Carmody v. New York University

Background

The defendants filed several requests to exclude evidence and testimony in Dr. Carmody’s case. The order addresses proposed testimony from Dr. Robert McNamara, the DRC Report, testimony from several of Dr. Carmody’s witnesses, and Plaintiff’s proposed Exhibit 127.

Dr. McNamara’s expert testimony

The court ruled that Dr. McNamara may testify as an expert, but only about the procedures used by Temple and similar teaching hospitals to investigate and terminate an attending physician such as Dr. Carmody. The court found that this testimony could help show whether NYU’s reasons for Dr. Carmody’s termination were a pretext, meaning an explanation offered as a cover for another reason. The court also found that Dr. McNamara’s expert report gave the defendants notice of the potential testimony.

DRC Report

The court denied the defendants’ requests to prevent Dr. Carmody from introducing the DRC Report. It found the report relevant because some of its recommendations and investigative findings supported Dr. Carmody’s argument that the conduct at issue was widespread in the Emergency Department.

The court rejected the argument that the report was irrelevant because it was completed three months after Dr. Carmody’s termination. The investigation began because of a patient letter, and the DRC was convened virtually at the same time as the termination. The court reasoned that the employees working in the Emergency Department at the time of the investigation had worked alongside Dr. Carmody, whose tenure there had ended only recently.

The court also concluded that statements in the report fit exceptions to the rule against hearsay, including the exception for statements made by an opposing party’s employee or agent and the business-record exception. It found that the circumstances of the report’s creation suggested that it was reliable and trustworthy.

Other witness testimony

The court stated that testimony about medical charting practices is admissible if the witness relies on personal knowledge. Testimony about Dr. Carmody’s ethical character is inadmissible character evidence. If the defendants attack Dr. Carmody’s character for truthfulness, such testimony may become admissible under Federal Rule of Evidence 608(a). If Dr. Carmody’s diary is introduced, the defendants may challenge its authenticity; that challenge alone would not be an attack on her truthfulness that would allow character evidence.

Testimony about differences in the treatment of male and female physicians at the hospital is admissible if based on personal knowledge and limited to observed behavior involving Dr. Femia or Dr. Grossman. Testimony from Dr. Goldfrank about historical practices in NYU’s Emergency Department is irrelevant and inadmissible. Testimony from Dr. Foley about his employment contract is admissible.

Dr. Blackstock may testify about her treatment while employed at NYU if the testimony focuses on conduct by the individual defendants. Dr. Branzetti may testify about the impact of Dr. Carmody’s termination in NYU’s Emergency Department, but only to the extent he says residents were surprised or shocked. He may also testify about changing bases or explanations that the administration gave him for Dr. Carmody’s termination.

Exhibit 127

The court ruled that Plaintiff’s proposed Exhibit 127 is inadmissible hearsay. Dr. Carmody may nevertheless use it to question Dr. Grossman about whether he became aware of, among other things, a “boys club” atmosphere at NYU Hospital.

Disposition

The court denied the defendants’ requests to exclude the DRC Report and set the stated limits on Dr. McNamara’s testimony and the other witnesses’ testimony. It ruled that Exhibit 127 could not be admitted as evidence but could be used for cross-examination of Dr. Grossman.