Marfia v. T.C. Ziraat Bankasi, New York Branch

• Decision Date: 30 October 1996
• Docket Number: Nos. 1347,1424,D,1425,s. 1347
• Citation: 100 F.3d 243
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 242, 36 Fed.R.Serv.3d 584 Antonio MARFIA, Plaintiff-Appellee-Cross-Appellant, v. T.C. ZIRAAT BANKASI, NEW YORK BRANCH and Ozer Ozman, Individually and in his official capacity as General Manager of T.C. Ziraat Bankasi, New York Branch,Defendants-Appellants-Cross-Appellees. ockets 95-9064, 95-9066, 95-9142.
• Court: U.S. Court of Appeals — Second Circuit

Page 243

100 F.3d 243

72 Fair Empl.Prac.Cas. (BNA) 242, 36

Fed.R.Serv.3d 584

Antonio MARFIA, Plaintiff-Appellee-Cross-Appellant, v. T.C. ZIRAAT BANKASI, NEW YORK BRANCH and Ozer Ozman,

Individually and in his official capacity as

General Manager of T.C. Ziraat Bankasi,

New York Branch,Defendants-Appellants-Cross-Appellees.

Nos. 1347, 1424, 1425, Dockets 95-9064, 95-9066, 95-9142.

United States Court of Appeals, Second Circuit.

Argued April 25, 1996.

Decided Oct. 30, 1996.

Glenn M. Kurtz, New York City (Cyrus Benson III, White & Case, New York City, of counsel), for Defendant-Appellant-Cross-Appellee T.C. Ziraat Bankasi.

Peter G. Eikenberry, New York City, for Defendant-Appellant-Cross-Appellee Ozer Ozman.

Herbert Eisenberg, New York City (Davis & Eisenberg, New York City, of counsel), for Plaintiff-Appellee-Cross-Appellant.

Before: LUMBARD, VAN GRAAFEILAND and MAHONEY, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

T.C. Ziraat Bankasi ("TCZB"), a Turkish bank wholly owned by the Turkish government, and Ozer Ozman, a Turkish national, appeal from a judgment in the amount of $2,274,432 entered in favor of Antonio Marfia in the United States District Court for the Southern District of New York. For the reasons that follow, we vacate the judgment and remand the matter to the district court for further proceedings.

Since 1983, TCZB has maintained a branch office in New York City, and from January 1984 until May 29, 1987, Marfia was employed in that office as a Vice President in charge of its Treasury Department. This litigation arises out of Marfia's 1987 termination, which he alleges was discriminatory in nature and in fraudulent breach of a promise of lifetime employment. From 1985 through the date of Marfia's discharge, Ozman was the General Manager of TCZB's New York office, and most of Marfia's charges of wrongdoing were directed against Ozman.

Marfia commenced this action on May 31, 1988. On July 7, 1988, White & Case, a landmark New York law firm, which had represented TCZB's New York branch since its inception, answered the complaint on behalf of both defendants. White & Case assumed that separate representation was unnecessary because both defendants took the same position, i.e. that Marfia was terminated because he entered into foreign exchange trades that violated the Bank's trading limits and resulted in a loss to the Bank of over $1 million. As will be discussed below, subsequent events put an end to this community of interests, and Ozman is represented in this appeal by Attorney Peter Eikenberry.

The case was assigned originally to Judge Duffy, and the proceedings before him resulted in a judgment by default against Ozman. Following this, the case against TCZB was assigned to Judge Chin who presided at a jury trial. After the jury returned a verdict for Marfia, Judge Chin adjusted the award to eliminate any double recovery and entered a judgment in the amount of $2,274,432. This amount reflected $970,927 in compensatory damages and prejudgment interest, $1 million in punitive damages, and $303,505 in attorney's fees and costs. The total award was incorporated into the interlocutory default judgment against Ozman, and a final judgment for the full amount was entered "jointly and severally" against both Ozman and the Bank. We discuss first Judge Duffy's grant of default.

On November 1, 1988, Ozman had triple by-pass open heart surgery at Mount Sinai Hospital in New York City. On December 15, 1988, defense counsel informed Marfia's attorney of the operation and that Ozman would be absent from work for an extended period of time. Notwithstanding this knowledge, plaintiff's attorney, on January 13, 1989, served a notice to depose Ozman on January 30th. On January 20th, defense counsel informed plaintiff's attorney that Ozman would be unable to attend the scheduled deposition because of illness. In subsequent support of this position, defense counsel produced a letter from Ozman's doctor stating that Ozman could resume limited employment as of February 1st, but that he had to avoid stressful situations for at least another month. Interrogation, particularly by an attorney who becomes "outraged" as often as does Marfia's attorney, might well constitute a stressful situation. ¹ In any event, the January 30th deposition was cancelled, and the matter of a rescheduled deposition was put in limbo by an ongoing dispute between the attorneys dealing primarily with the production of documents and defense counsel's incomplete deposition of Marfia.

