Fung-Schwartz v. Cerner Corporation et al
| Jennifer Fung-Schwartz, MD |
| Cerner Corporation and Cerner Healthcare Solutions, Inc. |
| 1:2017cv00233 |
| January 11, 2017 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Vernon S. Broderick |
| Other Contract |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
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Filing
186
ORDER On December 15, 2023, I held a post-discovery conference in this case. For the reasons stated on the record during the conference, it is hereby: ORDERED that on or before January 5, 2024, the parties shall submit a joint-letter informing the Court: (i) whether the parties are available for trial starting on October 15, 2024; (ii)in light of the proposed trial start-date, whether the parties have agreed to a revised schedule for pre-trial submissions amending the schedule as set forth in my November 22, 2023 order, (Doc. 185); and (iii) if a Daubert hearing is necessary, the parties' positions as to whether the hearing should be conducted remotely via Microsoft Teams. SO ORDERED. (Ready for Trial by 10/15/2024.) (Signed by Judge Vernon S. Broderick on 12/15/2023) (jca)
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Filing
185
ORDER: The Court, having reviewed the joint letter filed by the parties on November 09, 2023, hereby orders that: The telephonic post-discovery conference will take place on Friday, December 15, 2023 at 12:00 PM. The dial-in number is 888-363-474 9 and the conference code is 2682448. The deadline to submit any Daubert motions is March 22, 2024. Opposition briefs must be filed on or before April 12, 2024, and reply briefs must be filed on or before April 23, 2024. The deadline to file any m otions in limine is April 26, 2024. Opposition briefs must be filed on or before May 3, 2024, and reply briefs must be filed on or before May 10, 2024. The Defendants' request to file a motion for summary judgmentmore than two-and-a-half-years after the close of discoveryis untimely and procedurally improper. Fed. R. Civ. P. 56(b). The Court's November 19, 2019 Case Management Plan and Scheduling Order required the parties to submit a joint letter two weeks in advance of the post- discovery conference indicating whether "either party intends to file a dispositive motion," and ordered the parties to be prepared to discuss a briefing schedule at the conference. (Doc. 71.) Although the post-discovery conference never occurred, absent further guidance from the Court, Defendants were required to file their motion in accordance with Rule 56(b), within thirty-days after the close of discovery. Accordingly, the Court will not entertain summary judgment motion pract ice at this time. (Motions due by 4/26/2024., Responses due by 5/3/2024, Replies due by 5/10/2024., Telephone Conference set for 12/15/2023 at 12:00 PM before Judge Vernon S. Broderick.) (Signed by Judge Vernon S. Broderick on 11/16/2023) (rro)
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Filing
183
ORDER: Accordingly, it is hereby ORDERED that the parties meet and confer and file a joint letter on or before November 9, 2023. In the joint letter, the parties should (1) propose dates for a telephonic post-discovery conference, (2) propose av ailable trial dates beginning in or after June 2024, (3) propose a schedule for submission of a joint pretrial order and motions in limine, and (4) indicate whether they wish to be referred to a magistrate judge for settlement. SO ORDERED. (Signed by Judge Vernon S. Broderick on 10/27/2023) (rro)
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Filing
182
OPINION & ORDER re: 160 MOTION for Summary Judgment . filed by Jennifer Fung-Schwartz, DPM, LLC, Jennifer Fung-Schwartz, D.P.M., Jennifer Fung-Schwartz, MD. Accordingly, because I find that there are genuine issues of material fact related to the validity of the 2011 and 2014 Sales Orders, Plaintiffs' motion for summary judgment is DENIED.The Clerk of Court is respectfully directed to terminate the docket entry at Doc. 160.SO ORDERED. (Signed by Judge Vernon S. Broderick on 10/12/2023) (rro)
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Filing
180
ORDER granting 179 Motion to Unseal. I am in receipt of Defendants' motion to unseal Exhibits B-D, E, I, and KN. (Doc. 179.) In light of my Opinion & Order dated October 12, 2021, (Doc. 178), the motion is HEREBY GRANTED. The Clerk's Office is respectfully directed to unseal the exhibits at docket number 168. SO ORDERED.. (Signed by Judge Vernon S. Broderick on 10/21/2021) (kv)
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Filing
178
