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United States ex rel. Rangarajan v. Johns Hopkins Health System Corp.

United States District Court, D. Maryland

June 16, 2017

UNITED STATES OF AMERICA ex rel. MITRA RANGARAJAN
v.
JOHNS HOPKINS HEALTH SYSTEM CORP. et al. MITRA RANGARAJAN
v.
JOHNS HOPKINS UNIVERSITY MITRA RANGARAJAN
v.
JOHNS HOPKINS HEALTH SYSTEM CORP. et al.

          MEMORANDUM

          William M. Nickerson Senior United States District Judge

         On October 31, 2016, Defendants[1] in consolidated cases Civil Actions WMN-12-1953 and WMN-13-3630, filed a Motion for Summary Judgment. ECF No. 112.[2] After Plaintiff filed her opposition to that motion, ECF No. 121, Defendants filed a motion to strike that opposition, to stay further briefing of the summary judgment motion, and to dismiss Plaintiff's action with prejudice as a sanction. ECF No. 131. Defendants based that motion for sanctions on the contention that Plaintiff has flagrantly violated the Federal Rules of Civil Procedure governing both discovery and summary judgment practice. Finding that Defendants' motion raised some serious issues regarding Plaintiff's compliance with the applicable rules, the Court stayed further briefing of the summary judgment motion until the motion for sanctions could be briefed and resolved. ECF No. 132. The motion for sanctions is now fully briefed. Upon review of the pleadings and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that the motion for sanctions will be granted and that all three of the above captioned actions will be dismissed.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Mitra Rangarajan applied for a position as a nurse practitioner in the Division of Gastroenterology and Hepatology (the GI Division) at the Johns Hopkins University School of Medicine in 2007. While she had recently received a Master of Science in Nursing from the Johns Hopkins University, she had yet to be credentialed as a nurse practitioner so she was hired as a registered nurse and began work in November of 2007. She was hired at an initial salary of $65, 000 but she contends that she was promised a salary of $95, 000 once she became credentialed as a nurse practitioner. Plaintiff was credentialed as a nurse practitioner in 2009 and was given periodic increases in her salary but her salary never rose to the level she alleges she was promised.

         In Defendants' view, Plaintiff's performance did not live up to her paper qualifications. Plaintiff had attendance and tardiness issues, she failed to timely check for test results and follow up with patients, and her notes in medical histories were often disorganized and unreliable. In response to a round of negative performance reviews, Plaintiff was placed on a performance improvement plan in January of 2011. Before that plan could be fully implemented, Plaintiff demonstrated poor judgment in the care of a patient that Defendants assert could have had catastrophic results for that patient. In response to those concerns, Dr. Anthony Kalloo, the director of the GI Division, suspended Plaintiff's clinical privileges. In response to that suspension, Plaintiff resigned her position on or about May 6, 2011.

         In Plaintiff's view, she was at all times a stellar and exemplary health care provider, while those around her failed to follow up with patients, lost pathology specimens, and engaged in fraudulent billing practices. She also complains that she was treated unfairly by her supervisors and coworkers. Chief among her complaints are the following: she was denied the $95, 000 salary that she was allegedly promised; she was assigned unmanageable workloads; she was not provided the training she needed to advance her career while Dr. Kalloo showed favoritism and provided those opportunities to another Nurse Practitioner, Monica Van Dongen; Plaintiff applied for but was denied permission to participate in a Nurse Practitioner Fellowship Program; while she was accepted into a Doctor of Nursing Practice (DNP) program, once in the program she was treated unfairly by the program director, Dr. Mary Terhaar; she was given an undeserved failing grade by the Capstone professor in the DNP program, Dr. Julie Stanik-Hutt; and, she was denied vacation leave and reimbursement for attending professional conferences. Plaintiff identifies Dr. Kalloo and his assistant, Tiffany Boldin, as leading the conspiracy to mistreat her, but, in her view, most if not all of the other individuals in the GI Division were also involved in the conspiracy to set her up for failure.

