Professional Documents
Culture Documents
COVER SHEET
1~
1 ~ 16] 1 ~ 11J
County# Judicial
CourtiD
District
Form AOC/01
Month
D
D
Docket Number
l:zJQ ll loI I I
(CH,CI, CO)
Date
I*1I' I
Local Docket ID
Year
In the CIRCUIT
Case Year
lo6 1a1a:1~ I~ I
(Rev 2009
00
'
LAFAYETIE
D
D
Judicial District
Other
Plaintiff - Pa rty(ies) Initially Bringing Suit Should Be Entered First- Enter Additional Plaintiffs on Separate Form
Individual Hahn
James
Wayman
Last Name
First Name
Maiden Name, if ap plicable
__ Check ( x) if Individual Plainitiff is acting in capacity as Executor(trix) or Administrator(trix) of an Estate, and enter style:
Estate of
__ Check ( x) if Individual Planitiff is acting in capacity as Business Owne r/Operator (d/b/a) or State Agency, and enter entit'j
D/B/A or Agency
-M.l.-
Jr/Sr/111/IV
Business
Enter legal name of business, corporation, partnership, agency- If Corporation, indicate the state where incorporated
__ Check ( x) if Business Planitiff is filing suit in the name of an entity other than the above, and enter below :
D/B/A
Address of Plaint iff
MS Ba r No.
6857
Individual
MT
Jr/Sr /III/IV
__ Check ( x) if Individual Defendant is acting in ca pacity as Business Owner/Operator (d/b/a) or State Agency, and enter entity:
D/B/ A or Agency
Business D e lta Health Allian ce, Inc. (MS}
Enter legal name of business, corporation, partnership, agency - If Corporation, indicate the state where incorporated
__ Check ( x ) if Business Defen dant is acting in t he name of an entity other than the above, and ent er below :
D/B/A
MS BarNo.
Compensatory $
-D
D
D
D
[]
0
D
CJ
CJ
D
D
EJ
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
I
I
Ch ildren/Minors Non-Domestic
Adoption - Contested
Adoption Uncontested
Consent to Abortion Minor
Removal of Minority
Other
Civil Rights
Elections
Expungement
Habeas Co rpus
Post Conviction Relief/Prisoner
D Ot her
Co nt ract
Breach of Contract
Installment Contract
Insurance
Specific Performance
D Other
Statutes/Rules
Bond Validation
Civi l Forfeiture
Declaratory Judgment
Injunction or Restraining Order
Oth er
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
D
EJ
D
D
D
D
D
D
D
D
D
D
D
00
Real Property
Ad verse Possession
Ejectment
Eminent Domain
Eviction
Judicial Foreclosure
Lien Assertion
Pa rtitio n
Tax Sa le: Confirm/Cancel
Title Boundary or Easement
Other
Torts
Bad Faith
Fraud
Loss of Consortium
Ma lpractice Legal
Malpractice Medical
Mass Tort
Negligence General
Negligence - Motor Vehicle
Product Liability
Subrogation
Wrongful Death
Other ~ublic ~o li c~
.
IN THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSISSIPPI
PLAINTIFF
LAFAYETTE COUNlV
vs
CAUSENO.:
JUL 2 2 2010
L\G-~l\ 1
DEFENDANT
COMPLAINT
This is an action to recover actual and punitive damages for wrongful termination in violation
of public policy. The following facts support this action:
1.
Plaintiff, JAMES WA YMON HAHN, is an adult resident citizen ofMississippi, who resides
at 315 Globe Loop, Oxford, Mississippi 38655. He is a former employee of the Defendant, working
as a Senior Vice President, reporting to the Defendant's Chief Executive Officer, Dr. Karen Fox.
2.
Defendant, DELTA HEALTH ALLIANCE, INC. , is a Mississippi nonprofit corporation,
which may be served with process upon its registered agent, David Potter, Delta State University,
Office ofthe President, 1003 W Sunflower Road, Cleveland, Mississippi 38733.
3.
Delta Health Alliance, Inc. is funded by the taxpayers of the United States for the purpose
of providing healthcare services to poor persons. Plaintiff accepted employment with the Defendant
in order to assist in this important public mission, giving up more lucrative private employment as
PLAINTIFF
vs.
DEFENDANT
NOTIC.E;_ OF SERVICE
TO:
NOV I 0 2010
NOTICE is hereby given, pursuant to the local rules of this Court, that Defendant Delta
Health Alliance, Inc. has this date served the following in the above-entitled action:
BY:
Gary E. riedman, MS BAR #5532
Gregm Todd Butler, ~.1S BAR # 102907
PHEL S DUNBAR LLP
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: (601) 352-2300
Telecopier: (601) 360-9777
Email: friedmag@phelps.com
butlert@phelps.com
.' .
PD.4451737. J
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have forwarded , via United States
mail, postage prepaid, a true and correct copy of the above and foregoing NOTICE OF SERVICE
to the following counsel of record:
James D. Waide, III, Esquire
WAIDE & ASSOCIATES , P.A.
Attorneys at Law
Post Office Box 1357
Tupelo, Mississippi 38802
THlS the 8111 day of November, 2010.
2
PD.4451737. I
PLAINTIFF
VS.
DE:FENDANT
LAFAYETTE COUNTY
NOTICE OF SERVICE
TO:
FILED
NOV 1'7 2010
Mary-Ali~Bl,lsby
CIRC~RK D.C.
fr(--_.:....---
NOTICE is hereby given, pursuant to the local rules of this Court, that Defendant Delta
Health Alliance, Inc. has this date served the following in the above-entitled action:
BY:
r..,r)' '):;
rJt>rl-~''1'
~If~.
P. An
# <:: '\12
a;~go~~tro'dd'.8l;tl;;:-M's ~AR:-#to29o7
PHELPc DUNBAR LLP
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: (601) 352-2300
Telecopier: (601) 360-9777
Email: friedrr.mg@phelps .com
butlert@phelps.com
PD.4487335. I
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have forwarded, via United States
mail, postage prepaid, a true and correct copy of the above and foregoing N011CE OF SERVICE
to the following counsel of record:
James D. Waide, III, Esquire
WAIDE & ASSOCIATES, P.A.
Attorneys at Law
Post Office Box 1357
Tupelo, Mississippi 38802
THIS the 15th day ofNovember, 2010.
2
PD.448733 5. I
PLAINTIFF
vs.
CAUSE NO . L I 0-44 C -
DEFENDANTS
DEPOSITION SUBPOENA
TO:
Jere Nash
121 North State Street
Jackson, MS
(601-352-7037)
YOU ARE COMMANDED to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above case and continue from day to day thereafter until
completed ..
PLACE:
Phelps Dunbar
4270 I55 North
Jackson, MS
"
Dated : 11-tl
'2010.
PLAINTIFF
CAUSE NO. L I 0-44 r-
VS.
DELTA HEALTH ALLIANCE fNC .
DEFENDANTS
DEPOSITION SUBPOENA
TO:
Chip Morgan
Delta Council
433 Stoneville Rd .
Stoneville, MS
YOU ARE COMMANDED to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above case and continue from day to day thereafter until
completed ..
DATE&TIME
December 8, 2010
9:30a.m.
PLACE:
Campbell Delong, LLP
923 Washington A venue
Greenville, MS
Questions relative to this subpoena may be addressed to :
Attorney:
Rachel M. Pierce
Firm:
Waide & Associates, P.A.
Address :
P.O. Box 1357
Tupelo, MS 38802
Telephone:
(662)842-7324
~ {3,~ ~ :
BY: '\t0.,M...:,
Clerk of ~ourt
~0
Dated:
/I- 12- , 2010.
:J..L>
Dn b,pL.
w--<-
Fl LED
vs.
DELTA HEALTH ALLIANCE INC.
BY
NOV 3 0 2010
Mary A
~
l
U&i;)y
DEFENDANTS
CIRC
RK
---"""'-~..D::"-_wo.o.
DEPOSITION SUBPOENA
TO:
YOU ARE COMMANDED to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above case and continue from day to day thereafter until
completed ..
DATE& TIME
November 29, 2010
11:00 a.m.
PLACE:
Phelps Dunbar
4270 I55 North
Jackson, MS
Questions relative to this subpoena may be addressed to:
Attorney:
Rachel M. Pierce
Firm:
Waide & Associates, P.A.
Address:
P.O. Box 1357
Tupelo, MS 38802
Telephone:
(662)842-7324
BY:
, 2010.
o.A..I'-"1
PROOF OF SERVICE
DATE:
j_/-/ 1- &t>(CJ
PLACE:~p:?u
sERVED oN : ])/'
t7E
eh--~- /v LZ--?2__..e:/,.
f/; c
L.e/
TITLE:
UPle~
--- - --- __
~/oC~/>"'
/i_ij, J(J?.vJt'?r-(1/e--
J t!!:r-vL---
DECLARATION OF SERVER
l declare under penalty of perjury under the laws of the United States of America that the foregoing information
contained in the Proof of Service is true and correct.
j .-;;0
(2
EXECUTED on_}_/-/
S1
/ ()
Dare
re of Server
Address of S..:rver
c,..
:
..
cv."'.
~"0~
ID # 16540
~A
..
--::-..,._..;-..:-...;:_;....:..___::-'-,._:/'_.:..=!
':'.!IIII.MLL
Y.vCOLEY HIH~S ,:
1\a.
......
~ '--.1. 2014
luioa~:w..~
'w?
I
_,.,,.,~
' ~
';JI~......
.... co ...
--
..~ ..
..--~ '"';
..~~~.,--........\1 .,
of
20
fD.
~ C~thvv
f Ml ~si
.t,o.......
~y nU\'eJm~
,.
FD
PLAINTIFF
NOV 3 0 2010
~"
TO:
DEFENDANTS
Ricky Boggan
339 Country Estates Road
Florence, MS 39073
YOU ARE COMMANDED to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above case and continue from day to day tl1ereafter until
completed ..
DATE& TIME
November 29, 2010
1:00 p.m.
PLACE:
Phelps Dunbar
4270 I55 North
Jackson, MS
Questions relative to
Attorney:
Firm:
Address :
Telephone:
BY:'=cz.Jds)c
fs>vt\lu~ ~
Clerk of Court
....JI,/'-""1
Dated:
}JOV q , 2010.
(
PROOF OF SERVICE
~3/0
--L---------------------------------------
DATE:
PLACE:
?j;t:
SERVED ON:
x;,._~Pv
?'n/
-y;</Yc.-
t/21-t:Ry ,Z fJ>A-;t/
.~~/~~VA/'(
MANNER OF SERVICE:
SERVEDBY '
TITLE :
~ ~4~
fkl,y~/ {1...tJ6vf'4--
b e t<!!//
.5~v
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information
contained in the Proof of Service is true and correct.
j/-/f..,. l i)
e~ Da:__
EXECUTED on
Signature of Server
CHARLES LINDSAY
P.O. BOX 1656
BRANDON, MS 39043
Addresso r s-~g-41:5~~ ----- - ---
'oF Ml '
:,t, -~8~.
~~'~p..RY P{l:., ,
oCO
: :
:TAM
I0
~.~.
'6<o
# 16540
~-o..
:-:
~c
E-Y HINEs !
.~. omJmlaalon Explrea / _:
..... uly r 20r4
.-r+.. ~.
..r,;;--ul\~
. co .
of__,_n--=U--=----'--=
"ro<n ~
-----'
2019_.
~c~~
vs.
PLAINTIFF
FILED
NOV 3 0 2010
TO:
DEFENDANTS
Chuck Fitch
I 05 Marigold Cove
Madison, MS 39110
YOU ARE COMMANDED to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above case and continue from day to day thereafter until
completed ..
DATE& TIME
November 29, 20IO
I :30 p.m.
PLACE:
Phelps Dunbar
4270 I55 North
Jackson, MS
Questions relative to
Attorney:
Firm:
Address:
Telephone:
Bv.\l ~1c~~K\\~l
Clerk of ourt
Dated:
NoV q , 20IO.
\
V'"-"'-"V
PROOF OF SERVICE
sERVED oN :
CkuR .);i/-&1
~:::.:o...:d"'--=;J_.V-=:....<.:ff_J_
CJA;;q_ L :&df,:r)
-:--_,P.,___...
MANNER OF SERVICE:
SERVED BY'
TITLE:
_ _ _ _ _ _ _ _ _ _ __
/4keJ (};'v'J-f,.,/Jk-
/fCCe.J/
J~ve---
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America
that the foregoing information contained in the Proof of Service is true and
correct.
-1~-/i)
Date
Signature
CHARLES I JNDSAV
A
ress
66f';gt41-6348
My commission Ex~~~Mis
..
~t-.: 8/.
'"o~p..RY
P{JS.~it
..~.~
068686.WPD
~'o~
the ~
day of
~Itt:____
FILED
JAMES WAYMONHAHN
PLAINTIFF
DEC 01 2010
VS .
DELTA HEALTH ALLIANCE INC.
DEFENDANTS
DEPOSITION SUBPOENA
TO:
Howard Davis
Taylor, Powell, Wilson
1705 Highway 82 West
Greenwood, MS
YOU ARE COMMANDED to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above case and continue from day to day thereafter until
completed ..
PLACE:
Campbell Delong
923 Washington Avenue
Greenville, MS
Questions relative to
Attorney:
Firm:
Address:
Telephone:
DATE& TIME
December 8, 2010
11:30 a.m.
1ohY{ s ~c :bv~~~~
~
...-v-{
BY: \ (
Clerk of ~ourt
Dated: j\)D \)
tl ,2010.
PROOF OF SERVICE
\\-~~-\()
DATE:
PLACE:
I'1
OS~
\\\.
~d._
'->:> ( S T
{\ '-J~ ~
SERVED ON:
MANNER OF SERVICE:
SERVED
TITLE:
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America
that the foregoing information contained in the Proof of Service is true and
correct.
:XJZ)ff:j;-\0
Signature of Server
~\o \)..)(S.T
C.LA\Gv&NE
~<~oud
~S
Address of Server 1
c:A0IO
3'b'\3u
Noo~~
a,~M-J-~&~
OTARY
My Commission
~s
Ji4('$'= D ~~/
068686.WPD
~~ce_ ~~
&j@J:::_
FILED
PLAINTIFF
DEC 01 2010
VS .
DELTA HEALTH ALLIANCE INC.
BY
DEFENDANTS
DEPOSITION SUBPOENA
TO:
Chip Morgan
Delta Council
433 Stoneville Rd.
Stoneville, MS
YOU ARE COMMANDED to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above case and continue from day to day thereafter until
completed ..
PLACE:
Campbell Delong, LLP
923 Washington Avenue
Greenville, MS
~"
''\T.. ""''"''
C ,,,,1.
'''''"'
c,v
0 "~
~''
~~
u..t\~
,$' ()~
. 'Tl>~
~
...
. " \
tJ )J
~~ ...
~:;'(\ ...
... _~~
.. ~-
~ -1'1- ..
.x ;::
~~ ,..~."- ~""\ ''.ff"
''"'""'""''''
Dated:
I t --1)-
, 2010.
PROOF OF SERVICE
SERVED ON:
MANNER OF SERVICE:
SERVED
DECLARATION OF SERVER
I declare unde r penalty of perjury under the laws of the Uni t ed State s of America
that the for e going information contained in the Proof of Service i.s true and
correct.
~\0
My Commission Expires:
068686.WPD
the~y
of
FILED
PLAINTIFF
DEC 01 201D
vs.
CAUSE NO . L 10-441
CIRCUli CL.BAK
av_____
_,,O.
DEFENDANTS
DEPOSITION SUBPOENA
TO:
Steve Osso
Clarke, Bradley, Baker
& Co. , LLP
1604 South Main Street
Greenville, MS
YOU ARE COMMANDED to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above case and continue from day to day thereafter until
completed ..
DATE& TIME
December 8, 2010
11:00 a.m.
PLACE:
Campbell Delong
923 Washington Avenue
Greenville, MS
Questions relative to
Attorney:
Firm:
Address:
Telephone:
BY:
V j . , 2010.
PROOF OF SERVICE
DATE:
PLACE:
\ lo () L\
SERVED ON:
~\e\JE
05:)0
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America
that the foregoing information contained in the Proof of Service i s true and
correct.
