclosing this information in 1999, 2000 and 2001. That counsel chose to conceal this devastating and highly probative medical information, when Defendants had sought all such medical records, demonstrates both willfulness and bad faith.
5. Alternative Sanctions
Temple contends that given the circumstances, no alternative sanction, aside from dismissal, will be appropriate in this instance. The Supreme Court has recognized that
the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.National Hockey League, 427 U.S. at 643.
Plaintiff, however, argues that no sanction is warranted at all, because the conduct of Plaintiff and counsel was entirely appropriate. However, should this Court believe that a sanction is appropriate, Plaintiff asserts that the requested sanction of dismissal of the case is drastic and extreme, not reasonably related to the claimed violation and unwarranted under the circumstances. See Insurance Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 707 (1982) ("First, any sanction must be `just'; second, the sanction must be specifically related to the particular `claim' which was at issue in the order to provide discovery."). Plaintiff maintains that this is not a case where Defendants have been blind-sided at the eleventh hour or effectively prevented from making their desired arguments; instead, the information about Michael's drug use is, at most, relevant only to Plaintiff's damages claims alleging that Michael Bowers's drug use was caused by Defendants' discrimination. The Court does not agree that the eventual sanction should be limited to Plaintiff's damage claims because Michael Bowers's drug use and addiction and treatment failures were highly relevant to the liability claim that he was otherwise qualified to participate in intercollegiate athletics from the earliest days of this litigation.
6. Merit of the Claims or Defenses
Temple argues that because the record demonstrates that Bowers never considered his drug use as part of his damages, Plaintiff's claim for damages based on this evidence is without merit. In both interrogatories and deposition questions, Bowers was asked what harm he suffered from the alleged actions of Defendants; at no time did Bowers identify drug use as part of that resulting harm. In fact, in his depositions, Bowers himself was not about to reveal that his very life had fallen into the grip of drug abuse. The proper standard for assessing the merits of a claim or defense under this Poulis factor is whether the allegations of the pleadings, if proven, would support recovery by the plaintiff. Poulis, 747 F.2d at 869-70 ("[W]e do not purport to use summary judgment standards. A claim . . . will be deemed meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff. . . ."). Here, the record is devoid of any support for Plaintiff's position that Bowers's drug use was a result of Defendants' allegedly discriminatory conduct in prohibiting him from playing NCAA Division-I football. Since, unfortunately, her son has died of drug overdose, Mrs. Bowers's principal claim, albeit newly announced, seeks to hold Defendants responsible for his addiction and death, despite a sketchy history of drug abuse predating the events at issue in this case. In the best view, such a claim was exceedingly weak and attenuated, since it was never articulated in the five years of litigation before death while Mr. Bowers seemingly spiraled downhill. There is a just symmetry in extinguishing the claim that Defendants are liable for drug addiction when neither the decedent nor his attorneys disclosed the addiction to begin with.
7. Analysis
Having considered the facts of this case in light of thePoulis factors, as articulated by the Third Circuit, in addition to the Federal Rules of Civil Procedure, this Court concludes that sanctions are to be imposed against Plaintiff due to serious discovery misconduct by Mr. Bowers, and his attorneys, Ms. Ransom and Mr. Bazelon. It is clear that Temple, the NCAA and Iowa have been irreparably prejudiced by the concealment of information regarding Bowers's emotional state, drug use and unsuccessful drug treatments. Evidence of Plaintiff's drug use goes not only to the issue of damages but also to questions of liability. Moreover, it is equally clear to this Court that the actions of Plaintiff's counsel rise above a mere lack of due diligence, to the level of bad faith. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 790 (3d Cir. 1994); Ware, supra, 322 F.3d at 224-25; C.T. Bedwell Sons, supra, 843 F.2d at 692-97. This Court therefore finds it appropriate, as a form of sanction, to preclude Plaintiff from using any of the concealed information and also from countering Defendants' offering of record evidence on the issue of Michael Bowers's drug use in support of Defendants' motion for summary judgment. See Fed.R.Civ.P. 26(e)(2), 37(c)(1), 37(b)(2)(B). Thus, due to Plaintiff's counsel's misconduct, Defendants lack the practical ability to question Mr. Bowers about the full extent and duration of his drug abuse, and thus suffer irreparable prejudice, the records that have belatedly been supplied to Defendants in and after May 2004 must be deemed conclusive and unopposed by Plaintiff. Plaintiff shall be precluded from disputing the facts shown by direct and circumstantial evidence in the records of Mr. Bowers's drug abuse and severe depression, and Plaintiff shall be precluded from arguing that gaps in these records give rise to some favorable inference in opposition to summary judgment. Therefore, the Court grants Defendants' motion for sanctions pursuant to Rule 37(c)(1) and 37(b)(2)(B), Fed.R.Civ.P., which, as will be discussed below, leads this Court to further grant summary judgment in favor of Defendants, thereby ultimately dismissing this case in its entirety.
