Apuri v. Parkview Health System, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

BHALTAVATSALA R. APURI, M.D., )

)

Plaintiff, )

)

v. ) Cause No. 1:16-CV-363-HAB

)

PARKVIEW HEALTH SYSTEM, INC. )

PARKVIEW HOSPITAL, INC. )

and ROY ROBERTSON, M.D., )

)

Defendants. )

OPINION AND ORDER

This matter comes before the Court on Defendant’s Petition for Defense Costs and

Attorney Fees (ECF No. 98) and supporting Memorandum (ECF No. 99), filed on April 10, 2019.

In their Motion, Defendants ask this Court for deposition transcript costs and attorney’s fees by

virtue of their claimed status as prevailing parties in this case. Plaintiff filed his Response in

Opposition (ECF No. 100) on April 24, 2019. After being granted several extensions, Defendants

filed their Reply (ECF No. 111) on October 7, 2019. Defendant’s Petition is now ripe for review.

A. Procedural Background

Plaintiff filed his Complaint and Jury Demand (ECF No. 1) on October 14, 2016, and a

First Amended Complaint (ECF No. 25) on May 18, 2017. Generally, Plaintiff alleged that his

privileges at Defendants’ hospital were not renewed due to racial discrimination. The Complaints

alleged four causes of action: (1) a violation of 42 U.S.C. § 1981; (2) Non-Renewal of Privileges;

(3) Breach of Contract; and (4) Intentional Interference with Business Relationship. The final three

causes of action were brought under Indiana state law.

Although discovery closed on December 1, 2017, several discovery motions were filed and

heard after the deadline. Plaintiff filed a Motion to Compel (ECF No. 39) on December 1, 2017,

and a Second Motion to Compel (ECF No. 42) on December 11, 2017, seeking responses to

Plaintiff’s Request for Production of Documents and Third Request for Production of Documents,

respectively. A hearing was held on Plaintiff’s motions on February 14, 2018, by Magistrate Susan

Collins. The docket indicates that, following argument on the motions, the parties came to an

“agreement to limit discovery requests and to terms of document production,” thus mooting the

motions.

On May 24, 2018, Plaintiff filed his Third Motion to Compel (ECF No. 57). In that motion,

Plaintiff advised the Court that, despite previously agreeing to provide certain mortality medical

charts subject to one or both of Plaintiff’s earlier motions to compel, Defendants were now

demanding $176,000.00 to produce 175 charts. Plaintiff sought an order from the Court requiring

Defendants to produce the agreed-upon materials. Defendants responded on June 7, 2018. (ECF

No. 60). Rather than address the cost issue, Defendants argued that the requested charts were

privileged and irrelevant, and that the requests for production of documents were unduly

burdensome. Defendants also filed a Motion to Strike Plaintiff’s Third Motion to Compel (ECF

No. 61) on June 7, 2018, arguing that Plaintiff’s motion was untimely. Magistrate Collins again

held a hearing on the parties’ discovery dispute on July 27, 2018. The docket indicates that

Plaintiff’s Third Motion to Compel was granted and Defendants’ Motion to Strike was denied “for

the reasons stated on the record.”

During the pendency of the Third Motion to Compel, Defendants filed their Motion for

Summary Judgment and Designation of Evidence (ECF No. 70) and Memorandum of Law in

Support (ECF No. 71) on July 23, 2018. Plaintiff filed his Response Brief in Opposition to

Defendants’ Motion for Summary Judgment (ECF No. 83) and Designation of Evidence (ECF No.

84) on December 11, 2018. The parties also filed and briefed evidentiary issues as part of the

summary judgment proceedings. (ECF Nos. 87–95).

This Court issued its Order and Opinion on Defendant’s Motion for Summary Judgment

(ECF No. 96) on March 27, 2019. This Court initially found that Plaintiff’s claim was subject to

the burden-shifting analysis created by the United States Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). (Id. at 5). As such, Plaintiff was required to establish:

(1) he is a member of a protected class; (2) he performed his job to his employer’s

expectations; (3) he suffered an adverse employment action; and (4) one or more

similarly situated individuals outside his protected class received better treatment.

(Id. at 6). Plaintiff failed on both the second and fourth elements.

