Motion for Bifurcation of the Issues at Trial and For Extension of Trial Date; Affidavit of Beth J. Lief

     [||47323117-24b5-4c5b-a40a-90287b635bd9||] IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

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BERNICE TERRY, et al., 

Plaintiffs, 

Ve. : NO. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

  

  

RICHARD GORDON HATCHER, et al., 3 

Plaintiffs, 

Ve. : NO. H 77-154 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

  

MOTION OF PLAINTIFFS FOR BIFURCATION 

OF THE ISSUES AT TRIAL AND FOR 

EXTENSION OF THE JANUARY 9, 

1978 TRIAL DATE 

Plaintiffs respectfully move this Court to grant an 

order (1) to bifurcate the trial of the issues and to set 

for trial the issue of violations of the law prior to and 

separate from the issue of remedy; and (2) to grant an ex~- 

tension of time for trial of the issue of violations from 

January 9, 1978 to the first week in March, 1978 in the 

above~-entitled actions on the grounds that (a) the bifurca- 

tion of the issues of violation and remedy at trial will 

 



  

promote judicial efficiency and economy, will enable the 

parties to present a joint plan for remedy, must await the 

data currently being gathered by the United States Department 

of Health, Education and Welfare, and will prejudice no parties 

to this action; and (b) it is impossible to complete discovery 

before the present deadline for the pre-trial order on 

December 19, 1977 and the current trial schedule precludes the 

possibility that the Court will hear all facts in these complex 

actions necessary for a resolution of the issues. Further 

grounds for this motion are set forth in the accompanying 

affidavit of Beth J. Lief, counsel for plaintiffs. 

Respectfully submitted, 

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! Dette. Lan br 

  

  

JACK GREENBERG 
BETH J. LIEF 

BRENT E. SIMMONS 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

JULIAN B. ALLEN, JR. 

2009 Broadway 

Gary, Indiana 46407 

Attorney for Plaintiffs 

 



  
    

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs, 

‘Ve 

NO. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

  

  

RICHARD GORDON HATCHER, et al., 

  

Plaintiffs, : 

Ve : 

: : NO. H 77-154 

METHODIST HOSPITAL OF GARY, INC., : 

et al., : 

Defendants. : 

AFFIDAVIT 

STATE OF NEW YORK ) 

} 88.1 

COUNTY OF NEW YORK) 

Beth J. Lief, being duly sworn, deposes and says: 

l. I am counsel for plaintiffs in the above-entitled 

actions and submit this affidavit in support of Motion of 

Plaintiffs For Bifurcation of the Issues At Trial and For 

  

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Extention of the January 9, 1978 Trial Date. 

2. Grounds For Birfurcation of the Trial. 
  

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Plaintiffs contend and will establish that Methodist 

Hospital of Gary, Inc., created and has perpetuated a dual 

hospital system that segregates and discriminates against 

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minority and handicapped residents of Gary, Indiana. As noted 

in the Affidavit of Beth J. Lief, submitted in support of 

plaintiffs' previous motion for a continuance of the trial date 

(filed October 5, 1977), the issues of proof in these actions 

Ey include a complex analysis of many variables. While the facts 

outlined in that Affidavit will not be reiterated here, it is   important to note that, according to the United States Supreme 

Court decision in Village of Arlington Heights v. Metropolitan 
  

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Development Corporation, 425 U.S. 963 (1977), proof of   

discriminatory intent under the Equal Protection Clause of the 

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& Fourteenth Amendment necessitates analysis of historical 

patterns and actions that created a system of segregation and 

discrimination, as well as the present injury to the minority 

and handicapped residents of Gary, Indiana. In addition, the 

causes of action against the local, state and federal 

  

governmental agencies require distinct evidence as to their 

failure to enforce the civil rights of the plaintiff class and : 

  to prevent the segregation and discrimination that has occurred 
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and continues to occur. Such proof will not only likely : | 

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require a lengthy trial, but also a detailed post-trial brief > 

and proposed findings of fact in order to aid this Court in 

resolving the issues presented. To present an analysis of the 

complete remedies feasible and likely to redress the harm now 

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being suffered, even further evidence will be necessary. 