B. Temple University's Motion for Summary Judgment
1. Standard of Review
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must normally view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted). Due to the discovery sanction imposed against Plaintiff, however, for evidence relating to Mr. Bowers's undisclosed drug abuse, addiction and treatments, Plaintiff will not receive the benefit of arguably favorable inferences, if any, from these records.
Where the nonmoving party bears the burden of persuasion at trial, as Plaintiff does in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985),cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50. Thus, if the plaintiff's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62. In this case, due to the discovery sanction, Plaintiff is called upon to demonstrate a material factual dispute without relying on the undisclosed records that gave rise to the sanction.
2. Plaintiff's Status as a "Qualified Individual"
Defendant Temple University argues that it is entitled to judgment as a matter of law because Michael Bowers was not a "qualified individual with a disability" under the ADA or "otherwise qualified" under the Rehab Act.
Plaintiff brought his discrimination claim under Title II of the ADA, Section 504 of the Rehab Act and the NJLAD. Under the Rehab Act:
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.29 U.S.C. § 794(a). Title II of the ADA similarly provides:
No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.42 U.S.C. § 12132. Like its federal law counterparts, the NJLAD also prohibits discrimination on the basis of disability. N.J.S.A. 10:5-12f(1).
The Third Circuit has held that although the language of the Rehab Act and the ADA is slightly different, the standards under the two statutes are identical. McDonald v. Pennsylvania Dept. of Public Welfare, 62 F.3d 92, 94 (3d Cir. 1995) ("Whether suit is filed under the Rehabilitation Act or under the Disabilities Act, the substantive standards for determining liability are the same") (citation omitted). Similarly, the Third Circuit has held that the NJLAD relies on the same analytical framework as the ADA. Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 581 (3d Cir. 1998) (citing Ensslin v. Township of N. Bergen, 646 A.2d 452, 458 (N.J.Super. App. Div. 1994), certif. denied, 663 A.2d 1354 (N.J. 1995)); Van De Pol v. Caesars Hotel Casino, 979 F. Supp. 308, 312 (D.N.J. 1997) (citing McNemar v. The Disney Store, Inc., 91 F.3d 610, 618 (3d Cir. 1996), cert. denied, 519 U.S. 1115 (1997)). Thus, Plaintiff must show that Bowers was otherwise qualified to play Division I football, which Temple contends he was not.
An individual claiming protection under the Rehab Act must meet any legitimate program requirements in order to be "otherwise qualified." See Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979). Moreover, an individual cannot be "otherwise qualified" when "accommodating that individual would require either a modification of the essential nature of the program, or impose an undue burden on the recipient of federal funds." Strathie v. Department of Transportation, 716 F.2d 227, 231 (3d Cir. 1983).
Based on the information disclosed in May 2004, it is now clear that Bowers was not otherwise qualified to play Division I football because his drug use made him ineligible to compete for Temple or any other school. Bowers began using marijuana in 1991 at the age of thirteen, many years before he applied to Temple or sought clearance through the NCAA. (Def.'s Appendix at P-2091.) After his back injury in 1996, he began abusing percocet and other prescription painkillers. (Id. at P-1783, P-1819, P-2091, TU1138-45.) Between September 1996 and March 1997, Bowers received at least nineteen different prescriptions for painkillers including percocet, hydrocodone and Tylenol with codeine. (Id. at P-1783, TU1138-41, TU1145.) Bowers continued to take these painkillers for months thereafter, while attending Temple. (Id. at P-2091.)
