Heckman v. North Penn Comprehensive Health Services

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MATTHEW HECKMAN, No. 4:20-CV-01680

Plaintiff, (Chief Judge Brann)

v.

NORTH PENN COMPREHENSIVE

HEALTH SERVICES, and

UPMC WELLSBORO,

Defendants.

MEMORANDUM OPINION

JUNE 10, 2024

I. PROCEDURAL BACKGROUND

On September 15, 2020, Plaintiff Matthew Heckman initiated this litigation

with the filing of a Complaint against Defendants North Penn Comprehensive Health

Services and UPMC Susquehanna.1 Heckman subsequently amended his Complaint,

substituting UPMC Susquehanna for UPMC Wellsboro and adding The Green Home

as a Defendant.2 In the Amended Complaint, Heckman alleged four claims for relief

against North Penn and UPMC Wellsboro: Declaratory Judgment (Count I) and

retaliation under the False Claims Act (Count II), Pennsylvania Whistleblower Law

(Count III), and Fair Labor Standards Act (Count IV). Heckman also brought a claim

1 Compl. Doc. 1.

for unpaid wages under the Pennsylvania Wage Payment and Collection Law against

UPMC and The Green Home.3

The Court denied motions to dismiss the Amended Complaint filed by each

Defendant.4 The Defendants then filed Answers in which each brought

counterclaims against Heckman for breach of contract.5 On September 6, 2023,

Heckman dismissed his claims against The Green Home, leaving North Penn and

UPMC Wellsboro as the remaining Defendants.6

On November 20, 2023, North Penn and UPMC Wellsboro filed Motions for

Summary Judgment as to each of Heckman’s claims, and their own counterclaims

against Heckman.7 On January 19, 2024, while Defendants’ Motions were pending,

the parties stipulated to the dismissal of Heckman’s Declaratory Judgment claim

against both North Penn and UPMC Wellsboro and UPMC Wellsboro’s

counterclaim.8 Accordingly, the only remaining live claims are the retaliation

claims, Counts II-IV, against both North Penn and UPMC Wellsboro and North

Penn’s breach of contract counterclaim.

3 Id. Count V.

4 July 7, 2021 Mem. Op. and Ord., Docs. 64-65.

5 UPMC and The Green Home Ans., Docs. 68, 77; North Penn Ans., Docs. 69, 78.

6 Sept. 6, 2023 Stipulation of Dismissal, Doc. 114; Sept. 6, 2023 Ord. Approving Stipulation of

Dismissal, Doc. 115.

7 UPMC Mot. Summ. J., Doc. 122; North Penn Mot. Summ. J., Doc. 125.

8 Jan. 19, 2024 Stipulation of Dismissal, Doc. 131.

Concurrent with its Reply brief in support of its Motion for Summary

Judgment, North Penn also filed a Motion to Strike Heckman’s Response to North

Penn’s Statement of Material Facts (“RSMF”).9 North Penn asks the Court to deem

admitted all but two of the 205 paragraphs of North Penn’s Statement of Material

Facts (“SMF”) on the basis that Heckman’s Responses are deficient.10 That Motion

is fully briefed and ripe for disposition, and, for the reasons below, it is denied.11

II. DISCUSSION

Federal Rule of Civil Procedure 12(f) provides that a Court may, either on its

own or on motion, strike “an insufficient defense, or any redundant, immaterial,

impertinent, or scandalous matter.” “In proceeding on a motion to strike for

relevancy, the movant must show that the allegations being challenged are so

unrelated to the plaintiff's claims as to be unworthy of any consideration and that

their presence in the pleadings will be prejudicial.”12 “Although courts possess

considerable discretion in disposing of a motion to strike under Rule 12(f), ‘striking

a pleading is a ‘drastic remedy’ to be used sparingly because of the difficulty of

deciding a case without a factual record.’”13

9 Mot. to Strike, Doc. 149.

10 Br. Supp. MTS, Doc. 150.

11 Id.; Opp’n. MTS, Doc. 160; MTS Reply, Doc. 162.

12 Karpov v. Karpov, 307 F.R.D. 345, 348 (D. Del. 2015).

13 Id. at 349 (quoting Dann v. Lincoln Nat'l Corp., 274 F.R.D. 139, 142 (E.D. Pa.2011); citing

Thornton v. UL Enters., No. 09-287E, 2010 WL 1005021, at *2 (W.D. Pa. Mar. 6, 2010)).