Plaintiffs believe that the trial would proceed in a more 

orderly fashion if the full-scale remedy were not completely 

addressed in the first instance. 

  Plaintiffs will establish not only that they are 

  

suffering from a segregated and discriminatory health care 

system, but that there are concrete measures that can be under- 

taken to remedy these Wrongs. Many of those steps needed to 

be taken will become evident through a presentation of the 

violations that have occurred. However, certain remedies must : 

await the presentation of evidence that will not be presented i 
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in the context of establishing a violation. Specifically, 
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plaintiffs will establish the need for a substantial renovation: 

and remodeling program at Gary Methodist Hospital in order to 

  

  

  
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make that facility, which now serves an overwhelmingly black 

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population, equal to the facility that serves an almost totally 

white population, Broadway Methodist Hospital. Other serious 

deficiencies at Gary Methodist Hospital will also be established   
and will require immediate attention. These types of remedies, 3 | 

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that is, those remedies that pertain directly to serious | 
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deficiencies at Gary Methodist Hospital, will be fully present- {7} 

ed to the Court. on : 

However, as discussed in the oral ataument Betors the| 

Court at the hearing on Methodist Hospital's Motion to Dismiss, | 5 

other hospitals in Lake County affect, to a certain degree, the =| 

patterns of saFreiaiion and discrimination in Gary. Moreover, 

to a erthin extent, the duplication of services and draining of 

scarce health resources caused by the expansion of St. Anthony's 

in Crown Point and St. Mary's in Hobart, impact adversely on 

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the plaintiff class. Plaintiffs contend that the failure of 

HEW and the state to prevent actions by those hospitals which 

have a discriminatory impact on the minority citizens of Gary, FS 

Indiana, violates those agencies' obligations under the civil | 

rights laws, and that those agencies must be ordered to remedy   

  

the past violations that have occurred. As the Court is aware, 

the Office of Civil Rights, Department of Health, Education and 

Welfare, is now conducting a regional civil rights review which 

presumably will include an analysis of the effects of those f 

hospitals on the discrimination that now exists in the Methodist 

Hospital system. Until that review is completed, therefore, 

regional remedies, which may need to include the elimination of, 

certain duplicated services, and coordination among Lake Cnty) 

hospitals cannot be formulated. This situation does not, of 

course, mean, as stated above, that important remedies cannot 

be achieved through a series of programs and actions undertaken ¥ 

by Methodist Hospital alone. Plaintiffs only request that those 

remedies that can only be achieved through enforcement by the > 

federal and state agencies be postponed until HEW completes its. 
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review. 

There is another compelling reason why a full analysid™ 

of the remedies in this case should not end with an initial 

trial on the issue of violations of the law. It is plaintiffs’ 

hope that many of the specifics of the remedies can be worked | 

out among the parties as opposed to the necessity of having thisw 

Court issue a detailed order. The expedition of this action 

for trial Bas made it essential to concentrate on obtaining 

discovery and preparing a case on the issue of violations, and 

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has not allowed adequate time to explore the possibility of 

settlement. After plaintiffs prove that their rights have peenf 

violated, however, the parties will then be free to work out i 

the specifics of the remedy. bi 

Defendant Methodist Hospital cannot possibly be 5 
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prejudiced by structuring the case in this manner. When 

plaintiffs establish that violations have occurred and that the 

current building projects of Methodist Hospital that are being held 

up as a result of this lawsuit will perpetuate the wrongs that i 

have already occurred, Methodist Hospital will no longer have 

even the presumed right to proceed with these projects. As 

already stated to this Court, to Methodist Hospital and to HEW, 

plaintiffs have no objections to Methodist Hospital's proceed- | 

ing with the construction of the health facilities building at 

Gary Methodist Hospital. Plaintiffs believe that the evidence 

will demonstrate that certain of the proposed projects at 34 

Broadway Methodist Hospital, specifically the removal of the 

laundry from Gary to Broadway, is a direct violation of the 

civil rights act and is not necessary if the hospital takes | 

steps to renovate Gary Methodist Hospital. Moreover, plaintiffs 

believe that upon a showing of serious deficiencies at Gary p 

Methodist Hospital, renovation programs at that hospital must 

precede any expansion at Broadway Methodist Hospital. If 

plaintiffs prevail in these areas, then the building programs 

now sought by Methodist Hospital will be, at the least, subject Ig 

to substantial modification, and any delay caused by negotiations 

as to remedy will, therefore, not prejudice the hospital. If 

plaintiffs do not prevail, then Methodist Hospital presumably 

may proceed. 

  

   

  

  

  

  

  
 



  

  

  

    

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3. The Necessity of a Continuance of the Trial Date. 
  

At the hearing in September, this Court ordered the ! 

above-entitled actions to proceed to trial on December 5. 1977, © 

over the objections of plaintiffs. On October 5, 1977, 

  

  plaintiffs filed a motion for a continuance of the trial date 8 
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for three months. In that motion plaintiffs explained that it E | 

would be literally impossible to prepare for trial within the   time frame set by this Court and submitted affidavits of 
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counsel for plaintiffs and several experts in support of said 

motion. To date, plaintiffs have received no order from this 

Court on either the motions to dismiss, the class action motion, 

or the motion for a continuance of the trial date. However, 

by telephone conversation on October 21, 1977, Mr. David Ranish, 

Law Clerk to this Court, informed counsel that the continuance | 

  of one month would be granted. On approximately November 10, 

1977, counsel was informed that trial would be set for January Ou 

1978 and that a pre-trial order would be due December 19, 1977. 

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It is absolutely impossible to conclude depositions by that date. 

  As this Court is aware, interrogatories were propounded to 

defendants in May, 1977. This Court granted ex-parte 

FA applications for extension of time in which Methodist need 

answer those interrogatories to September 30, 1977. Plaintiffs. 

received from Methodist Hospital partial answers to the 

interrogatories the first week in October, 1977. By letter 

  

dated October 7, 1977 plaintiffs informed 

Methodist Hospital that there were serious gaps in the answers - 

to interrogatories. Methodist Hospital provided supplemental 

answers to those interrogatories the following week, but to dase 

have not fully answered the interrogatories. Plaintiffs 

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  received certain documents requested from Methodist Hospital on 

  

October 24, 1977. On September 20, 1977 plaintiffs propounded | | 

a second set of interrogatories to Methodist Hospital which 

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sought to obtain information as to what data was contained on 

computers, in order that plaintiffs might obtain such records 

to conduct an analysis of staffing and patient patterns. E 

Although plaintiffs requested that the answers to those 

interrogatories be received within ten (10) days, plaintiffs, in 
MN £+]   fact, received answers on October 21, 1977, October 29, 1977 and : 

November 1, 1977. Only as of November 1, 1977 could plaintiffs 

then make requests for the computer files that they needed. To 

date, plaintiffs have received no computer files. In addition, | 

plaintiffs have not received certain documents requested from 

the hospital, such as accumulative financial statements for 1976,   
and 1977 and projections, if any, for 1978. 

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The complete set of answers to interrogatories from = 

  

the Northern Indiana Health Systems Agency was only received 

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on November 17, 1977. Answers to interrogatories from the a: 

state defendants were only received on November 3, 1977. Food 
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ow | Although plaintiffs inspected documents at the offices of the 

  

federal defendants in Chicago on September 30, 1977, the 

documents requested were only fully received on November 14, 1977. 

As can be seen by the above documentation, although 

plaintiffs served their discovery instruments last May, and 

have been diligently attempting to expedite to the extent " 

feasible discovery in this action, documents which plaintiffs £ 

need to have prior to taking depositions were not received until 

after the initial pre-trial order was due and one month Pein id 

the time plaintiffs were informéd by telephone that the pre-trial 

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order would now be due. 

  

Depositions have been proceeding virtually back-to- Pe 

back since November 8, 1977, although at that time plaintiffs 

did not have the documents they had requested. On October 8,         

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1977, the deposition of Mr. Everett Johnson, past Administrator © 

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of Methodist Hospital, was taken. It did not conclude, and was 9 

continued on November 17, 1977. On November 21, 1977, the   
deposition of plaintiff Metro Corps was taken and did not py 

conclude. It is scheduled to conclude on December 12, 1977. On 

November 22, 1977, the deposition of plaintiff Willie Lee Page | 

was taken. Because of the Thanksgiving holidays, the next 

deposition scheduled is on Monday, November 28, 1977 when | 

Mayor Hatcher will be deposed, and it is understood that that | | 

deposition will take two (2) days. On Wednesday, November 30, | | 
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1977, the deposition of plaintiff Bernice Terry will be conclud- | 

ed in the afternoon. On December 6, the deposition of Roald wg 

Glesne, current Administrator of Methodist Hospital will be a 

  taken and it is understood that the deposition will take two (2) 

days. On December 8, 1977, the deposition of Kipton Kaplan, 

Executive Director of Northern Indiana Health Systems Agency = 

will be taken and on Friday, December 9, 1977, the deposition : 

of Peter Teitleman, an employee of the Northern Indiana Health 

Systems Agency, Inc., who worked on Methodist Hospital 

proposals, will be taken. On December 12, 1977, the deposition, | 

of plaintiff Metro Corps will be concluded. On December 13, oH 

the deposition of Alfred Sanchez, employee of defendant HEW who % 

conducted the civil rights review of Methodist Hospital will be 

takan. On December 14, 1977, deposition of Mr. Edward Koven 

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has been noticed. Plaintiffs have been informed by telephone » 

conversation, today, November 23, 1977, that HEW will file a gus | 

motion for a protective order to prevent that deposition. 

Plaintiffs are in the process of scheduling other depositions 

  

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for December 14, 1977 until the dispute as to the deposition 

of Mr. Koven is resolved. E 

As can be seen by the above schedule, depositions are 

occurring every week and virtually everyday despite the fact -~   that transcripts from previous depositions are not available. 

The pre-trial order is currently due on December 19, 1977, yet 

plaintiffs have an minimum of fourteen more depositions that are | 

absolutely crucial to this case. Plaintiffs need to depose the 

three individuals from the state who are responsible for process 

ing Methodist Hospital's construction applications and who 

plaintiffs contend are responsible for enforcing civil rights. 

In addition, plaintiffs must take the deposition of 4 

Denis Ribordy, President of the Board of Directors of Gary 

Methodist Hospital. Plaintiffs must also take the deposition 

  of the HEW officials in Washington who are responsible for 

enforcing civil rights. These include two officials from prior . | 

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administrations; David Tatel, current Director of the Office oth 

Civil Rights; the three assistant directors under Mr. Tatel 

who have responsibility for overseeing national civil rights 

compliance; the current Director of the Hill Burton section: 

Norman Chachkin, Assistant Director of the Office of Civil 

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Rights at the time the complaints in these actions were filed; i 

and Mr. Michael Middleton, the individual who is currently 

assuming Mr. Chachkin's responsibilities. Plaintiffs attempted 

to schedule the deposition of certain of the HEW officials who g 

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are located in Washington during the week of December 19, 1977, m 

despite the fact that the pre-trial order would be due at that | . 

time. Plaintiffs were informed by HEW today, November 23, 1977.4     
that they would object to depositions being noticed during that! 

week because Ms. Rebecca Ross, Counsel for HEW, will be nao 

in another matter. Plaintiffs will, nevertheless, notice some LE | 

depositions, but believe a protective order will result. Even 

if those depositions could be held that week, it would be £2 

impossible to finish those depositions as well as the other 

depositions in the remaining time before trial, especially in 

view of the unavailability of deponents during the Christmas   week. Moreover, the transcripts of those depositions could not 

feasibly be ready for trial on January 9, 1978 although they | 

would be essential. pect | 

: Only after these depositions are completed can 

plaintiffs review the evidence and determine what to present tol 

the Court. In view of the enormous amount of documents in this gq 

case and the numerous depositions, plaintiffs must have at   least three weeks after the completion of the depositions to 

formulate a pre-trial order, during approximately the third weeltit 
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of February. 

Plaintiffs in prior motions have attempted to explain 

the complexity of this case to this Court. The case involves 

the analysis of the actions over a decade of the hospital, and | 

the operations of three distinct governmental agencies. It is 

virtually impossible to accumulate the discovery necessary to 

  

obtain the facts pertaining to these issues by December 19, 1977 

when the pre-trial order is due or even by January 9, 1978 when 

the trial is scheduled. In a case of such crucial importance £ 

that effects so many lives and that involves issues never 

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presented to a court before, a trial should not be an impromptu 

presentation of whatever data plaintiffs can manage to £ | HS 

ef   accumulate, but rather should be an orderly and complete 

presentation of all relevant facts. The current trial date not | 

only makes this impossible, but, indeed, even prevents the % 

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completion of discovery to which plaintiffs are entitled. ER 

It is on the basis of the above facts that plaintiffs 4 | 

make their motion for the continuance of the January 9, 1978 &   trial date. Plaintiffs continue to believe that a trial date in 

March would enable discovery to be completed. As the court is = 

aware, plaintiffs have entered into a stipulation with the other | 

parties to this action to waive the requirements of Methodist 

Hospital to obtain added government approval for their projects | 

as a result of the delay occasioned by this lawsuit. The court 

informed the parties that that stipulation was a precondition to 

another continuance. Any delay in discovery that has resulted | 

in this case has not been the fault of plaintiffs and they should | 

not be prejudiced because of the complexity of the issues they : | 

present. wl 

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Respectfully submitted, ~ | 
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2 | 

JACK GREENBERG 
BETH J. LIEF ig | 
BRENT E. SIMMONS Bg 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

  

JULIAN B. ALLEN, JR. 

2009 Broadway 

Gary, Indiana 46407 

Sworn to and subscribed before me 

this ZA day of November, 1977 NW 

mle Ow (Lie 
    NOTARY PUBLIC ; 

ny Cons mii s=sroed FKEPro2&s’ | 

2/9/50 

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Certificate of Service 
  

I hereby certify that a copy of the foregoing 

MOTION OF PLAINTIFFS FOR BIFURCATION OF THE ISSUES 
  

AT TRIAL AND FOR EXTENSION OF THE JANUARY 9, 1978 
  

  

TRIAL DATE and ACCOMPANYING AFFIDAVIT == meee —— 

was served by United States mail, postage prepaid, on 

he 
the °8 day of November + 1977, on counsel for 

  

defendants as follows: 

Rebecca L. Ross, Esq. 

Department of Justice 
10th and Pennsylvania Avenue 
Washington D.C. 

Marvin G. Garvin, Esq. and Edward L. Koven, Esq. 
Regional Attorney and General Attorney 
Department of Health, Education and Welfare 

y 300 South Wacker Drive, 18th Floor 
Chicago, Illinois 

Fred W. Grady, Esq. 
Assistant United States Attorney 
Northern District of Indiana 
Federal Building, 502 State Street 
Hammond, Indiana 46325 

Attorneys for Defendant Secretary of Health, 
Education and Welfare 

Hodges, Davis, Gruenberg, Compton & Sayers 
Bruce E. Sayers, Esq. 
5525 Broadway 
Gary, Indiana 46401 

Attorneys for Defendant Methodist Hospital 
of Gary, Inc. 

Theodore L. Sendak, Esq. 
Assistant Attorney General of Indiana 
219 State House 
Indianapolis, Indiana 

Attorneys for State Defendants 

pss. Kf 
Coon for lam HHS [||47323117-24b5-4c5b-a40a-90287b635bd9||]