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COMMONWEALTH OF MASSACHUSETTS
MPDEN COUNTY
URERIOR COURT
Hampden, ss. FILED Superior Court Department
. of the Trial Court
MAY 25 2018 Civil Action No. 15-679
FRANCIS J. DUDA, M.D.
Plaintiff CLERK OF CBURT
)
)
v. ) DEFENDANT’S MOTION IN
) LIMINE CONCERNING
BAYSTATE MEDICAL PRACTICES, ) DEFENDANT’S EXAMINATION
INC., f/k/a BAYSTATE MEDICAL OF DR. KOENIGS
)
EDUCATION AND RESEARCH )
FOUNDATION, INC. )
Defendant )
I. INTRODUCTION AND BACKGROUND
Defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and
Research Foundation, Inc. (“BMP”), moves for permission to examine Dr. Koenigs during its
case in chief not during plaintiff’s case in chief so that presentation of the evidence will be
clearer for the jury and, therefore, effective for determining the truth.
Dr. Duda was employed as a pulmonologist by BMP from July 1992 to July 2015. On
January 12, 2015, consistent with the terms of his employment agreement, BMP gave Dr. Duda
written notice of the termination of his employment effective July 12, 2015. BMP terminated
Dr. Duda’s employment after he had been placed, in March 2014, on a performance
improvement plan to address his continuing failure to consistently comply with certain medical
practice standards, including failing to include appropriate information in his medical notes,
failing to record patient contact and treatment in patient records, and failing to comply with other
processes and procedures set by the pulmonary division, all of which had the potential to
adversely affect patient care and safety. After Dr. Duda continued to consistently fail to complywith those practice standards, even after being provided with a scribe, BMP terminated Dr.
Duda’s employment. Dr. Duda claims that his employment was not terminated for the reason
stated by BMP, but because of discriminatory animus against individuals of his age (70) and/or
discriminatory animus against individuals with cerebral palsy. In the alternative, Dr. Duda
claims that his cerebral palsy, which makes it difficult for Dr. Duda to type, prevented him from
documenting patient encounters and treatment in the electronic medical record, that a reasonable
accommodation existed that would have enabled him to document patient encounters and
treatment in the electronic medical record, and that BMP failed to provide him with that
reasonable accommodation.
Dr. Duda has identified Dr. Koenigs, the principal decision maker regarding the
termination of his employment, as a witness to testify prior to Dr. Duda and a number of other
plaintiff's witnesses. BMP should be permitted to examine Dr. Koenigs during its presentation,
because to do otherwise would require the introduction of evidence in a confusing order and
would, therefore, interfere with the jury’s effective determination of the truth.
Il. ARGUMENT
“The Court should exercise reasonable control over the mode and order of examining
witnesses and presenting evidence so as to (1) make those procedures effective for determining
the truth.” Mass. Guide to Evidence (2018), § 611(a). In this case, Dr. Koenigs was the
principal decision maker concerning the termination of Dr. Duda’s employment and, as such,
BMP plans to call her in its case in chief to explain BMP’s decision to terminate Dr. Duda’s
employment and the circumstances surrounding it. Having Dr. Koenigs give this testimony
during the plaintiff's case in chief and prior to numerous plaintiffs witnesses would be
confusing to the jury and interfere with their effective determination of the truth. This Court
should, therefore, allow BMP to examine Dr. Koenigs during its case in chief.
2II. | CONCLUSION
For the foregoing reason, this Court should allow BMP to examine Dr. Koenigs during
BMP’s case in chief.
May 29, 2018 The Defendant
BAYSTATE MEDICAL PRACTICES, INC.
fik/a BAYSTATE MEDICAL EDUCATION
AND RESEARCH FOUNDATION, INC.
By Its Attorney:
Certificate of Service and Compliance Mary J. Kennedy - BBO nz 552345
I, Mary J. Kennedy, attorney for the defendant, Jennifer K. Cannon - BBO No. 664431
Baystate Medical Practices, Inc., k/a Baystate Bulkley, Richardson and Gelinas, LLP
Medical Education and Research Foundation, Inc, — 1500 Main Street - Suite 2700
in this above matter, hereby certify that a true copy
of the above document was served upon the P.O. Box 15507
attorney of record for each party by hand delivery Springfield, MA 01115
on May 29, 2018 and is being filed within the Tel: (413) 272-6242; Fax: (413) 272-6803
designated time standards in accordance with
Superior Court Department Standing Order No. 1- mkennedy@bulkley.com
88 or by Leave of the Regional Administrative jeannon@bulkley.com
Justice.