A. Local Rule 56.1

Local Rule 56.1 requires all motions for summary judgment to be

“accompanied by a separate, short, and concise statement of the material facts, in

numbered paragraphs, as to which the moving party contends there is no genuine

issue to be tried.” The party opposing summary judgment must then include with its

papers an answer to the movant’s statement of facts in which it identifies, in

corresponding numbered paragraphs, those material facts which the non-movant

contends there is a genuine issue to be tried.14 “Statements of material facts in

support of, or in opposition to, a motion shall include references to the parts of the

record that support the statements.”15 Where the non-movant fails to abide by these

requirements of Rule 56.1, the movant's uncontroverted statements of fact may be

deemed admitted.16

Ultimately, “the proper sanction for violating Rule 56.1 is within the district

court's discretion.”17 In determining the proper sanction, the Court is mindful of Rule

56.1's purpose: to structure a party's summary judgment legal and factual theory into

a format that permits and facilitates the court's direct and accurate consideration to

14 LR 56.1.

15 Id.

16 Landmesser v. Hazleton Area Sch. Dist., 982 F. Supp. 2d 408, 413 (M.D. Pa. 2013), aff'd, 574

F. App’x. 188 (3d Cir. 2014); see also Conn v. Bull, 307 F. App'x 631, 633 (3d Cir.

2009) (upholding district court's decision to deem facts admitted under Local Rule 56.1).

17 Hickey v. Merritt-Scully, No. 4:18-cv-01793, 2021 WL 949448, at *2 (M.D. Pa. Mar. 12,

2021) (citing Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 614 (3d Cir. 2018)).

the motion.”18 The movant's statement and the non-movant's response should enable

“the court to identify contested facts expeditiously.”19

1. Additional Facts

North Penn first suggests that “[t]he Court should strike all additional

information in Heckman’s RSMF” on the grounds that “a counter-statement of facts

submitted by the non-movant is ‘neither contemplated nor permitted by the Local

Rules.’”20 Though “[c]ourts in this district have repeatedly held that ‘Local Rule 56.1

does not permit a non-moving party to file an additional statement of material facts

that does not respond to the moving party's statement,’” that is not what Heckman

has done here.21 Where Heckman has included qualifying statements of fact or

additional facts in response to non-contested paragraphs, they are contained within

the corresponding numbered paragraphs of his RSMF. He did not submit the sort of

separate, counterstatement of facts that courts in this District have held to be

improper.22

18 Park v. Veasie, 3:09–CV–2177, 2011 WL 1831708, at *3 (M.D.Pa. May 11, 2011) (quoting

Hartshorn v. Throop Borough, No. 3:07–cv–013332009, WL 761270, at *3 (M.D. Pa. Mar.

19, 2009)).

19 See id. at *3 (quoting Pinegar v. Shinseki, No. 1:07–CV–0313, 2009 WL 1324125, at *1 (M.D.

Pa. May 12, 2009)).

20 Doc. 150, at 5-6 (quoting Barber v. Subway, 131 F. Supp. 3d 321, 322 n.1 (M.D. Pa. 2015)).

21 Williams v. Pennsylvania State U., No. 4:20-CV-00298, 2023 WL 6626789, at *3 (M.D. Pa.

Oct. 11, 2023) (quoting Evans v. Kaye, No. 4:19-CV-01112, 2021 WL 5416282, at *5 (M.D.

Pa. Nov. 19, 2021) and collecting cases).

22 E.g., id. (“Williams’ answer to Defendant's Statement of Facts responded to each paragraph

and included 107 paragraphs of ‘Additional Material Facts.’”); Barber, 141 F. Supp. 3d at 322

n.1 (“In response to Subway's Rule 56.1 statement, Barber filed an omnibus document

containing both a response to Subway's statement of facts and a separate counter-statement of

“[W]hen a properly supported motion for summary judgment is made, the

adverse party ‘must set forth specific facts showing that there is a genuine issue for

trial.’”23 Thus, it must be the case that, where North Penn has supported its motion

for summary judgment, Heckman can set forth additional specific facts to

demonstrate that there is a genuine issue for trial.24 To the extent that Heckman has

done so by setting forth such facts in the corresponding paragraphs of his RSMF,

that serves to “enable ‘the court to identify contested facts expeditiously.’”25

2. Mischaracterizations and Lack of Citations

North Penn separately argues that “in every instance where Heckman either

‘disputed’ or failed to define whether a paragraph was undisputed or disputed,

Heckman argues irrelevant information that does not affect the veracity of the related

material facts the latter of which is non-responsive to Subway's statement and is neither

contemplated nor permitted by the Local Rules.”); Evans, 2021 WL 5416282, at *5 (“In this

case, Defendants filed a statement of material facts as required by Local Rule 56.1, but Plaintiff

did not respond to Defendants' statement and instead filed his own independent statement of

material facts.”). But cf. Weitzner, 2017 WL 3894888, at *12 (granting motion to strike where

non-movant’s statements “regularly include long excerpts from deposition testimony in an

attempt to explain or contextualize a fact”). Heckman’s response does not suffer from the same

defects as that of Plaintiffs in Weitzner. There, despite responding to only one-third of the

defendants’ SMF, the RSMF was over twice as long. Id. at *12 n.6. Here, Heckman’s RSMF,

which responds to the entirety of North Penn’s SMF, is shorter once the incorporated SMF

paragraphs are excised. The Court also notes that several of North Penn’s statements include

long excerpts from record documents. E.g., North Penn SMF (“NP SMF”), Doc. 127 ¶¶ 22,

24, 25, 27, 28 (reproducing lengthy excerpts from Heckman’s employment agreement); id. ¶¶

69-72, 74-82, 84-89, 94, 95, 106, 108 (reproducing over four pages of memorandum in SMF

paragraphs).

