Motion for New Trial Date; Memorandum of Points & Authorities in Support; Affidavit of Davis A. Sanders

     [||2a686861-9256-4621-a6e0-c007548087d8||] IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF INDIANA [rp 47 1978 

HAMMOND DIVISION el) 4 . 
AA i 

CHARD E TIMMONS, CLERK i 

BERNICE TERRY, et al., NORTHERN DISTRICT OF INDIANA 

Plaintiffs, 

v. CIVIL NO. H-76-373 

METHODIST HOSPITAL OF GARY 

INC., et al,, 

Defendants. 

  

RICHARD GORDON HATCHER, et al., 

Plaintiffs 

Y. CIVIL NO. H-77=154 

METHODIST HOSPITAL OF GARY 
INC., otial,, 

L
S
 

J 
W
L
 

W
D
 
A
W
 

| 
WS
 

| 
W
L
 
W
L
 
W
L
 
W
L
 
W
L
 

W
L
 

W
i
)
 
W
J
 
W
L
 

W
P
 

J 
i
)
 

W
E
 

S
L
 
W
E
 

S
E
 

S
E
 

  

MOTION FOR NEW TRIAL DATE 
  

Defendant, Joseph A. Califano, Jr., by his undersigned attor- 

neys, hereby moves this Court pursuant to Rule 40 of the Federal 

Rules of Civil Procedure, for a new trial date. The grounds for 

this motion are that delivery by Methodist Hospital of the tapes 

containing necessary information for resolution of this action have 

been delayed to the point that all necessary runs cannot be made 

and analyzed prior to trial, and that weather conditions have 

prevented completion of discovery. Defendant Califano therefore 

requests an additional 90 days to prepare for trial. 

In support of this motion, the Court is respectfully referred 

to the affidavit of Davis Sanders, head of the investigation team 

and the Memorandum of Points § Authorities attached herewith. 

 



          

Respectfully submitted, 

  
BARBARA ALLEN BABCOCK 
Assigkant HY yi ely eral 

Tard J ye 

FRED GRADY : 
Assistant United States Attorney 

     
  

  

BARBARA B. O'MALLEY 

Low A Cll... 
Le F. COHEN 
  

: / 

A a i A V8 AA, £ an Ro 

CATHY SORACE 
  

  

REBECCA 1. ROSS 

Attorneys for Defendants 

Attorneys, Department of Justice 
Washington, D.C. 20530 

 



        

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs, 

Y. CIVIL NO. H-76-373 

METHODIST HOSPITAL OF GARY 

INC., et al. 

Defendants. 

N
a
t
”
 

Na
tt
? 

N
a
’
 

N
a
 

N
i
t
 

a
 

N
u
 

t
l
 

a
l
 

“
u
t
®
 

“
u
i
t
 

w
t
?
 

  

RICHARD GORDON HATCHER, et al. 

Plaintiffs, 

Vv. CIVIL NO. H-77-154 

METHODIST HOSPITAL OF GARY 

INC. , et al. 

Defendants. 

N
t
?
 

N
a
t
?
 

N
w
 

N
t
 

w
a
t
 

N
u
?
 

a
u
t
?
 

a
i
t
 

t
l
 

w
e
i
t
 

“
u
i
t
 
“
i
?
 

  

MEMORANDUM OF POINTS & AUTHORITIES 

IN SUPPORT OF MOTION FOR NEW 

TRIAL DATE 
  

INTRODUCTION 
  

Plaintiffs brought these consolidated cases alleging that 

Methoilist Hospital of Gary, Inc. had violated Title VI of the 

Civil Rights Act of 1964, as amended, 42 U.S.C. § 20004 et. seq, 

and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 

§ 794, by providing unequal care to the minority and handicapped 

residents of Lake County, Indiana. They also alleged that the 

Indiana State Board of Health and the Secretary of the Department 

of Health, Education and Welfare had not fulfilled their respon- 

sibilities under Title VI and § 504 in their approval of the expan- 
* 

sion at Broadway Methodist. 

  

*/ Additionally plaintiffs have alleged that the Secretary has not 
fulfilled his obligations under the Site relocation provision of 
the Title VI regulation, 45 C.F.R. § 80.3(b){(3) nationwide. These 
national issues have been severed from the March 13, 1978 trial 
date and settlement negotiations are proceeding. 

 



  

In late August 1977, the Secretary initiated a Title VI 

and a §504 review of all of the hospitals in Lake County. Recently 

that review has centered on Broadway and Gary Methodist Hospitals 

because of the constraints of the law sult. As explained 

to the Court at the January 12, 1978 hearing, by virtue of the 

preliminary results of that review and information received during 

the dlsgscovery process, HEW has functionally become a plaintiff. 

fonsequently, counsel for Diaintiics and HEW have been working 

together to prepare for Che 

This Court set a March 13, 1978 trial date. ‘However, at the 

January 12, 1978 hearing the Court made clear that if the delivery 

of the tapes was delayed, it would consider postponing the trial. 