The Plaintiff has not established the second element of his prima facie case. The

Plaintiff argues that, because he had some of the lowest mortality rates of

physicians at Parkview, he must therefore have been qualified to hold medical

privileges. However, the Defendants decided not to renew the Plaintiff’s hospital

privileges at least in part because of issues unrelated to the Plaintiff’s medical

outcomes, including conducting rounds late at night and communication issues with

nursing staff and Emergency Room personnel. The Plaintiff has not disputed the

fact of his continued problems in these areas. The Plaintiff also does not contest the

legitimacy of the standards to which the Defendant held him.

The Plaintiff’s argument as to the fourth element suffers from a similar problem.

The Plaintiff presents evidence that he was a superior cardiologist, based on record

outcomes from procedures performed by Caucasian cardiologists, whom the

Plaintiff maintains did not lose their medical privileges as he did. However, the

Plaintiff is again failing to respond to the Defendant’s articulated reasons for the

termination of his medical privileges: the Plaintiff had documented problems with

timely rounding and availability during call. Thus, the doctors the Plaintiff

identifies are not valid comparators, because they did not have the same problems

in performance. Because he has not presented evidence regarding instances of

comparable misconduct, the Plaintiff cannot claim that he engaged in similar

conduct, but nonetheless received disparate treatment for no apparent legitimate

reason.

(Id. at 7–8).

This Court further concluded that, even had Plaintiff satisfied his burden under McDonnell

Douglas, his claim would still fail. Plaintiff failed to designate any evidence demonstrating that

the adverse employment action against him was due to his race. Notably, Plaintiff himself offered

a race-neutral reason for his termination which, in and of itself, defeated his claim under the “but-

for standard required for § 1981 claims.” (Id. at 10).

This Court did not reach the merits of Plaintiff’s state law claims. Rather, “considering

judicial economy, convenience, fairness, and comity,” the Court dismissed those claims without

prejudice to enable Plaintiff to refile those claims in an Indiana state court. (Id. at 10–12). Plaintiff

re-filed his state law claims in the Allen County Superior Court on March 28, 2019.

B. Legal Analysis

1. Costs under Fed. R. Civ. P. 54(d)

Defendants first ask that this Court award them $3,810.98 in costs, representing

Defendants’ payments to secure the deposition transcripts in this matter. Defendants assert that

they are entitled to these costs under Fed. R. Civ. P. 54(d) since they were the “prevailing party.”

“Unless a federal statute, [the Federal Rules of Civil Procedure], or a court order provides

otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Fed. R.

Civ. P. 54(d)(1). “There is a presumption that the prevailing party will recover costs, and the losing

party bears the burden of an affirmative showing that taxed costs are not appropriate.” Beamon v.

Marshall & Ilsley Tr. Co., 411 F.3d 854, 864 (7th Cir. 2005). This presumption “is difficult to

overcome” and therefore, “the district court’s discretion is narrowly confined—the court must

award costs unless it states good reasons for denying them.” Weeks v. Samsung Heavy Indus. Co.,

126 F.3d 926, 945 (7th Cir. 1997). Generally, only the losing party’s inability to pay or misconduct

by the prevailing party worthy of a penalty will suffice to justify denying costs. Bonds v. Fizer, 69

F. Supp. 3d 799, 803 (N.D. Ill. 2014).

For the purposes of Rule 54, a party is deemed “prevailing” if it prevails as to a substantial

part of the litigation. Testa v. Village of Mundelein, Ill., 89 F.3d 443, 447 (7th Cir. 1996). In a case

with mixed results, the district court has the discretion to determine whether a party meets that

standard. Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999); Testa, 89 F.3d at

447; Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 641 (7th Cir.

1991).

The question of whether Defendants are a “prevailing party” for the purposes of Rule 54(d)

does not appear to be in dispute. Defendants obtained judgment in their favor on Plaintiff’s sole

federal claim and the remaining state law claims were dismissed. The net effect of Defendants’

summary judgment victory is that there is no federal lawsuit remaining. The Court concludes that

this constitutes success as to a substantial part of the litigation before this Court, and Plaintiff does

not seriously argue to the contrary. See Congregation of the Passion, Holy Cross Province v.