Mary Meee 4
2943258v1
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COMMONWEALTH OF MASSACHUSETTS MPDEN COUNTY URERIOR COURT Hampden, ss. FILED Superior Court Department . of the Trial Court MAY 25 2018 Civil Action No. 15-679 FRANCIS J. DUDA, M.D. Plaintiff CLERK OF CBURT ) ) v. ) DEFENDANT’S MOTION IN ) LIMINE CONCERNING BAYSTATE MEDICAL PRACTICES, ) DEFENDANT’S EXAMINATION INC., f/k/a BAYSTATE MEDICAL OF DR. KOENIGS ) EDUCATION AND RESEARCH ) FOUNDATION, INC. ) Defendant ) I. INTRODUCTION AND BACKGROUND Defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc. (“BMP”), moves for permission to examine Dr. Koenigs during its case in chief not during plaintiff’s case in chief so that presentation of the evidence will be clearer for the jury and, therefore, effective for determining the truth. Dr. Duda was employed as a pulmonologist by BMP from July 1992 to July 2015. On January 12, 2015, consistent with the terms of his employment agreement, BMP gave Dr. Duda written notice of the termination of his employment effective July 12, 2015. BMP terminated Dr. Duda’s employment after he had been placed, in March 2014, on a performance improvement plan to address his continuing failure to consistently comply with certain medical practice standards, including failing to include appropriate information in his medical notes, failing to record patient contact and treatment in patient records, and failing to comply with other processes and procedures set by the pulmonary division, all of which had the potential to adversely affect patient care and safety. After Dr. Duda continued to consistently fail to complywith those practice standards, even after being provided with a scribe, BMP terminated Dr. Duda’s employment. Dr. Duda claims that his employment was not terminated for the reason stated by BMP, but because of discriminatory animus against individuals of his age (70) and/or discriminatory animus against individuals with cerebral palsy. In the alternative, Dr. Duda claims that his cerebral palsy, which makes it difficult for Dr. Duda to type, prevented him from documenting patient encounters and treatment in the electronic medical record, that a reasonable accommodation existed that would have enabled him to document patient encounters and treatment in the electronic medical record, and that BMP failed to provide him with that reasonable accommodation. Dr. Duda has identified Dr. Koenigs, the principal decision maker regarding the termination of his employment, as a witness to testify prior to Dr. Duda and a number of other plaintiff's witnesses. BMP should be permitted to examine Dr. Koenigs during its presentation, because to do otherwise would require the introduction of evidence in a confusing order and would, therefore, interfere with the jury’s effective determination of the truth. Il. ARGUMENT “The Court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to (1) make those procedures effective for determining the truth.” Mass. Guide to Evidence (2018), § 611(a). In this case, Dr. Koenigs was the principal decision maker concerning the termination of Dr. Duda’s employment and, as such, BMP plans to call her in its case in chief to explain BMP’s decision to terminate Dr. Duda’s employment and the circumstances surrounding it. Having Dr. Koenigs give this testimony during the plaintiff's case in chief and prior to numerous plaintiffs witnesses would be confusing to the jury and interfere with their effective determination of the truth. This Court should, therefore, allow BMP to examine Dr. Koenigs during its case in chief. 2II. | CONCLUSION For the foregoing reason, this Court should allow BMP to examine Dr. Koenigs during BMP’s case in chief. May 29, 2018 The Defendant BAYSTATE MEDICAL PRACTICES, INC. fik/a BAYSTATE MEDICAL EDUCATION AND RESEARCH FOUNDATION, INC. By Its Attorney: Certificate of Service and Compliance Mary J. Kennedy - BBO nz 552345 I, Mary J. Kennedy, attorney for the defendant, Jennifer K. Cannon - BBO No. 664431 Baystate Medical Practices, Inc., k/a Baystate Bulkley, Richardson and Gelinas, LLP Medical Education and Research Foundation, Inc, — 1500 Main Street - Suite 2700 in this above matter, hereby certify that a true copy of the above document was served upon the P.O. Box 15507 attorney of record for each party by hand delivery Springfield, MA 01115 on May 29, 2018 and is being filed within the Tel: (413) 272-6242; Fax: (413) 272-6803 designated time standards in accordance with Superior Court Department Standing Order No. 1- mkennedy@bulkley.com 88 or by Leave of the Regional Administrative jeannon@bulkley.com Justice. Mary Meee 4 2943258v1