Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div.

• Decision Date: 27 June 1995
• Docket Number: No. 94-2122,94-2122
• Citation: 60 F.3d 153
• Parties: , 4 A.D. Cases 1051, 11 A.D.D. 106 Jeffrey B. NEWMAN v. GHS OSTEOPATHIC, INC., PARKVIEW HOSPITAL DIVISION. Jeffrey B. Newman, Appellant. . Submitted under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 153

60 F.3d 153

32 Fed.R.Serv.3d 71, 4 A.D. Cases 1051,

11 A.D.D. 106

Jeffrey B. NEWMAN v. GHS OSTEOPATHIC, INC., PARKVIEW HOSPITAL DIVISION Jeffrey B. Newman, Appellant.

No. 94-2122.

United States Court of Appeals Third Circuit.

Submitted under Third Circuit LAR 34.1(a)

June 27, 1995.

Decided July 17, 1995.

George D. Walker, Jr., Donna E. Baker, Larry Pitt & Associates, Philadelphia, PA, for appellant.

A. James Johnston, Jonathan B. Sprague, Sidney R. Steinberg, Post & Schell, Philadelphia, PA, for appellee.

Before: MANSMANN, GREENBERG, and SAROKIN, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

In this case under the Americans with Disabilities Act, 42 U.S.C. Secs. 12111-12117 (ADA), Jeffrey B. Newman appeals from the district court's October 20, 1994 order entering judgment against him and in favor of GHS Osteopathic, Inc.--Parkview Hospital Division, following a bench trial. The appeal raises significant issues regarding compliance with discovery obligations and the burden of proof under the ADA. We will affirm.

I.

We largely draw our statement of the facts from the district court's opinion. Prior to the layoff that led to this lawsuit, Newman worked as a physical therapy aide in Parkview's rehabilitation department. Newman suffers from a form of nocturnal epilepsy, and he takes medication several times a day to prevent the onset of seizures. The medication makes Newman drowsy, and therefore he sought to combine the 30-minute lunch break and the two 15-minute morning and afternoon breaks which Parkview granted into one hour-long break. Newman used this hour to nap and negate the medication's side effects. Although Parkview's policy prohibited bunching the breaks, several other employees combined them as well.

In May 1992, Kamille Sprenkle of Rehab America, an independent contractor agency, began working with Parkview's Director of the Rehabilitation Department to assist in supervising and running the department. Soon thereafter, she began enforcing the policy against combining the breaks. ¹ When Newman protested that he needed to combine the time for medical reasons, Sprenkle referred him to Jennifer Brown, Parkview's director of human resources. Brown, in turn, told Newman that to be exempt from the policy, he would need authorization from a hospital physician. Brown also agreed to exempt Newman from the policy pending the medical evaluation. App. 447. A physician "subsequently recommended that [Newman] be allowed to continue combining his breaks because such bunching was a reasonable medical necessity." App. 448.

Beginning in 1992, the hospital's financial situation began to deteriorate, and it instituted a reduction in hours for much of its staff, including Newman. Later that year, the hospital began planning more cuts, including layoffs. In February 1993, Ernest Perilli, Parkview's associate executive director of operations, determined that one full-time nonprofessional position in the rehabilitation department should be eliminated, and he consulted Sprenkle (who was on maternity leave) for assistance. She in turn recommended that Parkview eliminate the position of full-time physical therapy aide. Newman was the only employee holding that position. Effective February 19, 1993, the hospital laid off Newman and six other employees.

On February 5, 1994, Newman filed a complaint against Parkview in the district court, alleging that its decision to lay him off constituted unlawful discrimination under the ADA. Specifically, Newman alleged, among other things, that his layoff resulted from Sprenkle's irritation with his medical need to combine the breaks. He contended that "[u]pon [his] exercise of his ability to continue his break consolidation, Ms. Sprenkle became belligerent in attitude with him." Br. at 5. He further supported his complaint with certain allegations of actions that occurred after the layoff, which he contended demonstrated that Parkview's proffered reasons for his layoff were pretextual. ²

During pretrial discovery, Newman propounded interrogatories on Parkview seeking identification of each person Parkview believed had knowledge of his claims and each person it intended to call at trial. Newman also sought to learn the substance of each prospective witness' testimony. Parkview responded by, among other things, referring to its self-executing disclosures, objecting to the scope of the interrogatory requests, and stating that it had not identified its trial witnesses. Its self-executing disclosures stated that:

Defendant believes the following persons are reasonably likely to have information that bears significantly on the claims or defenses in this matter:

Jennifer M. Brown

Plaintiff's job performance; the Hospital's attempts to accommodate Plaintiff's alleged disability; Hospital-wide layoff of February, 1993; Hospital policies and procedures.