23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)).

24 Dolan v. Community Med. Ctr. Healthcare System, No. 06CV2365, 2008 WL 11499207, at *3

(M.D. Pa. Dec. 29, 2008).

25 Supra n.19.

statement of fact.”26 In support, North Penn directs the Court to SMF and RSMF

paragraphs 51 and 53 in which North Penn quoted Heckman’s deposition testimony

and Heckman responded that North Penn had mischaracterized the quoted

testimony27 or that he misspoke during the deposition.28 Heckman’s RSMF identifies

several similar purported mischaracterizations or statements he believes lack

important context.29

Parties will often dispute the interpretation or effect of certain facts. In such

cases, the Court simply “look[s] to the parts of the record cited by each party and

make its own determination as to whether the fact in question is disputed. If a party

has not supported its stated fact or its denial of that fact with a record citation, then

the Court will either assume that the fact is disputed or admitted accordingly. No

more, no less.”30 Rule 56.1 does not require the Court to make a line-by-line

determination as to each statement, excising each of the rejected assertions. The

ordinary process by which the Court evaluates competing statements of fact is

sufficient, without the Court taking the extra step of striking each rejected assertion.

The Court also notes that certain of Heckman’s responses raise an issue that

is not expressly contemplated by Rule 56.1. Several of Heckman’s responses do not

26 Supp. Br. 9.

27 NP RSMF, Doc. 137 ¶ 51.

28 Id. ¶ 53.

29 E.g., id. ¶¶ 33-6, 38, 39, 44, 49, 50, 56-59, 63, 65, 66, 88, 134.

30 Williams, 2023 WL 6626789, at *3.

contain any citation to the record. Ordinarily, the Court would simply deem the

movant’s statement admitted. However, the Court notes that Heckman is often

disputing the characterization of the record evidence cited by North Penn. In such

instances, the Court clarifies that it will look to the portion of the record cited by

North Penn, consider the competing interpretations of the cited record evidence, and,

viewing the evidence in the light most favorable to Heckman as the Court must,

determine whether Heckman has offered a plausible interpretation. If he has, then

the Court will accept it for the purposes of evaluating the pending motions for

summary judgment. If not, then the Court will accept the fact as stated by North

Penn.

North Penn’s Motion to Strike appears to rest on the premise that Heckman is

not entitled to set forth facts which demonstrate that there is an issue for trial, or that,

when the Court reviews responses to statements of fact, that it uncritically accepts

the non-movant’s assertions that certain facts are disputed at face value. Neither is

the case.31 Heckman’s RSMF does not suffer from the sorts of deficiencies which

warrant striking it in its entirety.32 North Penn’s Motion to Strike Heckman’s RSMF

is denied.

31 Cf. id. (denying motion to strike counterstatement of facts where plaintiff argued that granting

of motion would preclude plaintiff from pointing to facts from which a jury could find in her

favor and finding that striking of counterstatement was unwarranted).

32 Supra n.22.

B. Sham Affidavit

North Penn also argues in its Motion to Strike that the Court should disregard

Heckman’s Declaration which he filed as an exhibit to his opposition to Defendants’

Motions for Summary Judgment.33 North Penn suggests that the Heckman

Declaration is nothing more than Heckman “suddenly remember[ing] facts that he

did not remember” when he “answered interrogatories under oath and gave sworn

testimony for three full days in a deposition, including questioning by his own

counsel.”34

An affidavit may be excluded under the “sham affidavit doctrine” “[w]hen a

nonmovant’s affidavit contradicts earlier deposition testimony without a satisfactory

or plausible explanation.”35 That is because a sham affidavit “indicates only that the

affiant cannot maintain a consistent story or is willing to offer a statement solely for

the purpose of defeating summary judgment.”36 The doctrine rests on the principle

“that prior depositions are more reliable than affidavits,”37 because “the deponent

was either cross-examined by opposing counsel, or at least available to opposing

counsel for cross-examination.”38

33 Supp. Br. Section III.D. See also Doc. 141-14 (Heckman Decl.).

34 Supp. Br. 12.

35 Daubert v. NRA Grp., LLC, 861 F.3d 382, 392 (3d Cir. 2017).

36 Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007).

37 Id.

38 Id. (quoting Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). See

also Darnell v. Target Stores, 16 F.3d 174 (7th Cir. 1994) (“Inherently depositions carry an

increased level of reliability. Depositions are adversarial in nature and provide the opportunity

for direct and cross-examination.”).

