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noting that a court "will not find manifest injustice when the moving party simply reargues the issues that were not previously successful"
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Case No. 2:10-CV-00135 Case No. 2:12-CV-00189
02-18-2014
SUNIL NAYYAR, M.D., Plaintiff, v. MT. CARMEL HEALTH SYSTEMS, et al., Defendants.
JUDGE ALGENON L. MARBLEY
Magistrate Judge King
OPINION & ORDER
I. INTRODUCTION
This matter is before the Court on Plaintiff Sunil Nayyar's Motion for Reconsideration of the Court's Order Granting Defendant's Motion for Summary Judgment (Doc. 118-1), requesting reconsideration of the Court's Opinion and Order of June 3, 2013, granting summary judgment in favor of Defendants Mt. Carmel Health Systems, Dr. John Weiss, and Dr. Li Tang (Doc. 117). Plaintiff argues that his reasonable belief that Defendant Weiss was committing a criminal act affords him protection as a whistleblower under O.R.C. § 4113.52 (Doc. 118-1 at 2), and this Court's grant of summary judgment for Defendants constitutes a manifest injustice (Doc. 124-2 at 4). Furthermore, Plaintiff adds that this Court's finding that the ICU Call Schedule was not a "written report" for purposes of O.R.C. § 4113.52 is incorrect. (Id. at 5). Defendants oppose the Motion on the grounds that Plaintiff does not provide a viable basis for granting reconsideration, that Plaintiff misconstrues this Court's June 3, 2013 Opinion and Order, and that Plaintiff is merely reasserting faulty arguments. (Doc. 81 at 3-5).
Generally, record citations refer to documents filed in Case No. 2:10-CV-00135. Defendants' Response, however, was filed only in Case. No. 2:12-CV-00189, and as such will be referenced by its docket number in that case.
For the reasons stated herein, Plaintiff's Motion is hereby DENIED.
II. PROCEDURAL POSTURE
Plaintiff commenced this action in the Franklin County Court of Common Pleas on February 16, 2010. (Doc. 1). The case was removed to this Court on February 17. (Doc. 3). On March 1, 2012, Plaintiff filed a similar suit in the Court of Common Pleas, which Defendants removed to this Court, and which was consolidated on September 10, 2012, with the 2010 case. On March 8, 2013, Defendants filed a Motion for Summary Judgment on all ten causes of action pending in the consolidated suit. (Doc. 90). The Court granted summary judgment for Defendants on all counts. (Doc. 117). Plaintiff filed a Motion for Leave to File Motion for Reconsideration (Doc. 118), with the Motion for Reconsideration attached. (Doc. 118-1). The matter has been fully briefed, and is ripe for review.
III. BACKGROUND
The facts of this matter are set forth at length in the Court's Opinion and Order of June 3, 2013 ("Opinion and Order") (Doc. 117).
In July 2007, Plaintiff was transferred into Defendant Mount Carmel Health Systems' Internal Medicine Residency Program. (Plaintiff's Dep., Doc. 61 at 24, 49-51). Defendant Weiss was Plaintiff's immediate supervisor, and Defendant Li was the Director of Medical Education. (Doc. 117 at 2). In late June or early July 2009, Plaintiff received a copy of the July ICU Call Schedule, and had concerns about the staffing levels on certain shifts. (Plaintiff's Dep. at 149). Plaintiff expressed his concerns to Defendant Weiss, and Plaintiff repeated his concerns to Defendant Li. (Id. at 145-46, 149). Plaintiff also gave Defendant Li a copy of the ICU Call Schedule with some handwritten notes on it. (Li Dep., Doc. 95-6 at 171-74). Defendant Li ultimately decided not to change the ICU Call Schedule. (Plaintiff's Dep. at 145-46).
