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Datto v. Harrison

September 9, 2009

JEFFREY P. DATTO, PH.D.
v.
BRIAN HARRISON, ET AL.
JEFFREY P. DATTO, PH.D.
v.
THOMAS JEFFERSON UNIVERSITY, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

The two above-captioned actions arise from the dismissal of plaintiff Jeffrey P. Datto, Ph.D. ("Datto") from the M.D./Ph.D. program of Thomas Jefferson University. Datto alleges that his dismissal was the result of disability discrimination or retaliation or retaliation for his complaints about patient care. The two suits have a complicated procedural history and both raise similar claims. The defendants in each action, who are represented by common counsel, have filed motions to dismiss.

For reasons explained below, the Court will refer to Case No. 09-2064 as "Datto III" and Case No. 09-2549 as "Datto I".

The motion filed in Datto III seeks to dismiss all claims. The motion filed in Datto I seeks to dismiss Counts Four and Six through Twelve of the operative complaint, which bring claims under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, the Pennsylvania Human Relations Act ("PHRA"), the Pennsylvania Fair Educational Opportunities Act ("PFEOA"), and state law claims for wrongful termination.

For the reasons that follow, the Court will dismiss the plaintiff's ADA and Rehabilitation Act claims in both cases to the extent they concern the defendants' decision to dismiss the plaintiff from the Jefferson M.D./Pd.D. program, but will not dismiss those claims to the extent they concern the defendants' alleged refusal to readmit him to that program. The Court will also dismiss the plaintiff's Rehabilitation Act claims for retaliation against the individual defendants in both cases, but will not dismiss those claims under the ADA. The Court will also dismiss the plaintiff's PHRA and PFEOA claims in both cases and the plaintiff's wrongful termination claim in Datto I.

I. The Procedural History of the Claims

A. Datto I

The plaintiff began the first of these actions, Datto I, by filing a praecipe for a writ of summons, pro se, in the Philadelphia Court of Common Pleas on July 11, 2007. The plaintiff subsequently filed a complaint and amended it three times in state court. The plaintiffs' initial complaint and his first two amended complaints brought only state law claims. The plaintiff's third amended complaint, filed April 21, 2008, after the plaintiff had obtained counsel, for the first time included a federal claim, alleging a claim under the ADA. The defendant timely removed Datto I to this Court, where it was docketed as Case No. 08-2154.

The defendants filed a motion in this Court to dismiss Datto I. The plaintiff opposed the motion and moved to amend the complaint for the fourth time to add another federal claim under the Rehabilitation Act. While these motions were pending, Datto requested that the case be stayed to allow him to obtain new counsel. The Court granted the stay, but Datto was unable to obtain new counsel and his current counsel moved to withdraw.

While the defendants' motion to dismiss and the plaintiff's counsel's motion to withdraw were pending, the plaintiff filed a motion asking the Court to "exercise supplemental jurisdiction or in the alternative remand." In the motion, the plaintiff explained that, after Datto I had been removed to federal court, he had filed two new related suits in state court, Datto II, a medical malpractice action concerning treatment he received while in the Jefferson M.D./Ph.D. program, and Datto III, a substantively identical action to Datto I challenging his dismissal from the M.D./Ph.D. program. The plaintiff's motion to exercise supplemental jurisdiction or remand sought to have all three actions tried in the same forum and stated that the plaintiff was willing to dismiss his ADA claim in Datto I and have the action remanded to state court where it could be coordinated with Datto II and Datto III.

The Court granted the plaintiff's motion on March 3, 2009, allowing him to dismiss his federal claim without prejudice, and granted his counsel's motion to withdraw. The Court declined to exercise pendent jurisdiction over the remaining state law claims and remanded them to state court. The Court found that the interests of judicial economy and fairness to the parties were best served by having all of the plaintiff's claims brought together in one forum to avoid duplicative litigation. Although the Court recognized that the plaintiff could seek to amend his complaint to re-assert federal claims in state court after remand, which would allow the defendants to again remove, it reasoned that this possibility, while real, was speculative because the plaintiff had not stated that he intended to seek to re-plead his federal claims and any amendment would require leave of court.

