Motion of Plaintiffs for Continuance of Trial Date for Ninety Days; Affidavit of Beth J. Lief

     [||eac2a66b-68fc-4f08-931d-2aa897e1d58c||] 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. 3 

RICHARD GORDON HATCHER, et al., 2 

Plaintiffs, : 

Ve : NO. H 77-154 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

  

MOTION OF PLAINTIFFS FOR CONTINUANCE OF TRIAL 

DATE FOR NINETY DAYS 

Plaintiffs, in the above entitled action, respectfully move 

this Court to modify its order to commence trial on these actions 

on December 5, 1977, and to postpone the trial date for a minimum | 

of ninety (90) days. Plaintiffs make their motion on the grounds 

that the complexity of the issues presented by their claims in- 

volve a detailed analysis of various facts which are not now in 

their possession; that analysis of certain facts which were re- 

ceived by plaintiffs' counsel on October 4, 1977, cannot be 

 



  

  

  

    

completed by December 5, 1977; that an expert analysis needed to 

present not only proof of defendants' violations, but also pro- 

posals for remedies require a postponement of at least ninety (90) 

days; that plaintiffs will be severely prejudiced by the present 

trial date, and that defendants will not be prejudiced by the ex- 

tension requested. Further grounds in support of this motion are 

set forth in the accompanying affidavit. 

Respectfully submitted, 

1 4 / 

WS, ge 
7 lind 
  

JACK GREENBERG 
MELVYN LEVENTHAL 

BETH J. LIEF 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

JULIAN B. ALLEN 
CHARLES B. MILLER 

2009 Broadway 

Gary, Indiana 46407 

MARILYN G. ROSE 

CHRISTINE G. HICKMAN 

1751 N Street, N. W. 

Washington, D. C. 20036 

Attorneys for Plaintiffs 

  

  

  

  

 



  

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ArPFIDAVICT | 

CITY OF NEW YORK ) 

). SS.: 

COUNTY OF NEW YORK) 

BETH J. LIEF, being duly sworn deposes and says: 

1. I am lead counsel for plaintiffs and make this af- 

fidavit in support of plaintiffs' motion for a continuance of the 

trial date in the above-entitled actions. 

2. The consolidated actions in Terry v. Methodist 
  

    Hospital of Gary, Inc., et al., Cause No. H 76-373 and Hatcher, 

et al. v. Methodist Hospital of Gary, Inc., et al., Cause No. | 
    
H 77-154, challenge as racially discriminatory the creation and 

perpetuation of defendant Methodist Hospital of Gary, Inc., of a 

  dual-track health care system. Plaintiffs, on behalf of them- 

selves and the class of minority and handicapped residents of 

Gary, Indiana, also challenge the default by federal, state and 

local agencies of their obligations under Title VI of the Civil 

Rights Act of 1964 and Section 504 of the Rehabilitation Act of 

1973. | 

3. On September 9, 1977, the Court heard extensive 

oral argument on the motions to dismiss by Methodist Hospital of | 

Gary, Inc., and Kipton Kaplan, as Executive Director of the 

Northern Indiana Health Systems Agency, Inc. During oral argu- 

ment, the Court set a trial date for the actions on December 5,   
1977. 

4. Counsel for Methodist Hospital had urged that the 

actions be tried at the earliest possible date on the grounds that 

approval of the expansion plans would lapse in March, 1977. As |     
 



  
    

the Motion of Defendant Califano for Reconsideration of This 

Court's Order to Set Trial on December 5, 1977 makes clear, the 

Department of Health, Education and Welfare has stipulated to 

suspend approval of Methodist Hospital's projects under Section 

1122 of the Social Security Act pending the completion of the 

trial in these actions. Thus, if there is a continuation of a   
trial date for a reasonable period of time, Methodist Hospital | 

will not be required, as a result of that continuation, to resub- 

mit its project proposals for approval. 

  5. Plaintiffs, however, will be severely prejudiced by 

having to proceed to trial on December 5, 1977. While plaintiffs 

are as anxious as any other party in these actions for a speedy 

resolution of their claims, the complexity of these cases, the 

present status of discovery, and the enormous amount of essential 

work that remains to be done precludes plaintiffs from adequately | 

presenting their case by December 5, 1977. 