Sig~ Server
~WORN
My Commission Expires:
~ :fu li1~"'
068686.WPD
3 ~S 3u
tb~Oy
of
N~
clua~ ~6~
~~U(
/)~v
Qi~
N
RY
1\_
~u~
LAFAYETTE COUNTY
FILED
vs.
DEC 01 2010
PLAINTIFF
CAUSE NO.: Ll0-441
~.<fee Busby
C cut[_CLERK
DEFENDANT
BY
D.C.
MOTION OF DR. KAREN FOX, Ph.D. TO INTERVENE
INTRODUCTION
Dr. Karen Fox respectfully moves the court for leave to intervene in the captioned civil
action, for the sole purpose of seeking a protective order for her reputation.
The captioned case involves allegations of wrongful termination by the Plaintiff, James Hahn,
against Delta Health Alliance ("DHA"). However, the focus of the case is on Hahn's claim that he
was wrongfully terminated for reporting alleged criminal misuse of funds by Dr. Fox, the President
and CEO ofDHA. (See Complaint, Exhibit "A" attached hereto.) Those reports were investigated
by DHA and found to be meritless. !d., <][10
Furthermore, when deposed in this case, Hahn has made false and defamatory accusations
of immoral conduct by Dr. Fox in her private life, which will be shown to the court at the hearing.
Those accusations are not even relevant to Hahn ' s allegations. They manifest his malice and ill-will
toward Dr. Fox.
Those defamatory statements are actionable. However, Hahn's defamatory statements
relevant to his allegations in this case are not, even if made maliciously and with knowledge of
falsehood. See, e.g., McCorkle v. McCorkle. 811 So. 2d 258, 266 (Miss. App. 2001). Only a
protective order by this court can protect Dr. Fox from injury by publication of Hahn's false and
defamatory statements in the course of this litigation which are relevant.
Dr. Fox is an accomplished healthcare executive. A copy of her resume is attached hereto
as Exhibit "B".
engineering. She has published eleven papers. She is a frequent presenter at academic, government
and civic conferences.
grants.
Her hard-earned reputation is essential to her ability to recruit, retain, and effectively manage
subordinates; maintain the trust and confidence of her board of directors at DHA; apply for and
secure grants for DHA; and maintain her value in the market for healthcare executives.
The publication of Hahn's false and defamatory allegations against Dr. Fox not only impairs
her ability to do her job, but also poses the risk of irreparable harm to her reputation and profound
embarrassment to her. Dr. Fox is justifiably concerned that she will be irreparably stigmatized in the
minds of those who hear the accusations by Hahn against her, even if they doubt the truth of Hahn's
accusations.
STANDARDS FOR DECISION
M.R.C.P. 24 provides, in pertinent part:
1.
ANALYSIS
I.
The captioned case was filed July 22, 2010. Discovery in the case has not progressed far.
The deposition of James Hahn has been completed, but the transcript of that deposition has not.
Additional depositions have been set for the end of November and the first part of December. The
case has not been set for trial.
II.
Dr. Fox's interest in protecting her reputation and from being subjected to further
embarrassment and insult has been recognized as an interest sufficient for intervention, under rules
of procedure substantially the same as M.R.C.P. Rule 24. Referring to similar procedures for
intervention, the Supreme Court of South Carolina held:
"Interest" means any interest in the action, legal or equitable, as would make a party
a proper party to the action. Page v. Lewis, 203 S.C. 190 26 S.E. (2d) 569 (1943 ).
It can hardly be claimed the Leatherwood firm has no interest in this case. One of
their attorneys is, indirectly, being accused of unethical conduct which, if true, could
result in disbarment. The reputation of the entire firm is at stake. A good reputation
for honesty, uprightness, and fair dealing is a valuable possession which has never
been doubted. To destroy the reputation of the firm would be to destroy it
financially. To permit this case to go to a judgment which could injure the reputation
of the Leatherwood firm without giving it an opportunity to defend its name would
be great wrong without remedy. We hold the Leatherwood firm has a direct legal
interest in the outcome of this case and that the trial judge properly allowed it to
intervene ....
Bankers Trust ofSouth Carolina v. Bruce, et al v. Leatherwood, et al, 283 SC 408, 323 S.E.2d 523,
529 (SC 1984)[attachedfor court].
Similarly, an Indiana court has explained the need to allow intervention in cases of
privileged defamation:
It is true that, while courts of equity will sometimes intervene by injunction to
prevent injury to property, they decline to intervene by injunction to protect
reputation against libels and slanders. The reason given is that there is an adequate
remedy by law for damages for such injuries to reputation. But that is not always
true. Statements which would otherwise be actionable are privileged when they are
made in a pleading filed in a judicial proceeding, and it is clear that, though this
privilege strikes down the remedy at law for damages, a court of equity will not
entertain a suit to enjoin the assertion or perpetuation of the injurious matter, since
that would involve a trial of the issue presented in the original case. The appellant
then has no remedy by due course of law for the injury to his reputation, and the
resultant damage to him, which he asserts, unless the court in which the action is
pending shall be open to him, and unless he shall be permitted to there deny and
defend against the charges. It is true that the trial court invited John J. Dodd to
appear amicus curiae, but this is by favor, and not as of right, and it does not carry
with it the right to exceptions and appeal from adverse rulings. If the action in which
he sought to intervene involved a small bit of land, of little value, or a horse, or a
cow, or a few dollars, he would be held to have an interest in the right. It seems
inconceivable that a court of conscience can say that in this action the result of which
may brand him as guilty of the most despicable conduct, which may destroy his
opportunity to earn a comfortable living at his chosen profession, and which may
diminish the esteem in which he is held by his friends and neighbors, and cause his
family to hold a less respected place in th community, he has no interest, and that he
cannot be injured in his substantial rights by judgment.
Dodd etal. v. Reese etal, 216Indiana449, 459, 24N.E. 2d995 (Indiana 1940)[attachedforcourt].
III.
The disposition of this action will as a practical matter impair Dr. Fox's ability to
protect her interest.
If a protective order is not rendered and entered to restrict publication of Hahn's
defamatory accusations, Dr. Fox's reputation could be severely injured without any
remedy.
IV.
Allowing Dr. Fox to intervene will pose no undue delay or prejudice to the other
parties in the case.
Dr. Fox seeks a limited intervention. The restrictions she seeks will pose no undue
hardship on any party and will not deprive the Plaintiff of his day in court.
WHEREFORE, PREMISES CONSIDERED, Dr. Fox respectfully moves the court for leave
to intervene, for the sole and limited purpose of moving for protective order in the form attached
hereto as Exhibit "C". Dr. Fox seeks such other and further relief to which she may show herself
justly entitled.
Respectfully submitted, this the pt day of December, 2010.
Of Counsel:
Dunbar Davis, PLLC
Attorneys at Law
324 Jackson Avenue East
Oxford, MS 38655
(662) 281-0001
CERTIFICATE OF SERVICE
I, John H. Dunbar, do hereby certify that I have this day mailed a true and correct copy of
the above and foregoing document by E-mail, to:
Jim Waide, Esq.
WAIDE & ASSOCIATES , PA
Post Office Box 1357
Tupelo, Mississippi 38802
Attorney for Plaintiff
Gary Friedman, Esq.
PHELPS DUNBAR
Post Office Box 23066
Jackson, Mississippi 39225-3066
Attorney for Delta Health Alliance
This, the
1 st
'
FAX
raJ 001/014
..
!
PLAINTIFf
vs
LAFAYETTEOOUN'IVD
Fit ..
CAUSENO.:
JUL t Z2010
UD-l\l\1
DEFENDANT
Mr.~~
BY
...
COMPLAINT
This is an action to recover actual and punitive damages for wrongful termination in violation
of public policy. The following faets support this action:
1.
Plaintiff. JAMES WAYMON HAHN, is an adult resident citizen ofMississippi. who resides
' at 31 S Globe Loop, Oxford, Mississippi 38655. He is a former employee of the Defendant, working
as a Senior Vice President, reporting to the Defendant's Chief Executive Officer, Dr. ~ F9x.
2.
Defendant, DELTA HEAL1'H ALLIANCB, INC., is a Mississippi nonprofit corporatlon,
which may be served with process upon its registered agent, David Potter, Delta State Univmit)',
Office of the President, 1003 W Sunflower Road, Cleveland, Mississippi 38733.
3.
Delta Health Alliance, Inc. is funded by the taxpayers of the United States for the purpose
ofproviding hcaJthcare services to poor persons. Plaintiff'accepted employment with the Defendant
in order to assist in this important public mission, giving up more lucrative private employment as
EXHIBIT
"A"
FAX
laJ002/014
.t
a hospital administracor.
4.
In the latter stage ofhis employment for the Defendant, Plaintiff became concerned that the
Defendant'sCIUefExecutiveOfficer(Pr.Fox)wasmisusingsubstantialamowusofthcsctaxpayer
fimds. Believing Defendant's directors and officus could be held liable for these expendit\Rs,
PlaintifF expressed his concerns to other officers, two of whom resigned their employment.
5.
Plaintiff also reported his concerns to a member ofthe Defendant's Board of Directon and,
upon the member's recommendation, then reported tbe unlawful expenditures to the Chainnan of
the Board of Directors. Among other things, Plaintiff reported the following criminal aets:
A.
Dr. Fox used Defendant's fimds (i.e. funds ofthe taxpayers of the United
States)topayherOxford,Mississippiprivateattomey, who was representing
her in a private legal matter.
B.
C.
D.
Dr. Fox used funds of the 1axpayers of the United States to pay for childcare
expenses and other Pcnonal expense.
E.
F.
FAX
liiJ003/014
..
0.
6.
The above acts constitute criminal embezzlement and &aud.
7.
In addition to the above criminal wrongdoing. Plaintiff was concerned because the 2009
budget provided for hundreds of thousands or dollars for programs which provided little or no
meaningful services. Such huge funding for programs which provide little or no service would
constitute tiaud or embezzlement of taxpayer money.
8.
Upon Plaintiff's reporting these illegal acts to the Defendants Chairman of the Board of
Directors. the Board of Directors hired a private consultant, a private law rum and a private certified
public accountant for the ostensible pwpose ofMinvestigatiq" Plaintifrs allegations.
9.
.In fact, Defendant had no intention of making a legitimate investigation of the chqes.
Instead, it was the intent of the Defendant to conduct a sham investigation so as to exonerate Fox,
since Defendant percei'VCCI that fntonning the federal agencies of the miscxpenditures would
jeopardize Congress' willingness to continue to provide massive input of federal taxpayer dollars.
10.
Plaintiff's employment for a short time that Plaintiff execute a "Release." This proposed Release
a hospital administrator.
:
4.
In the latter stage of his employment for the Defendant, Plaintiff became concerned that the
Defendant' s ChiefExecutive Officer (Dr. Fox) was misusing substantial amounts of these taxpayer
funds. Believing Defendant' s directors and officers could be held liable for these expenditures,
Plaintiff expressed his concerns to other officers, two of whom resigned their employment.
5.
Plaintiff also reported his concerns to a member of the Defendant' s Board of Directors and,
upon the member's recommendation, then reported the l!fllawful expenditures to the Chairman of
the Board of Directors. Among other things, Plaintiff reported the following criminal acts:
A.
Dr. Fox used Defendant's funds (i.e. funds ofthe taxpayers ofthe United
States) to pay her Oxford, Mississippi private attorney, who was representing
her in a private legal matter.
B.
C.
D.
Dr. Fox used funds of the taxpayers of the United States to pay for childcare
expenses and other personal expense.
E.
F.
G.
In addition to the above criminal wrongdoing, Plaintiff was concerned because the 2009
budget provided for hundreds of thousands of dollars for programs which provided little or no
meaningful services.' Such huge funding for programs which provide little or no service would
constitute fraud or embezzlement of taxpayer money.
8.
Upon Plaintiff's reporting these illegal acts to the Defendant' s Chairman of the Board of
Directors, the Board of Directors hired a private consultant, a private law firm and a private certified
public accountant for the ostensible purpose of "investigating" Plaintiff's allegations.
9.
In fact, Defendant had no intention of making a legitimate investigation of the charges.
Instead, it was the intent of the Defendant to conduct a sham investigation so as to exonerate Fox,
since Defendant perceived that informing the federal agencies of the misexpenditures would
jeopardize Congress' willingness to continue to provide massive input of federal taxpayer dollars.
10.
Following a sham investigation by Defendant's consultant, attorney and accountant, Defendant
purported to find that Plaintiff's charges were false. It then requested that in exchange for continuing
Plaintiff's employment for a short time that Plaintiff execute a "Release." This proposed Release
falsely stated that Fox had committed no wrongdoing. The requested Release promised that Plaintiff
would not disclose his allegations about misappropriations to agencies of the United States
responsible for Defendant's funding. The purpose of the requested Release was to keep federal
agencies and the Congress ofthe United States from learning about the misappropriations of taxpayer
money. See Release, attached hereto as Exhibit "A," specifically paragraphs 17(e)(f) and (g).
11.
Because Plaintiff had reported illegal criminal activity, Defendant wrote Plaintiff the letter,
attached hereto as Exhibit "B," terminating Plaintiff from his employment.
12.
Plaintiff has suffered lost income and mental anxiety and stress as the result of Defendant's
firing him in violation of public policy. Defendant's acts are an outrage such that punitive damages
are due.
BY:---;t'!~.. ~Lu~
~
~
._______
J
WAIDE
S BAR NO. 6857
MUTUAL RELEASE
AND SETTLEMENT AGREEMENT
1.
One of the parties released and releasing hereunder is Delta Health Alliance ,
Inc., hereinafter referred to as "DHA" .
2.
Another party released and releasing hereunder is James W . Hahn , including his
heirs, successors, administrators, agents and/or representatives , hereinafter referred to, jointly
and individually, separately and collectively , as "Hahn".
3.
This Mutual Release and Settlement Agreement may hereinafter be referred to
as the "Agreement."
AGREEMENT:
4.
FOR AND IN CONSIDERATION of DHA allowing Hahn to remain employed and
, 2010, the total value of which is
accrue and receive benefits through
$
, the sufficiency and adequacy of which is hereby expressly
acknowledged, Hahn does hereby irrevocably and unconditionally release, acquit, remise, and
forever discharge DHA, together with its subsidiaries and related companies , directors, officers,
departments, divisions, branches, servants, agents, insurers, employees, assigns, successors,
attorneys, and any person or entity now or previously acting, directly or indirectly, in the interest
of or on behalf of DHA, or any of the foregoing in any capacity whatsoever (hereinafter referred
to as the "DHA Released Parties"), from any and all rights , obligations , liens, claims, damages,
demands, liabilities, equities, actions, causes of actions and legal theories of whatever kind,
both known and unknown, disclosed and undisclosed , however denominated, from the
beginning of time up to and including the time of the signing of this Agreement, including but not
limited to claims for front or back pay, income from any source, declaratory or injunctive relief,
compensatory or punitive damages, wages, remuneration, benefits, costs , expenses, attorneys'
fees , or thing of value whatsoever, of or by Hahn against the DHA Released Parties.
5.
Without limiting the scope of the foregoing in any way, Hahn specifically releases
all claims relating to, arising out of or in any way connected with the employment, and/or
termination of employment of Hahn by the DHA Released Parties, the retaliation against Hahn
for reporting perceived violations of law or policy, the failure to offer employment or reemployment to Hahn in any position at any time, the failure to properly compensate Hahn at any
time , or the failure to pay medical and related expenses or other benefits of any kind or nature
to or for the benefit of Hahn at any time, including but not limited to all claims under the
Employee Retirement Income Security Act of 1974 ("ERISA"), Title VII of the Civil Rights Act of
1964, the Civil Rights Acts of 1866 and 1871, the Americans With Disabilities Act, the Age
Discrimination in Employment Act, the Older Workers Benefit Protection Act, all as amended,
and any other federal , state or local law, statutory or common ; it being the express intent of
Hahn to enter into this full and final settlement and compromise of any and all claims against the
DHA Released Parties .
6.
Hahn agrees that his employment with DHA has been permanently and
irrevocably terminated , and agrees that he will not apply for or otherwise seek re-employment or
independent contractor status with DHA and its affiliated entities and that DHA and its affiliated
entities have no obligation, contractual or otherwise, to rehire, re-employ or hire him in the
1
4/204383.1
EXHIBIT
I A
future. Hahn further acknowledges and agrees that he is not now and will not in the future be
eligible for such employment or contractor status.