In August 1998, when Bowers had already stopped attending classes at Temple, thus giving up any football eligibility he might otherwise have had, he began using heroin and cocaine. (Id. at P-2093.) Two months later, Bowers entered his first drug rehabilitation program. (Id. at P-2087-2122.) On admission to Seabrook House in October 1998, Bowers admitted to the use of marijuana, along with the use of heroin and cocaine. (Id. at P-2091.) Thus, at the time Bowers first sought eligibility as a student athlete, and at all relevant times thereafter, Bowers was using drugs, thereby rendering him ineligible to participate in Division I athletics. See e.g., Taub v. Frank, 957 F.2d 8 (1st Cir. 1992) (holding that heroin use was a sufficient basis to render plaintiff not "otherwise qualified"); Guice Mills v. Derwinski, 967 F.2d 794 (2d Cir. 1992) (holding that plaintiff was not "otherwise qualified" when she took medication that rendered her unable to perform her job); Copeland v. Philadelphia Police Dept., 840 F.2d 1139 (3d Cir. 1988) (holding that police officer was not "otherwise qualified" as a result of his drug use).
In opposing this motion, Plaintiff argues first that the requirement that Bowers be "otherwise qualified" is not applicable in the Title II context, citing Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169 (9th Cir. 1999). Plaintiff asserts that Zimmerman stands for the proposition that plaintiffs suing under Title II of the ADA need not show they are qualified to participate in the program or service from which they were allegedly excluded. Zimmerman, however, holds only that Title II of the ADA does not apply to employment cases. 170 F.3d at 1184. In so holding, the Ninth Circuit recognized that "[a] plaintiff is not `qualified' to bring any Title II claim unless he or she `meets the essential eligibility requirements' of a government service, program, or activity provided by a public entity." Id. at 1175. Zimmerman, therefore, provides no support for Plaintiff's argument; in fact, Zimmerman explicitly states that "to prevail on a Title II claim . . . a plaintiff must prove that he or she is a `qualified individual with a disability.'" Id. at 1175 (internal citations omitted).
In addition, in response to Temple's evidence of Bowers's ineligibility, Plaintiff contends that Bowers was not addicted to drugs prior to the Fall of 1998 and suggests that it was the conduct of Defendants, as alleged in his Complaint, as well as this Court's denial of his application for a preliminary injunction, that brought about Plaintiff's downward spiral. However, Plaintiff fails to fully account for the information provided in Bowers's medical records and in the information Bowers provided to Dr. John O'Brien, one of Plaintiff's experts. Moreover, Plaintiff relies on the fact that Temple performed a medical examination of Bowers in March 1997 to clear him to use the Temple athletic facilities, arguing that this fact coupled with Bowers's academic performance during the Spring 1997 semester belies Defendants' argument. However, Bowers told Dr. O'Brien that he took percocet daily for a year, before and after his back surgery, even though he was no longer in pain. (Def.'s Reply Ex. B to Summary Judgment Motion, O'Brien Dep. at 24-25, 29, 103-04.) In addition, Dr. Smolenski's records reflect that Bowers was prescribed Tylenol with codeine on March 6, 1997 as well as a notation on March 18, 1997 that no more refills were to be given, suggesting that Bowers had sought additional narcotics. (Def.'s Appendix at TU1138.) Bowers therefore clearly continued to take prescription painkillers after he enrolled at Temple. Furthermore, nothing in Bowers's medical examination would have revealed his abuse of prescription painkillers. No drug test was performed on Bowers as part of the examination because he was not participating in NCAA competition. (Exhibit D to Affidavit of Barbara Ransom.)
Plaintiff maintains that the record evidence raises sufficient questions of material fact as to preclude the entry of summary judgment. Defendant Temple University, however, argues that Plaintiff should be precluded from arguing that there are genuine issues of material fact with respect to Bowers's drug use throughout the relevant period because Plaintiff and Plaintiff's counsel concealed that drug use until after his death, making it impossible for Temple to inquire into that issue. This Court agrees, as discussed at length above, and precludes Plaintiff from contesting Defendants' arguments based on evidence of Bowers's drug use, as a sanction for Mr. Bowers's and counsels' failure to disclose this vital, highly damaging information, as they had an affirmative obligation to do, upon their discovery. The evidence of record thus shows that Michael Bowers's pattern of substance abuse involving painkillers, heroin and other drugs, originally hidden, precluded his participation in intercollegiate athletics and also caused his failure of eligibility by failing to enroll, and to remain enrolled, in a collegiate academic program as required for athletic eligibility at all material times.