6. Plaintiffs contend and will establish that Methodist   
Hospital of Gary, Inc., has discriminated against the black and | 

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Hispanic residents of Gary, Indiana in violation of the Fourteenth | 
{ 

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Amendment of the Constitution of the United States. The issues of | 

proof relevant to this cause of action include an analysis of the 

racial residency patterns, and service areas of the hospitals in 

Lake County by race for at least five years. As such data is not | 

readily available, its compilation is both complicated and time- | 

consuming. According to its Answers to Plaintiffs’ Interrogatories 

Methodist Hospital does not maintain records of patients by race. | 

It is therefore necessary, to the extent possible, to reconstruct 

such facts from other available data. Computer print-outs of 

Din 

 



  

      
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patients by zip code, sex, age, patient days, and diagnosis, are 

maintained by the Indiana Hospital Association. Plaintiffs are 

attempting to obtain that data, but counsel for the Association, 

Mr. William Hall, has informed me that the Association will not 

release the tapes and it is, therefore, necessary to issue a sub-   poena and, possibly, to file a motion to compel. Plaintiffs have | 

not issued that subpoena to date because they did not know what | 

data Methodist Hospital maintained until October 4, 1977 when 

answers to interrogatories were received. After we obtain the 

tapes, computer runs will have to be made to analyze the extent to]   which that data can be utilized. As the affidivit of Mr. Martin 

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Mador, computer expert for plaintiffs will establish, obtaining | 

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the computer tapes and making the proper computer runs, cannot be 

accomplished by December 5, 1977. Since this case is the first of] 

by a variety of means in order to determine the best possible 

method of presentation to this Court. The affidavit of Mr. Mador, 

to be submitted to the Court under separate cover, demonstrates 

the time-consuming nature of this crucial aspect of plaintiffs 

case. 

7. In addition to racial statistical data, the quality of 

health care of Broadway Methodist Hospital and Gary Methodist 

Hospital must be analyzed and compared. As the affidavit of Mr.   
Michael Zeigler, to be submitted under separate cover, establishes, 

an analysis of the quality of care of an institution involves a | 

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complex task involving a variety of factors, which include not 

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only staffing patterns and ratios, age of equipment, accreditation! 

reviews by various organizations, but also several on-site | 
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inspection of the facilities and interviews with various health 

personnel. Plaintiffs' major public health expert, Dr. Seymour 

Alexrod, is out of the country until October 17, 1977. It is vir- | 

tually impossible for him to complete this analysis by December s, | 

1977. 

8. Plaintiffs also need to analyze the financial state- 

ments and data of defendant Methodist Hospital in light of defend 

ant's statement to this Court that Gary Methodist Hospital is not | 

financially viable. Plaintiffs received the first of such data | 

from Methodist Hospital on September 29, 1977. It is necessary | 

for our financial experts to analyze that data, inform counsel for] 

plaintiffs of the additional data they need, and obtain that data. 

The present trial schedule does not allow for a thorough analysis 

in this area to be made. 

9. This Court has encouraged counsel to attempt to seek a 

voluntary settlement of the issues raised in these actions. 

Plaintiffs are most willing and eager to attempt to reach a 

settlement with defendant Methodist Hospital, but are unable at 

the present time to present a proposal for settlement because a 

full settlement which will achieve equal quality of care for 

minority residents of Gary and which will attempt to secure inte- 

gration of the services and patient and staff populations requires 

an analysis identical to that listed in Paragraph 7 above. As 

| 
counsel for plaintiffs, I would be remiss in my obligations to my | 

clients were I to present a settlement which did not, to the ex- | 

tent feasible, assure full and lasting remedies to the violations 

which are now occurring. No such remedy has ever been considered 

prior to this action either by myself, HEW, or public health 

gh 

  
 



  

  

    

experts. In contrast to the statement of defendant Califano in 

his Motion for Reconsideration of December 5, 1977 Trial Date at 

page 8, plaintiffs have not and cannot without adequate discovery   
present a formal remedy to this Court. The dearth of examples to | 

guide plaintiffs, counsel, and this Court in achieving a full 

remedy and to secure the rights guaranteed plaintiffs, requires 

| the type of analysis outlined above. Only after such an analysis 

has been made can plaintiffs determine what challenges need be 

made. 

10. The cause of action against defendant United States 

Department of Health, Education and Welfare (HEW) similarly re- 

quires discovery which cannot be completed by December 5, 1977.   The answers of defendant HEW to Plaintiffs' Interrogatories are 

incomplete and require further clarification. Moreover, HEW has 

not yet determined whether to release documents requested by 

| plaintiffs. If HEW refuses to disclose certain information con- | 

  cerning the patterns of admission at Broadway Methodist and Gary | 
i 

Methodist Hospitals, plaintiffs will be compelled to file a motion 

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to produce. | 

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11. Plaintiffs are continuing to attempt to settle the na- 

tional cause of action against HEW. If settlement is impossible, 

numerous depositions of HEW officials will be necessary. However, 

it is impossible to schedule all necessary depositions of persons 

  
affiliated with all four defendants with the seven weeks remaining 

before the pre-trial order is due. In addition, because HEW has 

failed to conduct an adequate investigation of hospital reloca- 

tions, it is necessary for plaintiffs to attempt to make such a 

study. That study cannot be completed by December 5, 1977. See 

WE 

 



  

  
affidavit of Richard Lichtenstein, to be submitted to the court | 

under separate cover. 

12. As of this date, plaintiffs have not received complete   answers to interrogatories and documents requested from defendants] 

| Methodist Hospital, HEW and the State Agency. Without these doc- 

uments, it is impossible to proceed with depositions. 

13. In civil rights cases, courts of appeal have consist- 

  ently recognized the right of plaintiffs to full discovery. 
| 

Donaldson v, Pillsbury Co., 554 F.2d 825, 832-834 (8th Cir. 1977); 
  

Rich v, Martin Marietta Corp., 522 P.24 333, 342-345 (loth Cir. 
  

1975): Dillon v. Bay Clty Construction €o., Inc., 512 v.28 801, 
  

804 (5th Cir. 1975). The right to obtain all relevant data is 

particularly crucial where, as here, the vast majority of the 

evidence is in the possession of defendants. See Donaldson v. 
  

Pillsbury Co., supra; Rich v. Martin Marietta Corp., supra. 
  

To force plaintiffs to try without adequate time to analyze data 

and to conduct discovery would have the same effect as denying   || them data, for plaintiffs will be unable adequately to present 

information crucial to their claims. 

14. There is another reason why plaintiffs, particularly 

5, 1977 trial date. Prior to September 9, 1977 I had made plans 

to be married on October 16, 1977 and to take a two-week honey- 

moon. Invitations have already been mailed for the wedding and it 

is impossible to cancel my honeymoon without losing a substantial 

amount of money. The present trial date poses an enormous per- 

sonal and professional dilemma for me: on the one hand, my 

obligation to plaintiffs mandates my continual presence and work 

wi ye 

      
 



  

| on this case through December; on the other hand, my personal ob- 
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{Hl 

ligation to my fiance' does not allow me to cancel my wedding and 

| honeymoon plans. If the trial is not continued, my honeymoon, if 

not ruined, will not be the special experience I hoped that it 

| would be. While I realize that the schedule of the case should 

| not hinge on the personal life of counsel, I feel compelled to 

| bring these special facts to the attention of the Court. 

| Respectfully submitted, | 

  

H 

| Sworn to before me this /. day 
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| of October, 1977. 

| Notary Public 

1 
GLORIA A, JONES 

! Notery Public, State of New York 
No. 24-7113050 

Qualified in Kings County 

Commissi~n "xpires A.&: .   
CLORIA 7, JONBEY | 

Notary Public, State of New York 
| 

No, 24-7113050 o Qualified in Kings Coun Cammisel 4 ! 

| 
Lemmission Expires March 30, 1978 

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Certificate of Service 
  

I hereby certify that a copy of the foregoing 

Motion of Plaintiffs For Continuance of Trial Date 
  

inet avs ith s £3 

was served by United States mail, postage prepaid, on 

the Sth day of October + 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 
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       
 



      

Anthony DeBonis, Jr., Esq. 
Joseph E. Costanza, Esq. 
Murphy, McAtee, Murphy & Costanza 
First National Bank Building 
720 W. Chicago Avenue 
East Chicago, Indiana 46312 

Attorneys for Defendant Kipton Kaplan 

[rr ‘ i } / p 
I - Nn... i I q aw 1 a / PAW St " 

  

Beth J TIS 
Counsel for Plaintiffs [||eac2a66b-68fc-4f08-931d-2aa897e1d58c||]