The Third Circuit has instructed that, in applying the doctrine, courts should

not inflexibly disregard any contradictory affidavit. Instead, “[w]hen there is

independent evidence in the record to bolster an otherwise questionable affidavit,

courts generally have refused to disregard the affidavit.”39 “Such corroborating

evidence may establish that the affiant was ‘understandably’ mistaken, confused, or

not in possession of all the facts during the previous deposition.”40 The Third Circuit

has “also held that an affiant has the opportunity to offer a ‘satisfactory explanation’

for the conflict between the prior deposition and the affidavit.”41

North Penn suggests that the Court should deem admitted the statements

where “Heckman relies on his ‘Heckman Declaration’ to assert facts purporting to

contradict those drawn from his own testimony cited in North Penn’s SMF

paragraphs 33, 56, 57, 71, and 144.”42

SMF paragraph 33 cites the testimony of North Penn’s 30(b)(6) designee, not

Heckman. Accordingly, Heckman relies on his Declaration to dispute that testimony,

rather than contradict his own. In all events, that Heckman believes the purpose of

the staffing agreement between North Penn and UPMC “was to cement UPMC

Wellsboro’s control over North Penn” is consistent with his overarching theory of

39 Jiminez, 503 F.3d at 254 (quoting Baer v. Chase, 392 F.3d 609, 625 (3d Cir.2004)).

40 Id. (citing Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir.1991)).

41 Id. (citing Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir.1991)).

42 Supp. Br. 14.

the case.43 To be sure, Heckman’s belief is, on its own, sufficient to survive summary

judgment. But that that does not render his declaration a sham.

Declaration paragraph 3, which Heckman relies upon in RSMF paragraphs

56, 57, and 71, addresses a relatively narrow issue regarding concerns raised by

colleagues of Heckman that they could not safely provide obstetrical services.44

Rather than contradict his deposition testimony, Heckman’s statement is consistent

with North Penn’s SMF.45 Notably, North Penn does not object to Heckman relying

on his Declaration in RSMF paragraph 58, which squarely addresses and is

consistent with the relevant issue.46

Heckman’s response to North Penn SMF paragraph 144 does not reference

the Heckman Affidavit.47 On the contrary, it extensively cites to Heckman’s

deposition.48

43 NP RSMF ¶ 33; Doc. 141-14 (Heckman Decl.) ¶ 2.

44 NP RSMF ¶¶ 56-57; Heckman Decl. ¶ 3.

45 NP SMF ¶¶ 57-58 (discussing concerns of Heckman’s colleagues regarding lack of experience

and qualified personnel to offer obstetrics services).

46 Compare NP SMF ¶ 58 (“Dr. Stepanski raised concerns about the OB coverage within the

hospital, including backup coverage where a family medicine physician was providing OB

services. As a family medicine physician, Dr. Stepanski recommended that the hospital ‘go on

divert’ because of the lack of a board-certified OB/GYN within the area that could help provide

backup services.”) with Heckman Decl. ¶ 3 (comparing Stepanski’s qualifications with his own

and also noting that the stated concerns were regarding the coverage within the hospital). The

Court notes that the term “hospital” is used by the parties to refer to UPMC. E.g., NP SMF ¶¶

4, 22, 76, 100, 108, 175; see also UPMC SMF, Doc. 123 ¶ 19 (“North Penn provided primary

care services; UPMC provided hospital services.”).

47 NP RSMF ¶ 144.

48 North Penn cites to its own Exhibit 14—the same exhibit number used for the Heckman

Declaration—in SMF paragraph 144. It seems that North Penn simply searched for “Ex. 14”

in Heckman’s RSMF and noted each time it appeared in its brief. This would also explain the

Accordingly, North Penn’s Motion to Strike is denied as to the Heckman

Declaration and the corresponding SMF and RSMF paragraphs.

III. EVIDENTIARY ISSUES

Having resolved North Penn’s Motion to Strike, the Court now turns to other

evidentiary issues which must be resolved prior to reaching the merits of the pending

Motions for Summary Judgment.

A. Heckman Performance Memorandum

In its SMF, North Penn details Heckman’s performance issues and counseling

during the relevant period.49 In support of its version of the events leading up to

Heckman’s demotion from his role as Chief Medical Officer and his subsequent

removal from North Penn altogether, North Penn largely relies on a memorandum

drafted by the Chief Executive Officer of North Penn, James Nobles.50 According to

North Penn, Nobles “documented Heckman’s performance issues in a document he

maintained, entitled ‘Chronological History of Performance.’”51 Regarding the

creation of the document, Nobles explained: “I keep detailed notes on all of my

executives when we have discussions, particularly those that are related to

failure to include RSMF paragraph 58, which simply incorporates by reference RSMF

paragraph 56.

49 NP SMF Section II.E.a.

50 See generally id. (citing Performance Memo, NP Exh. H, Doc. 126-8).

51 Id. ¶ 68.

performance. So, if I need to reference that during annual performance reviews or

other instances, I can refer back to my notes.”52

Heckman disputes that the Performance Memo “reflects contemporaneous

notes, rather than a document that Mr. Nobles prepared retroactively as part of the

process of terminating Dr. Heckman.”53 Absent other evidence of unreliability, an

employer’s retroactive documentation of performance issues is insufficient to give

rise to an inference of improper motive.54 On the contrary, “an employer which

documents its reasons for taking adverse employment actions can often be more

suitably described as sensible than as devious.”55

Here, the Court finds that there exists “at least ‘some’ evidence in the record

[which] casts doubt on [Nobles’] justifications.”56 In addition to testifying that he

“keep[s] detailed notes on all of my executives when we have discussions,”57 Nobles

also testified that he does not keep these notes “as a matter of record” and that they

are “just notes on a scratchpad.”58 Then, “[o]nce the legal pad fills up, it’s disposed

of, shredded, and discarded.”59

52 Id. (quoting Nobles Dep., Doc. 141-7, 99:9-21).

53 NP RSMF ¶ 68.

54 See Fuentes v. Perskie, 32 F.3d 759, 766 (3d Cir. 1994) (holding that post hoc “documentation

of the reasons for rejecting an applicant is insufficient, in and of itself, to give rise to a

reasonable inference of discriminatory motive” under Title VII).

