Commercial Litigation and Arbitration

Sanctions: Spoliation Motion = Nondispositive Pretrial Matter Properly before Magistrate Judge for Decision — Failure to Appeal Decision to District Court Bars Further Review

McCann v. Kennedy Univ. Hosp., Inc., 2014 U.S. App. LEXIS 23974 (3d Cir. Dec. 19, 2014):

 McCann filed suit pro se in the United States District Court for the District of New Jersey, alleging violations of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd(a), by the hospital's emergency room staff on December 21 and December, 22, 2011. In a one-paragraph complaint, McCann stated that he came to the hospital in severe pain, at approximately 11:00 p.m., but because he was uninsured, treatment was refused, and/or significantly delayed. In his complaint he stated that he was "in excruciating pain" and was left "lying on the floor," where "staff walked over [*2]  him without offering any assistance." McCann sought money damages in the amount of $450,000. After the hospital answered the complaint and denied the allegations, discovery ensued. McCann was deposed, and eventually the hospital complied with McCann's discovery requests. Specifically, the hospital provided McCann with copies of emergency room medical records from his treatment on both December 21 and December 22. Although the records indicated that McCann spent the night in the emergency room before finally being discharged, nothing in those records indicated that he had been left lying on the floor of the emergency room.

As discovery progressed further, McCann filed a motion for sanctions due to the hospital's delay in providing him discovery and a motion for the alleged spoliation of emergency room videotape recordings from December 21 and December 22. In response to a discovery request, counsel for the hospital had advised McCann that the videotape recordings from the dates of his visit to the emergency room no longer existed because as a general practice they are recorded over every 21 days due to limited hard drive space. McCann argued in his spoliation motion that the hospital [*3]  should have known that the videotape recordings were discoverable material evidence and should have sought to preserve them. The hospital responded to McCann's motion by arguing that it had no duty to preserve the videotape recordings because it did not know about McCann's complaints until it was contacted by the state Department of Health in March 2012, by which time they had been recorded over.

The Magistrate Judge to whom the case was referred, see 28 U.S.C. §636(b)(1)(A), granted McCann's request for money sanctions for the discovery delay and awarded him $406.25, commenting that "[t]his case should have been straightforward litigation but it has become unduly complicated and drawn out, primarily due to ... [the hospital's] disproportional discovery requests, its failure to timely produce relevant discovery, and its practice of producing discovery in dribs and drabs." See Magistrate

Judge's Order, 1/23/14, Docket Entry No. 95. The Magistrate Judge noted that McCann had argued that he put the hospital on notice of his intent to sue almost immediately after his visit to the emergency room, and that the hospital, although initially denying that it had notice, eventually produced in discovery [*4]  a copy of the email McCann sent to the hospital on December 23, 2011, and also eventually produced several emails that hospital personnel had exchanged among themselves referring to McCann's December 23 email.

In an order filed on January 24, 2014, the Magistrate Judge denied McCann's motion for sanctions due to spoliation of the emergency room videotape recordings. The Magistrate Judge acknowledged the potential relevance of the recordings, but noted that the hospital's duty was limited to preserving what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation. In McCann's case, and based on his December 23 email, it was not unreasonable for the hospital to believe that he intended to sue based on the care he was provided in his treatment room which he believed was inferior to that which would have been provided to someone with insurance.1 The Magistrate Judge reasoned that videotape recordings of the emergency room lobby were not relevant to this particular complaint. See McCann v. Kennedy University Hosp., Inc., 2014 WL 282693, at *6 (D.N.J. January 24, 2014) ("While it is clear that plaintiff's December 23, 2011 email triggered defendant's duty to preserve relevant evidence concerning [his] claims for substandard medical care, [*5]  ... prior to the January 11/12, 2012 tape-over of the emergency room tapes, it was not reasonably foreseeable that the videotapes would be requested in connection with the claims raised in plaintiff's email ... due to the fact that the focus of [the] litigation threat was ... his medical treatment ... [and] not what happened in the emergency room lobby.").2  The Magistrate Judge also concluded that there was no evidence of bad faith on the hospital's part. See id. at *7.

1 This email stated in pertinent part: "This correspondence shall serve as my notification of my intent to sue your hospital, Dr. Constantine Tsgratos and Nurse Diana Hollop for discrimination and their unfair and inhumane treatment of me while in your hospital, and for pain and suffering."

2 Due to privacy concerns, there are, of course, no cameras in the treatment rooms.

After the Magistrate Judge denied McCann's motion for reconsideration, he appealed to this Court, see C.A. No. 14-2968. We dismissed the appeal as jurisdictionally defective because the order was not final for purposes of 28 U.S.C. § 1291. We also noted that McCann did not first seek the District Court's review of the orders. 28 U.S.C. § 636(b)(1)(A) ("A judge of the court may reconsider any pretrial [*6]  matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law."). After we dismissed his appeal as jurisdictionally defective, McCann did not seek review of these discovery orders from the District Court. McCann did request that the Magistrate Judge recuse himself. The Magistrate Judge declined this request and McCann did not appeal to the District Court.

At the close of discovery, the hospital moved for summary judgment. McCann submitted written opposition to the motion. The District Court then awarded summary judgment to the hospital in an order entered on September 11, 2014. The District Court noted that relief under EMTALA is limited; it does not create a federal cause of action for malpractice, and, thus, if there was no genuine dispute over a material fact concerning whether the hospital provided McCann with appropriate medical screening to determine whether he presented with an emergency medical condition, then summary judgment for the hospital was warranted. The District Court found that the summary judgment evidence established that McCann, who ultimately was diagnosed with and treated for a perianal abscess, [*7]  was screened in accordance with the hospital's regular procedures and was treated no differently than any other patient in the hospital's emergency room who presented with similar complaints.

McCann appeals. We have jurisdiction under 28 U.S.C. § 1291. In his Informal Brief, McCann argues that the District Court incorrectly decided the facts of his case by ignoring that the hospital destroyed critical evidence (the videotape recordings) that would have supported his claims; ignoring the state Department of Health's citation of wrongdoing, and awarding him only $401.00 in sanctions when the hospital improperly delayed discovery. See Informal Brief, at ¶ 5. McCann also contended that the Magistrate Judge was biased in favor of the hospital and thus should have recused himself.

We will affirm.


We also reject as unpersuasive McCann's argument that the District Court ignored that the hospital destroyed critical evidence - the emergency room videotape recordings -- that would have supported his claim. Here, pursuant to 28 U.S.C. § 636(b)(1)(A), the Magistrate Judge was authorized to decide nondispositive pretrial matters finally.  McCann's motion for sanctions due to spoliation of the emergency room videotape recordings was a nondispositive pretrial matter. Pursuant to Federal Rule of Civil Procedure 72(a), a party opposed to a magistrate judge's order may serve and file objections to the order within 14 days of service of the order. "The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed. R. Civ. Pro. 72(a). The spoliation motion was denied by the Magistrate Judge, and McCann did not appeal this order to the [*15]  District Court. The matter of the emergency room videotape recordings was thus not properly before the District Court, and the evidence itself, which no longer existed, obviously was not part of the summary judgment record. Accordingly, the District Court did not err in "ignoring" that the hospital did not preserve the emergency room videotape recordings from December 21 and December 22 in awarding summary judgment to the hospital. Cf. Continental Cas. Co. v. Dominick D'Andrea, Inc., 150 F.3d 245, 250-51 (3d Cir. 1998) (party failing to appeal to district court magistrate judge's order in nondispositive matter may not raise objection to it on appeal to circuit court).

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