ORDER denying 161 Motion to Seal; denying 167 Motion to Seal. Applying these standards, aside for the unfiled Exhibit D, Defendants' request to seal is DENIED. Where, as here, only proffered basis for a request to seal is a confidenti ality agreement, that cannot "bind this Court" and compel sealing, especially in a case like this where the Protective Order expressly cautions the parties that confidentiality alone will not lead allow for filing documents under seal. See Park Ave. Life Ins. Co., 2019 WL 4688705, at *3 (rejecting a request to seal in near-identical circumstances because "the mere existence of a confidentiality agreement... is insufficient to overcome the First Amendment presumption of acce ss." (quoting Alexandria Real Estate Equities, Inc. v. Fair, No. 11-CV-3694(LTS), 2011 WL 6015646, at *3 (S.D.N.Y. Nov. 30, 2011)). Accordingly, by October 15, 2021, Defendants are to publicly file all exhibits for which they sought sealing exc ept for Exhibit D. With regard to Exhibit D, Defendants' request to seal is DENIED without prejudice for Defendants to seek leave to file Exhibit D with appropriately limited redactions. If Defendants wish to seek this leave, they must do so n o later than October 15, 2021, and they must file a supporting letter motion with clear citations to the record and to supporting law, a version of Exhibit D with proposed redactions, and an unredacted version of Exhibit D under provisional seal. If Defendants do not seek this leave, then by October 18, 2021, they must publicly file Exhibit D on the docket. The Clerk of Court is respectfully directed to close the open motions at docket numbers 161 and 167. SO ORDERED.. (Signed by Judge Vernon S. Broderick on 10/12/2021) (ks)
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Filing
176
ORDER. It is hereby: ORDERED that by on or before October 8, 2021, Plaintiffs submit a letter, no longer than two pages, indicating whether they object to Defendants filing the exhibits attached to Docket Entry 168 under seal. The Clerk of Court is respectfully directed to terminate the gavel pending at Docket Entry 161. SO ORDERED. (Signed by Judge Vernon S. Broderick on 10/5/21) (yv)
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Filing
159
ORDER: By order dated January 19, 2021 (Jan. 19 Order) (Dkt. No. 156), I postponed the deposition of Lisa Gallagher, one of defendants' expert witnesses, pending full letter-briefing on plaintiffs' application for an order requiring defenda nts to produce all communications between Ms. Gallagher and defendants' counsel. Briefing has now been completed. For the reasons that follow, plaintiffs' application will be denied. For the reasons stated above, defendants are entitled to the protection of Rule 26(b)(4)(C) with respect to Ms. Gallagher. Plaintiffs' motion to compel production of her communications with defendants' counsel is DENIED except to the extent that those communications: (i) relate to compensation fo r the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. Fed. R. Civ. P. 26(b)(4)(C)(i)-(iii). Any communications falling into subsections (i)-(iii) of Rule 26(b)(4)(C) shall be produced no later than February 3, 2021. If plaintiffs sti ll wish to take Ms. Gallagher's deposition, they shall do so no later than February 10, 2021. If and to the extent the parties contend that they cannot adequately answer one or more of the pending contention interrogatories without hearing the t estimony of Ms. Gallagher (see Def. Supp. Ltr. at 1), they shall answer those interrogatories (or update any prior answers requiring supplementation, see Fed. R. Civ. P. 26(e)(1)), no later than February 18, 2021. (Signed by Magistrate Judge Barbara C. Moses on 1/27/2021) (jwh)
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Filing
152
ORDER granting 150 LETTER MOTION to Seal. Application GRANTED. Dkt. No. 151-1 shall remain under seal. SO ORDERED. (Signed by Magistrate Judge Barbara C. Moses on 12/17/2020) (jca)
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Filing
127
ORDER: It is hereby ORDERED that the Rule 30(b)(6) deposition shall take place no later than September 17, 2020, on a date reasonably convenient to counsel and the witnesses. The parties shall use their best efforts to limit the deposition to sev en hours of testimony in the aggregate, with allowances, if necessary, for any delays caused by the use of remote deposition technology. It is further ORDERED that Cerner's Rule 30(b)(6) witness(es) shall be prepared to testify as follows: and further set forth in this Order. It is hereby ORDERED that, to the extent plaintiffs wish to take the deposition of one or more of the four newly-identified potential witnesses, they shall serve their deposition notice(s) no later than September 4, 2020. As to JD Slaughter, who is no longer employed by Cerner, plaintiffs must also serve him with a subpoena, unless arrangements can be made for Cerner's counsel