         In response to this alleged mistreatment, Plaintiff has now filed four lawsuits. In the first lawsuit, Civil Action WMN-12-1953, Plaintiff alleges that this mistreatment was in retaliation for her protesting fraudulent billing practices. In that suit, she brought retaliation claims under the federal False Claims Act and the Maryland False Health Claims Act. Plaintiff originally also brought claims in that action as a putative relator under those same acts but, after the United States and the State of Maryland gave notice of their decisions not to intervene in the false claims aspects of the First Amended Complaint, Plaintiff voluntarily dismissed those claims. In the second suit, Civil Action WMN-13-3630, Plaintiff attributes the same conduct, not to retaliation, but to discrimination on the basis of her race, national origin, sex, and age and asserted claims under Title VII of the Civil Rights Act of 1964. The Court consolidated these first two cases on September 16, 2016. ECF No. 107.

         Before those two cases were consolidated, Plaintiff's counsel moved to amend the complaint in Civil Action WMN-12-1953 to restore the substantive false claims act claims. The Court denied that motion on April 14, 2015, on the grounds of both undue delay and undue prejudice. ECF No. 66. Plaintiff's counsel then proceeded to assert those same claims in a third action filed on May 14, 2015, Civil Action WMN-15-1394. This action was filed as a relator action and under seal, despite the fact that the United States and the State of Maryland had already declined to intervene on these same claims. Plaintiff's counsel allowed this case to remain under seal and unserved for over a year and a half. On January 18, 2017, the Court issued an order requesting Plaintiff's counsel to show cause why that case should not be dismissed. In response to the Court's show cause order, Plaintiff's counsel acknowledged that the action should never have been filed as a qui tam action and requested fifteen days to file an amended complaint only in the name of Plaintiff. Civ. No. WMN-15-1394, ECF No. 5 at 2.

         On February 2, 2017, this Court issued a memorandum and order dismissing Civil Action WMN-15-1394. In dismissing that case, the Court noted that,

Plaintiff's counsel's failure to properly file this case so that Defendants would have notice of the filing, and then letting it languish for over a year and a half, has resulted in claims that, if permitted to go forward, would relate to transactions that took place as long as nine years ago. Plaintiff's counsel provides no explanation for his delay and the Court concludes that he has not shown good cause as to why this case should not be dismissed for want of prosecution.

Civ. No. WMN-15-1394, ECF No. 6 at 3.[3]

         Plaintiff's counsel did not file a motion to reconsider the dismissal of Civil Action WMN-15-1394, nor did he file an appeal of that decision. Instead, on March 23, 2017, he filed a fourth action on Plaintiff's behalf, Civil Action WMN-17-807. This action is essentially identical to the just-dismissed action and, remarkably, was brought as a qui tam action on behalf of the United States and the State of Maryland, again ignoring the fact that the United States and the State of Maryland[4] had already declined to intervene on these same claims. On May 11, 2017, Defendants filed a motion to stay their obligation to respond to the Complaint in Civil Action WMN-17-807 until the Court rules on the pending motions in the first two consolidated actions. The Court granted that motion to stay on May 18, 2017.

         II. DISCUSSION

         As explained more fully below, Defendants premise their motion for sanctions on four particular aspects of Plaintiff's conduct in discovery and in opposing the summary judgment motion. First, Plaintiff has advanced an unsupported and unsupportable claim that the video-recording and transcript of her deposition were edited both to change the substance of her testimony and to make her appear less articulate. Second, Plaintiff submitted with her opposition a 54-page declaration which includes factual contentions that were never disclosed in discovery. Third, Plaintiff submitted with her opposition exhibits containing highly relevant documents that were requested in discovery but never produced. Fourth, a review of documents produced by Plaintiff indicates that Plaintiff may have withheld thousands of additional responsive documents from discovery.