55 Id.

56 Ziegler v. Steelton-Highspire Sch. System, No. CIV.A.1:04-CV-0788, 2005 WL 2030440

(M.D. Pa. Aug. 3, 2005) (Conner, J.) (citing Fuentes, 32 F.3d at 764-65).

57 Supra n.52

58 Nobles Dep. 106:20-22.

59 Id. 107:2-4.

As to when he drafted the Performance Memo, Nobles testified that he “can’t

recall the actual date that it was prepared.”60 When asked if he “prepared the

document all at once,” Nobles responded: “No, I don’t believe so. I believe this was

prepared over a period of time. As you can see, it spans from March all the way up

through November.”61 However, Nobles also testified that he could not remember

the date he drafted it and that he drafted it by referencing his calendar, both

statements that make little sense if the document was prepared over a period of

time.62 On November 8, 2019, Nobles emailed Krysta Wagner, North Penn’s Chief

Operating Officer,63 telling her that he put the “Chronological History of

Performance” together that morning and asked her to “work on a similar document

from an operations [perspective] outlining the challenges you’ve endured over the

past 6 months.”64

Other evidence in the record also casts doubt on the substance of certain

entries in the Performance Memo. In an entry dated September 5, 2019, Nobles

stated that he reported the misalignment between Heckman, then the CMO, and

North Penn leadership to Board Chairman, Glenn Poirier.65 Nobles and Poirier

60 Id. 100:8-9.

61 Id. 107:5-9. See also id. 107:15:17 (Q: Do you have any prior drafts of this report? A: I think

it’s an ongoing document in Word. I don’t think it saves as prior drafts, No.”).

62 Id. 100:6-9, 105:24-16. See also id. 332:14-21 (responding to question from UPMC counsel

that he could not remember when he drafted the document, other than it was prepared in 2019).

63 Id. 202:7.

64 Pl Exh. 28, Doc. 141-28.

65 NP SMF ¶ 87.

purportedly “[d]iscussed formal removal of Dr. Heckman as CMO,” a decision

Poirier supported.66 However, Poirier testified that the Board played no role in

Heckman being relieved of his responsibilities as CMO; rather, the Board was

merely advised of Noble’s decision.67 A recurring theme of Heckman’s reported

conduct in the Performance Memo is the frequent “misalignment” between

Heckman and North Penn management and its mission.68 During his deposition

though, Nobles struggled with questions regarding what it meant to have an alliance

or be aligned with Heckman or other executives.69

As North Penn relies on the Performance Memo as factual support for its

assertion that “Heckman had a significant number of performance-related issues,”70

the memo is hearsay—an out of court statement “offered in evidence to prove the

truth of the matter asserted.”71 “[H]earsay statements can be considered on a motion

for summary judgment if they are capable of admission at trial.”72

66 Id.

67 Poirier Dep., Doc. 141-6, 71:6-72:15.

68 E.g., Performance Memo entries of June 16, June 26, Aug. 14, Aug. 19, Aug. 27, Aug. 29,

Sept. 5, Sept. 6, Sept. 11, Sept. 13, Sept. 19, Sept. 24, Oct. 31. See also, e.g., id. entries for

Sept. 4 (discussing necessity of “united voice”); Sept. 12 (discussing attack of UPMC

Wellsboro CEO Jamie Hilfiger’s leadership); Nov. 5, and Nov. 7 (discussing behavior

“counterproductive” to North Penn’s mission). The Court notes that certain of these entries are

discussions of the same incident which occurred across multiple dates. E.g., id. entries of Nov.

5 and Nov. 7.

69 E.g., Nobles Dep. 111:1-21, 171:9-172:3.

70 NP SMF ¶¶ 66, 68.

71 Fed. R. Evid. 801(a)(2).

72 Shelton v. U. of Med. & Dentistry of New Jersey, 223 F.3d 220, 223 n.2 (3d Cir. 2000)

(citing Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1275 n. 17 (3d Cir.

1995)).

Relevant here, Federal Rule of Evidence 803(6) excludes from hearsay

business records which meet certain requirements:

(6) Records of a Regularly Conducted Activity. A record of an act,

event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by—or from information

transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity

of a business, organization, occupation, or calling, whether or not for

profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or

another qualified witness, or by a certification that complies

with Rule 902(11) or (12) or with a statute permitting certification; and

(E) the opponent does not show that the source of information or the

method or circumstances of preparation indicate a lack of

trustworthiness.73

According to Nobles, the Performance Memo was either a running document

drafted over the course of several months or drafted in a single morning, and was

compiled of informal notes which he disposed of or detailed notes which he keeps

for review purposes. Further, certain entries contradicted by other evidence in the

record. Therefore, the Court finds that it is unlikely that North Penn could establish

at trial that the Performance Memo meets the conditions for admissibility as a

business record.