Mr. Hussey, counsel for Methodist Hospital, has told HEW that 

the 1HA and the PAS tapes have been sent to plaintiffls 

computer expert, Mr. Mader, and that the HIS tapes will be sent 

'$oday. Mr. Mader had not received the tapes as of 5:00 p.m. 

on February 10, 1978. He is doing computer runs not only for 

plaintiffs, but also for HEW, in order to reduce the delay 

attendant to having the tapes run in-house. Nonetheless, 

this requires some delay in transmitting the information to 

the HEW team for analysis. In addition some of the tapes on 

the other hospitals will be delayed an additional two weeks. 

That information cannot be processed until it is made available. 

It is now one month since the hearing was held, and 

valuable time has been lost by the investigative team by virtue 

of the delay. Although the tapes should arrive soon, this delay 

  

¥/ This Court has not received a motion for realignment or a cross 
claim against Methodist Hospital of Gary by the Secretary because 
of the time constraints involved. 1f 1s Goubtful that sueh a 
motion can be made even if the trial is postponed. The Title VI 
and §504 review is not finished because the information contained 
on the PAS, THA and HIS tapes are necessary before a letter of 
findings can be written. Additionally, the hospital would, by 
regulation, 45 C.F.R. §80.8 be allowed additional time for volun- 
tary compliance prior to the time that administrative or judicial 
action by HEW or the Department of Justice could be initiated. For 
that reason, HEW 1s functionally realigned as a plaintiff, but will 
nominally remain a defendant. 

 



  

has precluded Mr. Mader from making all of the runs requested 

in time Tor the investigation team to analyze the data. Mr. Mader 

has told HEW that he cannot now hope to have the runs completed 

by March 13. Because the statistical evidence is essential to 

a full resolution of the issues in this action, the Secretary 

wlll be severely prejudiced if HEW does not have an opportunity 

10 analyze the data prior to trial. 

Moreover, HEW's investigation is particularly prejudiced by 

this delay, The letter of findings HEW hoped to present at trial 

must be coordinated through several divisions of the agency. 1t 

cannot be written until the information from the tapes is analyzed. 

Because This case represents major policy decisions by HEW, if 

must have sufficient time to analyze the data and apply..its 

policies To that data. 

HEW is also unable to fully carry out itis responsibilities 

at the pre-pre-trial and the pre-trial because it does not have 

the necessary data. Furthermore, the snow storms on New York, 

Gary, Washington, D.C., Indianapolis, and Boston have required 

numerous rescheduling problems with depositions. Many depositions 

still have to be taken, including two doctors, the head of the 

nursing staff, one HSA official, as well as Messrs, Tallackson, 

Sanchez, Mines, Hurney and Clark. Some of these depositions 

are scheduled for after the pre-trial conference on February 21, 1978. 

A tour of the hospitals by members of the lnvestigative team 

and experts for HEW and plaintiffs has been postponed twice 

because of the weather and 1s now being rescheduled. Members 

of HEW's audit and emergency teams have been delayed because 

of an inability to get to Gary because of weather. 

HEW has attempted to alleviate the problems through several 

means. A new attorney was brought on last week in order to take 

 



  

on some additional responsibilities. */ As explained, some of 

the tapes are being processed by Mr. Mader in order to avoid delay. 

Nevertheless, because this action presents issues of nationwide: 

importance, an additional three months is necessary in order for 

the Secretary to be ready for trial. Attorneys for the hospital 

cannot be heard to complain when they have delayed production 

of tapes to the point that the Secretary is severely prejudiced 

in his ability to prepare for trial. Moreover, weather conditions 

out of the control of all parties, have severely hampered trial 

preparation. 

CONCLUSION 
  

For the foregoing reasons, the Secretary respectfully requests 

that the trial in this action be rescheduled in the last week of 

May. 

  

*/ Ms. Surace who has this week noticed her appearance is temporarily 
detailed from the Civil Rights Division to the Civil Division. 

 



      

Respectfully submitted, 

  

BARBARA ALLEN BABCOCK 

Assistant Attorney General 

Y i ¥ 4 wt ; / 2s 

7 L i yds Nd 

ya 88 
L 

  

FRED GRADY 

Assistant United States Attorney 

  
BARBARA B. O'MALLEY 

Lon h Oba. 
ANN F. COHEN 
  

; / vy - 
(/ 

CATHY SYRACE : 
  

  
REBECCA LL. ROSS 

Attorneys for Defendants 

Attorneys, Department of Justice 

Washington, D.C. 20530 

 



  

IN THE 

UNITED STATES DISTRICT CQURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs : No. H 76-373 

vs. 

