Guerrero v. Total Renal Care, Inc.

• Decision Date: 18 March 2013
• Docket Number: No. EP–11–CV–449–KC.,EP–11–CV–449–KC.
• Citation: 932 F.Supp.2d 769
• Parties: Edmundo GUERRERO, Jr., Plaintiff, v. TOTAL RENAL CARE, INC. d/b/a davita a/k/a Sierra Mobile Acute Dialysis Services, Defendant.
• Court: U.S. District Court — Western District of Texas

932 F.Supp.2d 769

Edmundo GUERRERO, Jr., Plaintiff,

v.TOTAL RENAL CARE, INC. d/b/a davita a/k/a Sierra Mobile Acute Dialysis Services, Defendant.

No. EP–11–CV–449–KC.

United States District Court,

W.D. Texas,

El Paso Division.

March 18, 2013.

Enrique Chavez, Jr., Chavez Law Firm, El Paso, TX, for Plaintiff.

A. John Harper, III, Haynes and Boone, LLP, Houston, TX, Laura E. O'Donnell, Haynes and Boone, L.L.P., San Antonio, TX, for Defendant.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered five motions in the above-captioned case, including Plaintiff's Motion for Summary Judgment, ECF No. 23; Defendant's Motion for Summary Judgment, ECF No. 24; Plaintiff's Motion to Strike Evidence, ECF No. 28; Plaintiff's Motion for an Oral Hearing, ECF No. 34; and Defendant's Motion to Strike Evidence, ECF No. 37. For the reasons set forth below, each of the parties' five motions is DENIED.¹

I. PRELIMINARY MATTERS

As explained below in greater detail, Plaintiff claims that Defendant violated the False Claims Act (“FCA”) by terminating Plaintiff's employment in retaliation for an internal report that Plaintiff allegedly made regarding Medicare and Medicaid fraud by Plaintiff's fellow nurse. Pl.'s Compl. 1–3, ECF No. 1. In response, Defendant argues that Plaintiff never made an internal report regarding Medicare or Medicaid fraud, and that Plaintiff's employment was terminated due to Plaintiff's history of disciplinary problems at work. Both parties have filed Motions for Summary Judgment, and both parties' motions must be denied.

Before addressing the substance of these motions, however, the Court first considers certain preliminary matters. These include the numerous challenges to the admissibility of evidence raised in the parties' Motions to Strike Evidence, ECF Nos. 28 and 37, with respect to which Plaintiff has also filed a Motion for an Oral Hearing, ECF No. 34. Under Rule 56 of the Federal Rules of Civil Procedure, “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2); Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 515 (5th Cir.2012). The Court first examines the parties' Motions to Strike Evidence themselves, before then turning to evaluate Plaintiff's Motion for an Oral Hearing in its discretion under Rule CV–7(h) of the Local Court Rules of the Western District of Texas. See Sanders v. Agnew, 306 Fed.Appx. 844, 849 (5th Cir.2009) (analyzing the pre–2012 version of this rule).

A. Defendant's Motion to Strike Evidence

Defendant has objected to three items of evidence offered in support of Plaintiff's Motion for Summary Judgment, including a news article, a determination rendered by the Texas Workforce Commission, and a single page from Plaintiff's cellular phone bill. See Def.'s Mot. to Strike Evidence 4–6. In the Court's view, all three of these documents are irrelevant to the present Order, because their only conceivable effect would be to substantiate or undermine the credibility of certain deposition testimony.² At the summary judgment stage, the Court may not make credibility determinations or weigh evidence. MAN Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 478–79 (5th Cir.2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The Court's only task at this stage is to assess whether “a genuine issue of material fact” remains for resolution at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1046–47 (5th Cir.1996).

As set forth in greater detail below, several genuine issues of material fact do indeed remain for resolution at trial based on the parties' conflicting deposition testimony. The balance of this Court's analysis therefore cannot be tilted, at the present stage, in favor of either party by any additional corroboration or impeachment found in the documents challenged by Defendant. In this particular case, the parties' deposition testimony alone demonstrates that the facts are not “so one-sided that one party must prevail as a matter of law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir.1996).

Therefore, because the news article, the determination rendered by the Texas Workforce Commission, and Plaintiff's phone bill are each irrelevant to the Court's current task of evaluating the parties' Motions for Summary Judgment, Defendant's Motion to Strike Evidence is hereby DENIED as moot. See Hobbs v. Ketera Techs., Inc., 865 F.Supp.2d 719, 736 (N.D.Tex.2012); Wuellner Oil & Gas, Inc. v. EnCana Oil & Gas (USA) Inc., 861 F.Supp.2d 775, 787 (W.D.La.2012). The Court emphasizes that the present Order does not prejudice any questions concerning these three documents' ultimate admissibility as trial exhibits under the Federal Rules of Evidence.