73 U.S. v. Browne, 602 F. Supp. 3d 687, 693 (D.N.J. 2022).

B. Deposition Objections and Conduct

That the Performance Memo itself is inadmissible is not the end of the inquiry.

To the extent that Nobles could testify to the contents of the Memo at trial, the

statements contained therein can be considered at summary judgment.74 To

determine whether it is likely Nobles could offer such testimony, the Court reviews

Nobles’ deposition.

Before doing so, the Court briefly recounts a prior dispute between the parties

regarding Heckman’s deposition. After taking his deposition, North Penn advised

the Court that it “was forced to suspend the deposition due to Dr. Heckman’s

continued obstinance.”75 North Penn complained that Heckman “acted to

purposefully frustrate and convolute the record, responding with canned statements

only marginally related to North Penn’s questioning.”76 North Penn also accused

Heckman’s counsel of doing “little to assist in furthering the deposition, instead

interjecting with admonitions to ‘move on’ to another line of questioning.”77 North

Penn asserted that “[t]he transcript shows that Dr. Heckman was continuously

unwilling to provide an answer to the question asked, instead making canned, non-

74 Howley v. Experian Info. Sols., Inc., 813 F. Supp. 2d 629, 636-37 (D.N.J. 2011).

75 July 19, 2023 Letter to Court, Doc. 111, at 1.

76 Id.

77 Id.

responsive statements and declining to provide his own understanding” of

documents or other basic facts.78

The Court agreed. After a hearing, the Court required Heckman to sit for

another deposition and pay the costs associated with the first, aborted deposition.

Now, after having reviewed the transcripts of other depositions in this case, the Court

finds it alarming that counsel was able to complain about Heckman’s conduct with

a straight face.

During his deposition, Nobles was asked if he had any discussions with

Heckman regarding UPMC’s influence within North Penn, specifically regarding

the board of directors. Over the course of several pages, the transcript shows Nobles

avoiding answering questions on the basis that he cannot remember a specific

conversation, even when asked if any conversation occurred in general.79 Nobles

also testified that he cannot remember any specific details of any conversation which

may have occurred,80 except that he is sure that any concerns Heckman expressed

were simply Nobles’ concerns “that were then articulated back to [him].”81

When questioned whether Heckman temporarily served as medical director

for The Green Home, Nobles asked counsel to define temporarily. When counsel

responded, “for any length of time,” Nobles said that “he does not believe that’s

78 Id. at 3.

79 Nobles Dep. 51:24-52:16, 54:9-15.

80 Id. 52:9-16.

81 Id. 53:3-55:3, 56:2-10.

temporary. So, no.”82 Counsel then asked if Heckman had served in that capacity

“[f]or a short period of time,” which Nobles, again, needed defined. Counsel asked

Nobles his “understanding of a short period of time,” to which Nobles responded,

“[a]n hour.”83 So counsel reverted back to the original question, asking if Heckman

agreed to serve as medical director “for any period of time” to which Nobles finally

responded in the affirmative.84

During his 30(b)(6) deposition, Nobles relied on notes that he prepared for the

deposition at various points. At the outset, Nobles was asked if the notes were

prepared after he met with counsel. Nobles responded that, because he met with

counsel months prior and prepared the notes the night before the deposition, it could

be said that he prepared the notes after meeting with counsel, or that, because he met

with his counsel the morning of the deposition, he actually prepared them

beforehand.85

82 Id. 60:6-20.

83 Id. 60:12-16.

84 Id. 60:17-20.

85 Nobles 30(b)(6) Dep., Doc. 141-10, 19:6-23. The Court also notes that the privilege objection

raised during the deposition appears to have been without merit. The topic of conversations

with counsel are not privileged. Questions regarding the broad subject matter of

communications are permissible, if not necessary, to evaluate a claim of privilege. See Fed. R.

Civ. P 26(b)(5) (requirement that a party withholding information on the basis of privilege

“describe the nature of the . . . communications . . . in a manner that, without revealing

information itself privileged . . . will enable other parties to assess the claim”). Though simply

characterizing a meeting with counsel as “deposition prep” may ordinarily be sufficient to

establish the subject matter of that meeting as privileged, the issue here is whether Nobles

waived that privilege. Nobles testified that he met with counsel for over five hours a week

prior, then drafted notes for his deposition. Nobles 30(b)(6) Dep. 19:17-20:9. Whether Nobles’

notes were the product of that meeting is hardly a logical leap or improper line of inquiry. Nor

is the fact that counsel did not participate in the drafting of the notes of any significance. The