METHODIST HOSPITAL OF GARY, INC., 

et. al., 

Defendants 

RICHARD GORDON HATCHER, et al., No. H 77-154 

Plaintiffs : 

va, oo : ne 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants 

  

COUNTY OF COOK ) 

S
r
 

S3.: 

STATE, OF TLIINOIS ) 

AFFIDAVIT OF DAVIS A. SANDERS   

Davis A. Sanders, being first duly sworn, states and avers that: 

1. I have been employed by the Office for Civil Rights, Region V., 

of the Department of Health, Education, and Welfare since March 1966, 

and as Deputy Director of the Office for Civil Rights in Region V 

continuously from April 1974 to the present time. 

2. Since September 1977 I have been the official in charge of the 

Office for Civil Rights team engaged in a Title VI (Title VI of the 

Civil Rights Act of 1964) and Section 504 (Section 504 of the Rehabili- 

tation Act of 1973) review of hospitals located in Lake County, Indiana, 

including Gary Methodist Hospital and Broadway Methodist Hospital. 

 



  

- al 

3. The evaluation with regard to Gary Methodist Hospital and Broadway 

Methodist Hospital was scheduled to be completed by March 1, 1978, in order 

to give Government attorneys adequate time for review prior to the trial 

in the above-captioned cases scheduled to begin March 13, 1978. 

4. In order to fully assess certain questions relating to whether 

Methodist Hospital of Gary, Inc., has complied with and is complying with 

Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation 

Act of 1973, the review team of which I am re charge needs all year-end 

copies from 1973 and a current copy of the payroll file and, "GEOS5MSTG" 

which is on computer tape now in the possession of Health Information 

Services, according to the parameters specified in Interrogatory 16 of 

Plaintiff's Second Set of Interrogatories served on September 20, 1977. 

5. In order to fully assess certain questions relating to whelher 

Methodist Hospital of Gary, Inc., has complied with and is complying 

. with Title VI of the Civil Rights Act of 1964 and Section 504 of the 

Rehabilitation Act of 1973, the review team needs the PAS file, now in 

the possession of the Commission on Professional and Hospital Activities 

for all patients within the parameters: 

"Copy on magnetic tape 9-tract in E.B.C.D.I.C. 
character code of all the patients in the PAS 
file for Gary Methodist Hospital and Broadway 
Methodist Hospital." 

6. At the January 12, 1978 hearing, the Court advised that it would 

look favorably upon a motion for a continuance of the March 13, 1978 trial 

date if the tapes were not timely provided to the plaintiffs and the Office 

for Civil Rights review team. 

fT. More than a month has elapsed and the review team has not had access 

to information contained on the tapes described in paragraphs 3 and 4. 

8. The inability of the review team to have access to the information 

on the computer tapes described in paragraphs 3 and 4 has prevented and 

will continue to prevent the review team from fully assessing certain 

questions and will result in a substantial delay in its ability to issue 

findings with regard to these questions. Even if the information were 

 



  

3 

furnished tomorrow, the team would not be able to fully analyze 

the data and issue relevant findings prior to either the March 1, 

1978, deadline or the March 13, 1978, trial date. 

9. The review team needs a minimum of 30 days subsequent 

to receipt of the information on the tapes described in paragraphs 

3 and 4 to reprogram and rerun tapes which are in error, and 

analyze the data in order to fully assess certain relevant ques- 

tions. 

10. I have been informed that it will take Mr. Mader two 

months from his receipt of the tapes to finish an analysis of the 

data contained on the tapes. 

I declare under penalty of perjury that the foregoing is true 

and correct. 

/ ¢ < >. f 

DAVIS A. SANDERS 
  

DATED 
  

State of Illinois ) 

) ss 

County of Cook ) 

On this 17th day of February, 1978, before me Helen Jones, a Notary 

Public in and for Cook County, Illinois, personally appeared Davis A. Sanders 

known to me to be the person who executed the within instrument. 

Notary “Public 
  

(SEAL) 

My commission expires: Oct. 28, 1981 

 



  

# » 

CERTIFICATE OF SERVICE 
  

This is to certify that I have this 17th day of February, 1978, 

personally served copies of the Motion for New Trial Date on Beth 

Lief (of 10 Columbus Circle, New York, New York 10019) and Bruce E. 

Sayers (of 5525 Broadway, Gary, Indiana 46410) by giving said copies 

to them at Hammond, Indiana. 

This is to further certify that I have this 17th day of 

February, 1978, deposited in the United States Mail at Hammond , 

Indiana, copies of the Motion for New Trial Date properly addressed 

to: 

Julian Allen, 2009 Broadway, 

Gary, Indiana 46407; 

Marilyn G. Rose and Christine 
B. Hickman, 1751 North Street, N.W., 
Washington, D. C. 20036; and 

Theodore Sendak, Attorney General of 
the State of Indiana, 219 State 
House, Indianapolis, Indiana 46204. 

ZI)     
  

Fred W. Grady< Assis 
Office of the United States Attorney 
507 State Street, Room 312 

Hammond, Indiana 46320 
219/932-5500 Extension 215 [||2a686861-9256-4621-a6e0-c007548087d8||]