Touche, Ross & Co., 854 F.2d 219, 220 (7th Cir. 1988) (“no question” party obtaining summary

judgment on federal law claim and dismissal of pendent state law claims was prevailing party).

Because Defendants qualify as the prevailing party in this matter, this Court presumes that

they are entitled to properly taxable costs. The costs a district court may tax are set forth in 28

U.S.C. § 1920. Subsection (2) of § 1920 permits this Court to tax “[f]ees for printed or

electronically recorded transcripts necessarily obtained for use in the case.” Defendants’ request

for costs representing their payments for deposition transcripts are taxable, and the Court must

start from a presumption that they are entitled to those costs.

Plaintiff attempts to overcome this presumption not by arguing one of the exceptions

identified in Bonds, supra, but instead by arguing that his state law claims continue in state court.

According to Plaintiff, “[i]t could be fundamentally unfair to award Defendants costs for

depositions that relate to all of Dr. Apuri’s claims based on the premise that Defendants prevailed

on one of these claims.” (ECF No. 100 at 5). Defendants respond that this is not a basis to deny

fees, and counter that most of the depositions dealt with Plaintiff’s federal law claim. (ECF No.

111 at 3).

The Court concludes that Plaintiff’s argument is more persuasive. As Plaintiff notes,

Defendants’ claim for costs related to all deposition transcripts would be more compelling if they

had prevailed on the merits on all Plaintiff’s claims. However, all of Plaintiff’s state law claims

survived summary judgment, and continue to pend in an Indiana state court. The Court presumes

that Defendants continue to use those transcripts in their defense of the state law claims. While the

parties dispute the percentage of the depositions devoted to the individual claims, there is little

doubt that much of the deposition testimony is broadly applicable to all Plaintiff’s claims. The

Court concludes that Defendants are entitled to a portion, but not all, of the claimed fees. See

Charter Med. Corp. v. Cardin, 127 F.R.D. 111, 114 (D. Md. 1989) (prevailing party not entitled

to costs for depositions used in related litigation).

Defendants’ documentation of its costs does little to inform the Court’s analysis of the

appropriate amount of costs. There is no indication or explanation as to which depositions were

necessary to the federal claims vis-à-vis the state law claims, how the depositions were necessary

for the successful resolution of the case, or what percentage of the claimed costs are related to their

success on the federal claim. What the Court can do is make the observation that these transcripts

are being used in two different cases, suggesting that an even split in the cost of those transcripts

is appropriate. Therefore, the Court concludes that Defendants are entitled to costs in the amount

of $1,905.49.

2. Attorney Fees under 42 U.S.C. § 1988

Separate from their claim for costs, Defendants seek attorney’s fees in the amount of

$91,610.00, which represents their attorney’s fees from the date of the close of discovery to the

entry of judgment in their favor. Defendants argue that, as of the close of discovery, “the evidence

showed that Dr. Apuri could not establish a prima facie case to support his claim of race

discrimination (yet he continued litigating).” (ECF No. 99 at 6).

Title 42, U.S.C. § 1988(b) provides, in pertinent part, that “[i]n any action or proceeding

to enforce a provision of . . . [42 U.S.C. § 1981] . . . , the court, in its discretion, may allow the

prevailing party1, other than the United States, a reasonable attorney’s fee as part of the costs.”

The Supreme Court has held that a prevailing defendant may recover attorney’s fees under § 1988

if the plaintiff’s action is “frivolous, unreasonable, or groundless, or . . . the plaintiff continued to

litigate after it clearly became so.” Hughes v. Rowe, 449 U.S. 5, 15 (1980) (quoting Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)); see also Leffler v. Meer, 936 F.2d 981, 986

(7th Cir. 1991). Defendants are not required to show either subjective or objective bad faith on the

part of the plaintiff in order to recover § 1988 attorney’s fees. Hamer v. Cty. of Lake, 819 F.2d

1362, 1366 (7th Cir. 1987) (citation omitted). Instead, the defendant must demonstrate that the

plaintiff’s action is “meritless in the sense that it is groundless or without foundation.” Hughes,

449 U.S. at 14. “[W]hen a civil rights suit is lacking in any legal or factual basis . . . , an award of

fees to the defendant is clearly appropriate to deter frivolous filings and to ensure that the ability

1 Plaintiff does not challenge Defendants’ assertion that they are “prevailing parties” under 42 U.S.C. § 1988, instead

arguing that his claim was not frivolous. (ECF No. 100 at 6–9). While the Court believes that this is a closer question

than Defendants’ status under Fed. R. Civ. P. 54(d), see Baggs v. City of South Pasadena, 958 F. Supp. 586, 588 (M.D.

Fla. 1997), it will not deny fees on a basis not argued by Plaintiff.

of the courts to remedy civil rights violations is not restricted by dockets crowded with baseless

litigation.” Coates v. Bechtel, 811 F.2d 1045, 1050 (7th Cir. 1987) (citation omitted).

Although Defendants seek all attorney’s fees from the close of discovery forward,

Defendants appear particularly aggrieved by having to address Plaintiff’s various requests for

information that would form the basis for Plaintiff’s three motions to compel. Defendants

repeatedly note Plaintiff’s pursuit of “irrelevant” information, including the medical records and

charts for patients of other cardiologists. The problem with Defendants’ protestations is that they

have already lost the debate over the relevance of Plaintiff’s discovery. Plaintiff’s first and second

motions to compel were resolved by agreement following hearing, with Defendants apparently

agreeing to produce at least some of the claimed documents, and the third was granted by the

Court. The Court fails to see how Plaintiff’s court-approved discovery supports Defendants’ claims

for fees. See Miller v. Dugan, 764 F.3d 826, 832 (8th Cir. 2014) (reducing fee award where

discovery motions were resolved in favor of non-prevailing party).

The discovery issue aside, it is true that Plaintiff’s federal claim was resolved against him

via summary judgment. Although a ruling on a motion for summary judgment is not conclusive

proof of the frivolous nature of a litigant’s case, it is a relevant consideration. Thomas v. First Fed.

Sav. Bank of Ind., 659 F. Supp. 421, 424 n.3 (N.D. Ind. 1987). However,

it is important that a district court resist the understandable temptation to engage in

post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail,

his action must have been unreasonable or without foundation. This kind of

hindsight logic could discourage all but the most airtight claims, for seldom can a

prospective plaintiff be sure of ultimate success. No matter how honest one’s belief

that he has been the victim of discrimination, no matter how meritorious one’s

claim may appear at the outset, the course of litigation is rarely predictable.

Christiansburg, 434 U.S. at 421–22.

Summary judgment is the moment in a lawsuit “when a party must show what evidence it

has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge

Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). As such, the Court concludes that Plaintiff’s

summary judgment filings represent his best evidence, and therefore the best place to go in

determining the merits of Plaintiff’s case. That evidence shows:

 Plaintiff, a cardiologist of Indian descent, had held privileges at all local hospitals,

including Parkview, from the early 2000s through 2014;

 In 2010 or 2011, Plaintiff was involved in a verbal altercation with Defendant Robertson

at Parkview where Plaintiff was told, “this is the beginning of your end in this town;”

 Plaintiff reported the verbal altercation to Parkview, but no action was taken;

 In 2009, Defendant Robertson referred to a patient as “that black guy;”

 Following the altercation with Defendant Robertson, Plaintiff became the subject of peer

review activity at Parkview for the first time in over a decade;

 Defendant Robertson participated in the peer review process by submitting information to

Parkview regarding Plaintiff’s “medical practice, clinical/technical skills, professional

judgment and quality of care issues;”

 Plaintiff’s privileges at Parkview’s All County hospitals were non-renewed as of October

31, 2014, and that decision was upheld through Parkview’s appeal processes;

 Plaintiff continued to enjoy practice privileges at Parkview’s LaGrange Hospital, and

those privileges were renewed on October 31, 2016;

 At the time Plaintiff’s privileges were non-renewed, several Caucasian cardiologists had

worse patient outcomes than Plaintiff, and Plaintiff had lower mortality rates than almost

every other cardiologist that enjoyed privileges at Parkview; and

 None of the Caucasian cardiologists were subject to peer review resulting in the

termination of their privileges.

(ECF No. 83 at 3–8).