         A. Plaintiff's Counsel's Reluctance to File the Opposition

         Before addressing the concerns raised by Defendants, the Court notes that it appears that Plaintiff's counsel had his own concerns and misgivings about the content of the opposition to Defendants' summary judgment motion, at least as to what Plaintiff wanted him to include in that opposition. Defendants filed their motion for summary judgment on October 31, 2016. On November 10, 2016, Plaintiff's counsel filed a motion for a two-week extension of time to file his opposition based in part on the length of the motion - it was 42 pages long with 99 exhibits. ECF No. 113. Defendants consented to the extension, ECF No. 114, and the Court granted the motion. ECF No. 115. On December 1, 2016, Plaintiff's counsel filed a second motion for an extension of time to file the opposition, to which Defendants also gave their consent, this time asking for just a two day extension and reporting that “Plaintiff prepared notes containing information she wished to be included in the opposition, but her computer crashed on November 29, 2016, and she lost all of her notes.” ECF No. 116 at 2. The Court granted that motion. Plaintiff's counsel filed a third motion for an extension on December 5, 2016, this time for a one day extension, explaining that other commitments rendered him “unable to complete the opposition and get it approved by the client.” ECF No. 118 at 2. The motion was granted and the time in which the opposition was to be filed was extended through December 6, 2016.

         On December 7, 2016, Plaintiff's counsel filed a Notice in which he stated that he “wishe[d] to advise the court why the opposition has not been filed.” ECF No. 120 at 1. He explained that, after having spending a few hundred hours working on the opposition, he had completed it and the exhibits, including a declaration from Plaintiff, on December 6, 2016. Counsel then stated that “Plaintiff had additions and revisions to her declaration which will result in changes to the opposition, and Plaintiff and her counsel are not in agreement with the final content of the opposition.” Id. at 1-2. Counsel indicated that if his differences with Plaintiff could not be resolved, he would file a motion to withdraw and allow Plaintiff to file her opposition pro se.

         Even before receiving that explanation from Plaintiff's counsel regarding the reasons for the delay in filing the opposition, the Court received an ex parte communication from Plaintiff herself indicating that there was some disagreement between her and her counsel. On December 2, 2016, the undersigned received a letter from Plaintiff in an envelope addressed “Strictly Confidential Documents for Honorable Judge Nickerson's Eyes Only.” That letter focused on her belief, detailed more fully below, that her deposition had been improperly edited. She also stated in that letter that her counsel had told her that he would like to withdraw and that she “should have retained different counsel.” Significantly, the letter also indicated that it was copied to Plaintiff's counsel and, if indeed it was, counsel was aware that his client was sending ex parte communications to the Court but took no action.

         Whatever disagreements existed between Plaintiff and her counsel must have been sufficiently resolved to permit Plaintiff's counsel to file an opposition to the summary judgment motion later in the day of December 7, 2016. The opposition that was filed was 104 pages in length. The “Facts” portion of the opposition extended from page 2 through 68, and was taken virtually word for word from Plaintiff's 54-page Declaration that was submitted with the opposition. ECF No. 121-2.

         B. Plaintiff's Efforts to Change Her Deposition Testimony

         Plaintiff's deposition was taken on August 9, 2016. On November 28, 2016, more than three months later and almost a month after Defendants filed their summary judgment motion, Plaintiff's counsel forwarded to the court reporting service a 51-page “Errata Sheet” that he states was “provided by Ms. Rangarajan.” ECF No. 131-3 (email forwarding Errata Sheet). At the beginning of this Errata Sheet, Plaintiff states,

The court reporters' office has informed me that they edited my video, audio and typed deposition transcripts. It is clear that key testimony is deleted, altered, cloned from various sound bites etc., to accomplish two things. 1. Change the testimony 2. To induce grammar mistakes thus making me sound as if I am speaking broken English.
I was unaware that court reporters were allowed to edit the deposition transcripts prior to the deponent reviewing the transcript.

Id. at 2.[5] Plaintiff then proceeds to set out in her Errata Sheet almost 500 corrections, comments, and proposed additions to the transcript.

