Lipsett v. University of Puerto Rico, Civ. No. 83-1516 (JP).

• Decision Date: 13 March 1991
• Docket Number: Civ. No. 83-1516 (JP).
• Citation: 759 F. Supp. 40
• Parties: Annabelle LIPSETT, Plaintiff, v. UNIVERSITY OF PUERTO RICO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

759 F. Supp. 40

Annabelle LIPSETT, Plaintiff, v. UNIVERSITY OF PUERTO RICO, et al., Defendants.

Civ. No. 83-1516 (JP).

United States District Court, D. Puerto Rico.

March 13, 1991.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Charles S. Hey Maestre, José Antonio Lugo and Judith Berkan, Rio Piedras, P.R., for Annabelle Lipsett.

Isabel Muñoz Acosta, Asst. U.S. Atty., Hato Rey, P.R., for Rivé Mora.

Rubén Nigaglioni and James D. Noel, III, Ledesma, Palou & Miranda, Hato Rey, P.R., for University of Puerto Rico, et al.

OPINION AND ORDER

PIERAS, District Judge.

The Court has before it several post trial motions. The individual state defendants Dr. Gumersindo Blanco, Dr. José R. González Inclán, and Dr. Pedro J. Santiago Borrero have filed a Motion for Judgment Notwithstanding the Verdict (judgment n.o.v.) under Rule 50(b) of the Federal Rules of Civil Procedure or for a New Trial pursuant to Rule 60(b)(1) and (3) of the Federal Rules of Civil Procedure. This motion also incorporates a request for New Trial under Rule 59 because defendants claim they were prejudiced by surprise testimony presented at the trial. These defendants have further filed a motion requesting a new trial, or in the alternative, a remittitur pursuant to Rule 59 of the Federal Rules of Civil Procedure. In addition, plaintiff has requested equitable relief, including an injunction ordering her to be promoted to the fourth year of the Residency Program at the University of Puerto Rico ("UPR") Medical School, Surgery Division. Finally, the federal defendant, Dr. Ernesto Rivé Mora has filed a motion requesting attorney's fees.

For the reasons stated below, we deny the defendants' and plaintiff's motion. The government's motion for attorney's fees is also denied.

I. BRIEF STATEMENT OF FACTS AND PROCEDURAL HISTORY

This is the final chapter in the chronicles of a case which has continued over the course of seven years, several published opinions and, finally, a jury trial. See Lipsett v. University of Puerto Rico, 576 F.Supp. 1217 (D.P.R.1983); Lipsett v. University of Puerto Rico, 637 F.Supp. 789 (D.P.R.1986); Lipsett v. Rivé Mora, 669 F.Supp. 1188 (D.P.R.1987), rev'd and remanded in part, Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.1988); Lipsett v. University of Puerto Rico, 745 F.Supp. 793 (D.P.R.1990).

In short, this action was brought by a female surgery intern in the University of Puerto Rico General Surgery Residency Training Program. The plaintiff sought damages and declaratory and injunctive relief against the UPR's School of Medicine and several of its officers. She claimed that while she was attending the General Surgery Residency Training Program at UPR, she was subjected to unconstitutional sex discrimination. Her specific claims were that she was sexually harassed while she was an intern in the Surgery Program, and that she was not promoted to the fourth year residency level of the five-year Surgery Program because of her sex.

After the district court granted summary judgment in favor of the defendants, Lipsett, 637 F.Supp. at 813, the plaintiff appealed. The First Circuit reversed and remanded the case for a trial on the merits. Lipsett, 864 F.2d at 915.¹ On May 24, 1990, the case proceeded to trial. On June 20, 1990, the jury returned a $525,000 verdict in favor of the plaintiff, concluding that several of the defendants had sexually discriminated against the plaintiff. Specifically, the jury found that defendants Dr. Gumersindo Blanco, Director of the Department of Surgery and Chairman of the University of Puerto Rico and Affiliated Hospitals Residency Training Program from 1976 to 1983, Dr. Jose R. González Inclán, Acting Director of the Department of Surgery Residency Training Program from 1981 to 1983, and Dr. Pedro Juan Santiago Borrero, Dean of the School of Medicine of the University from 1980 to 1983, acting as supervisors, committed gross negligence in violation of plaintiff's constitutional right to be free from sexual discrimination by condoning, encouraging, or acquiescing in discriminatory conduct.