No reasonable person, much less the CEO of an organization of any size,

would understand “short period of time” or “after,” in the context they were used, to

have the meanings Nobles claimed. Nevertheless, Nobles’ inane quibbles over basic

questions was also a recurring theme. When asked if minutes were prepared for

Board meetings, Nobles asked for counsel to define “prepared,” then disputed the

definition before eventually answering the question.86 Nobles testified that North

Penn was conducting an “obstetric needs assessment” for the area but was confused

by what it meant for there to be a “shortage” of providers.87 During his 30(b)(6)

deposition representing North Penn, when asked if criticism of his performance as

CEO was “off base,” Nobles responded that he was “not even really sure what [off

base] means outside of a baseball game.”88 It strains credulity that Nobles, North

Penn’s CEO whose communications frequently “take a military flare,” is unfamiliar

with the term “off base” outside of a baseball game.89 Further, Nobles continually

privilege belongs to North Penn, and if North Penn disclosed the substance of the

communication, with or without assistance from counsel, the privilege is waived. Brigham and

Women's Hosp. Inc. v. Teva Pharm. USA, Inc., 707 F. Supp. 2d 463, 469-70 (D. Del. 2010).

86 Nobles Dep. 71:5-21.

87 Id. 287:20-12.

88 Nobles 30(b)(6) Dep. 79:2-9.

89 Id. 198:17-199:2. See also Off-base (adj.), Oxford English Dictionary Online Ed. (July 2023)

(“1. North American. In predicative use: off-target; misguided, mistaken; wrong. 2. Situated

or occurring away from a military base.”).

objected to questions about “concerns” HRSA may have had during their review of

North Penn,90 despite using the word himself in a nearly identical context.91

Relatedly, Nobles also routinely offered “canned” answers to questions about

his role in Heckman’s removal from North Penn and termination from UPMC. When

asked if there were “issues where [he] aligned with Dr. Heckman in terms of pushing

back against UPMC’s influence on North Penn,” Nobles offered a broad, non-

responsive answer that he and Heckman “shared a common interest that North Penn

Comprehensive Health Services as a federally qualified health center operating in

Tioga County had a responsibility to the patients we served. And as a member of our

executive staff, he shared that vision, that I did as well . . . that we put the patient at

the center of all our care delivery model.”92 When asked if he recommended

Heckman be terminated, Nobles responded that he did not because the staffing

agreement did not allow him to terminate Heckman.93 When asked if he told

Heckman that Heckman would be terminated, Nobles again responded: “I don’t have

the ability to terminate staff. So, no, those conversations would not have taken

place.”94 Neither of these answers, or the several similar responses given during the

90 Nobles 30(b)(6) Dep. 14:1-15:15, 24:23-25:10, 32:6-33:3.

91 Nobles Dep. 53:19-25 (testifying regarding his “concerns” that North Penn had a board of

directors that followed the HRSA compliance manual).

92 Id. 171:9-3.

93 Id. 113:16-24.

94 Id. 117:10-16.

deposition,95 are responsive to the questions. Whether Nobles had the authority to

fire Heckman is an issue distinct from whether he recommended Heckman be

terminated or told Heckman he would be terminated; evidence in the record shows

that Nobles did both.96 Further, as noted above, Nobles appeared to read from his

notes for much of his 30(b)(6) deposition.97

Finally, counsel engaged in conduct similar to the above and that which it

complained about to the Court. At one point, counsel claimed to be confused about

the meaning of the word “affiliation” during a line of questioning about an affiliation

agreement entered into by her client.98 Despite Rule 30(c)(2)’s “require[ment] that

a deponent answer all deposition questions—notwithstanding counsel’s

objections,”99 counsel repeatedly instructed Nobles not to answer certain

questions.100 Further, counsel made several speaking objections which, in addition

to being improper, misconstrued the relevant testimony or question.101

95 E.g., id. 120:2-17, 267:23-268:1, 274:13-276:5, 286:7-287:7,

96 See, e.g., id. 205:5-14 (discussing Nobles’ note that “continued disruptive behavior will result

in immediate termination”); Pl. Exh. 38, Doc. 141-38, at 4423 (note by UPMC Wellsboro CEO

Janie Hilfiger stating that “by the time approval for termination was obtained Jim changed his

mind”).

97 E.g., Nobles 30(b)(6) Dep. 101:8-102:7 (North Penn’s counsel objecting to questions regarding

the contents of Nobles “canned outline”).

98 Id. 45:21-47:6.

99 July 19, 2023 Letter at 1 (citing Fed. R. Civ. P. 30(c)(2)).

100 E.g., Nobles 30(b)(6) Dep. 36:8-20; 65:5-68:18, 81:5-20, 86:6-88:6, 101:8-102:7, 140:12-

141:10, 153:10-17, 154:18-155:8, 163:2-17. The Court notes that none of these objections

implicate the narrow exceptions in Rule 30(c)(2).