7.
To induce DHA to enter into this Agreement, Hahn's wife
Hahn,
joins in this Agreement and hereby irrevocably and unconditionally releases, acquits, remises,
and forever discharges the DHA Released Parties from any and all rights, obligations, liens,
claims , damages, demands, liabilities, equities, actions, causes of actions and legal theories of
whatever kind, both known and unknown , disclosed and undisclosed, however denominated,
from the beginning of time up to and including the time of the signing of this Agreement,
including but not limited to claims for front or back pay, income from any source, declaratory or
injunctive relief, compensatory or punitive damages, wages, remuneration, costs, expenses ,
attorneys' fees, or thing of value whatsoever, of or by her against the DHA Released Parties.
8.
For and in consideration of the foregoing releases by Hahn and
Hahn
(hereinafter "the Hahns"), DHA hereby irrevocably and unconditionally releases, acquits,
remises, and forever discharges the Hahns from any and all rights, obligations, liens, claims,
damages, demands, liabilities, equities, actions, causes of actions and legal theories of
whatever kind, both known and unknown, disclosed and undisclosed, however denominated,
from the beginning of time up to and including the time of the signing of this Agreement,
including but not limited to its claims for declaratory or injunctive relief, compensatory or punitive
damages, costs, expenses, attorneys' fees, or thing of value whatsoever, of or by DHA against
the Hahns.
In further consideration thereof, the Hahns agree that this Agreement, the
9.
contents and subject matter relating to or pertaining to this Agreement, and the consideration for
this Agreement, shall not be discussed, referred to or communicated by them (or by either of
them) to any past, present or future employees of DHA, to third parties or to any other person or
entity, or in any way publicized , disclosed, discussed or disseminated by them (or by either of
them), unless expressly required by written court order or subpoena to do so. It is understood
by the Hahns that by entering into this Agreement the DHA Released Parties are to receive the
Hahns' full cooperation and compliance with the desire of DHA to maintain the total
confidentiality of any information within the knowledge or possession of the Hahns that is
connected with, related to, or in any way touches upon, claims of the Hahns against the DHA
Released Parties, unless disclosure is expressly required by a written court order or subpoena.
The Hahns further agree that neither they, nor either of them , will in any manner encourage any
investigation or litigation contemplated or brought by or in behalf of any other person or class of
persons making allegations or asserting claims against the DHA Released Parties relating to
Hahn's employment with DHA, unless expressly required by written court order or subpoena .
10.
In the event that the Hahns receive , are served with , or are notified of a court
order or subpoena which implicates in any manner whatsoever the confidentiality provisions of
this Agreement, they shall promptly notify DHA of same, in order to permit DHA to contest the
order or subpoena, should it desire to do so. Notice shall be addressed to: Roy D. Campbell , Ill ,
Bradley Arant Boult Cummings, LLP, 188 E. Capitol, Suite 400, Jackson, MS 39201 .
11 .
The confidentiality provisions of this Agreement shall not, however, apply to
prevent Hahn from advising his attorney and/or tax return preparer of the settlement of his
claims and the consideration received thereof. To the extent that Hahn discloses such
information to his attorney, or tax return pre parer, Hahn shall advise said person of this
Agreement. Hahn further agrees that should his attorney or tax return preparer take any action
2
4/204383.1
that would be a breach of the confidentiality provisions of this Agreement if done by Hahn , then
the remedies established in this Agreement for the breach of the confidentiality provisions may
be invoked against Hahn to the same extent as if Hahn had personally breached said
provisions .
12.
A violation of the confidentiality provisions of this Agreement, including ~1 0
above, by the Hahns, or either of them , shall constitute a material breach of the Agreement
entitling DHA to liquidated and stipulated damages from Hahn in an amount equal to three times
the consideration paid by DHA (recited in 1}4 above) . It is understood that such liquidated
damages is an attempt to reasonably forecast the probable actual loss which will result to DHA
in the event that any such information is divulged , and that sum is not a penalty. Additionally , in
case of violation Hahn agrees to pay DHA's attorneys' fees and other costs associated with
enforcing the confidentiality provisions of this Agreement.
13.
Nothing in this Agreement shall prevent the Hahns from responding to an inquiry
from any person by stating that "the matter is resolved and the terms of the resolution are
confidential. "
14.
It is understood, agreed and stipulated between the parties that the
considerations described herein are in complete and full accord, satisfaction and discharge of
disputed claims, and that DHA does not in any manner by virtue of this Agreement, or payment
of the consideration therefore, admit liability to anyone as a result of any incident, act or
omission , and it is recognized that DHA has denied and continues to deny any and all liability.
Rather, by entering into this Agreement DHA merely intends to avoid the cost of possible
litigation and its uncertainty, in the event of litigation of the claims herein released .
It is expressly recognized by all parties hereto that the distribution of the
15.
consideration provided herein between Hahn and his attorneys is to be made by Hahn and his
attorneys, and DHA is not involved in the process of allocating such consideration .
16.
Hahn agrees that he shall be exclusively liable for the payment of any and all
federal , state and local taxes of any kind whatsoever which may be or become due as the result
of the above allocation of the consideration received by him from the settlement of the claims
disputed herein and will indemnify and hold harmless DHA from payment of taxes , interest or
penalties that are required by any government agency at any time as the result of payment of
the consideration set forth herein.
17.
.41?()4:\R:I
f)
g) that he has never observed any conduct or actions, verbal or written , of any
other DHA employees or representatives that should be reported to any
federal funding agency or other entity that has any relation to or relationship
with DHA, that he has never made any such reports, and that he has no
present intention of making any such reports .
Hahn understands and acknowledges that the DHA Released Parties have acted in substantial
reliance upon the representations and warranties set forth in subparagraphs (a) through (g)
above. In furtherance of these representations and warranties and in consideration of the
payments hereinabove made, the receipt and sufficiency of which is hereby acknowledged,
Hahn warrants that he will , following ten (1 0) days written notice, promptly and fully defend,
indemnify and hold the DHA Released Parties harmless of and from any and all liability, claims,
suits, judgments, interest, expenses, and/or court costs related to or arising out of any
misrepresentations or mis-statements contained herein, whether intentional or otherwise,
including the cost of attorney's fees reasonably incurred either in defending against such claims,
suits, etc. , in conducting or responding to investigations or inquiries , or in enforcing this
4
4/?04383. 1
indemnity provision, and otherwise from any loss incurred directly or indirectly by reason of the
falsity or inaccuracy of any representation made herein by the Hahns or by either of them .
18.
For and in consideration of the foregoing release of her by the Hahns, Fox
hereby irrevocably and unconditionally releases , acquits, remises, and forever discharges the
Hahns from any and all rights, obligations, liens, claims, damages, demands, liabilities, equities,
actions, causes of actions and legal theories of whatever kind , both known and unknown ,
disclosed and undisclosed, however denominated, from the beginning of time up to and
including the time of the signing of this Agreement, including but not limited to any claims for
declaratory or injunctive relief, compensatory or punitive damages, costs , expenses, attorneys'
fees , or thing of value whatsoever.
19.
This Agreement contains the entire agreement, understanding and stipulation
between and among the parties hereto. The terms of this Agreement are contractual , not a
mere recital , and may be enforced in court. The waiver by any party of a breach or violation of
any provision of this Agreement shall not be construed as a waiver of any other provision or of
any subsequent breach or violation of the Agreement. The provisions of this Agreement are
severable and independent, and the invalidity, illegality or unenforceability of any provision
herein shall not affect the validity, legality or enforceability of the remaining provisions of this
Agreement. This Agreement is deemed to have been drafted jointly by the parties. Any
uncertainty or ambiguity shall not be construed for or against any other party based on
attribution of drafting to any party.
20.
The Hahns acknowledge that each has had full possession of any and all facts
with regard to his/her claim or rights , and that each has had a reasonable time and opportunity
to consult with an attorney and/or such other advisors as each has deemed appropriate to be
fully advised of the rights and obligations incurred or waived hereby. The terms of this
Agreement are agreed to and this Agreement is executed without reliance upon any
representation by the DHA Released Parties or any of their representatives, and the Hahns
have carefully read this Agreement and each signs the same of his/her own free will.
EACH OF US HAS READ THE FOREGOING MUTUAL RELEASE AND SETTLEMENT
AGREEMENT AND FULLY UNDERSTANDS AND VOLUNTARILY AGREES TO BE LEGALLY
BOUND BY THIS AGREEMENT.
WITNESS our signatures, effective on this_ day o f - - - - - - -' 2010.
JAMES W . HAHN
_ _ _ _ _ _ HAHN
5
4/204383.1
APPROVED BY:
APPROVED BY:
6
4/2 04383.1
STATE OF MISSISSIPPI
COUNTY OF LAFAYETTE
Before me, a Notary Public in and for said State and County, duly commissioned and
Hahn known (or proven to me
qualified, personally appeared James W. Hahn and
upon sufficient identification) to be the persons described in the foregoing instrument, and
acknowledged that he/she executed the same as his/her act and deed.
WITNESS my hand and Notarial Seal at office this _ _ day of _ _ _ _ _ , 2010.
Notary Public
My commission expires:
STATE OF MISSISSIPPI
COUNTY O F - - - - Before me, a Notary Public in and for said State and County, duly commissioned and
qualified, personally appeared John Hilpert, known (or proven to me upon sufficient
identification) to be the person described in the foregoing instrument, who acknowledged that,
as Chairman of the Board of Directors of Delta Health Alliance, Inc., he executed the same as
his act and deed.
WITNESS my hand and Notarial Seal at office this _ _ day of _ _ _ _ _ , 2010.
Notary Public
My commission expires:
7
4/204383.1
STATE OF _ _ _ __
COUNTY O F - - - - Before me, a Notary Public in and for said State and County, duly commissioned and
qualified, personally appeared Karen C. Fox, known (or proven to me upon sufficient
identification) to be the person described in the foregoing instrument, and acknowledged that,
as Chief Executive Officer of Delta Health Alliance , Inc. and in her individual capacity, she
executed the same as her act and deed.
WITNESS my hand and Notarial Seal at office this _ _ day of _ _ _ _ _ , 2010.
Notary Public
My commission expires:
BRADLEY ARANT
BOULT, ..CUMM I NGS
LLP
s~c1Q r ~
Ro~ll, l l
RDC/rmn
cc:
Dr. John M. Hilpert (via email)
EXHIBIT
Acct #
Ret#
Paid By CHECK
29329
85.00
10.00
2.00
3.00
.50
2.00
10.00
5.00
Total
===========
$
117.50
Transaction
43032 Received
Current Balance
By
Du'LVJ
------------~~~_\jL:~________D.C.
Case # L10-441
Acct #
1 I.D. AR
Receipt Amount $
117.50
Paid By CHECK
Ret#
29329
MAILING ADDRESS:
POST OFFICE BOX 1357
TUPELO, MISSISSIPPI 38802-1357
STREET ADDRESS:
332 O RTI-1 SPRING &"ffiEET
TUPELO, MISSISSIPPI 38804-1357
TELEPI-10 E: 662/842-7324
fACSIMILE: 662/842-8056
EMAlL; waidc@waidclaw.com
LAFAYETTE COUNTY
FILED
JUL 2 2 2010
BY
Mary
CIA
----if-+-+-;;__~
Dear Ladies:
6\JSA
In regard to the above-referenced cause, please find enclosed herein for filing the
following:
(1)
(2)
(3)
Our Office Account check in the amount of $117.50, representing the filing fee;
(4)
Would you please be so kind as to issue and return the summons to me for service? With
kindest regards, I am
Sincerely yours,
/kd
Enclosures
Form 1-A.
Summons
TO:
FIL D
p 7 2010
Mt:G' !'~il!)r;- F: - ..,,,
~r
J:v_~
JIM WAIDE , MSB No . 6857
Attorney for Plaintiff
..
Form 1-B .
TO:
JIM WAIDE ,
38802 .
ESQ . ,
Tupelo , Mississippi
8.016
LAFAYETTE COUNTY
JAMES W AYMON HAHN
vs.
ll 0
PLAINTIFF
SEP 2 0 2010
COMES NOW Defendant Delta Health Alliance, Inc. ("DHA"), and submits this Answer
and Affirmative Defenses for the claims and allegations set forth in the Complaint of the Plaintiff
James Waymon Hahn ("Plaintiff'), and the following Counterclaim.
Defendant states as
follows:
FIRST AFFIRMATIVE DEFENSE
Plaintiffs Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
Plaintiff was an employee at-will of Defendant and could be terminated for good cause,
bad cause, or no cause.
FOURTH AFFIRMATIVE DEFENSE
Any act or omission giving rise to Plaintiffs cause of action was in good faith and was
not made in a wanton or reckless disregard for Plaintiffs rights, and accordingly, in the event the
Court finds liability, it should not award punitive damages.
FIFTH AFFIRMATIVE DEFENSE
PD.4 183060. 1
6.
Defendant denies the allegations contained in Paragraph 6 ofthe Complaint.
7.
Defendant denies the allegations contained in Paragraph 7 of the Complaint.
8.
Defendant denies the allegations contained in Paragraph 8 of the Complaint.
9.
Defendant denies the allegations contained in Paragraph 9 of the Complaint.
10.
Defendant denies the allegations contained in Paragraph 10 of the Complaint.
11.
Defendant denies the allegations contained in Paragraph 11 ofthe Complaint.
12.
3
PD.4183060.1
7.
Plaintiff's actions in making the unfounded claims against DHA ' s CEO and the resulting
cost to DHA amount to intentional tortious interference with contract pursuant to state law.
direct result of the unfounded claims made by Plaintiff against DHA' s CEO;
b.
c.
witness fees and reasonable attorneys ' fees allowed under applicable law;
d.
refrain from making unfounded and defamatory claims against DHA and its CEO; and
e.
BY:
riedman, MB #5532
Gregory odd Butler, MS BarNo.: 102907
PHELPS DUNBAR LLP
4270 I-55 North
Jackson, Mississippi 39211-6391
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email : friedmag@phelps.com
butlerg@phelps.com
5
PD.4 J83060. J
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have forwarded, via United States
mail, postage prepaid, a true and correct copy of the above and foregoing ANSWER AND
COUNTERCLAIM to the following individual:
PD.4183060.1
FILED
PLAINTIFF
SEP 2 4 2010
vs.
DEFENDANT
REPLY TO COUNTERCLAIM
COMES NOW Plaintiff James Waymon Hahn, by and through counsel, and replies to the
Counterclaim of Delta Health Alliance, Inc. as follows:
1.
2.
3.
4.
5.
Plaintiff admits that an outside Certified Public Accountant was hired by Defendant.
Plaintiff denies each and every allegation of Paragraph 5. of the Counterclaim not specifically
admitted.
6.
of the allegations of Paragraph 6. ofthe Counterclaim, and thus, denies the same.
7.
002 13839.WPD
AtJ.
By:
1lkR1ff-
Jr e gS
002 13839.WPD
-2-
CERTIFICATE OF SERVICE
This will certify that undersigned counsel for Plaintiff has this day served a true and correct
copy of the above and foregoing Reply to Counterclaim upon all counsel of record by placing said
copy in the United States Mail, postage-prepaid, addressed as follows:
002 13839.WPD
,(.3~
-3-
FILED
vs.
DELTA HEALTH ALLIANCE, INC.
TO:
PLAINTIFF
CIVIL ACTION NO.: Ll0-441
SFP 2 7 7010
DEFENDANT
record, and hereby gives notice to the Court that the following pleading has been served on
counsel for Plaintiff:
BY:
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have forwarded, via United States
mail, postage prepaid, a true and correct copy of the above and foregoing NOTICE OF SERVICE
OF DEFENDANT/COUNTER-PLAINTIFF'S INTERROGATORIES AND REQUESTS FOR
PRODUCTION OF DOCUMENTS PROPOUNDED TO JAMES WAYMON HAHN to the
following individual:
James D. Waide, Ill, Esquire
WAIDE & ASSOCIATES, P.A.
Attorneys at Law
Post Office Box 1357
Tupelo, Mississippi 38802
ATTORNEYS FOR PLAINTIFF
OUNTY, MISSISSIPPI
OCT 0 2010
vs.