Subsequently, Plaintiff made three unsuccessful attempts to insert an arterial line ("Aline") into a comatose patient. (Email from Lisa Cottrell to Debra Price, Doc. 62-4). Plaintiff asked the nurses in the room to insert the A-line, which was beyond the scope of the nurse's practice. (Id.). Defendant Weiss received notice of Plaintiff's involvement in this incident and instructed Plaintiff not appear for his next shift. (Plaintiff's Dep. at 92). Defendants stated that Plaintiff was instructed not to discuss the investigation with other staff until the investigation ended, while Plaintiff stated he received no such instruction. (Id. at 116). It is undisputed that Plaintiff discussed the A-line incident with multiple residents. (Id. at 95-99). On July 22, 2009, Defendant Weiss terminated Plaintiff, on the grounds that he discussed the events surrounding the A-line placement. (Termination Letter, Doc. 61-2).
In its Opinion and Order, the Court ruled that Plaintiff's termination did not violate O.R.C. § 4113.52, Ohio's "whistleblower" protection statute. (Doc. 117 at 13). Plaintiff believed that Defendants violated O.R.C. § 2903.34, which makes "patient abuse or neglect" a criminal offense, and O.R.C. § 2923.02, which makes an attempt to commit patient abuse or neglect a criminal violation. In its reasoning, this Court noted that Plaintiff's only evidence of such an attempt was Plaintiff's affidavit, in which Plaintiff claims that Defendant Weiss told him that "he wanted patients to die to prove his point about assignment of residents . . . to the ICU." (Id. at 11). In Plaintiff's deposition, however, Plaintiff recalls the conversation in greater detail by stating that Defendant Weiss only told him that "we don't belong in the ICU." (Plaintiff's Dep. at 145). The Court concluded that "Plaintiff has failed to adduce any evidence, aside from his affidavit, that Defendant Weiss or any Defendant, attempted to abuse, neglect, or otherwise harm patients." (Doc. 117 at 12).
This Court also held that Plaintiff failed the "written notice requirement" in O.R.C. § 4113.52(A)(1)(a), reasoning that Plaintiff's notes on the ICU Call Schedule "does not satisfy the requirement that [the] report put supervisors on notice that a criminal violation has occurred." (Doc. 117 at 13). Furthermore, this Court noted that "[i]f the Plaintiff had actually believed Defendant Weiss was trying to harm patients, the suggestion that he would simply have jotted that fact down in the margins of a schedule strains the Court's credulity." (Id.).
Lastly, this Court rejected Plaintiffs spoliation of evidence claim. (Id. at 18). This Court reasoned that Plaintiff did not present any evidence that there was a "willful destruction" of the ICU Call Schedule. (Id. at 17). Moreover, Plaintiff did not explain "how the absence of the ICU Call Schedule has prejudiced him." (Id. at 18).
IV. STANDARD OF REVIEW
A district court will reconsider a prior decision for one of three reasons: "(1) [a]n intervening change in law; (2) [e]vidence that was not previously available has become available; [and] (3) [if] [n]ecessary to correct a clear error of law or prevent manifest injustice." Kittle v. Ohio, No. 2:05-CV-1165, 2007 WL 543447, at *1 (S.D. Ohio Feb. 15, 2007). "Motions for Reconsideration serve a limited function, and are generally warranted where there is . . . a need to correct a clear error or prevent manifest injustice." Pegg v. Davis, 2:09-CV-908, 2009 WL 5194436, at *1 (S.D. Ohio Dec. 22, 2009). A court will not find a clear error of law when the moving party claims that the court misinterpreted or omitted key facts. See Jones v. Cincinnati, No. 1:04-CV-616, 2011 WL 4888867, at *1 (S.D. Ohio Oct. 13, 2011) (concluding that "[t]he proper forum for additional argument is in the Court of Appeals."). Furthermore, a court will not find manifest injustice when the moving party simply reargues the issues that were not previously successful. See Render v. Forest Park Police Dept., No. 1:07-CV-489, 2009 WL 2168783 (S.D. Ohio July 26, 2009).
Although a motion for reconsideration is not mentioned in the Federal Rules of Civil Procedure, it is often treated as a motion to alter or amend under Rule 59(e). See Shivers v. Grubbs, 747 F. Supp. 434, 436 (S.D. Ohio 1990); see also Kittle, 2007 WL 543447, at *1. "Motions for reconsideration should not be used as a substitute for appeal nor should they be used as a vehicle for mere disagreement with a district court's opinion." Gore v. AT&T Corp., No. 2:09-CV-854, 2010 WL 3655994, *1 (S.D. Ohio Sept. 14, 2010); Phelps v. Economus, No. 4:06-CV-0543, 2006 WL 1587389, *1 (N.D. Ohio June 7, 2006).