101 See, e.g., Nobles Dep. 52:18-53:7 (Nobles’ testimony that he was not aware that Heckman had

expressed concerns about UPMC influence in 2018 is not the same as testifying that he was

never aware, as suggested by counsel’s objection); 170:19-25 (that Nobles was not on a

particular email does not mean that Nobles would have “no idea” why the drafter might say he

Due to the foregoing issues, Nobles’ deposition is of little utility in trying to

determine whether Nobles would be able to provide fulsome testimony regarding its

contents.102

C. Oral Argument

By the Court’s count, thirty-six of North Penn’s SMF statements rely solely

on the Performance Memo for support.103 As North Penn notes in support of its

Motion to Strike, SMF paragraphs without record support violate Local Rule 56.1.

Therefore, those thirty-six paragraphs are deficient under the Rule.

However, the Court also notes that, broadly, Heckman does not dispute that

the events in the Performance Memorandum occurred. Rather, he disputes only

Nobles’ characterization of those events.104 Further, Heckman also relies on the

Performance Memorandum to establish the timeline of events which he argues led

to his termination.105 It seems, then, that the Court cannot simply disregard the

relevant SMF paragraphs or the document they rely in in their entirety.

The Court is also cognizant of the fact that Defendants need not prove that

they had a legitimate reason for terminating Heckman if he cannot first establish a

does not trust Nobles); Nobles 30(b)(6) Dep. 148:15-18 (improperly objected to question

regarding how Nobles determined no federal funds were used to pay physicians on the ground

that Nobles had they were not, which says nothing about how that determination was made).

102 See Howley, 813 F. Supp. 2d at 637 (party offering evidence needs to show at least “some

likelihood” that witness could testify to hearsay at trial for it to be considered at summary

judgment).

103 NP SMF ¶¶ 69-72, 74-82, 84-89, 94, 95, 106, 108-121.

104 E.g., NP RSMF ¶¶ 72, 74-76, 79, 84, 106, 108, 110-114, 117-21.

105 Doc. 136, at 34.

prima facie case.106 On that front, the Court’s initial review of Heckman’s opposition

seems to reveal that his claims often rest upon his own spotty recall of events.107

Though the Court is required to draw all reasonable inferences in Heckman’s favor

at summary judgment, it cannot stack inference upon inference to preserve an issue

for the jury.108 “If the evidence is merely colorable, . . . or is not significantly

probative, . . . summary judgment may be granted.”109

It appears that this may be such a case. Heckman purports to have frequently

complained about UPMC’s influence over North Penn but is generally unable to

offer specifics of what he said and when, instead relying on his assertion that he

complained about it so frequently, that he must have raised the issue at key

moments.110 Simply put, Heckman’s argument seems to be that he frequently blew

the whistle on UPMC’s improper influence, Nobles and UPMC CEO Janie Hilfiger

were frequently frustrated with Heckman, therefore they must have been frustrated

about his whistleblowing.

106 See Doc. 128, at 23 (UPMC asserting that, because Heckman cannot establish a prima facie

case, it need not demonstrate that Heckman would have been terminated in the absence of any

protected conduct). The Court recognizes that who was responsible for terminating Heckman

is a matter of some dispute and emphasizes that, for present purposes, the reference to his

termination by Defendants collectively is merely for ease of discussion.

107 For example, Heckman has no memory of being put on a performance improvement plan,

which remains admissible evidence of at least some of the conduct detailed in the Performance

Memorandum discussed above. Heckman June 15, 2023 Dep., Doc. 141-1, 150:9-153:4.

108 In re Asbestos Litig., No. CV 17-56-MN-SRF, 2019 WL 325130, at *6 (D. Del. Jan. 25, 2019).

109 Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986)).

110 E.g., Heckman June 15 Dep. 153:7-154:9.

Yet, discovery does not appear to have turned up any documentary evidence

in which Heckman, Nobles, or Hilfiger expressed their frustrations in so many

words. When Heckman submitted a letter of resignation, he did not cite any specific

frustrations with UPMC influence.111 Heckman’s argument that Nobles removed

him as Chief Medical Officer and eventually terminated him to placate Hilfiger

requires the Court to infer both that Hilfiger wanted Heckman to be removed (or that

Nobles believed as much), and that Nobles was willing to do so as an “olive

branch.”112 Whether Heckman “reasonably saw [his termination] as being an ‘olive

branch’ to Hilfiger”—that is, his belief about why he was ultimately terminated—is

not significantly probative as to Nobles’ motivations.113

* * *

Though this case presents some interesting and complex legal questions, the

Court cannot reach those issues without first resolving some more basic evidentiary

issues. It is the Court’s intention to, by highlighting the above issues, provide the

parties with notice of what it sees as the gating issues in evaluating the pending

motions for summary judgment ahead of oral argument.114 Of course, the parties

111 NP SMF and RSMF ¶ 96.

112 E.g., Doc. 136, at 39.

113 Id.

114 The Court emphasizes that it has erred on the side of brevity for the sake of giving the parties

as much notice as is practical ahead of argument. The parties should not take reference to

specific exhibits, testimony, or arguments to mean that the Court has disregarded others, nor

should the parties feel constrained to the specific examples cited herein.

should also be prepared to discuss the more substantive legal issues presented in

their respective motions, as well as any other issues they believe warrant additional

consideration.

IV. CONCLUSION

For the foregoing reasons, North Penn’s Motion to Strike is denied.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge