Notice of Motion and Affirmation

     [||0875ddc3-3764-4078-9e74-867a5c7c54ab||] IN THE UNITED STATES DISTRICT COURT Js LS 
FOR THE NORTHERN DISTRICT OF INDIANA § 

HAMMOND DIVISION . 
  

BERNICE TERRY, et al, 

  

Plaintiffs 

-V- CIVIL NO. H-76-373 

METHODIST HOSPITAL OF 
GARY, 'INC., et al, 

Defendants 

  

RICHARD GORDON HATCHER, et al, 

Plaintiffs 

-V- CIVIL NO. H-77-154 

METHODIST HOSPITAL OF GARY, 
INC. , ‘et al, 

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Defendants 

NOTICE OF MOTION   

SIRS: 

Please take notice, that plaintiffs, through their attorneys, 

shall for the reasons set forth in the Motion and Affirmation at- 

tached hereto, make a Motion for a New Trial Date at the pre-trial 

conference of this action to be held on Tuesday, the 21st day of 

February, 1978, at 9:30 o'clock in the forenoon at the Courthouse 

located in Hammond, Indiana. 

Dated: February 17, 1978 
Gary, Indiana 

Respectfully submitted, 

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Julian B. Allen 

2009 Broadway 

Gary, Indiana 46407 

  

Jack Greenberg 
James M. Nabrit, 111 
Beth Lief 
Brent Simmons 
Charles E. Williams, III 
Attorneys for Plaintiffs 
Suite 2030 
10 Columbus Circle 
New York, New York 10019 

   

    

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TO: Barbara Allen Babcock 
Rebecca L. Ross 
Cathy Surace 
Department of Justice 
Washington, D.C. 20530 
Attorneys for Defendant Califano 

Bruce E. Sayers 
5525 Broadway 
Merrillville, Indiana 
Attorney for Defendant Gary Methodist Hospital 

Michael Schaeffer 
Eric B. Servaas 
Deputy Attorney Generals 
219 State House 
Indianapolis, Indiana 46204 
Attorney for Defendant State Department of Health 

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IN THE UNITED STATES DISTRICT COURT Li > Raa ir) 
FOR THE NORTHERN DISTRICT OF INDIANA Free: AY, 

HAMMOND DIVISION Lo 2 
  

RIC! AE Al 

BERNICE TERRY, et al, 

Plaintiffs 

“Ve 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., et al, 

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Defendants 

MOTION FOR NEW TRIAL DATE 
  

Plaintiffs, by their attorneys, hereby move this Court, pur- 

suant to Rule 40 of the Federal Rules of Civil Procedure, and for 

the reasons set forth in the affirmation of Julian B. Allen, attached 

hereto and made a part hereof, for an order setting a new trial date 

of June 1, 1978, or a date as soon thereafter as plaintiffs may be 

heard. 

Dated: February 17, 1978 
Gary, Indiana 

Respectfully submitted, 

  

/ "ol 

JULIAN B. ALLEN kp... 

2009 Broadway 

Gary, Indiana 46407 ; 

   



IN W UNITED STATES DISTRICT C 
FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

  

BERNICE TERRY, et al, 

Plaintiffs 

-V- CIVIL NO. H-76-373 

METHODIST HOSPITAL OF 
GARY, INC., et al, 

Defendants 

  

RICHARD GORDON HATCHER, et al, 

Plaintiffs 

-V- CIVIL NO. H-77-154 

METHODIST HOSPITAL OF GARY, 
INC. , et. a1, 

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Defendants 

STATE OF INDIANA ) 
COUNTY OF LAKE } S85: 

Julian B. Allen affirms that the following is true under pe- 
nalties of perjury: 

1. I am one of the attorneys for plaintiff, am admitted to 
practice before this Court and make this Affirmation in support of 
plaintiffs' Motion for a New Trial Date. 

2. I obtained all information concerning events at the pre- 
pre-trial conference from Beth Lief, Brent Simmons and Charles E. 
Williams, 111, my co-counsels, in this action. 

3. This Court is well aware of the facts surrounding plain- 
tiffs' request for computer tapes containing information concerning 
patients, staffing, etc, of defendant, Gary Methodist Hospital. 
Although the requests for the tapes were made in the fall of 1976, 
and this Court ordered their delivery on or about January 12, 1978, 
as of the date of the pre-pre-trial conference none of the tapes 
had been received by plaintiffs' computer expert. 

.4. Counsel for plaintiffs have been informed by plaintiff's 
computer expert that the analysis of the tapes will take a period 
of two (2) months. Since counsel for defendant, Gary Methodist 
Hospital has stated that all tapes were in transit by the date of 

the pre-pre-trial conference, it is hoped that plaintiffs' computer 
expert will have the tapes by the end of February. 