PLAINTIFF
CIVIL ACTION NO. Ll0-441
DEFENDANT
NOTICE OF DEPOSITION
TO:
BY:
Gary E. F 'edman, MB #5532
Gregory 't dd Butler, MS Bar No. : 102907
PHELPS UNBAR LLP
4270 I-55 North
Jackson, Mississippi 39211-6391
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: friedmag@phelps.com
butlerg@phelps.com
PD.42445 13. /
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have forwarded, via United States
mail , postage prepaid, a true and correct copy of the above and foregoing NOTICE OF
DEPOSITION to the following individual:
GARY E.
PD.424451 3.J
PLAINTIFF
LAFAYETIE COUNTY
Fl
vs
OCT 1 9 2010
DEFENDANT
NOTICE OF SERVICE
To:
NOTICE IS HEREBY GIVEN that Plaintiff has this day served Defendant with the
following:
(1)
The undersigned retains the original of the above document as custodian thereof.
SO NOTICED this the _1_8_ day of October, 2010.
Respectfully submitted,
WAIDE & ASSOCIATES, P.A.
AIDE
ARNO.: 6857
HELM. PIERCE
MS BAR NO.: 100420
CERTIFICATE OF SERVICE
I, Jim Waide, one of the attorneys for Plaintiff, do hereby certify that I have this day served,
via First Class United States mail, postage prepaid, a true and correct copy of the above and
foregoing to the following:
Gary E. Friedman, Esq.
Gregory Todd Butler, Esq.
Phelps Dunbar, LLP
4270 I-55 North
Jackson, MS 39211-6391
THIS the ...1._ day of October, 2010.
CERTIFICA T~ OF SERVICE
I, GARY E. FRIEDMAN, do hereby cetiify that I have forwarded , via United States
mail, postage prepaid, a true and correct copy of the above and foregoing NOTICE OF ENTRY
OF APPEARANCE to the following counsel of record:
PD.4447024. /
5th
I ED
NOV 01 2010
vs.
PLAINTIFF
CIVIL ACTION NO. Ll0-441
DEFENDANT
NOTICE OF SERVICE
To :
and correct copy of Plaintiff's Responses to Defendant's First Set of Interrogatories and
Requests for Production of Documents upon all counsel of record.
The undersigned retains the original of the above document as custodian thereof.
SO NOTICED on this the 29th day of October, 2010.
JAMES WA YMON HAHN, Plaintiff
By:
00216243.WPD
COUNTY~
MISSISSIPPI
LAFAYETTE COUNTY
FILED
vs.
NOV 0 S 2010
PLAINTU...F
CIVIL ACTION NO. L-10-441
DEFENDANT
NO
TO:
Health Alliance, Inc. has this date served the following in the above-entitled action:
BY:
Gary E Friedman, MS BAR #5532
Grego , Todd H:.1tler, MS BAR #102907
PHE S DUNBAR LLP
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: (601) 352-2300
Telecopier: (601) 360-9777
~~ail: friedmag@phelps .com
".. . . . butlert@phelps.com
PD.4446507.1
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have forwarded , via United States
mail, postage prepaid, a true and conect copy of the above and foregoing NOTICE OF SERVICE
to the following counsel of record:
_;
2
PD.444650 7. 1
vs.
LAFAYETTE COUNTY
PLAINTIFF
FILED
NOV 0 8 Z010
~l1tler
entry of appearance as counsel for Defendant Delta Health Alliance, Inc. You are requested to
provide the undersigned with a copy of all notices, pleadings, correspondence and other matters
which relate to this litigation.
This the 5111 day of November, 2010.
Respectfully submitted,
BY:
Gary E. riedman, MS BAR #5532
Gregor)j Todd Butler, MS BAR #102907
PHELP DUNBAR LLP
Post Office Box 16114
Jackson, Mississippi 39236-6114
. !fe1ephone: (601) 352-2300
Telecopier: (601) 360-9777
, Email: friedmag@phelps.com
butlert@phelps.com
DELTA HEALTH ALLIANCE, INC., Defendant.
PD.444 7024. I
..,,
I., r
CERTIFICATE OF SERVICE
This will certify that undersigned counsel for Plaintiff has this day served a true and correct
copy of the above and foregoing Notice of Service upon all counsel of record via electronic mail,
addressed as follows:
-2-
UNTY, MISSISSIPPI
PLAINTIFF
NOV 01 2010
vs.
DEFENDANT
.~
PLEASE TAKE NOTICE that Defendant Delta Health Alliance, Inc. will take the videotaped deposition of Plaintiff James Waymon Hahn on Tuesday, November 2, 2010, beginning at
I
9 a.m. , at the Ice House Building, 1403 Van Buren Avenue, Unit 203, First Floor, Oxford,
Mississippi.
The deposition wiil be taken upon oral examination pursuant to the Mississippi Rules of
Civil Procedure before an official court reporter and notary public and will continue from day to
day until completed. You are invited to attend and take such part as may be proper.
THIS, the 28 1h day of October, 2010.
Respectfully submitted,
BY:
Gary E. Fr' dman, MB #5532
GregoryT dd Butler, MS BarNo.: 102907
PHELPS UNBAR LLP
. 4270 I-55 North
Jackson, Mississippi 3 9211-63 91
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: friedmag@phelps.com
butlerg@phelps.com
n!
'
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have forwarded, via United States
mail, postage prepaid, a true and correct copy of the above and foregoing NOTICE OF THE
CONTINUATION OF THE DEPOSITION OF JA1lfES WAYMON HAHN to the following:
Dn AAA?f\ 1"1 1
I, GARY E. FRIEDMAN, do hereby certify that I have forwarded, via United States
mail, postage prepaid, a true and correct copy of the above and foregoing NOTICE OF
PD.43979 13.1
,,
L.
PLAINTIFF
NOV 0 8 2010
vs.
, .ary .1oe Bu
.. IRCU I CL
t<
- - - - -D.
DEFENDANT
TO:
the video-taped deposition of Plaintiff James Wayman Hahn on Friday, November 12, 2010,
beginning at 2 p.m., at the law office of James D. Waide, III, Waide & Associates, P.A., 332
North Spring Street, Tupelo, Mississippi.
The deposition will be taken upon oral examination pursuant to the Mississippi Rules of
Civil Procedure before an official court reporter and notary public and will continue from day to
day until completed. You are invite~ to .aft~nd !~~-take such part as may be proper.
. . '": .
;.
\
'
111
BY:
iedman, MB #5532
Gregory, odd Butler, MS Bar No.: 102907
PHELP. DUNBAR LLP
4270 I-55 North
Jackson, Mississippi 39211-6391
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: friedmag@phelps.com
butlert@phelps. com
...
property without due process of law in violation of the Fifth and Fourteenth Amendments to the
United States Constitution and Sections 14 and 28 of the Mississippi Constitution.
FACTUAL ALLEGATIONS
Without waiving any of the foregoing affirmative defenses, Defendant responds to the
specific paragraphs of Plaintiffs Complaint as follows:
To the extent the first unnumbered paragraph of Plaintiffs Complaint contains factual
allegations requiring a response, Defendant denies the allegations in that paragraph.
To the
extent the first unnumbered paragraph states or calls for conclusions of law, no response is
required.
1.
Defendant is without knowledge sufficient to form a belief as to the truth of the
allegations contained in Paragraph 1 ofthe Complaint and accordingly, denies the same.
2.
Defendant denies the allegations contained in Paragraph 2 of the Complaint.
3.
Defendant denies the allegations contained in Paragraph 3 ofthe Complaint.
4.
Defendant denies the allegations contained in Paragraph 4 of the Complaint.
5.
Defendant denies the allegations contained in Paragraph 5 of the Complaint including
subparagraphs (A) through (G) thereto.
2
PD.4183060.1
..
~0041014
..
falsely stated that Fox had committed no wrongdoing. 1be requested Release promised that Plaintiff
would not disclose his allegations about misappropriations to agencies of the United States
responsible for Defendants fUnding. The purpose of the requested Release was to keep federal
agencies and Che Congress ofthe United Sutes from learning about the misappropriations of taxpayer
money. See Release, a\18Qhed hereto as Exhibit"A," specifically paragraphs 17(e)(f) and (g).
11.
Because Plajntift'had reported illegal criminal activity, Defendant wrote Plaintiff the letter,
attached hereto as Exhibit '8," terminating Plaintiff'from bis employment.
12.
Plaintiff has suffered l~st income and mental anxiety and stress as the result ofDefendant's
firi~tg him in violation ofpublic policy.
arc due.
REOUE$TFOR RELIEF
Plaintiff requests actual and punitive damages in an amount to bcs determined by a jury and
reasonable attorneys' fees.
Respectfully submitte~
WAIDE & ASSOCIATES. P.A.
BY:
~
luaJ:c
J WAIDE
Ill 005/014
FAX
EMAIL: WAIDE@WAIDELAW.COM
AnoRNEYS FOR PLAINTIFF
11/24/2010 WED 10 : 10
FAX
Ill 006/014
'!
l
MUTUAL RELEASE
AND SETTLEMENT AGREEMENI
1.
One of the parties released and releasing hereunder is Delta Health ANiance,
Inc., hereinafter referred to as "DHA".
2.
Another party released and releasing hereunder is James W. Hahn, Including his
heirs, successors. administrators, agenta and/or representatives, herellafter referred to, joinUy
and "'dividually, separately and colectively, as "Hahn",
3.
This Mutual Release and Settlement Agreement may hereinafter be referred to
as the "Agreement."
AGREEMENT;
4.
FOR AND IN CONSIDERATJON of DHA allowing Hahn to remain employed and
accrue and receive benefits through
2010, the total value of \\t1ich is
S
the sufficiency and adequacy of which is hereby expressly
acknowledged, Hahn does hereby Irrevocably and unconditionally release, acquit, remise, and
forever discharge DHA. together with Its subsidiaries and related companies, directors. offioers,
departments. cfiVisions, branches, servants, agents, insurers, employees, assigns, successors.
attorneys, and any person or entity now or previously acting, directly or indirectly, in the interest
of or on behalf of DHA. or any of the fc:ngoing in any capacity whatsoever (hereinafter refen'ed
to as the oHA Released Parties"), from any and aU rights.. obligations, liens, claims, damages,
demands, liabilities, equities, actions, c:aUlies of actions and legal theortes of whatever kind,
both known and unknown. diadosed and undisclosed, however denominated, from the
beginning of time up to and indUd'Jng the time of the signing of this Agreement, including but not
fimited to claims for front or back pay, Income from any source, deClaratory or injunctive relief,
compensatory or punitive damages, wages. remuneration. benefits, costs, expenses, attorneys'
fees. or thing cl value whatsoever, of or by Hahn against the DHA Released Parties.
5.
Without lmiling the scope of the foregoing in any way, Hahn specificaUy releases
al daima relating to, arising out of or in any way connected with the employment. lf\dlor
termination of employment of Hahn by the DHA Released Parties, lhe retaliation against Hahn
for reporting perceived violations of law or policy, the failure 1o offer employment or reemployment to Hahn In any position at any time, the failure 'to property compensate Hahn at any
time, or the failure to pay medical and related expenses or other benefits of any kind or nature
to or for lhe benefit of Hahn at any time, including but not Dmlted to al claims under the
Employee Retirement Income Security Act of 1974 \ERISA). Tille VII of the Civil Rights Act of
1$84. the Civil Rights Ada of1866 and 1871. the Americans Wlh DisabDitiesAct. the Age
DiScrimination In Employment Act. the Older Workers Benefit Protection Ad, al as amended,
and any other federal, state or focal law, statutory or common; it being the eXpress intent of
Hahn to enter into this ful and final setUement and compromise of any and all claims against the
DHA Released Parties.
6.
Hahn agrees that his employment with DHA has been permanently and
irrevocably terminated, and agrees that he wi11 not apply for or otherwise seek re-employment or
Independent contractor status with DHA and Its affilated entities and that DHA ancllts afflliatecl
entitles have no obligation, contractual or otherwise, to
or hire him in the
1
.,..313.1
. ;.
FAX
flJ0071014
'I
I
future. Hahn further acknowledges and agrees thal he is not now and will not in the future be
eligible for such employment or contractor status.
7.
To induce DHA to enter into thiS Agreement, Hahn's wife
Hahn,
joins in this Agreement and hereby inevocab&y and uncondltlonaUy releases, acquit&. remises,
and forever discharges the DHA Released Parties from any and aP rights, obligations, Uens,
claims, damages, demandi, liabilities, equities, actions, causes of actions and legal theories of
whatever kind, both known and unknown, disclosed and undisClosed, however denominated,
from the beginning of lime up to and including the lime of the signing of this Agreement.
inclUding but not Umited to claims for front or back pay, Income from any source, declaratory or
injunctive relief, compensatory or punitive damages, wage&, remuneration, costs, expenses,
attorneyS' fees, or thing of value whatsoever, of ot by her against the DHA Released Parties.
8.
For and in consideration or the foregoing releases by Hahn and
Hahn
(hereinafter "the Hahns1. DHA hereby Irrevocably and unconditionally releases, acquits,
remises, and forever discharges the Hahns from any and all right&, obligations, liens, clams,
damages. demands, liabiDties, equities, actions, causes of actions and legal theories of
whatever kind. both known and unknown, disclosed and undisdosed, however denominated,
from the beginning of lime up to and including the time of the signing of this Agreement.
including bUt not limited to it& claims for dectaratory or Injunctive re5ef, compensatory or punitive
damages, costa, expenses, attorneys' fees, or thing of value whatsoever, of or by DHA against
theHahns.
9.
In further consideration thereof. the Hahns agree that this Agreement, the
contents and sUbject matter relating to or pertaining to this Agreement. and the consideration for
this Agreement. shal not be discussed, referred to or convnunicated by them (or by either of
them) to any past. present or future employees of DHA, to tNrd parties or to any other person or
entlty, or in any way publicized, disclosed, discussed or disseminated by them (or by either af
' them), unless expressly required by writtan court order or subpoena to do so. It is understood
by the Hahns that by entering into this Agreement the DHA Released Parties are to receive the
Hahns fuft cooperation and compfiance with the desire of DHA to maintain the total
confidentiality of any information within lhe knowledge or possession of the Hahns that is
connected with, related to, or in any way touches upon, claims of the Hahns against the DHA
Released Parties, unless disclosure is expressly required by a written court order or subpoena.
The Hahn& further agree that neither. they, nor either of them, will in any manner encourage any
investigation or litigation cantemp\ated or brought by or in behalf of any other person or ctass of
persons making aUagations or asserting claims against the OHA Released Parties relating to
Hahn's employment with DHA. unless expressly required by written court order or subpoena
10.
In the event that the Hahns receive, are served with, or are notified of a court
order or subpoena which implicates in any manner whatsoever the confidenUality provisions of
this Agreemen~ they shall promPtly notify DHA of same, in order to permit OHA to contest the
order or subpoena, should it desire to do so. Notice shall be addressed to: Roy D. Campbell, Ill,
Bradley Arant Boult Cummings, LLP. 188 E. Capitol, Suite 400, Jackson, MS 39201 .
11.
The confidentiality provisions or this Agreement &hall not, however, apply to
prevent Hahn from advising his attorney and/or tax retum preparer of the settlement of his
claims and the consideration received thereof. To the extant that Hahn discloses such
information to his attomey, or tax return prepater, Hahn shaH advise said person of this
Agreement. Hahn further agrees lhat should his attorney or tax return preparer take any action
2
~IW3113. 1
FAX
Ill 008/014
.I
i
that would be a breach of the confidentiality prOvisions of this Agreement If done by Hahn, then
the ramedles establ"rahed in this Agreement for the breach of the confidentiality provisions may
be invoked against Hahn to the same extent as if Hahn had personaOy breached said
provisions.
12.
A violation of the c:onfidan1ialtty provisions of this Agreement, inctud~ f10
above, by the Hahns. or either of them. shall constitute a material bteach ol the Agreement
entiiUng DHA to liquidated and stipulated damages from Hahn In an amount equal to lhr8e ti-nes
the consideration paid by DHA (recited in 14 above). ll is unckntood that such riQuktated
damages is an attempt to reasonably forecast the probable actual loss Which will result to DHA
in the event thal any such i1formation is divulged, and that sum is not a penalty. Additionally, in
case of violation Hahn agrees to pay DHA"s attorneys' fees and other costs associated with
enrorcing the confidentiality prov;sians of this Agreement.
13.
Nothing in this Agreement shall prevent the Hahn& from responding to an inquiry
from any person by stating thatlhe matter is resolved and the terms of the resolution are
confidential."