Once the case was remanded, the plaintiff moved in state court to again amend his complaint to add federal claims under the ADA, the Rehabilitation Act and the 14th Amendment to the United States Constitution. The plaintiff filed the motion to amend on April 22, 2009. The defendants filed a notice of removal on May 1, 2009, before the motion had been ruled upon. Upon removal, the case was docketed as Case No. 09-1873. Because the defendants had removed the case before the plaintiff's motion to amend had been granted, the Court remanded the case sua sponte as prematurely removed, finding that, until amended, the operative complaint contained no federal claim allowing removal.

After remand, the defendants did not oppose the plaintiff's motion to amend, and the state court granted the motion on May 11, 2009. On May 22, 2009, the plaintiff filed his fourth amended complaint containing federal claims under the ADA, the Rehabilitation Act, and the Fourteenth Amendment, and the defendants again filed a notice of removal to this Court, where it has been docketed as Case No. 09-2549.

The operative fourth amended complaint in Datto I names as defendants Thomas Jefferson University ("Jefferson") and eleven individuals who are either Jefferson employees or administrators.*fn1 It brings state law claims for breach of contract (Counts I, II, and III); wrongful termination (Count IV); intentional infliction of emotional distress and intentional interference with contract (Count V); violations of the PHRA (Count XI); and violations of the PFEOA (Count XII). It brings federal claims under the ADA (Counts VI, VII, and VIII), the Rehabilitation Act (Counts IX and X), and the Fourteenth Amendment to the United States Constitution (Count XIII).

B. Datto II

The action referred to as Datto II is a state law medical malpractice action pending in the Court of Common Pleas of Philadelphia: Datto v. Thomas Jefferson University, et al., Phila. C.C.P., December Term 2007, No. 5181. According to the state court docket in the case, it was filed on or about January 4, 2008, by writ of summons. The parties have represented that the case concerns Datto's medical treatment by Thomas Jefferson University and others while enrolled in the M.D./Ph.D. program. Because Datto II brings only state law causes of action, it has not been removed to this Court.

C. Datto III

Datto III was initiated by a praecipe for writ of summons filed in the Court of Common Pleas of Philadelphia County on October 10, 2008. On February 2, 2009, defendant Thomas Jefferson University Hospital filed a rule to require the plaintiff to file a complaint, which the plaintiff filed on April 22, 2009. Like Datto I, the complaint in Datto III challenges the plaintiff's dismissal from Thomas Jefferson University's M.D./Ph.D. program and brings both state and federal claims. The defendants removed Datto III to this Court on May 13, 2009, where it has been docketed as Case No. 09-2064.

The complaint in Datto III names as defendants Thomas Jefferson University, Thomas Jefferson University Hospitals, Inc. ("Jefferson Hospital"), and four individuals who are either Jefferson employees or administrators.*fn2 It brings claims for violations of the ADA (Counts I, II, and III); the Rehabilitation Act (Count IV and V); the PHRA (Count VI); and the PFEOA (Count VII).

D. Consolidation of Datto I and Datto III

Datto I and Datto III were removed to this Court on May 22 and May 13, 2009, respectively. After removal, the defendants filed motions to dismiss in both cases, and the plaintiff filed a motion for a preliminary injunction. At the plaintiff's request, which the defendants did not oppose, the Court consolidated Datto I and Datto III for all purposes and set a briefing schedule on the pending motions. In the consolidation order, the Court stated that, once the motions were fully briefed, it would review them before scheduling a hearing on the preliminary injunction motion.

Both parties have also moved simultaneously in this Court and in state court to coordinate discovery in Datto I, Datto II, and Datto III. The parties stipulated to the appointment of a discovery matter in all three cases, to be selected by the Court.

II. The Allegations of the Complaint

The operative complaints in Datto I and Datto III concern the same events, but the allegations in Datto I are far more detailed. The Court will set out the allegations of each complaint separately.

