In Nansamba v. North Shore Medical Center, Inc., 727 F.3d 33 (1st Cir.2013), the First Circuit sharply rebuked a plaintiff’s attorney’s attempt to shift the blame to opposing counsel for plaintiff’s attorney’s failure to respond properly to defendant’s motion for summary judgment. The Court easily saw through the diversionary tactics and affirmed summary judgment in favor of the defendant. In 2002, the defendant, North Shore Medical Center, Inc. (“NSMC”), hired the plaintiff as a technical nursing assistant. During her employment, the plaintiff developed hemorrhoids. During the early morning hours of May 7, 2010, she felt ill and left her overnight shift. Later that day, she informed her manager she would need time off to undergo a colonoscopy.

Three days later, NSMC fired the plaintiff citing performance-related reasons. The plaintiff filed suit alleging claims for, among other things, violation of the Family Medical Leave Act (“FMLA”). During pretrial discovery, the parties argued over the production of the plaintiff’s complete medical file. The plaintiff first produced a set of her medical records on December 13, 2011 in response to a discovery request. The defendant complained the release form used to obtain those records requested only a “medical record abstract,” not the plaintiff’s complete medical file. The plaintiff then executed and delivered a new release form. Although this form was broader in scope, it still did not include the release of photographs, radiation reports, x-ray reports, and “personal information not related to treatment.”

The new release form instructed the records be sent directly to defense counsel. But those additional records, when received, did not satisfy the defendant. On February 3, defense counsel e-mailed plaintiff's counsel stating he had received only portions of the medical records and requesting the plaintiff execute an unrestricted release form. Attached to the e-mail were the records defense counsel had received in response to the second release form. The plaintiff’s counsel did not bother to open or examine the attachment. On February 14, however, the plaintiff executed an unrestricted release form. Using this third release form, the defendant obtained more records in April. What they received, however, did not differ in any meaningful way from what they previously had sent to plaintiff's counsel in February.

After pretrial discovery, the defendant moved for summary judgment on, pertinently, the FMLA claim. The defendant argued, among other things, the FMLA claim failed because plaintiff could not show she suffered a “serious health condition” as defined by the FMLA and its accompanying regulations. The District Court granted summary judgment on that ground. The plaintiff thereafter moved for reconsideration. The plaintiff -- not realizing the records produced in April (after the summary judgment motion had been briefed but before it was decided) were materially identical to those attached to the February 3 e-mail -- argued the April records constituted newly discovered evidence. The District Court denied the motion, observing all the records on which the motion relied were e-mailed to plaintiff's counsel on February 3.

The plaintiff did not take a timely appeal from either the entry of summary judgment or the denial of her motion for reconsideration. Instead, she moved for relief from the judgment.

In that motion, she characterized her counsel’s failure to introduce the medical records contained in the attachment to the February 3 e-mail as the product of either excusable neglect under Rule 60(b)(1) or the result of fraud by the defendant’s counsel under Rule 60(b)(3). The District Court denied the motion and the plaintiff appealed.

On appeal, the First Circuit considered only whether the District Court properly denied the motion for relief from judgment. The First Circuit rejected the argument that the failure to introduce the medical records was “excusable neglect.” The Court noted the plaintiff’s admitted her counsel failed to open the February 3 e-mail attachment containing her medical records. She likewise admitted her counsel failed to introduce any of those records in opposition to the summary judgment motion. The Court characterized these actions as “neglect on steroids” and stated “the fact that the neglect was the attorneys’ rather than the client’s is irrelevant. Attorneys act for their clients, and the neglect of an attorney acting within the scope of his or her authority is attributable to the client.”

The Court was particularly critical of the plaintiff’s suggestion that wording of defense counsel’s February 3 e-mail lulled her legal team into inaction. The plaintiff claimed the defendant’s February 3 e-mail stating they had “received part of [the plaintiff's] medical record—but, once again, only part of it” led her lawyers to believe the records attached to that e-mail were the same records the plaintiff originally had produced (and therefore not worthy of examination). The Court stated it was “puzzled” about how the plaintiff's counsel could reasonably have arrived at his professed understanding of the February 3 e-mail that the records attached to the e-mail were the same records previously produced and not worthy of examination. Fairly read, nothing about either the contents or the context of the e-mail provided even the slightest justification for the lawyer’s failure to open the attachment. The e-mail specifically noted: “You will see that—once again— [the plaintiff] has signed the medical release, but specifically instructed the physician not to provide the entire medical file.” The Court saw this as an invitation to examine the contents of the attachment rather than a direction to ignore it as the plaintiff claimed.

The Court also chided plaintiff’s counsel for offering no plausible rationale for bringing an FMLA claim while not taking the initiative to obtain her complete medical record in order to prosecute that claim. The Court stated it would have expected the lawyer would have obtained his client’s complete medical file before bringing an FMLA action or, at least, would have used the roughly seven months that elapsed between the commencement of the action and the filing of the summary judgment opposition to obtain the complete records.

The plaintiff also claimed the judgment should be set aside because the defendant committed fraud. The plaintiff asserted the defendant’s argument, made in support of its summary judgment motion, that her hemorrhoids did not satisfy the FMLA's definition of a “serious health condition” was fraudulent because defense counsel must have read the medical records attached to the February 3 e-mail (even though her counsel did not) and realized the argument was belied by those records.

The Court referred to this argument as “a house of cards.” The Court stated this case is a “mundane example of the summary judgment process at work.” The defendant, through the summary judgment papers, asserted the evidence of record did not show a “serious health condition.” The plaintiff was free to proffer facts sufficient to counter this assertion. The plaintiff failed to do so (even though such facts were readily available to her). The defendant’s alleged failure to scour the discovery materials for facts supporting the plaintiff’s position is not evidence of fraud but, rather, a prudent refusal to make the adversary’s case for her. The Court noted this is “simply good lawyering” and rejected the plaintiff's “brash attempt to transmogrify advocacy into misrepresentation.”

In the end, the First Circuit saw through the plaintiff’s transparent attempts to point the finger at the defendant’s counsel for her failure to introduce evidence, which was in plaintiff’s counsel’s possession, in order to oppose the defendant’s motion for summary judgment. The Court did not look kindly upon the plaintiff’s “scapegoating” and “diversionary tactics.” We have seen, and reported in past editions of this newsbrief, instances where the courts have sanctioned attorneys for making baseless arguments. Here, the Court apparently did not believe the arguments rose to the level required for sanctions, but it did not condone the actions of plaintiff’s counsel.