14.
It is understood, agreed and stipulated between the parties that the
considerations described herein are in complete and ful accord, satisfaction and discharge of
disputed claims; and that DHA does not in any manner by virtue of this Agreement, or payment
of the consideration therefore, admit liability to anyone as a result of any incident, act or
omission. and it is recognized that DHA has.denied and conUnues to deny any and an liabltlty.
Rather, by entering into this Agreement DHA merely Intends to avoid the cost of possible
litigation and ita uncertainty, in the event of ltigatlon of the claims herein released.
15.
His expressly recognized by all parties hereto that lhe distribution afthe
consideration provided herein between Hahn and his aUomeys is to be made by Hahn and his
attomeys, and DHA is not involved in the process of allocating such consideration.
16.
Hahn agrees that he shaU be exclusively liable for the payment of any and aU
federal, state and local taxes or any I<Jnd whatsoever whic:h may be or become due as the result
of the above altocation of the consideration received by him from the settlement of the claims
disputed herein and will indemnify and hold harmless DHA frcm payment of taxes, interest or
penalties that are required by any government agency at any time as the result or payment of
the consideration aet forth herein.
17.
FAX
~009/014
'!
i
~)
e) that based on the Davis and Bradley Arant investigations the Board of
(
Directors of DHA found and concluded lhat no evidence exists of any
financial fraUd or Illegality, that he is satisfied with and accepls that finding
and conclusion without ~eservation, and that he has no knowledge of or
concerns about any other financial improprieties of any nature at DHA;
federal funding agency or other entity that has any relation to or ralationship
with DHA. that he has never made any such reports, and that he has no
present intantion of maldng any IUCh reports.
Hahn Understands and acknowledges that the DHA Released Parties have acted in substantial
reliance upon the representations and wananties set forth in subparagraphs (a) through (g)
above. In furtherance of these representations and warranties and in consideration or the
payments hereinabove made, the receipt and sufficiency of which is hereby acknowledged,
Hahn warrants that hewil, following ten (10) days written notice, promptly and fully defend,
indemnify and hold the DHA Released Parties harmless of and from any and all liabiflty. claims,
suits, judgments. interest, expenses, and/or court costs related to or arising out of any
misrepresentations or mistto&tatemants contained herein, whether intentional or otherwise,
including the cost of attorney's fees reasonably incurred either in defencting against such claims,
euits, etc. in conducting or responding to Investigations or inquiries, or in enforcing this
4
FAX
@010 / 014
i
indemnity provision, and otherwise from any loss incuiT&d direc;tly or indirectly by reason of the
falsity or Inaccuracy of any representation made herein by the Hahns or by either of them.
18.
For and in consideration of the fDAJgolng release of her by the Hahns, Fox
hereby irrevocably and unconditionally releases, acqUits, remises, and forever dlachalges the
Hahns from any and an rights. obligations, liens, claims, damages, demands, liabilities, equities,
actions, causes of actions and legal theories of whatever kind, both known and unknown,
disclosed and undisclosed, however denominated, from the beginning of time up to and
incJud'mg the time or the signing of this Agreement, including but not limited to any claims for
declaratory at injunctive relief, compensatory or punitive damages, costs, expenses, attorneys'
fees, or thing of value whatsoever.
19.
This Agreement contains the eJ\llre agreement. understanding and stipulation
between and among the parties hereto. The terms of thisAgreement are contractual, not a
mere recital, and may be enforced in court. The waiver by any party of a breach or violation of
any provision of this Agreement shan not be construed as a waiver of any other provision or of
any subsequent breach or violation of the Agreement. Theprovisions of this Agreement are
severable and independent, and the invalicf.ty, iUegallty or unanforeeability of any provision
herein shall not affect the validity, legality or enforceabitily of the remaining provisions C1f U1is
Agreement. This Agreement is deemed to have been drafted jointty by the parties. Any
uncertainty or ambiguity shalf not be construed for or against any other party based on
attribution of drafting to any party.
-~
20.
The Hahns acknowledge that each has had full possession of any and all facts
with regard to hlslher dab'n or rights, and that each has had a reasonable time and opportunity
to conaull with an attorney and/or auch other advisors as each has deemed appropriate to be
fully advised of the righls and ob1igations incurred or waived hereby. The tenns of this
, Agreement are agreed to and this Agreement is executed without reliance upon any
representation by the DHA Reteased Parties or any of their representatives, and the Hahns
have carefully read thiS Agreement and each signs the same of hi&nler own free wiU.
JAMES W. HAHN
_ _____ HAHN
s
.moall.1
FAX
~011/014
.I
APPROVED BY:
~--~~~~~~~~~-
Karen
c. Fox. Ph. D Chief ExecutNe Officer
APPROVED BY:
Roy D. catnpbell, Ill, Attorney for
~ox
6
41204383.1
llJ012/014
'I
I
STATE OF MISSISSIPPI
COUN1Y OF LAFAYETTE
Before me, a Notary Public In and for said State and County, duly commissioned and
qualifted, personalty appeared James W. Hahn and
Hahn known (or proven to me
upon suffic~nl identification) to be the persons described in the foregoing Instrument, and
acknowledged that he/she executed the same as hislher ac;t and deed.
WITNESS my hand and Notarial Seal at office this_ day of _ _ _ ___. 2010.
Notary Public
My commission expires:
STATE OF MISSISSIPPI
COUNTY OF _ _ __
Before me, a Notary Public in and for said State and County, duly commissioned and
qualified. personalty appeared Jofvt Hilpert, known (or proven to me upon sufficient
' identifacatron) to be 1ha person described in the foregoing instrument, who acknowledged that,
aa Chainnan of the Board of Directors of Delta Health Alliance, Inc., he executed the same as
his act and deed.
WITNESS my hand and Notariat Seal at office this_ day of----~ 2010.
Notary Public
My commission expires:
~013/014
/
i
STATE OF _ _ _ __
COUNTY OF _ _ __
Before me, a Notary Public in and for said State and County, duly commissioned and
qualified, personally appeared Karen C. Fox, known (or prcwan to me upon sufficienl
identification) to be the person described in the foregoing instrument, and acknowledged that.
as Chief ExecutiVe Off~r of Delta Health AUiance, Inc. and in her IndiVIdual capacity, she
executed the same as her act and deed.
Notary Public:
My commission expires:
FAX
ll!OU/014
'
bI
BRADL.EY ARANT
SOULT..CUMMING~..
ICr u. ,:.._..L m
l>i~~:~Ct:
IMII) 54Jl.AJ934
f'IIC: (t.OIJ S9.z.t4:M
rcl~~hct. . .c:m
May 18,2010
Oxford, MS 38655
Re:
Please address your resignation direcUy to Dr. Hilpert and deliver it to the Delta
Health Alliance offices in Stoneville, Mississippi.
Please have your lawyer contact me with any questions.
ROC/rmn
cc:
Or. John M. Hilpert (via email)
Ot )ackaon P&lcr liB Baal Capitol Street, Sullt .aofl l:.ckion, M5 JlllOI "601.941.1000 '"''60U4R.3fliJII IAUC.COM
EDUCATION
Doctor of Philosophy, Health Science Administration, University of Tennessee
Master of Business Administration, University ofMemphis
Bachelor of Science, Engineering, University of Mississippi
PROFESSIONAL EXPERIENCE
2006 - 2008
2001 - 2005
1999 - 2001
1996- 1999
1987-1996
HONORS
2003
2005
2008
Page I of 11
f""f)NFIDENTIAL
EXHIBIT
"B"
PROFESSIONAL MEMBERSHIPS
1994, 1995
2000-2006
2001 - 2006
2001 - Present
2001 -Present
2004-2009
2003 - 2006
2003 - 2005
2004 - 2006
2005 2004 2007 2008 201 0 -
2007
2008
Present
Present
Present
OTHER MEMBERSHIPS
2003 - 2006
2004 - 2007
2005 - 2007
2005 - 2007
2004 - 2009
2007-2009
. ORIGINAL PUBLICATIONS
1. Fox, K, Connor P, McCullers E, Waters T. "Effect of a behavioral and specialty care
telemedicine program on goal attainment for youths in Juvenile detention," Journal of
Telemedicine and Telecare 07-11-002, 2008.
2. Fox, K, "Making the Case: Telemedicine Can Improve the Health oflncarcerated Youth,"
Journal ofTelemedicine and Telecare 08-RW-02, 2008.
3. Fox K, "Timeliness and Access to Healthcare Services via Telemedicine for Adolescents in
State Correctional Facilities," Journal of Adolescent Health 41 (2007) 161-167.
4. Fox K,, Waters TM "Timeliness and Access to Care via Telemedicine for Youth in State
Custody" Journal of Adolescent Health, February 2005 (Vol. 36, Issue 2, p. 121-122.)
5. Fox K, Somes G, Waters TM. "Kids in Custody: Providing Cost Savings in Caring for
Adolescents in State Custody Through the Use ofTelehealth Technologies and
Restructured Referral Patterns," Journal of Correctional Health Care, September, 2006 12:3
DOl: 10.1177/1078345806292667
6. McCarthy D and Fox K, "Case Study: University of Tennessee Health Science Center' s
Telehealth Network," The Commonwealth Fund Quality Matters Newsletter, March 2006.
7. Dimmick SL, Fox KC, "The Promise ofE-Therapy", Scientific American Mind, December
2005, No.4.
Karen C. Fox_CV rev Aug-10
Page 2 of 11
CONFIDENTIAL
8. Belew AC, Fox KC, Frolick MN, McQuaid B. "Moving from a Mainframe to a Web-Based
Design," The Journal of Modem Business, September 2004.
9. Fox K. "Creating a Telehealth Network for Bioterrorism and Emergency Response:
American Telemedicine Association White Paper," Commissioned by the Office for the
Advancement ofTelehealth, 2003 .
10. Fox K. "Evolving Learning Environments," Journal of Computer Information Systems,
Summer 2000, No.4.
11. Fox K. "Creating a Paperless Workflow," Information Systems Management, Spring 1999,
Vol. 16, No. 2.
PRESENTATIONS
1. Fox, K. , "Delta Health Alliance Project Outcomes", Oral Presentation. Dealt Council Board
ofDirectors, Stoneville, MS. November 11 , 2010.
2. Fox, K. , Whitt, AL, Hill, T. "Eliminating Health Disparities by Incorporating HIT into Rural
Communities", Oral Presentation. American Public Health Association (APHA) 138th
Annual Meeting & Expo, Denver, CO. November 6-10, 2010.
3. Gilmore, MD, J. , Wyant, L. , Calhoun, J. Fox, K. "Access to Care for the Under and UnInsured: The 21st Century Model of Primary Care for Chronic Disease", Oral Presentation.
American Public Health Association (APHA) 138th Annual Meeting & Expo, Denver, CO.
November 6-10, 2010.
4. Wyant, L. , Calhoun, J. Fox, K. "Delta CHWs: Combining Resources to Meet Social Needs
through the Medical Home", Oral Presentation. American Public Health Association
(APHA) 138th Annual Meeting & Expo, Denver, CO. November 6-10, 2010.
5. Fox, K. "The Impact of Health Care Reform in Mississippi" Oral Presentation. Mississippi
Rural Health Association, Natchez, MS. November 4-5 , 2010.
6. Fox, K. , "HealthCare Foundation of the Tri-State Delta", Panelist. Mississippi Economic
Council, Greenville, MS. August 20, 2010
7. Fox, K. , "What is Delta Health Alliance? What Have We Done?'' Oral Presentation. Delta
Council Officers Meeting, Cleveland MS. August 12, 2010
8. Morton, ME, Whitt, AL, Fitch, CW, Hill, T, Fox, KC. "Achieving Meaningful Use ofHealth
Information Technology: A Research-Based Approach," Oral Presentation. AHIMA
Assembly on Education (AOE) Summer Symposium, New Orleans, LA. July 26-28 , 2010.
(accepted abstract)
9. Fox, K., "DHHR/HRSA Briefing", Oral Presentation. HRSA, Washington DC. July 12,
2010.
10. Fox, K., "Low Income Summit Forum Panel", Entergy Mississippi, Inc. and the MS
Association of Community Action Agencies, Jackson, MS. June 29, 2010
11. Fox, K., "Telemedicine", The Delta Summit, Cleveland, Mississippi, June 16, 2010
12. Fox, K., "Cardiovascular Disease Prevention in High Risk Rural Communities", National
Heart, Lung, and Blood Institute of the National Institutes of Health, Bethesda, Maryland,
June 14-15, 2010.
13. Fox, KC, Whitt, AL, Morton, ME. "The Better Lives Utilizing Electronic Systems (BLUES)
Project," Poster Presentation. Agency for Healthcare Research and Quality Annual Health IT
Grantee and Contractor Meeting. Washington, DC, June 2-4, 2010.
14. T.P. Kamowski, K.W. Tobin, PhD, L. Giancardo, Y. Li, PhD, S. Garg, M.D, Abramoff,
M.D ., PhD, M. T. Tennant, M .D. , K Fox, PhD 6, and E. Chaum, M.D., PhD 2010 World
Page 3 of II
CONFIDENTIAL
Page 4 of 11
CONFIDENTIAL
36. Fox K, "Improving Healthcare Systems with the Use of Integrating Telemedicine and EMR A Case Study Approach", 2005 Toward an Electronic Patient Record Conference, May 16,
2005
37. Fox K, "Sustainable Fundraising Through Federal Grants and Appropriations", Allscripts
Executive Meeting, May 3, 2005
38. Fox K, "Unique Clinical Applications", American Telemedicine Association, April 20, 2005
39. Fox K, "Effects and Benefits of eHealth: Lessons Learned on Four Continents", World
Telemedicine Conference, Luxembourg, April 6, 2005
40. Fox K (Co-Author), "The Effect of Developmental Delay and Type of Strabismus on the
Reliability of Photorefractive Screening in Young Children", American
Association for Pediatric Ophthalmology and Strabismus, March 10, 2005.
41. Fox K, "Statistical Approaches to Outcomes Research", Office for the Advancement of
Telemedicine, HRSA, January 2005
42. Fox K, "Cost Analysis for Telemedicine Programs," Office for the Advancement of
Telemedicine, HRSA, January 2005
43. Fox K, "Bringing the Doctor to You (and Your Employees)", Making the Connection:
Information and Healthcare Quality, Memphis Business Group on Health, November 2,
2004
44. Fox K, "Computer Real Time Analysis in Mobile Ocular Screening", American Tele
-medicine Association, May 3, 2004
45. Fox K, "Deployed Health Technologies - Emerging Opportunities and Existing Barriers",
U. S Congressional Healthcare Informatics Steering Committee, April 28, 2004
46. Fox K, "Sharing Strategies for Success", HUD Neighborhood Networks, Regional Technical
Assistance Workshops, April 23 , 2004
47. Fox K, "Regional Telehealth Initiatives", Federal Express Technology Symposium,
March 2004
48 . Fox K, "Telemedicine's Role in Disaster Preparedness", University of Tennessee
College ofMedicine Alumni Council Meeting, March 2004
49. Fox K, "Overcoming Health Disparities", Congressional Steering Committee on Health,
November 2003
50. Fox K, "Telemedicine: Improving Care for Medicaid Patients Chronic Conditions", Kanter
Family Foundation, October 2003
51. Fox K, "Building Collaborations and Meeting Needs Through Telemedicine", Tennessee
Public Health Forum, June 2003
52. Fox K, "Cost Effectiveness of Technology Based Disease Management", Congressional
Steering Committee on Technology, May 2003
53. Fox K, "Emerging Opportunities and the Role ofTelehealth in Disaster Preparedness",
Congressional Steering Committee on Technology, April 2003
54. Fox K, "Access to Care and the Aging Population", Special Congressional Committee on
Aging April 2003
55. Fox K, "Telemedicine for Patients with Chronic Conditions", TennCare Medical Directors
Quality Meeting, February 2003
56. Fox K, "Telemedicine' s Role in Bioterrorism Response", Annual Meeting, Office for the
Advancement ofTelemedicine, January 2003
57. Fox K, "Marketing Strategies for Promoting New Healthcare Services", Office for the
Advancement ofTelemedicine, January 2003
58. Fox K, "Telemedicine, The Technology, The Direction and Its Impact on Health Care,
National Conference for Women in Corrections and Juvenile Justice, December 2002
Page 5 of 11
CONFIDENTIAL
59. Fox K, "E-Health: Is There Any There?" Annual Conference National Academy for State
Health Policy, August 2002
60. Fox K, "Proposal for a Regional Health Emergency Preparation and Response Network",
Southern Governors Association, August 2002
61. Fox K, "What Is Outcomes Research?" International Mobile Health Association Annual
Conference, June 2002
62. Fox K, "Evaluating Outcomes of Health Information Technology Projects", Mobile Medical
Conference, June, 2002
63. Fox K, "Effective Marketing Strategies for Building a Telehealth Network: A Case Study,"
American Telehealth Association Annual Meeting, June 2002
64. Fox K, "Information Systems in Higher Education," CUMREC, May 1999
65. Fox K, "Why Technology?" CUMREC, May 1998
66. Fox K, "Relational Database Design of a Student Information System", Cause Presentation,
October 1998
ACTIVE GRANTS AND PREVIOUS GRANT SUPPORT
Current Research Projects
$34,174,401
U1FRH07411-04-01 (PI: Fox)
711 11 0 - 6/30/11
HRSNOffice of Rural Health Policy
Delta Health Initiative- Serving as President and Chief Executive Officer for the Delta Health
Alliance, the major goal of this project is to improve access to and quality ofhealthcare services
in the Mississippi Delta region. This award represents the fifth year in an ongoing effort to
improve the health and well-being of residents of the Mississippi Delta.
$14,666,156
90BC0004-01 (PI: Fox)
4/1110-3/31 /13
Office of the National Coordinator for Health Info Technology
Beacon Community Cooperative Agreement Program
The DHA will work with over a dozen partners across the state over a three year period to
design, support and maintain "meaningful use" electronic health record systems in the Delta.
The project has several goals, including expanding the UMMC School of Pharmacy's disease
management program and facilitating the development and implementation of a state-wide
Health Information Exchange system.
2 D60RH08555-04 (PI: Fox)
811/10 - 8/30/13
$1 ,893 ,705
HRSA- Office of Rural Health Policy
TEAM Sugar-Free II: Training, Education, Access and Management for Sugar-Free Life
This three year project builds upon the work done in the previous TEAM Sugar-Free effort,
expanding diabetes prevention and treatment services to more counties and new FQHC locations.
This effort will also add a diabetes medication management initiative in partnership with
UMMC's School ofPharmacy.
1 R18 HS 17233 (PI: Fox)
9/30/07 - 9/2911 0
$1 ,082,417
Agency for Healthcare Research and Quality
Improving Diabetes Outcomes in Mississippi with Health IT
The major goal of this three year project is to demonstrate the effects of diabetes management
Page 6 of 11
CONFIDENTIAL
$375,000
1 D04RH12672-01 (PI:Fox)
611 /09-4/30/12
HRSA-ORHP
Delta Community Health Outreach Worker Project
The goal of this three year project is to connect patients with a medical home and assist them in
navigating medical services and systems as they seek treatment for chronic illness.
$729,963
1H2AIT 16626-01
9/1/09-8/31 /12
HRSA - Office of Rural Health Policy
Telehealth Network Grant Program
This three year project works in partnership with UMMC's Department of Psychiatry to install
then maintain a network oftele-psychiatry locations connecting rural Community Mental Health
Centers with the Whitfield state hospital and UMMC's Department of Psychiatry. The purpose is
to improve follow up for patients of the Mississippi Delta moving through the mental healthcare
network.
$610,000
10/30/07 - 09/30/10
DLT-MS-730-A17&B16 (PI: Fox)
USDA: Rural Utilities Service
Funding to support the expansion of electronic health record and telemedicine equipment in rural
communities across the Mississippi Delta.
Page 7 of 11
CONFIDENTIAL
congregations to plan their gardens, construct the enclosures then prepare the land, plant the
seedlings, maintain the crops then harvest the results.
Contract with State of Mississippi
7/1 /09- 6/30/10
$76,000
Mississippi Department of Health, Office of Tobacco Control
Mississippi Tobacco-Free Coalition Project
A series of programs to reduce the use of tobacco products among adolescents in Coahoma,
Quitman, Tallahatchie and Tunica counties.
No number (PI: Fox)
10/01 /07 - 9/30/08
$500,000
DRA/Rural Community Advancement Program (RCAP)
Regional Electronic Health Records Project
This project seeks to provide additional equipment to support the infrastructure for 1) electronic
health records at the Delta Regional Medical Center and the University of Mississippi Medical
Center and 2) to establish a platform for record sharing across all health agencies of the Delta
Health Alliancy.
2004-2007
$3 ,430,932
R073204029 Fox K (PD
AHRQ, Technology Exchange for Cancer Health Network (TECH-Net)
The Technology Exchange for Cancer Health Network is a collaborative multi-state effort to
implement a systematic care program to improve cancer management in the rural communities of
west Tennessee, north Mississippi and east Arkansas.
R073850044 Fox K (Co-PI)
2004-2006
$1 ,500,000
Department of Health and Human Services, Nurse Practitioner Use o(Telehealth for Transplant Care
The purpose of this grant is to combine the existing telehealth system with the Transplant Nurse
Practitioner clinic in order to compare the patient outcomes between standard care and the
telehealth intervention for this medically complex transplant population.
R073204022 Fox K (PI)
2004-2006
$100,000
National Library of Medicine, Health Disparities Database
The purpose of this pilot project is to initiate the development of a database to test and
demonstrate the feasibility and usefulness of an interactive web-based health disparities data map
with a potential for national scalability.
R073204024 Fox K (PI)
2004-2007
$830,000
US Army Medical Research & Material Command, Biomedical Information Technology (BIT)
Network
To develop a wireless, mobile telemedicine system to be used to screen the eyes of underserved patients in rural and remote settings for common blinding diseases including diabetes and
glaucoma and to help patients have better access to ophthalmologists.
R073204016 Fox K (PI)
2003-2007
$674,692
Department of Commerce, Technology Opportunities Program Mental Retardation and
Developmental Disabilities Grant
The purpose of this program is to provide healthcare and living support for deinstitutionalized
developmentally disabled citizens.
Page 8 of 11
CONFIDENTIAL
$198,416
Page 9 of II
CONFIDENTIAL
$450,000
No number Gourley, D (PI), Fox K (Co-PI) 2001-2003
USDA, HERCULES Distance Ed Grant
To provide a network of distance education nodes across the state of Tennessee to unite the
education and training needs of Agriculture Extension agents, in support of the rural
communities they serve.
No number Gourley, D (PI), Fox K (Co-PI) 2002-2004
USDA, HERC II (Health Education in Rural Communities)
To provide coverage in 27 counties of Eastern Tennessee.
Page 10 of 11
$260,000
CONFIDENTIAL
Page 11 of 11
$124;500/yr
$150,000/yr
$286,690/yr
$40,000/yr
$60,500/yr
CONFIDENTIAL
Page 1
LexisNex1s
Affirmed.
any, requires [***2] reopening the deficiency judgment". Bankers Trust of South Carolina v. Bruce, et al.,
275 S.C. 35, 38, 267 S.E. (2d) 424, 425 (1980). We afftrm the trial court's holding that no conflict of interest
existed.
On February 11, 1974, Dan Bruce, Tom Bruce, and
Jimmy Jones, as individuals, borrowed $ 750,000 from
Bankers Trust for which they were severally liable.
Tom Bruce's and Jones' wives co-signed the note. This
loan was secured by certain real property owned individually by the three borrowers above, but held in trust by
them for two limited partnerships in which all three were
general partners.
Harvey G. Sanders of the law firm of Leatherwood,
Walker, Todd & Mann was not involved in the Joannegotiation process; however, he handled the closing.
Sanders and Dan Bruce had an attorney-client relationship for many years. Sanders represented Dan in many
past business ventures involving corporations, partnerships, and real estate, and helped him obtain [*413]
financing in some of them; the two also had a business
relationship at one time.
Through Dan, Sanders met Dan's father Tom in the
early 1970's. [***3] Their acquaintance resulted in
Sanders representing Tom's company, the P.L. Bruce
Company in several matters. Sanders also represented
Tom Bruce in transactions involving the mortgaged real
property herein. Sanders drafted the partnership agreement and the declaration of trust concerning the realty.
He also drew up an agreement modifying the note, which
extended the maturity date and provided for a fixed,
lower interest rate among other things. The two wives
were not parties to the modifications agreement.
Page 2
283 S.C. 408, *; 323 S.E.2d 523, **;
1984 S.C. App. LEXIS 606, ***
In January of 1977, the Joan went into default.
Bankers Trust sent a demand Jetter to the Bruces and
Jones on March 1, 1977. Thereafter, Tom Bruce and
Sanders entered into a series of face-to-face and
[**527] telephone conversations during the spring of
1977 concerning whether Sanders could represent them
at the foreclosure proceeding. Bankers Trust had a retainer relationship with the Leatherwood firm whereby,
for the payment of a periodic, quarterly fee, the Leatherwood fum provided legal advice to Bankers Trust in
seven specific areas. Litigation matters were specifically excluded. Julian Turner, President of Bankers
Trust, testified the retainer did not cover [***4] Joan
closings nor foreclosures.
Sanders testified he told Dan and Tom Bruce his
firm had a retainer relationship with Bankers Trust whereby the fum was paid periodic fees. He admits the
amount of the fees and the areas encompassed by the
retainer were not disclosed. While Tom Bruce claims
he had no knowledge the Leatherwood firm had ever
represented Bankers Trust, he concedes having conversations with Sanders concerning whether or not Sanders
would be able to represent them in the foreclosure proceedings.
The Bruces and Jones were served with a complaint
dated May 4, 1977. The complaint and following letter
dated May 6, 1977, were hand delivered to Sanders.
Dear Harvey,
Herewith is a request on behalf of
myself, Jimmy Jones and Dan. The request is that you represent us in the matter
concerning our 291 Project and Bankers
Trust Land Mortgage.
[*414] The reasons for this request
is as follows:
1. You have represented us in all
matters relating to this project from the
beginning (involving many complicated
transactions).
2. We have more faith in your ability to adequately represent us than anyone
else.
3. If Tommy Wyche, whom we
consider has a "direct" [***5] conflict
of interest, could represent Bankers Trust,
we feel you could surely represent us.
4. We personally know that Bankers
Trust has every major Jaw firm in town
representing them, and that in the manner
in which we feel you would handle this
Page 3
283 S.C. 408, *; 323 S.E.2d 523, **;
1984 S.C. App. LEXIS 606, ***
Section
Page 4
283 S.C. 408, *; 323 S.E.2d 523, **;
1984 S.C. App. LEXIS 606, ***
15-5-10; 59 Am. Jur. (2d) Parties, Section 7 at 350 and
Section 20 at 370 (1971); Cooper v. Bolin, 431 S. W. (2d)
69 (Mo. 1968) (plaintiff is synonymous with party in that
he is the party who complains).
"Interest" means any interest in the action, legal or
equitable, as would make a party a proper party to the
action. Page v. Lewis, 203 S.C. 190, 26 S.E. (2d) 569
(1943). It can hardly be claimed the Leatherwood firm
has no interest in this case. [***13] One of their attorneys is, indirectly, being accused of unethical conduct
which, if true, could result in disbarment. The reputation of the entire firm is at stake. A good reputation for
honesty, uprightness, and fair dealing is a valuable possession which has never been doubted. To destroy the
reputation of the firm would be to destroy it financially.
To permit this case to go to a judgment which could injure the reputation of the Leatherwood firm without giving it an opportunity to defend its name would be a great
wrong without remedy. We hold the [*418] Leatherwood firm has a direct legal interest in the outcome
of this case and that the trial judge properly allowed it to
intervene. Dodd v. Reese, 216 Ind. 449, 24 N.E. (2d)
995 (1940); Berry v. Slappey, 229 Ga. 109, 189 S.E. (2d)
394 (1972); U.S. Casualty Co. v. Taylor, 64 F. (2d) 521
(4th Cir. 1933), cert. den. 290 U.S. 639, 54 S. Ct. 56, 78
L. Ed. 555 (1933). [***14]
It is next claimed the trial judge signed an order
prepared in its entirety by the Leatherwood firm and that
the findings therein are wholly unsupported by the facts.
This court does not condone that practice. However, the
findings in the order, though not the product of the trial
judge's mind, are formally his. Such orders and the
findings therein are not to be rejected out-of-hand; they
will stand if supported by the evidence. U.S. v. El Paso
Natural Gas Co., 376 U.S. 651, 84 S. Ct. 1044, 12 L. Ed.
(2d) 12 (1964). The trial judge's finding no conflict of
interest existed is supported by the evidence.
Tom Bruce claims he was surprised to learn of the
Leatherwood firm's retainer relationship with Bankers
Trust, that he never would have hired Sanders or any
other attorney from that firm had he known of the relationship, and this conflict of interest caused Sanders not
to raise several meritorious defenses at the trial that were
available to the Bruces. These circumstances, Bruce
claims, require the deficiency judgment to be vacated
under Section 15-27-130.
DR5-105(C) of Supreme [***15]
reads:
Court Rule 32
est of each and if each consents to the representation after full disclosure of the
possible effect of such representation on
the exercise of his independent professional judgment on behalf of each. 1
Page 5
283 S.C. 408, *; 323 S.E.2d 523, **;
1984 S.C. App. LEXIS 606, ***
any privileged information that prevented him from
representing the Bruces. Indeed, if any party has conceivably suffered harm by the potential conflict, it would
be Bankers Trust as it was their retained law firm
representing the other side. See Melamed v. liT Continental Baking Co., 592 F. (2d) 290 (6th Cir. 1979).
[***18] Yet Bankers Trust consented to Sanders' representation of the Bruces.
[*420] With regard to the second requirement of
disclosure and consent, there must be a full and effective
disclosure of all material, relevant facts and circumstances which, in the judgment of a lawyer of ordinary
skill and capacity, are necessary to enable his client to
give an informed consent. Lysick v. Walcom, supra; In
Re Boivin, 271 Or. 419, 533 P. (2d) 171 (1975). We hold
there was full disclosure sufficient to allow an informed
consent.
The Bruces fLrst argue the amount of the retainer fee
was not disclosed. We fail to see how the amount of fee
is material or relevant. Once the Leatherwood firm entered into the retainer relationship, they were obligated to
undertake the representation of Bankers Trust in the
areas covered by the agreement notwithstanding the
amount of the retainer fee. The amount would only be
relevant in determining future payments for actual work
performed as opposed to whether the retainer relationship existed. There is strong evidence [***19] in the
record to support the trial judge's finding [**531] that
the retainer agreement was disclosed to Tom Bruce.
Since the retainer was disclosed, the Leatherwood fLrm
was not required to disclose the amount thereof.
Even though all of the areas of representation covered by the retainer were not disclosed, a full disclosure
allowing Tom and Dan Bruce to make free and intelligent decisions regarding the subject matter of the representation was made. Lysick v. Walcom, supra. After
Wesley Walker's consultation with Bankers Trust officials (in which Bankers Trust consented to the Leatherwood fLrm representing the Bruces), Sanders informed
Tom Bruce there was no conflict. Implicit in this statement was the fact the retainer did not cover foreclosures.
Both Tom and Dan were explicitly told the retainer did
not cover litigation. This was a sufficiently full disclosure of all relevant and material facts to allow Tom
Bruce to give his informed consent regarding the mortgage foreclosure -- the subject matter of the representation. Any further disclosure of the retainer relationship
could have been in violation [***20] of DR4-101(B),
which imposes the duty to hold inviolate all confidential
communications. 3
3
See also DR4-10l(C)(4), "A lawyer may
reveal confidences and secrets necessary . . . to
Page 6
283 S.C. 408, *; 323 S.E.2d 523, **;
1984 S.C. App. LEXIS 606, ***
partners hoped to use the appraisal process, Section
29-3-680 et [**532] seq., to reduce the amount of the
deficiency to a much lower sum or zero if possible.
Through no fault of Sanders, the strategy failed. s
Whether or not Sanders agreed with this tactic, he was
obligated to follow the specific instructions of his clients.
McCoy v. Hydrick, 143 S.C. 135, 141 S.E. 174 (1928).
Since Sanders was specifically instructed to pursue one
particular defense strategy, Tom Bruce is now estopped
from claiming Sanders failed to raise other defenses.
Because Bruce was fully informed as to the existence of the retainer agreement between Bankers Trust
and the Leatherwood firm and because he consented to
Sanders' [*424] representation after being so informed, the Bruces cannot claim they were surprised by
the retainer relationship. As they are estopped to assert
that they have any meritorious defenses, Section
15-27-130 is not available to them to vacate or reopen
the deficiency judgment.
Finally, the Bruces complain the trial judge erred in
allowing into evidence documents not listed in the respondents' answers to interrogatories in violation of Circuit Court Rule 90(e)(2). We have examined these
documents. They include the following: letters written
by Tom Bruce; letters written to Dan Bruce and to their
partnership; the mortgage note itself; the declaration of
trust; the partnership's balance sheet and tax returns; financial statements of Tom and Dan Bruce; court records
concerning Tom Bruce, Tom and Dan Bruce, and their
partnership; [***28] and letters written to Bankers
Page 7
283 S.C. 408, *; 323 S.E.2d 523, **;
1984 S.C. App. LEXIS 606, ***
Trust by the senior members of the firm that replaced the
Leatherwood firm in representing the Bruces.
Many of these documents were not in the possession
of the respondents as is required under the Rule. Others
were equally, if not more, accessible to the Bruces. The
Bruces should certainly be more aware of their own financial records and letters than anyone else. In light of
Page 1
LexisNexis
LEXSEE 216 IND. 449
DODD ET AL. v. REESE ET AL.
No. 27,354.
Supreme Court of Indiana
216 Ind. 449; 24 N.E.2d 995; 1940 Ind. LEXIS 254; 128 A.L.R. 574
Action by Robert A. Reese, and others, against Ardra Wise Postel to set aside a decree and order of adoption, wherein John J. Dodd and John J. Dodd as attorney,
filed a petition to intervene. From a judgment denying
petition, petitioner appealed.
Reversed.
Page 2
216 Ind. 449, *; 24 N.E.2d 995, **;
1940 Ind. LEXIS 254, ***; 128 A.L.R. 574
caused a petition for adoption. to be filed in her name,
without her knowledge or consent, and at a time when
she was dying, and without mental capacity sufficient to
have known or comprehended what was done; and that
he procured an order of adoption to be made, over the.
protests of Wise, who was present, and notwithstanding
the expressed scruples of the presiding judge.
Wise was made the sole defendant to this petition,
and a summons was issued, returnable on the 15th day of
March, 1937, and served [***4] upon Wise on March
3, 1937. On the 11th day of March, 1937, Wise filed a
verified answer: "That the averments set out in said petition of the plaintiffs are true and correct, as Defendant
verily believes. That he offers to the court no objection
to the granting of the prayer therein contained." On the
13th day of March, 1937, the appellant Dodd appeared
and filed a verified petition for authority to intervene as a
defendant. On the 2nd day of April, 1937, the petition
to intervene was amended. It is filed in the name of
John J. Dodd, and John J. Dodd, [*453] as an attorney
at law and officer of the court. It expressly denies in
detail all of the facts alleged in the complaint which seek
to establish fraud upon his part. It asserts that at the
time the petition for adoption was filed Mrs. Postel was
of perfectly sound mind; that the petition was prepared at
her direction and request, and was personally signed by
her, and that it was filed and the order of adoption procured at her request; that he was admitted to practice law
in 1925, and that he had practiced continuously until the
present time, and that he is of good standing as a member
of the bar and as such an officer [***5] of the courts;
that, while he is not named as a defendant in the complaint, the cause of action is based upon a charge of fraud
upon his part; that it does not charge fraud upon the part
of Mrs. Postel or the defendant Ardra Wise Postel; that
the charges of fraud against him are false, and were
known to be false at the time they were made; that, by
his conduct as an attorney, he has built a reputation for
truthfulness, honesty, and fair dealing, and has built up a
large and lucrative and growing practice; that he has
gained the confidence of the judges of the courts in
which he practices; that his reputation and standing are
Page 3
216 Ind. 449, *; 24 N.E.2d 995, **;
1940 Ind. LEXIS 254, ***; 128 A.L.R. 574
cus curiae in the cause. The motion of Area Wise Postel to withdraw his verified answer was overruled.
Error is assigned upon the sustaining of the appellees' motion to strike out the petition of the appellant to
intervene.
Section 2-222, Burns' 1933, 38, Baldwin's 1934,
provides: "The court may determine any controv~rsy
between the parties before it, when it can be do_ne wtt~
out prejudice to the rights of others or by savmg theu
rights; but (***9] when a complete dete:rnination of the
controversy can not be [*456] had wtthout the presence of other parties, the court must cause them to be
joined as proper parties. And when, in an action for the
recovery of real or personal property, a person n~t a party to the action, but having an interest in the subJect th~
reof, makes application to the court to be made a party, tt
may order him to be made a party by the proper ame~d
ment." This section has been held to vest the court w1th
broad discretion in the admission of parties, and it has
been generally said that a party should only be brought in
or permitted to intervene when he is interested in the
subject-matter of the action or a necessary party to the
settlement of the controversy. It has been repeatedly
held that the right to intervene is not limited to actions
for the recovery of real or personal property. But the
word "interest" seems generally to have been considered
as referring to some property interest; perhaps beca~se
the cases in which the intervention has been sought Involve property rights.
The action here is to set aside a judgment, and, if the
plaintiffs are successful, the result will be to vacate the
judgment (*** 10] of adoption. But the_ issue raised by
the complaint is one of fact. The questiOn to be determined is whether the allegation that John J. Dodd was
guilty of fraud in procuring the judgment to be entered is
true. The parties to the original judgment were Mrs.
Postel and Ardra Wise. Neither of them is charged with
fraud . It is clear, as the appellant asserts, that he is more
highly interested in the result of this action than any one
else. Mrs. Postel is dead. The interest of Wise involves but a comparatively small amount of property in
any event, but the appellant alleges that for a number of
years he has practiced Jaw; that he is in good reputation
as a lawyer, and that he has a valuable and growing
(*457] practice, the money value of which he is unable
to appraise, but he asserts that it is worth more th_an
$50,000 to him, and that it is worth more than the entire
estate of Mrs. Postel. This is not an unreasonable assertion. That a good reputation for honesty, and uprightness, and fair dealing, is a valuable thing has never been
doubted, and actions may be maintained for injury to
good reputation, and recovery may be had independent
of any proof of financial loss by reason [***11] of the
injury, but to destroy the reputation of a practicing law-
Page 4
216 Ind. 449, *; 24 N.E.2d 995, **;
1940 Ind. LEXIS 254, ***; 128 A.L.R. 574
Article 1 provides: "All courts shall be open; and every
man, for injury done to him in his person, property, or
reputation, shall have remedy by due course of law."
Here reputation is put upon an [*459] equality with
property, and a remedy is contemplated for injury to reputation the same as injury to property. If an injury is
done one's property, he may recover for it, and, in many
cases, if it is anticipated, a court of equity will enjoin the
injury. If the result of an action between others may
effect or [*** 14] work an injury to property, the right to
intervene is not questioned; and if there is any good reason why a court of equity and conscience should permit
intervention to protect property against injury that does
not apply with at least equal weight and force to reputation, we have been unable to discover it. It is true that,
while courts of equity will some times intervene by injunction to prevent injury to property, they decline to
intervene by injunction to protect reputation against libels and slanders. The reason given is that there is an
adequate remedy at law for damages for such injuries to
reputation. But that is not always true. Statements
which would otherwise be actionable are privileged
when they are made in a pleading filed in a judicial proceeding, and it is clear that, though this privilege strikes
down the remedy at law for damages, a court of equity
will not entertain a suit to enjoin the assertion or perpetuation of the injurious matter, since that would involve a
trial of the issue presented in the original case. The appellant then has no remedy by due course of law for the
injury to his reputation, and the resultant damage to him,
which he asserts, unless the [*** 15] court in which the
action is pending shall be open to him, and unless he
shall be permitted to there deny and defend against the
charges. It is true that the trial court invited John J.
Dodd to appear amicus curiae, but this is by favor, and
not as of right, and it does not carry with it the right to
exceptions and appeal from adverse rulings. If the action [*460] in which he sought to intervene involved a
small bit of land, of little value, or a horse, or a cow, or a
few dollars, he would be held to have an interest in the
result since, it might strike down and injure a property
right. It seems inconceivable that a court [**999] of
conscience can say that in this action, the result of which
may brand him as guilty of the most despicable conduct,
which may destroy his opportunity to earn a comfortable
living at his chosen profession, and which may diminish
the esteem in which he is held by his friends and neighbors, and cause his family to hold a less respected place
in the community, he has no interest, and that he cannot
be injured in his substantial rights by the judgment.
In State ex rel. Lopez v. Killigrew et al. (1931 ), 202
Ind. 397, 401, 402, 174 N.E. [*** 16] 808, 810, which
involved a petition for a new trial in a criminal action
since the defendant had served the sentence and paid the
Page 5
216 Ind. 449, *; 24 N.E.2d 995, **;
1940 Ind. LEXIS 254, ***; 128 A.L.R. 574
ble right, and to prevent a great injury and wrong to him.
There is a maxim that: "Equity will not suffer a wrong to
be without a remedy," and it has been said that the jurisdiction of a court of equity does not depend upon the
mere accident of the court having in some previous case,
at some distant time, granted relief under similar circumstances. If it were so, equity [***19] would not
have grown and developed. If this case is permitted to
go to judgment which will injure the reputation of the
appellant, when he might have successfully defended
against the charges, if permitted, it will be even more
difficult to find a remedy for the wrong. The only thing
that seems to stand in the way of permitting the appellant
to intervene now is that it never has been done. But the
principle that a stranger may intervene where he has a
JAMES WAYMONHAHN
vs.
PROTECTIVE ORDER
Before the court is the Motion of Dr. Karen Fox, Intervenor, for protective order. The court
has considered the motion, the response of the parties and finds that the captioned case involves
allegations of wrongful termination by the Plaintiff, James Hahn, against Delta Health Alliance
("DHA''). However, the focus of the case is on Hahn's claim that he was wrongfully terminated for
reporting alleged criminal misuse of funds by Dr. Fox, the President and CEO of DHA. According
to the complaint, those reports were investigated by DHA and found to be meritless.
The court further finds that, when deposed in this case, Hahn has made defamatory
accusations of immoral conduct by Dr. Fox in her private life. Those accusations are not relevant
to Hahn's allegations.
Irrelevant defamatory statements are actionable. However, Hahn's defamatory statements
relevant to his allegations in this case are not, even if made maliciously and with knowledge of
falsehood. See, e.g., McCorkle v. McCorkle. 811 So. 2d 258, 266 (Miss. App. 2001). Only a
protective order by this court can protect Dr. Fox from injury by publication of Hahn's defamatory
statements in the course of this litigation which are relevant.
The court finds that Dr. Fox is an accomplished healthcare executive. She holds a Ph.D. in
health science administration; an MBA; and a BS in engineering. She has published eleven papers.
She is a frequent presenter at academic, government and civic conferences. She is an experienced
EXHIBIT
"C"
It is obvious to the court, and not subject to genuine dispute, that Dr. Fox's hard-earned
reputation is essential to her ability to recruit, retain, and effectively manage subordinates; maintain
the trust and confidence of her board of directors at DHA; apply for and secure grants for DHA; and
maintain her value in the market for healthcare executives.
The court finds that the publication of Hahn's defamatory allegations against Dr. Fox could
not only impair her ability to do her job, but could also pose the risk of irreparable harm to her
reputation and profound embarrassment to her. Dr. Fox is justifiably concerned that she will be
irreparably stigmatized in the minds of those who hear the accusations by Hahn against her, even if
they doubt the truth of Hahn's accusations.
WHEREFORE, PREMISES CONSIDERED, it is
1.
2.
That the attorney who notices any deposition for this case, heretofore or hereafter,
shall instruct the court reporter for that deposition that this court has hereby ordered
the court reporter to deliver the original deposition transcript to the attorney who
noticed the deposition, after opportunity for the witness to make changes and sign
pursuant to M.R.C.P. 30(e), and to deliver copies of the transcript only to counsel of
record in this case;
3.
Counsel for the parties, and the parties, in this case shall not make public any
responses to discovery or any testimony by any witness, motions, memoranda or any
other matter in this case concerning any statement by Plaintiff about Dr. Karen Fox,
until further order of this court, provided, however, that counsel of record may
communicate Hahn's accusations relevant to his allegations of misuse of funds to
witnesses and deponents to elicit their testimony or to prepare them to testify;
4.
Depositions in this case hereafter shall be conducted with no one present except
counsel for the parties, the court reporter, the witness and the parties;
5.
Dr. Fox shall not be subjected to any discovery in this case about any aspect of her
private affairs, personal life and/or her relationships not relevant to the reports by
Plaintiff to DHA of alleged misuse of funds; and
6.
The parties shall reschedule the deposition of Dr. Fox noticed for December 8, 2010
and any other deposition noticed for that date, if necessary to implement this order
and for counsel for Dr. Fox to appear on her behalf.
FILED
DEC 0 1 2010
vs.
DELTA HEALTH ALLIANCE, INC.
BY
AIMi Busby
CIA U'::f~ERK
- ----:.-..o.c.
Dr. Fox is an accomplished healthcare executive. She holds a Ph.D. in health science
administration; an MBA; and a BS in engineering. She has published eleven papers. She is a
frequent presenter at academic, government and civic conferences. She is an experienced executive
and a successful applicant for substantial grants.
Her hard-earned reputation is essential to her ability to recruit, retain, and effectively manage
subordinates; maintain the trust and confidence of her board of directors at DHA; apply for and
secure grants for DHA; and maintain her value in the market for healthcare executives.
The publication of Hahn's false and defamatory allegations against Dr. Fox not only impairs
her ability to do her job, but also poses the risk of irreparable harm to her reputation and profound
embarrassment to her. Dr. Fox is justifiably concerned that she will be irreparably stigmatized in
the minds of those who hear the accusations by Hahn against her, even if they doubt the truth of
Hahn's accusations.
STANDARDS FOR DECISION
M.R.C.P. 26(d) provides, in pertinent part:
... (d) Protective orders. Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the court in which the action
is pending .. . may make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
1.
that the discovery not be had;
2.
that the discovery may be had only on specified terms and conditions,
including a designation of the time or place;
3.
that the discovery may be had only by a method of discovery other
than that selected by the party seeking discovery;
4.
that certain matters not be inquired into, or that the scope of the
discovery be limited to certain matters;
5.
that discovery be conducted with no one present except persons
designated by the court;
6.
that a deposition after being sealed to be opened only by order of the
court; ...
8.
9.
This court has discretion under M.R.C.P 26(d) to enter a broad protective order as
necessary to protect Dr. Fox's reputation and privacy and to protect her from embarrassment.
See, e.g., Barnes v. A Confidential Party, 628 So. 2d 583 (Miss. 1993) [protective order
providing "all such discovery regarding defendant's alleged ... relationship with C.C ... shall
be ordered sealed by this Court and counsel for the parties shall not make public said
responses in regard to these areas at this time."]
WHEREFORE, PREMISES CONSIDERED, Dr. Fox respectfully moves the court
to render and enter its order in the form attached hereto as Exhibit "C" to Dr. Fox's Motion
to Intervene.
Respectfully submitted, this the P1 day of December, 2010.
CERTIFICATE OF SERVICE
I, John H. Dunbar, do hereby certify that I have this day mailed a true and correct
copy of the above and foregoing document by E-mail, to:
Jim Waide, Esq.
WAIDE & ASSOCIATES, PA
Post Office Box 1357
Tupelo, Mississippi 38802
Attorney for Plaintiff
Gary Friedman, Esq.
PHELPS DUNBAR
Post Office Box 23066
Jackson, Mississippi 39225-3066
Attorney for Delta Health Alliance
This, the P 1 day of December, 2010
JAMES WAYMONHAHN
LAFAYETTE COUNTY
vs.
FILED
DEFENDANT
Dr. Karen Fox respectfully moves the court for an expedited hearing of her Motion to
Intervene and her Motion for Protective Order in the captioned civil action. Dr. Fox also
respectfully moves the court to shorten the response time for answering motions.
Dr. Fox ' s Motion to Intervene and her Motion for Protective Order have been filed
separately and all allegations are hereby incorporated by reference.