5. Plaintiffs have learned from counsel for defendant, Gary 
Methodist Hospital, that contrary to the assurance given by said 
counsel for defendant, Gary Mcthodist Hospital, the information 
on the tapes containing patient date is presented in a form which 
will prevent the immediate full analysis thereof. Therefore, the 
time required to correct these deficiencies will probably extend 

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the time needed for analysis of the tapes beyond two (2) months. 

6. In addition to the problems with the tapes set forth 
above the following depositions have yet to be taken: 

a. Melvin Clark, Assistant Administrator, Methodist 
Hospital 

b. Chief of Rehabilitation Medicine, Methodist 
Hospital SA 

c. Malcolm McClelland, Indiana State Board of 
Health 

d. Robert Rogers, former employee of the Indiana 
State Board of Health 

€. George Harney of H.E.VW,. 
f. Kenneth Mines of H.E.W, 

These are depositions noticed by both plaintiffs and 
defendants. They have been delayed because of the disruptions in 
discovery caused by the blizzards of 1978. 

7. In addition to the problems with the tapes and the depo- 
sitions, counsel for plaintiffs have not received the transcripts 
of the following depositions that have already been taken: 

a. Kipton Kaplan, Northern Indiana Health 
Systems Agency, Inc. 

b.: Dr. Scully 
€. Dr. Ross 

d. Dr. Volan 
e. Dr. lou 

£f.: Dr. Sharoff 
g. Dr. Davidson 

Obviously plaintiffs have no control over the Court 
Reporters' delays in providing transcripts. In addition to the 
problems with the tapes, depositions and transcripts, plaintiffs 
had not received the following date from defendant, Methodist 
Hospital of Gary, as of the date that this affirmation was drafted: 

a. Zip code information as to patients whose records 
are on the P.A.S. Tapes, correlated to patient whose 
identification number for April and October, 1974 1977; 

b. Compilation of data as requested for ambulatory 
care outpatients, April and October, 1974-1977; 

Cc. Copies of the 1975, 1976 and 1977 Annual Report 
to the Board of Directors of the Methodist Hospital of 
Gary, Inc., plus any partial summaries, reports or 
analyses for 1977, if the completed report is unavailable 
which should include any or all of the following categories: 

1. Surgery 
2. Laboratory 
3 Obstetrics, Rehabilitation, Occupational 

Therapy 
Electrodiagnostics 
Radiology 
Growth of our institution 
Analysis of Services and Statistical 
Report of Professional Scrvices 

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d. The 1976 and 1977 Annual Reports requested above should 
be supplemented, as necessary, to reflect breakdowns be- 
tween Gary Methodist and Broadway Methodist in all cate- 
gories; 

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e. Studies, reports or evaluations conducted by Methodist 
Hospital, or at tis request, from 1965 to the present which 
document and/or analyze population shifts in Lake County; 

f. Studies, reports or evaluations reviewed by Methodist 

 



  

Hospital which analyze the impact of crime on the 
patient population of Gary Methodist Hospital from 
1965 to the present; 

g. Analyses of patient population service areas (or 
Lake County Hospitals considered by Methodist Hospital 
in planning construction for Gary Methodist and Broadway 
Methodist from 1965 to the present; 

h. Explanation as to why the Human Relations Committee 
of the Medical Staff was abolished in 1974 and what, if 
any, committee or office was set up to replace it. The 
name, race and position of the chairman of the committee 
at the time it was abolished; 

i. In a single, consolidated format, so that all infor- 
mation may be correlated, all outpatient clinic date, 
requested in interrogatory 89 of plaintiffs' First Set 
of Interrogatories, with all date broken down hy 
hospital and clinic and including: 

(i) patient date (i.e., race, sex, age, address 
or zip code) 

(ii) admitting physician 

Although plaintiffs have requested for the years 
1973-1977, they will accept samples for September 
1975 and September 1977, if defendants stipulate 
as to their validity as representative periods 
from 1974 to the present 

j- In a single, consolidated format, so that all informa- 
tion may be correlated, all emergency room date requested 
in interrogatories numbers 68 and 91, including: 

(i) patient date (e.e., race, sex, age, address 
or zip code) 

(ii) nature of case (i.e., emergent, non-emergent, 
non-treatment, whether or not patient was 
admitted) 

(iii) if patient was admitted, whether admitted by 
a private physician, or the doctor on the on- 
call roster to whom the patient was referred 

Gave date for sample periods September 1974 and 
September 1977. 

k. In a single, consolidated format detailed date as to the 
source of payment, as requested in interrogatory 68, by 
total number of patients (not by percentage as submitted 
in Exhibit 68(h)) by race, sex, age and zip code, for the 
years 1975, 1976, and 1977; 

1. The status of the "Considerations for Clinical Divi- 
sions of Medical Staff," in the 1965 Manual Organization, 
1.e¢., whether it is currently effective and incorporated 
in the 1977 Manual or if it has been revised or replaced. 
See interrogatory No. 1 in plaintiff's First Set of 
Interrogatories to Methodist Hospital; 

m. Reasonable estimates as to the number of RNs, LPNs, 
NAs and W.S.s for years prior to 1972. See Interrogatories ) 
Number 15 and 17; \ 