V. ANALYSIS
Plaintiff asks this Court to revisit its Opinion and Order on "several bases on which [Plaintiff's] whistle blower claim should be reconsidered." (Doc. 124-2 at 1). Plaintiff claims that "no actual violation is required to evoke whistleblower protection. . . . The belief that a crime occurred still complies with the Ohio whistleblower statute even if the belief is inaccurate." (Doc. 118-1 at 3-4). Furthermore, Plaintiff claims there is "ample evidence" that his belief was reasonable (Doc. 123 at 5), and the Court's failure to construe this evidence in his favor "contravenes [Federal Rules of Civil Procedure] 56 [and] would constitute a manifest injustice." (Doc. 124-2 at 4).
The Plaintiff further asserts that this Court incorrectly determined that the ICU Call Schedule does not qualify as a "written report" under O.R.C. § 4113.52. (Doc. 124-2 at 5). Moreover, Plaintiff argues that Defendants' actions are purely retaliatory (Doc. 123 at 3), and that the Defendants' failure to preserve the ICU Call Schedule should have been weighed against the Defendants (Doc. 82-2 at 6). In these remaining arguments, Defendant does not present any evidence that was previously unavailable, does not cite to an intervening change of law, nor does Plaintiff specifically assert that the Court's Opinion and Order on these issues will result in a manifest injustice.
Although Plaintiff claims there are "several bases" for this Court to reconsider its Opinion and Order, Plaintiff does not identify an intervening change of law, nor does Plaintiff present any evidence that was once previously unavailable. Rather, it is not until Plaintiff's Reply Memorandum in Support of his Motion for Reconsideration that Plaintiff argues a manifest injustice is the basis for his reconsideration. (Doc. 124-2 at 1). Furthermore, Plaintiff does not cite to any binding caselaw which establishes that this Court made an error. Compare Maddux v. United States, No. 1:08-CV-442, 2010 WL 5478529, *1 (S.D. Ohio Dec. 30, 2010) (denying motion to reconsider when moving party could "point to no binding precedent establishing that this Court has made a clear error."). Plaintiff simply reargues his case by claiming that this Court misinterpreted the applicable facts and law, which is not a basis to find a clear error of law or manifest injustice.
Plaintiff not only fails to cite any precedent which establishes that this Court's Opinion and Order is a manifest injustice, but Plaintiff misconstrues the Opinion and Order. Contrary to Plaintiff's position, this Court did not require the Plaintiff to show that he have a "correct" belief that there was criminal conduct. Rather, even making "every favorable inference for Plaintiff . . . [his] deposition testimony fails to ascribe any statements to Defendants which can reasonably be construed to demonstrate intent to harm parties." (Doc. 117 at 12) (emphasis added).
Next, Plaintiff argues that "the fact [Plaintiff chose] to use the July 2009 ICU [Call] Schedule itself should not disqualify it as a 'written report.'" (Doc. 124-2 at 5). Plaintiff does not argue that the Court's finding on this particular issue results in manifest injustice. Rather, Plaintiff disagrees with this Court's finding that the ICU Call Schedule is not a written report for purposes of O.R.C. § 4113.52(A)(1)(a). Plaintiff's disagreement with this Court's holding is not viable basis to find manifest injustice and should be argued on appeal, not in a motion for reconsideration.
The Plaintiff's remaining arguments, that Defendant's actions were purely retaliatory (Doc. 123 at 3) and that Defendant's failed to preserve the ICU staffing schedule (Doc. 124-2 at 6) also do not provide a viable basis for granting his motion for reconsideration. Plaintiff does not state any reason why these remaining issues present a manifest injustice. As this Court stated, "Plaintiff has never explained how the absence of [the ICU Call Schedule] has prejudiced him." (Doc. 117 at 18). Again, if Plaintiff believes that this Court either omitted or misinterpreted key facts, the Court of Appeals is the proper venue for such arguments.
VI. CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Reconsideration (Doc. 118-1) is hereby DENIED.
IT IS SO ORDERED.
___________________
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE