Friday, February 10, 2023, 5:59 pm News Flash Archive

This afternoon, Federal District Court Judge Debra Brown disclosed in an order that Dr. Preston Boles and Greenwood Leflore Hospital ("GLH") have just now settled the discrimination lawsuit that was supposed to go to a jury trial next Monday.

This court order was filed moments after the court ordered the cancellation of the trial without explanation.

To view the court's order announcing settlement of the case, see here: Order Denying Motion to Quash as Moot

Boles sued GLH, claiming racial discrimination, after he discovered that he was being paid at a significantly lower rate than was his white colleague, Dr. Joseph Assini. There is no allegation of misconduct or impropriety by Dr. Assini, who passed away in May 2021. See here for our original reporting on this case: Dr. Preston Boles sues Greenwood Leflore Hospital, claims racial discrimination

As the trial approached, GLH asked the court to dismiss the lawsuit, claiming that Boles could not prove that his lower rate of pay was due to racial discrimination by the hospital.

But the court rejected GLH's request:

. . . because Boles, who is black, presented substantial evidence that the Hospital's proffered reason for the pay discrepancy between him and a white comparator [Dr. Assini] is pretextual, the Hospital's summary judgment motion will be denied.

. . . The Court agrees with Boles that the comparison of his contracts with Assini's discredits the Hospital's argument that the conversion factor is determined by productivity. As discussed above, when Assini's WRVUs decreased, his conversion factor [rate of pay per unit worked] increased; however, when Boles' WRVUs increased from 2,500 to 4,285, his conversion factor remained $45.00.

. . . Because the contracts contradict the Hospital's proffered reason, a reasonable jury could find the Hospital's proffered reason for the difference in pay is pretextual. Under these circumstances, summary judgment in the Hospital's favor is not warranted.

For a detailed explanation of the legal arguments and the evidence discussed, see here: Federal Judge denies Greenwood Leflore Hospital's request to dismiss Dr. Preston Boles' race discrimination case

The court's denial of the hospital's motion to shut down the case last December, was followed by additional set-backs for GLH.

Boles wanted to present to the jury the hospital's original response to his EEOC complaint. In that response, GLH's attorney represented to the EEOC that Boles' procedures were coded as "general podiatry" because, unlike Assini, Boles was not board certified in podiatry.

But later it was shown that Boles' procedures and Assini's procedures were not coded differently due to board certification.

Boles' attorneys wanted to use the EEOC response to show the jury what they viewed to be GLH's original, pretextual explanation for why Boles was paid at a lower rate than his white colleague.

In the end, the court agreed with Boles that the EEOC evidence could go to the jury. To read about the legal issues involved, and the court's decision, see here: Order Denying Motion to Bar EEOC Statement

Next, GLH tried to bar Boles' physicians, Dr. Kristi Timm, Dr. Amit Malhotra, and Greenwood physician Dr. Charles Nause, from testifying about Boles' claims to have suffered physical and emotional harm due to GLH's discriminatory actions. GLH also asked to bar introduction of Boles' personal medical records.

According to the hospital, Boles' attorneys

failed . . . to make timely summary disclosures pursuant to Federal Rule of Civil Procedure 26(a)(2)(C), which results in the mandatory exclusion of any opinion testimony by his treating physicians, as well as [his] medical records.

. . . [Boles was required to provide] a written disclosure stating (1) the subject matter upon which the witness is expected to present evidence under Federal Rules of Evidence 702, 703, or 705, and (2) a summary of facts and opinions upon which the witness is expected to testify.

. . . [Boles'] failure to provide the required information is neither substantially justified nor harmless; . . . . [GLH] would undoubtedly be prejudiced by the failure to disclose because it [GLH] would have no idea of what the physicians would testify to, or how their testimony would be used to support [Boles'] claims . . . .

. . . the physicians' testimony is not critical to supporting [Boles'] claims . . . [because] it would not help the jury determine whether his race played a part in how he was compensated or whether he was entitled to damages as a result.

But Boles wanted to call the three doctors as fact witnesses, to testify to what they knew based upon their personal examinations of Boles. According to Boles:

[A] treating physician who is not disclosed as an expert can nonetheless provide ordinary fact witness testimony. This includes all 'personal knowledge' based on observations of the patient and course of treatment, and excludes only medical opinions. In addition, the medical records are admissible, irrespective of whether the doctor was identified in expert disclosures, because the medical records regarding treatment received by plaintiff do not constitute expert testimony requiring disclosure.

The court agreed that the three doctors could be called to provide fact testimony:

Because there is no dispute that the physicians were not designated as expert witnesses, they cannot offer expert opinions at trial. However, the Hospital seeks to exclude any testimony by these witnesses and the corresponding medical records. To the extent Boles seeks to call the physicians as fact witnesses, exclusion is not warranted. Boles represents that he disclosed the identity of the physicians in January 2022 and provided the medical records in March 2022. The Hospital does not dispute these events in its reply. Accordingly, at this point, the Court sees no reason to exclude these fact witnesses and the medical records.

The court's ruling on this matter may be seen here: Order Denying Motion in Limine as to Treating Physicians and Medical Records

On February 1, GLH filed a motion to continue the trial, due to the death of the mother of one of its attorneys. But the court denied that motion:

While the Court is sympathetic to the reason for the requested trial continuance, given the length of time this case has been pending, that the Hospital has additional counsel designated as lead counsel, that the parties presumably were prepared for trial in January, and that an April jury trial is not convenient for the Court based on the Court's current schedule, the motion to continue trial is DENIED.

The court's order may be seen here: Order Denying Motion to Continue Trial

Boles had recently listed several witnesses he would call at trial, including Lea Denton (Director of Medical Staff Services), Gary Marchand (Interim CEO), Jason Studley (former CEO), Sammy Foster (former Hospital Board President), and Subho Basu (former Interim CEO).

But now, there will be no trial this Monday, the case having settled in the nick of time.

The terms of the settlement have not been disclosed, and they probably never will be.

Ironically, earlier today, GLH announced that Dr. Boles' podiatry clinic, the Greenwood Leflore Foot Center, is moving from its long-time location next to Delta Steam Laundry on Cotton Street, to the Third Floor of the Hospital. No doubt, this is in keeping with GLH's efforts to cut costs during its existential fiscal crisis. Most of its other clinics have already moved into the hospital building.

Boles' clinic will be relocated to the hospital starting March 6.

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To review our reporting on GLH and its financial woes, please see here: Index of Greenwood Leflore Hospital news articles

John Pittman Hey
The Taxpayers Channel

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