to accept such a subpoena and/or arrange for the witness's voluntary a ppearance. The depositions shall be completed no later than September 25, 2020, and shall be limited to two hours each. The close of fact discovery is EXTENDED to September 25, 2020, for the limited purposes set forth above. The partiers' ex pert discovery deadlines are EXTENDED as follows: (1)affirmative expert reports - October 15, 2020; (2)rebuttal expert reports - November 13, 2020; (3)expert depositions - December 15, 2020. All discovery shall be completed no later than December 15, 2020. (Deposition due by 12/15/2020., Discovery due by 12/15/2020., Fact Discovery due by 9/25/2020.) (Signed by Magistrate Judge Barbara C. Moses on 9/2/2020) (rro)
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Filing
122
ORDER granting 117 Motion for Discovery. The Court will conduct a discovery conference to resolve all remaining fact discovery disputes that is, the disputes outlined above on August 27, 2020 at 11:00 a.m. The conference will be conducted remotely via videoconference, using Skype for Business. Chambers will email the link to counsel. An audio line will be available to nonparties, including members of the public and/or the press, by dialing (917) 933-2166 and entering the code 5843 23988. Nonparties must observe the same decorum as would be expected at an in-person hearing, and must mute their telephone lines throughout the proceeding. In advance of the conference. and no later than August 25, 2020, the parties shall sub mit a joint letter, no longer than four pages in the aggregate, stating (1) which of the discovery disputes remain pending; and (2) whether the parties have an alternative videoconferencing platform that they wish to use. Any alternative videoconferencing platform must include an audio line for members of the public and/or the press. SO ORDERED.. (Signed by Magistrate Judge Barbara C. Moses on 8/21/2020) (ks)
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Filing
116
ORDER denying without prejudice to renewal by formal motion 114 Letter Motion to Seal. Application DENIED without prejudice to refiling in compliance with § 6 of the SDNY Electronic Case Filing Rules & Instructions. The Court notes that the example document, which plaintiffs wish the Court to review, has not been filed under seal (or at all). SO ORDERED. (Signed by Magistrate Judge Barbara C. Moses on 7/28/20) (yv)
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Filing
107
ORDER granting 104 Motion for Reconsideration. Nonetheless, in accordance with the spirit of Fed. R. Civ. P. 1 and this Court's preference for resolving disputes on the merits, plaintiffs' letter-application is GRANTED and the Corre cted Memorandum is accepted. Defendants' responding papers are due no later than July 9, 2020. See Local Civ. R. 6.1(b). (As further set forth in this Order.) (Signed by Magistrate Judge Barbara C. Moses on 6/26/2020) (cf) (Main Document 107 replaced on 6/26/2020) (cf). Modified on 6/26/2020 (cf).
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Filing
98
ORDER: For the reasons discussed during the June 2 conference, it is hereby ORDERED that: Defendants' RCM and EMR Products. In response to plaintiffs' Request for Production (RFP) No. 13 (Dkt. No. 90 at ECF page 13), defendants shall pro duce documents sufficient to identify each product or service concerning revenue cycle management (RCM) and electronic medical records (EMR) that they supplied to plaintiffs since January 1, 2013. The parties shall substantially complete written discovery, including document production, in accordance with this Court's rulings, no later than June 23, 2020. Their deadline for the completion of fact discovery, including fact depositions, remains July 31, 2020. (As further set forth in this Order.) (Discovery due by 6/23/2020., Fact Discovery due by 7/31/2020.) (Signed by Magistrate Judge Barbara C. Moses on 6/3/2020) (cf)
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Filing
94
The next discovery conference will take place via teleconference on June 1, 2020 at 11:00 a.m. At that time, counsel are directed to call the Court's conference line (888) 557-8511 and enter the access code 7746387. The parties are encouraged to continue to meet and confer (remotely) among themselves in an attempt to further narrow the scope of their discovery disputes in advance of the June 1 conference. (As further set forth in this order.) ( Telephone Conference set for 6/1/2020 at 11:00 AM before Magistrate Judge Barbara C. Moses.) (Signed by Magistrate Judge Barbara C. Moses on 5/28/2020) (cf)
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Filing
89