Accordingly, this Court holds that there is no material dispute of fact that Mr. Bowers's history of drug abuse during his affiliation with Temple, as well as his failure to remain enrolled, precluded him from being a "qualified individual with a disability," eligible to participate in intercollegiate athletics, and that Plaintiff cannot prove this essential element of liability under the ADA, the Rehab Act, or the NJLAD, supra. Based on this finding, the Court finds it appropriate, in light of the record evidence before it, to grant entry of summary judgment in favor of Defendants.
C. University of Iowa's Motion for Summary Judgment
Defendant University of Iowa renews its motion for summary judgment on the issue of Eleventh Amendment immunity as the alter-ego of the State of Iowa, following this Court's previous denial of that same motion on May 25, 1999.
On July 3, 2001, former Judge Orlofsky declined to grant the University of Iowa Eleventh Amendment immunity. The University of Iowa did not appeal at that time. However, on November 7, 2001, this Court held the University of Memphis to be an alter-ego of the state of Tennessee and entitled to sovereign immunity, but found that the immunity of that amendment had been abrogated by acts of Congress in the ADA and the Rehab Act. The University of Memphis filed its Notice of Appeal on November 21, 2001. The University of Iowa thereafter filed its Notice of Appeal in December 2001, arguing that there were few factual differences between the Universities of Memphis and Iowa, and the district court's decisions on sovereign immunity were inconsistent. On August 20, 2003, the Third Circuit dismissed the University of Iowa's appeal as untimely.
As the University of Iowa has moved for joinder in Defendant Temple University's motions for sanctions and for summary judgment, which this Court grants, the Court need not reach the issue of whether Iowa is also entitled to the immunity protections afforded by the Eleventh Amendment. This case will be dismissed against all Defendants on the grounds discussed above.
III. CONCLUSION
For the reasons discussed above, this Court grants the motions for joinder in Temple University's summary judgment and sanctions motions filed by Defendant National Collegiate Athletic Association and Defendant University of Iowa. The Court will impose sanctions against Plaintiff and Plaintiff's counsel for discovery abuse, precluding Plaintiff from presenting evidence that Defendants' alleged conduct caused the decedent Michael Bowers to suffer drug abuse and addiction and severe psychiatric problems, and also precluding Plaintiff from using the previously concealed records to oppose Defendants' summary judgment motion. The motion for summary judgment of Defendant Temple University, joined by the NCAA and Iowa, will be granted. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the motion for sanctions and motion for summary judgment of Defendant Temple University, as well as the motion for joinder in Temple University's motions by Defendant National Collegiate Athletic Association and the motion for joinder in Temple University's motions and for summary judgment and reconsideration by Defendant University of Iowa; and the Court having considered the submissions of the parties in support thereof and in opposition thereto; and the Court having heard oral argument on January 13, 2005; and for the reasons stated in the Opinion of today's date; and for good cause shown pursuant to Rules 26(e)(2), 37(c)(1), 37(b)(2)(B) and 56, Fed.R.Civ.P.;IT IS this 21st day of March, 2005 hereby
ORDERED that Defendant Temple University's motion for sanctions against Plaintiff and Plaintiff's counsel Barbara E. Ransom, Esq. and Richard L. Bazelon, Esg. [Docket Item No. 301-1] shall be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that Plaintiff is barred from using all previously concealed information (namely, all records or other evidence unseasonably disclosed in and after May 2004) at trial or in motion practice, and Plaintiff is precluded from supporting her claim that Defendants are liable for Michael Bowers's drug abuse and depression, and Plaintiff is precluded from opposing Defendants' claim that Michael Bowers's drug abuse rendered him unqualified to participate in a program of intercollegiate athletics at all relevant times; and
IT IS FURTHER ORDERED that Defendant Temple University's motion for summary judgment [Docket Item No. 302-1] shall be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that Defendant National Collegiate Athletic Association's motion for joinder in the motions for sanctions and for summary judgment of Temple University [Docket Item No. 304-1] shall be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that Defendant University of Iowa's motion for joinder in the motions for sanctions and for summary judgment of Temple University [Docket Item No. 300-1] shall be, and hereby is, GRANTED, and the University of Iowa's renewed motion for summary judgment on the issue of Eleventh Amendment immunity is DISMISSED AS MOOT ; and
IT IS FURTHER ORDERED that the Clerk of Court shall close this case upon his docket.