Kamille Sprenkle

Plaintiff's job performance; the decision to eliminate the position of full-time Physical Therapy Aid; conversations with Plaintiff regarding his request for an accommodation.

Ernest Perilli

Hospital-wide layoffs of February, 1993; Hospital policies and procedures.

Newman claims that he never received this list and he further observes that the names and the substance of their testimony were not supplied in response to his interrogatories. Therefore, he made an in limine motion under Fed.R.Civ.P. 37 to exclude the testimony of Perilli and Brown on the ground that their names and the substance of their testimony were not properly disclosed during pretrial discovery. On October 11, 1994, the district court held a hearing at which it heard argument from both sides. The court concluded that Newman received either the list itself or the cover letter attaching the list. It further determined that even if the latter was the case, it should have been obvious that an enclosure was missing, and Newman should have contacted Parkview's counsel to obtain the missing enclosure. The court therefore denied Newman's motion, and the case proceeded to a non-jury trial at which Perilli and Brown testified on October 11 and 12.

On October 20, the court issued a bench opinion setting forth its findings of fact and conclusions of law. The court found that Parkview's decision was motivated by legitimate economic reasons arising from its deteriorating financial situation. It further found that Sprenkle harbored no animosity toward Newman and only reluctantly recommended that Newman's position be eliminated. Consequently, that same day the court entered judgment in Parkview's favor. Newman timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II.

Newman's primary contention is that the district court erred by permitting Perilli and Brown to testify. He claims that Federal Rules of Civil Procedure 26(a), 26(e) and 37(c)(1) required the district court to exclude their testimony.

As amended in 1993, Fed.R.Civ.P. 26(a)(1) provides for self-executing disclosures, as it requires a party upon its own initiative to disclose "the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts...." Rule 26(a)(3)(A) requires disclosure of "the name ... of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises." Furthermore, Rule 26(a)(5) provides that a party may discover additional matter through, inter alia, written interrogatories. Under Rule 26(e), a party is under a continuing obligation to supplement its discovery responses.

As also revised in 1993, Rule 37(c)(1) provides that a party who

without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions.

Rule 37 is written in mandatory terms, and "is designed to provide a strong inducement for disclosure of Rule 26(a) material." Harlow v. Eli Lilly & Co., 1995 WL 319728 at * 2, 1995 U.S.Dist. LEXIS 7162 at * 7 (N.D.Ill. May 25, 1995). Nonetheless, the rule expressly provides that sanctions should not be imposed if substantial justification exists for the failure to disclose, or if the failure to disclose was harmless. Thus, the rule does not leave district courts without discretion. See, generally, Fed.R.Civ.P. 37(c) (Advisory Committee Notes). In fact, one court has held that "[n]otwithstanding Rule 37(c), the district court may be found to have abused its discretion if [its] exclusion of testimony results in fundamental unfairness in the trial of the case." Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir.) (emphasis added), cert. denied, --- U.S. ----, 115 S.Ct. 511, 130 L.Ed.2d 418 (1994); see also Bronk v. Ineichen, 54 F.3d 425, 432 (7th Cir.1995) (interpreting Rule 37(c)(1)) (In ruling on motion to call witness not previously identified, " 'district court should consider prejudice or surprise to opposing party, ability of party to cure prejudice, likelihood of disruption, and moving party's bad faith or unwillingness to comply.' ") (citation omitted). For our purposes, then, even under Rule 37, "[t]he imposition of sanctions for abuse of discovery under Fed.R.Civ.Pro. 37 is a matter within the discretion of the trial court." Orjias, 31 F.3d at 1005; Doe v. Johnson, 52 F.3d 1448, 1464 (7th 1995) ("We review the district court's decision to impose Rule 37 sanctions for abuse of discretion.").

We find no abuse of discretion here. After hearing argument from both sides, the district court concluded that the witnesses were identified in Parkview's self-executing disclosures and that Newman, at a minimum, received the covering letter referring to the...