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n. Complete identification of nursing staff by national 
origin as set forth in Exhibits 43A-1 and 44A-1; 

0. Date reflecting time allocation between the Gary 
and Broadway facilities by staff physicians from January, 
1976 to the present. See Interrogatory No. 59; 

p. Complete list of services and medical specialties 
available at each hospital; pote iri Sl 

q. Specific method and rate of reimbursement, for each 
hospital, under Blue Cross; 

r. A breakdown of the sources of Methodist Hospital 
capital (see interrogatory No. 104: $4,262.487.55) 
used in financing construction at Broadway (i.e., fund - 
raising, operating, revenue, etc.) by year acquired and 
spent; 

s. A breakdown of construction costs and expenditures at 
Broadway above those necessary for operation of 165-hed 
facility (e.g., the difference in construction cost for 
a power plant to operate a 165-bed hospital and one to 
operate a 500-bed hospital). 

9. At the pre-pre-trial conference plaintiffs were informed 
by attorneys for defendant, Califano, that H.E.W. would be unable 
to determine what position it would take at the trial. This decision 
would be delayed until an investigative team from the office of 
Civil Rights of H.E.W. completes a review of conditions at defendant, 
Gary Moethodist Hospital. 

10. Not being able to take a position includes not knowing what 
position H.E.W. will take on all questions of fact and law, as well 
as what exhibits, if any, and for what witnesses they will present 
at the time of the trial of this action. 

11. In addition, attorneys for defendant, Califano, stated 
that their investigative team could not complete its review until it 
received a copy of the analysis of the tapes discussed, and it would 
take at least two (2) weeks from the date of receipt thereof to termi- 
nate the review. 

12. At the pre-pre-trial conference plaintiffs presented a detailed 
settlement proposal to all defendants. All of the defendants took the 
proposals under advisement. However, defendant, Gary Methodist 
Hospital, made it clear that it could not agree to a settlement until 
all defendants had agreed to a settlement. 

13. All of the reasons set forth above demonstrate why the trial 
date most be changed: 

(a) The tapes -- plaintiffs are denied the information 
contained therein which they expect to offer into evi- 
dence, to be incorporated in the testimony of expert 
witnesses in the area of health planning; and plaintiffs 
expect to use the information contained in the analysis 
as a possible basis for cross-examination; 

  

(b) The depositions, transcripts and information requested 
  

  

integate into their case; 

from defendants -- approximately three (3) weeks before 
the established trial date plaintiffs don't have sub- ) 
stantial amounts of information that they intend to y 

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(c) The failure of H.E.W. to take a position -- approxi- 
mately three (3) weeks before the trial date plaintiffs 
  

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do not know the full scope of the case they they will 
have to present since the position and planned presen- 
tation of H.E.W. is unknown; 

(d) The settlement proposal -- It will be impossible 
for plaintiffs to prepare for a March 13th trial date 
and participate in the complex settlement negotiations 
that will be necessary if this action is to be resolved 
without a trial. 

  

14. For all of the reasons set forth above, forcing plain- 
tiffs to go to trial on March 13th would have the effect of denying 
plaintiffs adequate representation of counsel and the class they 
represent thereby denying them the due process of law guaranteed 
by the Fifth Amendment of the United States Constitution. 

15. To enforce the March 13th trial date would eliminate any 
possibility of settlement of this action which is contrary to the 
concept of judicial economy. 

16. Plaintiffs have selected June 1, 1978, as a trial date 
since it appears to be a realistic estimate of time that will be 
required to eliminate the obstacles to plaintiffs' counsel being 
able to adequately and effectively represent their clients, and 
it should also give all parties the time needed to fully explore 
the possibility of settling this action without the need for a 
trial. 

Dated: February 17, 1978 
Gary, Indiana 

Respectfully submitted, 
™ 

I See a Jer Ah RA Ro 3 { A co lrg 

JULIAN B. ALLEN 
Attorney for Plaintiffs 
2009 Broadway - P.O. Box M859 
Gary, Indiana 46407 
(219) 886-3666 

  

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CERTIFICATE OF SERVICE   

At the pre-pre-trial conference counsel for plaintiffs informed 

counsel for all other parties of their plan to file the attached 

Motion for New Trial Date and generally described the grounds that 

they would use to support this motion. In addition, counsel for 

plaintiffs Adve taken steps to insure that counsel for all other 

parties will receive copies of these papers by personal delivery. 

Dated: February 17, 1978 
Gary, Indiana 

TY ! / il To 2 

Ty (GE \ 

JULIAN B. ALLEN CAR AER 

Attorney for Plaintiffs 
2009 Broadway 
P.O. Box M859 

Gary, Indiana 46407 
(219) 886-3666 [||0875ddc3-3764-4078-9e74-867a5c7c54ab||]