Before the case went to trial, the parties stipulated to certain facts. In order to aid the reader in understanding this case, we will, as briefly as possible, reiterate the most relevant of these stipulated facts. The General Surgery Training Program is a five-year program leading to certification as a General Surgeon. It is of a pyramidal nature, with approximately five residents completing the program each year. Between 1960 to 1982, 69 men and 5 women completed the program. During the said time period 3 of the women served as chief residents in the years 1973, 1974 and 1979. In 1983 there was also a female chief resident. Annabelle Lipsett is a graduate of medical school who applied and was accepted into the UPR Graduate Surgery Program in 1980. At the end of the academic year 1980-1981, Annabelle Lipsett was promoted to her second year of residency. During the second year of the program 1981-1982, Annabelle Lipsett was placed on probation. Dr. Lipsett completed her second year and was promoted to the third year in June, 1982. After the promotion to the third year, the faculty of the General Surgery Training Program decided to dismiss Dr. Lipsett from the program effective at the end of her third year, in June 1983. During the academic year 1982-1983, Dr. Lipsett was allowed to remain in the Program and appealed her dismissal. The appeal was unsuccessful and Dr. Lipsett's dismissal from the Program became effective on June 30, 1983. During 1981, Annabelle Lipsett obtained a percentile score of 79 on the US American Board of Surgery nationally administered in-training exams in surgery,² and during 1982, she obtained a percentile score of 98 on the same exam. In 1983, Dr. Lipsett obtained a percentile score of 99 on the US American Board of Surgery nationally administered in-training exams in surgery.

Drs. Pedro J. Santiago Borrero, Gumersindo Blanco and José R. González Inclán are included in this case with respect to the claims for sexual harassment insofar as they were supervisors of the alleged harassers and officers of a program which the plaintiff alleged to have been plagued with hostile environment type of sexual harassment. However, none of the mentioned doctors personally carried out any type of sexual harassment against Dr. Lipsett. That is, these codefendants (the state defendants) did not carry out any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature against the plaintiff.

II. DISCUSSION

A. Rule 60(b) Motion

The state defendants claim that the Court should grant them a new trial because the plaintiff committed perjury and fraud during her testimony at trial. The plaintiff counters that she did not commit perjury, and that her testimony was consistent and truthful through seven long years of litigation; alternatively, even if such perjury occurred, plaintiff contends that the defendants have not adequately shown that a new trial should be granted.

Rule 60(b) provides, in pertinent part, that

on motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party....

(Emphasis supplied.)

Rule 61 of the Federal Rules further provides that no error or defect in any ruling or order by the court or in any action taken by the parties is ground for granting a new trial or setting aside a verdict unless "refusal to take such action appears to the court inconsistent with substantial justice."

The First Circuit has, on numerous occasions, stated that motions made pursuant to Rule 60(b) are "addressed to the discretion of the district court, may be granted only under exceptional circumstances, and may be reviewed only for abuse of discretion." González v. Walgreens Co., 918 F.2d 303, 306 (1st Cir.1990) (remaining citations omitted); Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir.1988). Also, it has elaborated upon the different types of acts constituting "fraud," "misrepresentation," or "misconduct," which would fall within the purview of subsection (3) of Rule 60(b). See, e.g., Anderson, 862 F.2d at 923 (discussing meaning of "misconduct" under Rule).

In the instant case, the defendants allege that the plaintiff committed perjury during trial when she testified about her attempts to mitigate damages by applying to other training programs in order to continue her surgery training after she was informed that her contract would not be renewed for the 1983/1984 year. Specifically they argue that she falsely stated that she submitted an application to "Hospital Municipal," the San Juan Municipal Hospital, sometime around 1984 or 1985. See Tr. 171, 274-276 (plaintiff's testimony). According to the defendants, prior to trial, the plaintiff testified, during her 1983 deposition, that she made no formal application to the San Juan Municipal Hospital. See 1983 Deposition of plaintiff, Tr. 76. In support of this contention, defendants submit an affidavit of Dr. Mariano Blasini Rivera, Director of the Medical Education Program of the San Juan Municipal Hospital Surgery Residence Program from 1976 until 1985, and Director of the Surgery Department and Surgery Residence Training Program from 1985 until 1989, stating that Dr. Lipsett never submitted an application for admission to the San Juan Municipal Hospital Surgery Residency Program.³ Defendants contend that plaintiff's alleged false testimony was willfully and purposely offered in an attempt to deny them the opportunity to properly present the defense of failure to mitigate damages. They label this conduct a "consistent and systematic pattern of perjury and fraud upon the Court," which circumvented their opportunity to fairly...