The Court has already concluded that the foregoing evidence failed to establish a prima

facie case of discrimination, and that even if it had Plaintiff could not demonstrate that Defendants’

stated reason of the non-renewal of privileges was pretext. (ECF No. 96 at 7–10). Nothing in this

Opinion and Order changes that conclusion. However, the Court does not believe that these facts

are so paltry as to render Plaintiff’s case frivolous, unreasonable, or groundless. While this Court

found that Plaintiff’s deficiencies in conducting rounds and communicating with staff permitted

Defendants to conclude that he was unqualified to hold privileges, it was not unreasonable for

Plaintiff to believe that his low mortality rates would lead to a different conclusion. See Wohl v.

Spectrum Mfg., Inc., 94 F.3d 353, 358 (7th Cir. 1996) (plaintiff can establish, for purposes of prima

facie case, that he satisfied employer’s legitimate expectations through his own description of his

work performance). Similarly, while this Court found that other cardiologists were not proper

comparators due to differences in prior performance issues, it was not unreasonable for Plaintiff

to believe that other cardiologists practicing at the same hospital could be sufficiently similar to

him so as to count as comparators. See Coleman v. Donahoe, 667 F.3d 835, 851–52 (7th Cir. 2012)

(“Demanding nearly identical comparators can transform this evidentiary ‘boost’ into an

insurmountable hurdle.”). Finally, although this Court found that Plaintiff’s evidence did not

contradict Defendants’ stated reasons for the non-renewal or demonstrate racial bias, the Court

again finds that Plaintiff could have reasonably believed that he had adduced sufficient

circumstantial evidence of discrimination. See Rudin v. Lincoln Land Comm. Coll., 420 F.3d 712,

720–21 (7th Cir. 2005) (noting that circumstantial evidence of discrimination can consist of

“suspicious timing, ambiguous statements oral or written, behavior towards or comments directed

toward other employees in the protected group, and other bits and pieces from which an inference

of discriminatory intent might be drawn.”) (quoting Troupe v. May Dep’t Stores, 20 F.3d 734, 736

(7th Cir. 1994).

The Court also finds that the litigation activities in this case undermine Defendants’

argument of frivolity. Take, for instance, the Defendants’ summary judgment filings. The

memorandum in support of the motion is twenty-five pages long and took nearly forty attorney

hours to draft. (ECF No. 71 at 2-9; ECF No. 111-1). Defendants designated 1,091 pages of

evidence in support of the Motion for Summary Judgment (ECF No. 72). Defendants’ Reply in

Support of Motion for Summary Judgment was another sixteen pages long and took nearly thirty

attorney hours to prepare. (ECF Nos. 89, 111-1). Defendants’ summary judgment filings were

significant legal undertakings. Surely, if Plaintiff’s case was “groundless or without foundation,”

this kind of effort would not be necessary.

The Court also notes2 that these same parties have indicated to the Allen Superior Court

that they “may request that the Court conduct a trial on an issue or issues agreed upon by the

parties” in the state court case. Apuri v. Parkview Health Sys., Inc., Allen County, Indiana Superior

Court Cause No. 02D01-1903-PL-112, Order or Judgment of the Court dated January 9, 2020. If

“the exact same racial animus allegations” (ECF No. 111 at 8) require a trial in state court, it is

hard to understand how they can be frivolous here.

In summary, the Court finds that, while Plaintiff could not survive summary judgment, his

case was not frivolous, unreasonable, or groundless. See, e.g., Cooney v. Casady, 735 F.3d 514,

2 Orders from the state court are public records and appropriate subjects of judicial notice. In the Matter of Lisse, 905

F.3d 495, 496 (7th Cir. 2018).

522 (7th Cir. 2013). Accordingly, Defendants are not entitled to attorney’s fees under 42 U.S.C. §

1988.

C. Conclusion

For the foregoing reasons, this Court ORDERS the Clerk of this Court to tax costs in favor

of Defendants and against Plaintiff in the amount of $1,905.49. Defendant’s Petition for Defense

Costs and Attorney Fees (ECF No. 98) is DENIED in all other respects.

SO ORDERED on January 23, 2020.

s/ Holly A. Brady

JUDGE HOLLY A. BRADY

UNITED STATES DISTRICT COURT