ORDER: The next discovery conference will take place via teleconference on May 27, 2020 at 11:00 a.m. At that time, counsel are directed to call the Court's conference line (888) 557-8511 and enter the access code 7746387. In the absence of a ny specific proposal from the parties, the deadline for the completion of fact discovery, including depositions, is EXTENDED to July 31, 2020. The deadline for the completion of expert discovery is EXTENDED to September 30, 2020. (As further set fo rth in this Order.) (Deposition due by 7/31/2020., Expert Discovery due by 9/30/2020., Fact Discovery due by 7/31/2020., Telephone Conference set for 5/27/2020 at 11:00 AM before Magistrate Judge Barbara C. Moses.) (Signed by Magistrate Judge Barbara C. Moses on 5/22/2020) (cf)
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Filing
85
ORDER: For the reasons stated on the record during the April 2, 2020 telephonic conference, Judge Moses will conduct a further telephonic status conference on May 11, 2020, at 10:00 a.m. At that time, counsel are directed to call the Court's conference line (888) 557-8511 and enter the access code 7746387. ( Telephone Conference set for 5/11/2020 at 10:00 AM before Magistrate Judge Barbara C. Moses.) (Signed by Magistrate Judge Barbara C. Moses on 4/2/2020) (cf)
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Filing
83
ORDER: In order to protect public health while promoting the "just, speedy, and inexpensive determination of every action and proceeding," Fed. R. Civ. P. 1, it is hereby ORDERED, pursuant to Fed. R. Civ. P. 30(b)(3) and (b)(4), that all depositions in this action may be taken via telephone, videoconference, or other remote means, and may be recorded by any reliable audio or audiovisual means. It is further ORDERED, pursuant to Fed. R. Civ. P. 16(b)(4), that all unexpired deadlin es for the completion of fact depositions, fact discovery, expert depositions, expert discovery, and/or all discovery are hereby EXTENDED for a period of 30 days. (As further set forth in this Order.) The parties are also reminded that the discove ry conference scheduled for April 2, 2020, at 11:30 a.m., will be conducted telephonically. At that time, the parties shall call into the teleconference at 888-557-8511 and enter the access code: 7746387. (Telephone Conference set for 4/2/2020 at 11:30 AM before Magistrate Judge Barbara C. Moses.) (Signed by Magistrate Judge Barbara C. Moses on 3/26/2020) (cf)
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Filing
82
ORDER. In light of the ongoing national public health emergency, the discovery status conference scheduled for April 2, 2020, at 11:30 a.m., will be conducted telephonically. At that time, the parties shall call into the below teleconference: Call in number: 888-557-8511. Access Code: 7746387. So ordered. (Signed by Magistrate Judge Barbara C. Moses on 3/19/2020) (rjm)
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Filing
81
PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (As further set forth in this Order.) (Signed by Magistrate Judge Barbara C. Moses on 3/4/2020) (cf)
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Filing
64
OPINION AND ORDER re: 57 MOTION to Dismiss Counts 4, 6, 15, 16, 19, and 20. filed by Cerner Healthcare Solutions, Inc., Cerner Corporation. For the foregoing reasons, Defendants' motion to dismiss, (Doc. 57), is GRANTED in PA RT and DENIED in part. Defendant's motion to dismiss is GRANTED with respect to the following counts, which are dismissed with prejudice: Counts 6, 15, 16, 19, 20, and the portion of Count 4 premised on Defendants' alleged misrepresentat ions about the total cost of RCM and EMR services. Defendants' motion to dismiss is DENIED with respect to the remainder of Count 4. Defendants shall file an Answer to the Second Amended Complaint within twenty-one (21) days of the date of this Opinion and Order. The Clerk of Court is respectfully directed to terminate the open motion at Doc. 57. (As further set forth in this Order.) (Signed by Judge Vernon S. Broderick on 9/13/2019) (cf)
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Filing
49
OPINION AND ORDER re: 38 MOTION to Dismiss Counts 1-16 and 18, Partial Motion to Strike Prayer and Motion to Dismiss Cerner Corporation filed by Cerner Healthcare Solutions, Inc., Cerner Corporation. For the reasons stated herein, D efendants' motion to dismiss, (Doc. 38), is GRANTED with respect to Counts 1-8, 10, 12, and 14-16 and DENIED with respect to Counts 9, 11, 13, and 18 of Plaintiffs' Amended Complaint. The Clerk of Court is respectfully directed to terminate the open motion at Doc. No. 38. Defendants shall file an Answer to the Amended Complaint within twenty-one days of the date of this Opinion and Order. SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/13/2018) (ne)
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