On February 1st, plaintiff moved to strike the defendants' answer on various grounds. This motion was denied on May 10, 1989 in a marginally endorsed order which provided in part, "The defendant is ordered to produce Ozman for further [sic] deposition at a time and place to be set by the parties within the next month." Defense counsel attempted to arrange for Ozman's deposition to be taken in accordance with Judge Duffy's order. The following excerpt from a letter written to Marfia's attorney by Laura Hoguet, a White & Case attorney, explains how the date of June 5th finally was agreed upon for Ozman's deposition to commence:

I respond to your letters of May 24 and May 27 addressed to Ms. Regal. Since you sent your letters to Judge Duffy, I am sending a copy of this response to him as well.

We are and have at all times been ready to go forward with Mr. Ozman's deposition within the time fixed by Judge Duffy, on any date selected by you. Your letter to me dated May 17 proposed deposing Mr. Ozman the week of May 29 or the first week of June; you then insisted that you could not be ready to go forward until June 5, and we have, albeit with difficulty, arranged to have the deposition commence June 5 and continue from day to day thereafter. There is no reason for you to express "outrage" or "annoyance" with Ms. Regal or with me.

As for the "exact reason" why Mr. Ozman is leaving the United States: a new manager, Mr. Saffet Avdan, arrived to take over Ziraat's New York branch and Mr. Ozman was recalled to Turkey. He is a Turkish civil servant and I understand, though I am not an authority on this subject, that his legal right to remain in the United States is linked to his employment as Ziraat's manager in New York. We had requested of Ziraat that Mr. Ozman remain here through the week of June 5 so that his deposition could be taken, and Ziraat has given this approval. Again, I think your rights have been fully protected.

In March and again in May, Ozman was examined by a number of doctors because of his complaints of illness. In a report dated March 20th, a cardiologist at St. Joseph's Hospital recommended that Ozman "remain at home with limited activities for the next six to eight weeks" and "avoid any undo [sic] stress or exertion."

On June 1, 1989, Ozman had another physical examination by a Mount Sinai doctor, who reported in part as follows:

Mr. Ozman underwent urgent coronary revascularization because of preinfarction unstable angina on November 1, 1988. His postoperative course was initially complicated by postpericardiotomy syndrome requiring anti-inflammatory treatment. He has evidence of recurrent post-pericardiotomy symptomatology, therefore he will require four weeks of rest starting from the date of this note.

Ozman nevertheless appeared for the June 5th deposition. However, it was terminated on June 6th because of his complaints of illness. The following are pertinent excerpts from the uncompleted deposition:

Q. Mr. Ozman, how do you feel today, physically?

A. WITNESS SPEAKING IN ENGLISH: Not very well.

Q. Are you capable of spending several more hours this afternoon?

A. WITNESS SPEAKING IN ENGLISH: No.

Q. How long do you think you will be able to stay here today?

A. WITNESS SPEAKING IN ENGLISH: Maybe half hour more. I'm getting--I'm not feeling well.

* * * * * *

(LUNCHEON RECESS HELD TO 2:20 P.M.)

MR. EISENBERG: Good afternoon. Do you want to make a statement.

THE WITNESS SPEAKING IN ENGLISH: Yes. I do not feel well. I cannot continue. I have to leave.

MR. EISENBERG: Do you feel better than you did prior to the break?

THE WITNESS SPEAKING IN ENGLISH: No.

THE WITNESS: I don't feel well.

MR. EISENBERG: What time do you think you can be here tomorrow.

THE WITNESS: I cannot tell you at this moment now. I don't feel well at the moment.

On June 9th, Ozman reported to his doctor again complaining of chest pains and tiredness. The doctor's subsequently prepared affidavit concerning this examination reads in pertinent part as follows:

2. On June 9, 1989 Ozer Ozman came to my office complaining of pains in his upper left chest and tiredness. I reviewed copies of medical records he brought with him which revealed that he had had open heart surgery on November 1, 1988. I understood from him that his surgeon, Dr. Arisan Ergin, was on vacation. I had previously seen Mr. Ozman once before, on April 11, 1987 on a matter unrelated to his heart.

3. I examined the results of a recent Thallium Stress Test, which Mr. Ozman had brought with him, which were detailed in a report dated May 24, 1989. (A copy of this report is attached as Exhibit A). Mr. Ozman's Thallium Stress Test was suggestive of ischemia. Ischemia is a condition where a certain part of the heart muscle is not getting sufficient blood.

4. The suggestion of ischemia could be caused by an anatomical problem, such as a narrowing of a blood vessel, or by stress. Since he had had open-heart surgery in November, in my opinion it was the safest course medically to treat the matter as an anatomically induced problem.

5. If Mr. Ozman were to expose himself to stress, physical or emotional, assuming the ischemia symptomatology is anatomically caused, he would risk further anatomical damage to the blood vessels, including a possible vessel closure and heart attack. Emotional stress can be as harmful as physical stress in this situation and may even be more so.

6. It is my medical...