B. Plaintiff's Motion to Strike Evidence

For his part, Plaintiff objects to seven items of evidence offered in support of Defendant's Motion for Summary Judgment. The first of these is the corrected version of the Declaration of Victor Tapia (“Tapia Declaration”), ECF No. 25, filed on December 5, 2012. Initially, Plaintiff objected to a previous version of the Tapia Declaration that had improperly failed to include the date on which it was executed. See Pl.'s Mot. to Strike Evidence 1. Defendant had already cured this defect, however, by filing the corrected version of the Tapia Declaration only twenty-four hours after the previous version had been filed, two days prior to the Court's deadline for dispositive motions, and almost two weeks before Plaintiff filed his present Motion to Strike Evidence. See Scheduling Order, ECF No. 17; Pl.'s Mot. to Strike Evidence. In his three different Reply briefs, Plaintiff chose not to repeat his initial objection regarding the lack of a date of execution, but instead raised a new challenge to the admissibility of the Tapia Declaration under the sham-affidavit doctrine. Pl.'s Reply to Supp. Mot. for Summ. J. 7, ECF No. 33; Pl.'s Reply to Supp. Mot. for Summ. J. 1–2, ECF No. 38; Pl.'s Reply to Supp. Pl.'s Mot. to Strike Evidence 1–5, ECF No. 42. Under the sham-affidavit doctrine, a party “may not manufacture a genuine issue of material fact by submitting an affidavit that impeaches prior testimony without explanation.” Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir.2000). In Plaintiff's view, the Tapia Declaration contradicts critical aspects of the declarant's previous deposition testimony. Pl.'s Reply to Supp. Pl.'s Mot. to Strike Evidence 1–4.

The Court considers Plaintiff's sham-affidavit objection waived for the purposes of Defendant's Motion for Summary Judgment, because Plaintiff raised it for the first time in his three Reply briefs, rather than in his initial Motion to Strike Evidence or his Response to Defendant's Motion for Summary Judgment. See Jones v. Cain, 600 F.3d 527, 540–41 (5th Cir.2010) (“Arguments raised for the first time in a reply brief are generally waived.”); United States v. Jackson, 426 F.3d 301, 304 n. 2 (5th Cir.2005) (same). Moreover, the sham-affidavit rule “is applied sparingly” and may be invoked only where there is “some inherent inconsistency between an affidavit and a deposition.” Axxiom Mfg., Inc. v. McCoy Invs., Inc., 846 F.Supp.2d 732, 749–50 (S.D.Tex.2012) (quoting Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir.2010)). In the Court's view, there is no such “inherent inconsistency” between the Tapia Declaration and the declarant's prior deposition testimony. Plaintiff's arguments regarding certain isolated contradictions, therefore, go to the Tapia Declaration's weight rather than its admissibility. See Eicken v. USAA Fed. Savings Bank, 498 F.Supp.2d 954, 960–61 (S.D.Tex.2007) (citing Williamson v. United States Dep't of Agric., 815 F.2d 368, 383 (5th Cir.1987)).

Additionally, even if the Tapia Declaration does contradict the declarant's previous deposition testimony to some degree, those portions of the Tapia Declaration are also irrelevant to the Court's analysis of the parties' Motions for Summary Judgment. As set forth below in greater detail, the parties' conflicting deposition testimony already creates several genuine issues of material fact, such that both parties' Motions for Summary Judgment must be denied. The Tapia Declaration adds nothing to this analysis. The Tapia Declaration cannot confer any more credibility or evidentiary weight on the declarant's deposition testimony than it already possesses, because the Court may not make credibility determinations or weigh evidence at the summary judgment stage. See MAN Roland, 438 F.3d at 478–79 (citing Reeves, 530 U.S. at 150, 120 S.Ct. 2097). On the other hand, if any inconsistencies between the Tapia Declaration and Defendant's deposition testimony were to raise additional points of disagreement between Plaintiff and Defendant regarding the material facts, this would only create additional grounds to deny the Motions for Summary Judgment. Accordingly, the Tapia Declaration is largely ignored for the purposes of the present Order.

The only way in which the Court has relied upon the Tapia Declaration is to authenticate the transcription of the declarant's notes from an interview conducted with a patient at Providence Memorial Hospital (“Providence Memorial”) prior to the termination of Plaintiff's employment. See Tapia Decl. ¶ 9. This transcription was provided to the Court on December 4, 2012. See Def.'s Mot. for Sum m. J., Ex. G (“Tapia Investigation Notes”), ECF No. 24–16. In Plaintiff's original Motion to Strike Evidence on December 18, 2012, Plaintiff objected to this document only on the grounds that it had not been authenticated. Pl.'s Mot. to Strike...