         A few of Plaintiff's notations do reflect actual transcription errors, but those errors are inconsequential and none seriously altered the content of Plaintiff's testimony. For example, in response to a question as to why she believes she was discriminated against on the basis of her race, Plaintiff responded, “[t]here is a general perception that Indian woman (sic) are subservient and will serve as an inferior supplicant.” Plaintiff correctly points out that the transcript incorrectly transcribed “general perception” as “gender perception.” ECF No. 131-3 at 6 (referencing Pl.'s Dep. Tr. at 55). In a portion of the deposition where Plaintiff is questioning a document that was presented to her, she queries why the author of the document used a “stamped signature.” Plaintiff complains that in two of Plaintiff's answers, the court reporter mis-transcribed her as saying “stamp signature.” ECF No. 131-3 at 14 (citing Pl.'s Dep. Tr. at 206, lines 9 and 14). The Court notes that the court reporter also made the same transcription error when transcribing counsel's question, Pl.'s Dep. Tr. at 206, line 8, but again, there is no consequence to these minor transcription errors.

         There is one transcription error that was potentially substantive. Plaintiff was presented in her deposition with a letter written by one of the physicians with whom Plaintiff worked, a Dr. Marcia Canto, in which Dr. Canto stated that she was not satisfied with Plaintiff's performance and that she was no longer interested in working with Plaintiff. When Plaintiff was asked if she remembered Dr. Canto expressing her dissatisfaction with her, Plaintiff responded “[s]he was never dissatisfied with me.” Plaintiff correctly notes that the court reporter inaccurately transcribed her response as “[s]he was never satisfied with me.” ECF No. 131-3 at 14 (citing Pl.'s Dep. Tr. at 204, line 21). Counsel's follow-up question, however, which was accurately transcribed, removed any potential confusion. “Q. So why do you think she wrote this letter saying that she was dissatisfied with you?” Pl.'s Dep. Tr. at 205, line 1.

         Plaintiff repeats throughout her Errata Sheet that the court reporter somehow edited out parts of her testimony or the questions asked of her and then proceeds to instruct the court reporter to “put back” the omitted material into the videotape and transcription. In some instances, Plaintiff appears to simply misunderstand the court reporter's use of ellipses and dashes. The court reporter would use these punctuation marks when Plaintiff or counsel would pause, restart a sentence, or fail to complete a sentence. See, e.g., Pl.'s Dep. Tr. at 19, lines 17 (“But this was a - there was a - she neglected to mention the negotiated salary”). Reviewing the videotape of the deposition clearly shows that this was an accurate transcription of what was said. Plaintiff, however, suggests that the dashes somehow replaced significant portions of her testimony:

I need to know what I said. I believe I may have raised the discrepancy between the letter I received and the letter I was reading at the deposition. I remember mentioning that the letter I received stated Research Nurse and not Clinical Nurse. I want to know what is it that I said. That response is totally missing No one should edit out what I stated, it is simply wrong.

ECF No. 131-3 at 3. She then instructs, “[p]lease put back what you edited out.” Id.

         The court reporter, however, used the same conventions when transcribing the questions of counsel. For example, when Defendants' counsel stopped and restarted a question or was interrupted by Plaintiff, the reporter signaled the restart or interruption with dashes. See, e.g., Pl.'s Dep. Tr. at 32, lines 9-13 (“Q. Did - and each time that you solved this alert you called IT? A. I called IT. I called IT. Q. And they resolved the problem and gave you - A. They resolved the problem.”). Any sensible review of the transcript would reveal that there was no nefarious plot on the part of the court reporter to make Plaintiff appear inarticulate. Plaintiff insists, however, that the court reporter “[p]ut back whatever it is that you edited out. I need to know what she said in that question. It is incomplete.” ECF No. 131-3 at 4.

         Plaintiff also repeatedly asserts that the court reporter somehow moved her answers to questions to entirely different places in her deposition. For example, in the context of a series of questions where Defendants' counsel was trying to ask Plaintiff where she had looked for responsive documents during discovery, this exchange occurred as reflected in the transcript:

Q. Where did you look?
A. Where did I look?
Q. Uh-huh.
A. What did you ask me for, if you can recollect what you asked me for then I'll tell you where I looked.
Q. I don't remember --
A. You don't ...

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