A. The Allegations of the Datto I Complaint

In June of 1996, the plaintiff submitted an application for the combined M.D./Ph.D. program (the "program") at Jefferson. The program consisted of two pre-clinical years of medical school, followed by three or more years of graduate research leading to a doctoral dissertation. In choosing to apply to the program, the plaintiff relied on publications from Jefferson which described it as giving participants three years to complete their Ph.D. thesis research. Datto I Compl. at ¶¶ 19, 22-23, 25.

In December 1997, the plaintiff was notified that he had been accepted into the program as an early decision applicant. That same month, the plaintiff was told by Jefferson officials that the university was not likely to be able to offer him a scholarship because anticipated government funding would likely not be available. The plaintiff communicated with Jefferson officials from January through May 1998 concerning his expectations of a scholarship and what he alleges was Jefferson's promise to provide one. Datto I Compl. at ¶¶ 26-30.

On June 2, 1998, Jefferson agreed to fund the plaintiff's entire M.D./Ph.D. education. Because Jefferson provided funds for the plaintiff, it was unable to fund planned scholarships for other students. The plaintiff alleges that this caused significant ill will towards him from Jefferson officials. Datto I Compl. at ¶¶ 31-32.

The plaintiff did well academically in his first two years of medical school and in September of 2000 completed the first part of the medical licencing exam in the top 12% of students nationwide. In September 2001, the plaintiff applied for an National Institute of Health ("NIH") grant with the assistance of Jefferson employees. The NIH awarded Jefferson and the plaintiff the grant in February 2002 and the plaintiff became the principal investigator. Datto I Compl. at ¶¶ 33-36.

In spring or summer of 2002, several faculty members, including Dr. Matthew During, the plaintiff's thesis advisor, left Jefferson. In addition, the Jefferson CNS Gene Therapy Center, in which the plaintiff worked, was shut down. Although the plaintiff had been working on his research for two years and had not yet written his thesis or had his research published, Dr. Charles Pohl, Dean of Student Affairs, encouraged the plaintiff to return to medical school. Datto I Compl. at ¶¶ 37-40.

In September 2002, Jefferson sent a letter to the NIH Program Director suggesting that Dr. Irving Shapiro, Director of the Jefferson Cell and Tissue Engineering Program, could become the plaintiff's new "NRSA mentor," replacing Dr. During. The letter stated that Dr. During would continue to "advise the student scientifically and participate in the preparation" of the plaintiff's thesis and help him publish his researching findings. The letter also said that other members of the plaintiff's committee would work with him to facilitate completion of his thesis research and in the construction of his dissertation. Datto I Compl. at ¶ 41; Ex. E.

The plaintiff returned to medical school and obtained good to excellent grades. At this time, the plaintiff was also working to complete his thesis, which limited the time he could devote to his medical school studies. In completing his thesis, the plaintiff did not receive the promised help from his former thesis advisor, Dr. During, or from members of his committee. Datto I Compl. at ¶¶ 42-44.

In January 2004, the plaintiff defended his Ph.D. thesis. The plaintiff's thesis committee expressed concerns that his thesis needed significant work to ensure publication. A month before his thesis defense, knowing the thesis still needed significant work, the plaintiff had asked Jefferson for a third year of graduate support to allow him to complete it. After his defense, the plaintiff approached Dr. Pohl, Dean of Student Affairs, to express concerns about his workload and to again request funding for a third year of graduate studies. Jefferson denied the plaintiff's request for a third year of funding. Datto I Compl. at ¶¶ 46-49.

Jefferson's refusal to fund his third year of studies and his workload from simultaneously completing both his medical school studies and his Ph.D. thesis, put the plaintiff under a great deal of stress. The plaintiff began seeing Dr. James Youakim, the Jefferson psychiatrist assigned to treat medical students, who prescribed the plaintiff several psychiatric medications including Lithium and Zyprexa. While on the medication prescribed by Dr. Youakim, the plaintiff experienced significant side-effects, including a severe tremor, neurologic side effects, weight gain, memory loss, slowness of thought, apathy, and cognitive dysfunction. Datto I Compl. at ¶¶ 50-52.

In April 2004, the plaintiff was given a grade of "Marginal Competence" from Dr. Mark Graham in one of his courses. At this time, Dr. Graham expressed concern that the plaintiff was exhibiting memory problems and visible shaking that Dr. Graham attributed to anxiety. Dr. Graham did not review his grade with the plaintiff, as required by the Jefferson student handbook, and did not question him about the cause of his shaking. Datto I Compl. at ¶¶ 54-56.

In May 2004, the plaintiff was placed on a mandatory leave of absence. The plaintiff met with the Jefferson Committee on Student Promotions and told them that his shaking and tremors had been caused by the side-effects of his medication. The plaintiff did not tell the Committee that his cognitive problems were being caused by his medications, because he had been told by his psychiatrist, Dr. Youakim, that these problems were caused by bipolar disorder and attention deficit hyperactivity disorder. The plaintiff requested that the Committee remove references to his anxiety from his "Dean's Letter" concerning his mandatory leave, but the Committee and Dr. Pohl, Dean of Student Affairs, refused. Datto I Compl. at ¶¶ 57-63.

After the mandatory leave ended, the plaintiff returned to medical school. In April 2005, during the plaintiff's penultimate rotation of the year, in rheumatology, the plaintiff took a history from a patient who had been wrongly given an injection of the anti-nausea medication Phenergen inter-arterially instead of intravenously. The improper injection caused the patient great pain, cyanosis, and shriveling and eventual amputation of the injected limb. The plaintiff noted the error in the patient's chart and was reprimanded by the plaintiff's rotation supervisor, Dr. Sandorfi, who attempted to remove the notes and indicated that he should not report such incidents. Datto I Compl. at ¶¶ 64-69.

The plaintiff then went to the Jefferson Ethics Committee and voiced concerns about the incident. Dr. Sandorfi and others told the Ethics Committee that they had informed the patient of the medical error that led to her amputation. The plaintiff learned from other students that Dr. Sandorfi was very angry at him for making a report to the Ethics Committee. The plaintiff alleges that he later learned that he was the only doctor to inform the patient that her amputation was caused by a medical error, and that other doctors had told the patient that the plaintiff was "crazy" and that the cause of her amputation was her diabetes. The plaintiff also learned that the patient was not told she might need a second amputation, which was a possible complication of her condition. Datto I Compl. at ¶¶ 70-73.

After this incident, which occurred in the plaintiff's penultimate rotation, the plaintiff received a failing grade in his next rotation. This was the plaintiff's last rotation before his graduation. The plaintiff was given a grade of marginal competence by the attending and resident on the rotation, but this was changed to a failing grade by Dr. Arthur Feldman, the Chairman of Medicine. The plaintiff alleges that Dr. Feldman had been tasked by the Ethics Committee with contacting the improperly-injected patient about whom the plaintiff had complained and that Dr. Feldman was unhappy about this. Datto I Compl. at ¶¶ 76-77, 85-87.

The plaintiff alleges that the supervisors on this rotation did not fulfill the responsibilities set out in the rotation's course description. The resident on the rotation did not review each patient's history with the plaintiff or provide face-to-face feedback and the attending physician did not provide the plaintiff with "remediation or assistance," as they were required to do in the course description. The plaintiff alleges that, had they done so, the attending and the resident could have worked with his psychiatrist to identify and correct his deficiencies, which he contends were caused by his medications. Datto I Compl. at ¶¶ 78-84.

Because the plaintiff failed a rotation, he was dismissed from Jefferson's M.D./Ph.D. program. Although the complaint does not specifically allege the date of the plaintiff's dismissal, the plaintiff has attached to his complaint a letter to him from Jefferson, dated May 31, 2005, informing him of his dismissal. The letter states that the Jefferson Committee on Student Promotion had reviewed his failing grade and was "sorry to inform you that the Committee has decided that your status at Jefferson Medical College has been officially terminated." It states he is being "given an Academic Dismissal based on a consistent inability to achieve a satisfactory academic record." The letter also informs the plaintiff that he has the right to appeal this decision. Compl. Ex. FF.

The plaintiff filed an appeal from his dismissal. During his appeal, the plaintiff says he protested his dismissal, "raised violations" of the ADA, and "demanded" accommodations. The plaintiff states that he was told by Dr. Bernard Lopez, Assistant Dean of Student Affairs and Career Counseling, that during the appeals process, Jefferson still considered him to be a student.*fn3 Datto I Compl. at ¶¶ 92, 94-96.

In a letter dated July 20, 2005, and attached to the plaintiff's complaint, Dr. Lopez formally informed the plaintiff of the result of his appeal. The July 20, 2005, letter begins by stating that the plaintiff's "dismissal from Jefferson was not rescinded during the entire appeal process" and that "[y]our status remains that you are dismissed." It states that the Committee on Student Promotions has determined that "the dismissal would be reconsidered if the following 3 conditions are met." These conditions are:

1) That the plaintiff have an independent psychiatric evaluation that finds him to be "medically and psychiatrically stable to resume" his medical studies;

2) That he enter in to a contract with the "Physicians Health Program" and submit a copy of the contract to the Committee; and

3) That he agree to have his dean's letter modified to include his diagnosis of bipolar disorder and the accommodations that he requested to keep it under control.

The letter states that, if he meets these three conditions, "the Committee will rescind your dismissal and will prepare a remediation plan" for him to follow. Datto I Compl. at Ex. I.*fn4

The plaintiff received a second letter setting forth these conditions, although phrasing them slightly differently, on July 21, 2005, from the Chairman of the Committee on Student Promotion. This letter stated that upon "completion of these requirements, the Committee will then reconsider its previous decision of Academic Dismissal." The plaintiff requested a clarification of this wording in an email to Dr. Lopez on July 27, 2005, who replied that the language was "simply the wording of the language that was chosen" and that "[i]f you are successful with meeting the conditions, your dismissal will be revisited and you will be reinstated." The plaintiff then signed the letter of July 21, 2005, and returned it to Jefferson. Datto I Compl. at ¶¶ 98-101, Ex. J, K.

The plaintiff changed healthcare providers after his dismissal. These doctors determined that the medication he had been prescribed was causing his cognitive impairments.

After the plaintiff stopped taking his medication, he experienced "withdraw/rebound" effects that caused him to become highly emotional and manic and to suffer hallucinations. These effects subsided over time. During this time, the plaintiff suffered economic hardship. Datto I Compl. at ¶¶ 103, 108-113.

The plaintiff alleges that, as part of his doctors' attempt to diagnose his condition, they asked to review emails from the plaintiff's Jefferson email account, which Jefferson would not allow. On June 29, 2006, the plaintiff sent an email to fifteen Jefferson employees complaining of being denied access to his emails and threatening to file complaints about Jefferson's actions with the governor's office, the attorney general, and the departments of education and justice. Datto I Compl. at ¶¶ 104-05, Ex. M.

The plaintiff sent another email on September 4, 2006, to the program directors and chairmen of Jefferson, the University of Pittsburgh Medical Center and Northwestern Medical Center, copying three malpractice attorneys and officials of the NIH and Office of the Inspector General, among others. The email stated that he had personal knowledge that certain unnamed residents, fellows, and recent graduates of the three institutions were "long standing" drug users and/or had been at a party where drugs were used. The email stated that the plaintiff believed drug use was a wide-spread problem at these institutions and that he was requesting that they conduct "a mandatory drug screen this week of all your faculty to verify the veracity" of his claims. Datto I Compl. at ¶¶ 104, Ex. N.

In October 2006, Jefferson "attempted to revoke the promised accommodation" of reinstating him once he had been medically and psychiatrically cleared. The plaintiff states that he has been cleared to return to Jefferson and has attached to his complaint several letters and reports from physicians stating that he can return to school. He states that Jefferson refuses to "engage in any interactive process" with him and continues to deny him the opportunity to complete his studies. He also states that he has been unable to enter any other medical program in the United States or Canada. Datto I Compl. at ¶¶ 107, 114-117, Ex. P-U.

B. The Allegations of the Datto III Complaint

The complaint in Datto III is far more skeletal than that in Datto I. In their entirety, the allegations of ...


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