Dr. Fox is seeking limited intervention in order to protect her reputation. Depositions of
various witnesses have been noticed for December 8, 2010, including Dr. Fox's deposition.
Dr. Fox respectfully asks the Court to hear her motions on December 2nd or 3rd, 2010.
Respectfully submitted, this the pt day of December, 2010.
DR. KAREN FOX
~-
CERTIFICATE OF SERVICE
I, John H. Dunbar, do hereby certify that I have this day E-mailed a true and correct copy
of the above and foregoing document, to:
Jim Waide, Esq.
WAIDE & ASSOCIATES, PA
Post Office Box 1357
Tupelo, Mississippi 38802
Attorney for Plaintiff
Gary Friedman, Esq.
PHELPS DUNBAR
Post Office Box 23066
Jackson, Mississippi 39225-3066
Attorney for Delta Health Alliance
This, the P 1 day of December, 2010.
t.
::
'
.,
vs
DELTA HEALTH ALLIANCE, INC.
PLAINTIFF
DEC 08 2010
V~' .
NOTICE is hereby given that pursuant to the Federal Rules of Civil Procedure, at the time
and place set forth herein, the undersigned, attorney of record for the Plaintiff, will take the
deposition upon oral examination of the following Individuals, on December 8, 2010, before a
court reporter, or some other official duty authorized to administer oath, in the law offices of
Campbell Delong, LLP, 923 Washington Avenue, Greenville, Mississippi.
TIME
8:30a.m.
9:30a.m.
10:00 a.m.
10:30 a.m.
11:00 p.m.
11:30 p.m.
1:00 p.m.
NAME
Dr. James Keeton
Chip Morgan
Cindy Boykin
Jane Calhoun
Steve Osso
Howard Davis
Patrick Owens
The oral examination shall continue from day to day until completed. You are notified to
appear and take such part in the examination as you deem proper.
Respectfully submitted,
WAIDE & ASSOCIATES, P.A. .
BY:
J
WAIDE
MS BAR NO. 6857
CERTIFICATE OF SERVICE
I, Jim Waide, attorney for the Plaintiffs, do hereby certify that I have this date served, via
First Class United States mail, postage prepaid, a true and correct copy of the above and
foregoing to the following :
Gary E. Friedman, Esquire
Gregory T. Butler, Esquire
Phelps Dunbar LLP
Post Office Box 16114
Jackson, MS 39236-6114
THIS the-+-- day of December, 2010.
JIM
AIDE
PLAINTIFF
DEC 0 8 2010 .
vs
BY_
~ ,p ,C.
DEFENDANT
NOTICE is hereby given that pursuant to the Federal Rules of Civil Procedure, at the time
and place set forth herein, the undersigned, attorney of record for the Plaintiff, will take the
deposition upon oral examination of the following Individuals, on December 14, 2010, before a
court reporter, or some other official duty authorized to administer oath, in the law offices of
Phelps Dunbar, LLP, 4270 55 North, Jackson, Mississippi .
NAME
Roy Campbell
Will Manuel
liM E
10:30 a.m .
11 :00 a.m.
The oral examination shall continue from day to day until completed. You arc notified to
appear and take such part in the examination as you deem proper.
Respectfully submitted,
WAIDE & ASSOCIATES , P.A.
BY:
CERTIFICATE OF SERVICE
I, Jim Waide, attorney for the Plaintiffs, do hereby certify that I have this date served, via
First Class United States mail, postage prepaid, a true and correct copy of the above and
foregoing to the following:
Gary E. Friedman, Esquire
Gregory T. Butler, Esquire
Phelps Dunbar LLP
Post Office Box 161 14
Jackson, MS 39236-6114
THIS the
E'ftE cou~\'f
v.fP.f\\._E.O
\)tC. \ t\ 'Z.~~!'l
~\C
~~~c \\
PLAINTIFF
CIVIL ACTION NO. Ll0-441
'SUp.\(
DEFENDANT
e'l
NOTICE OF SERVICE
To:
has this day served Defendant with a true and correct copy ofPlaintiff's Responses to Defendant's
Second Set of Requests for Production of Documents.
The undersigned retains the original of the above document as custodian thereof.
SO NOTICED on this the 13th day of December, 2010.
JAMES WAYMON HAHN, Plaintiff
By
Ji~S~~~
Rachel M. Pierce, MS Bar No. 100420
WAIDE & ASSOCIATES, P.A.
332 North Spring Street
Tupelo, MS 38804-3955
Post Office Box 1357
Tupelo, MS 38802-1357
Telephone: (662) 842-7324
Telecopier: (662) 842-8056
Email: waide@waidelaw.com
rpierce@wal.delaw.com
ATTORNEYS FOR PLAINTIFF
00216692 .WPD
CERTIFICATE OF SERVICE
This will certify that undersigned counsel for Plaintiff has this day served a true and correct
copy of the above and foregoing Notice of Service upon all counsel of record via electronic mail,
addressed as follows:
002 16692.WPD
-2-
PLAINTIFF
E\fE couNT"
LAfAF\LE.O
vs
ut.~
2 .0\0
us'oY
:r f\K 0 C
a'f~ ..
tJta
DELTAHEALTHALLIANCE, INC.
\i
DEFENDANT
NOTICE OF SERVICE
To:
NOTICE IS HEREBY GIVEN that Plaintiff has this day served Defendant with the
following :
(1)
The undersigned retains the original of the above document as custodian thereof.
SO NOTICED this the
fl_
JI
MS AR NO.: 6857
RACHEL M. PIERCE
MS BAR NO. : 100420
002 16946.WPD
00216946.WPD
-7-
JAMES WAYMONHAHN
vs.
Before the court is the Motion of Dr. Karen Fox, Intervenor, for protective order. The court
has considered the motion, the argument of the parties and finds that the motion should be granted
in part and denied in part. It is
1.
2.
Depositions in this case hereafter shall be conducted with no one present except
counsel for the parties, the court reporter, the witness, any counsel for the witness,
and the parties; provided, however, that copies of depositions taken in this case shall
not be provided to any counsel for any witness other than Dr. Fox's counsel, until
further order of this Court; and
3.
AGREED AS TO FORM:
~ UJ~
Vay oJ
, 2010.
vs
PLAINTIFF
DEFENDANT
Plaintiff moves the Court to compel the Defendant to participate in further discovery.
Plaintiff shows the Court the follo wing:
1.
2.
hours. Much time at Hahn' s deposition was consumed by defense counsel asking Plaintiff what
Plaintiff knew about a sexual relationship between the executive director of Defendant and medical
director of Defendant.
3.
Defendant now claims that " [t]hese scurrilous allegations of sexual impropriety are
highly embarrassing" to the executive director, and has notified Plaintiffs counsel by letter of
December 28, 2010, attached hereto as Exhibit "A," that it will not participate in any further
depositions.
4.
can ask about sexual allegations shoul d not prohibit depositions in all other areas. In any event, this
inquiry is relevant to show a factu al basis for Plaintiffs allegations and to demonstrate a likely
improper purpose for Defendant' s lea e of an expensive condominium at taxpayers' expense.
00219317.WPD
5.
ruled that there could be full discovery, and the only limitation in discovery was that depositions
would be sealed and not made a pu blic part of the record until such time Circuit Court Judge
Gregory, ruled upon the issue of whether depositions could be made public.
6.
There is no reason to revisit Judge Lackey' s ruling that full discovery can occur.
There is no basis for a protective order in this case and no basis for Defendant to refuse further
discovery.
7.
participate in depositions and, furth r, compelling Defendant to answer questions concerning the
relationship between the medical director and the executive director. Further, attorneys ' fees and
expenses should be awarded pursuant to Miss. R. Civ. P. 37.
Therefore, Plaintiff prays that his Motion to Compel Discovery be granted in all respects.
Respectfully submitted,
WAIDE & ASSOCIATES, P.A.
n,
LJ~-~
BY :--;-.ff'~
....,._-~
-'-----
OJiM wAIDE
002 l93J7.WPD
-2-
-3-
Sincerely yours,
PHELPS DUNBAR LLP
~~F~1~
GEF/klr
PD.459291 2.1
PI-IELPS DUNBAR
I.LP
G ARY E. FR IEDMAN
Partne r
R ~:si d c tH
l)irccr
December 28,2010
iu Missiui i'Pi
(~(J I)
JflU- 1>355
#21996-0097
friedm ag@phdps.com
Dear Jim:
As I have expressed to you on several occasions recently, it is my opinion that you are
pursuing several lines of questioning during depositions that are irrelevant to any issue in Mr.
Halm's suit. Furthennore, it is my opinion that you have pursued allegations of sexual
improp1ieties by Dr. Fox even though you have admitted to me that Dr. Mansell told you that he
never did have sex with her. These scunilous allegations of sexual impropriety arc highly
embarrassing to Dr. Fox. However, it has become obvious that you intend to continue with these
lines of questioning. Consequently, I have decided to file an approptiate motion to address these
issues. As you know, we will not have a pem1anent judge for this case until after the first of the
year so I do not know how long it will take to have my motion beard after briefing is completed.
Therefore, I have decided not to ma an futther witnesses available for de ositions until my
.. motion is resolved by the Comt. This necessarily will inc u e Dr. Fox's deposition which
previously had been scheduled for February 15. As patt of my motion, I intend to ask the Cotnt
to limit both the number of depositions that can be taken and the time within which they can be
taken.
I continue to believe strongly that the allegations of sexual impropriety by Dr. Fox are
being pursued strictly for the purpose of harassment and to help force settlement of the case. As
stated above, this particularly is true given Dr. Mansell's statement to you that it never happened .
Therefore, regardless of the Comt's future ruling on my motion referenced above, I ask that you
stop pl].fsuing this line of questioning. If you do not do so, my client has instructed me to
consider pursuing appropriate sanctions at the t:ondusion of this case.
I assure you that I am not happy to have to write a letter like this, especially in light of
our long history in many suits. However, this suit seems to have become particularly adversa1ial.
Of course, I will be happy to try to resolve these issues with you at any time and would welcome
a call fi:om you to try to reach some resolution and get this case back on track.
]>0.4592912 .1
1 Ja~kson. Missi.sippi
>!{\
EXHIBIJ
1.}
1.
This Court has subject matter jurisdiction over this counterclaim pursuant to Miss. Code
Ann. 9-7-81.
2.
This Court is the proper venue for this counterclaim, pursuant to Miss. Code Ann. 11-
11-3.
3.
Beginning in or about March, 2010, Plaintiff made unfounded and defamatory claims
against DHA's CEO, Karen Fox. These claims were made to various members ofDHA's Board
of Directors.
4.
Plaintiff made these claims in an effort to have Karen Fox terminated so that he could
replace her as DHA's CEO.
5.
As a result of the unfounded and serious allegations against its CEO made by Plaintiff,
DHA hired an outside Certified Public Accountant, an outside consultant on organizational
development, and a law firm to conduct independent investigations to determine if the claims of
Plaintiff had any merit.
PD.4183060.1
JAMESWAYMONHAHN
Flf . . ED
PLAINTIFF
vs.
JAN 2 7 2011
BY
DEFENDANT
-...__._~~:..__1
On December 28, 2010, the Court issued a Protective Order requiring that all
depositions in this case be held under seal until such time as the Court ruled on the admissibility
of a certain area of inquiry.
2.
The Defendant has prepared and wishes to file a Motion and Brief in Support of
its Motion for Partial Summary Judgment and for a Protective Order. The Motion for Partial
Summary Judgment directly addresses the area of inquiry which is a subject of the Court' s prior
Protective Order. Furthermore, portions of depositions which are attached as exhibits to the
Motion also address the area of inquiry prohibited from disclosure by the Protective Order.
3.
Defendant further requests that the Court require the Plaintiff to file its Response
Defendant further requests that the Court allow any rebuttal submitted by the
BY:
riedm . MB #5532
Grego Todd Butler, MB #102907
PHELPS DUNBAR, LLP
4270 I-55 North
Jackson, Mississippi 39211-6391
P. 0. Box 16114
Jackson, Mississippi 39236-6114
Telephone: (601) 352-2300
Telecopier: (601) 360-9777
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that on this day I have forwarded, by United
States mail, postage prepaid, a true and correct copy of the above and foregoing document to:
Jim D. Waide, III., Esq.
WAIDE & ASSOCIATES, P .A.
Post Office Box 1357
Tupelo MS 38804
(662) 842-7324
2
PD.46843 10.1
JAMES WAYMONHAHN
vs
lAfAF\LEO
fE.S 02 20"
PLAINTIFF
us'o'/
K
DEFENDANT
S'f
This case presents matters of strong public interest since it relates to the inappropriate,
The Mississippi Public Records Act of 1983 (Miss. Code Ann. 25-61-1) provides
that "it is the policy of the Legislature that public records must be available for inspection by any
person unless otherwise provided by this act." Miss. Code Ann. 25-61-2 provides that it is "policy
of this state that public records shall be available for inspection by any person unless otherwise
provided by this chapter. .. " Except as otherwise provided by 25-61-9 and 25-61-11 (which are
inapplicable to court records), "all public records are hereby declared to be public property ... " Thus,
absent an applicable statutory exception, court records cannot be sealed.
3.
Besides the fact that court records cannot be sealed in light of the Mississippi Public
Records Act, both the common law and the First Amendment to the United States Constitution
guarantee public access to court records. According to In reAssociated Press, 162 F.3d 503 (7th
Cir. 1998):
00220355.WPD
As a starting point, we recall the fundamental proposition that the "public's right of
access to court proceedings and documents is well-established." ... we noted that this
fundamental premise is grounded in three important policy concerns. "Public scrutiny
over the court system serves to ( 1) promote community respect for the rule of law,
(2) provide a check on the activities of judges and litigants, and (3) foster more
accurate fact finding." ... Born of the common law, this right also has constitutional
underpinnings... Indeed, the First Amendment provides a presumption that there is
a right of access to "proceedings and documents which have 'historically been open
to the public' and where the disclosure of which would serve a significant role in the
functioning of the process in question." ... As we also pointed out ..., this
presumption of access is rebuttable when it is demonstrated that suppression is
necessary to preserve "higher values" and when the suppression is "narrowly
tailored" to serve those interests ... Overcoming the presumption, however, is a
formidable task. The court must be "firmly convinced that disclosure is inappropriate
before arriving at a decision limiting access."
162 F.3d at 506 (citations omitted).
4.
This complaint is based upon the public policy exception to the employment at-will
doctrine. McArn v. Allied Bruce-Terminix Co., 626 So.2d 603 (Miss.1993). At issue is whether the
Defendant is illegally expending taxpayer money. To countervail this overwhelming public interest,
Defendant claims only that disclosure of facts about the suit will serve to "embarrass" its chief
executive officer. Such "embarrassment" is not an exception either to the Mississippi Public
Records Act, the First Amendment, or to common law.
5.
Finally, Miss. R. Civ. P. 77(b) requires that, "all trials upon the merits shall be
conducted in open court, except as otherwise provided by statute." The matters contained in motions
for summary judgment are the same matters which will be discussed in a trial upon the merits in
open court. Closure of the public records is not only illegal, but also futile.
00220355 .WPD
-2-
Respectfully submitted,
WAIDE & ASSOCIATES, P.A.
BY
~
{;....;J,
IMWAIDE
MS BARNO.: 6857
RACHEL PIERCE
MS BAR NO.: 100420
002203SS.WPD
-3-
CERTIFICATE OF SERVICE
I, Jim Waide, one of the attorneys for Plaintiff, do hereby certify that I have this day served,
via First Class United States mail, postage prepaid, a true and correct copy of the above and
foregoing to the following:
Gary E. Friedman, Esq.
Gregory Todd Butler, Esq.
Phelps Dunbar, LLP
4270 I-55 North
Jackson, MS 39211-6391
THIS the _ :;(
00220355 .WPD
-4-
F\LED
VS.
rEB () 3 20"
PLAINTIFF
CIVIL ACTION NO. Ll0-441
DEFENDANT
NOTICE OF SERVICE
TO:
Health Alliance, Inc. has this date served the following in the above-entitled action:
Respectfully submitted,
BY:
Gary E. riedman . MB #5532
Gregor Todd Butler, MB # 102907
PD.472280 1.1
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that on this day I have forwarded, by United
States mail, postage prepaid, a true and correct copy of the above and foregoing document to:
Jim D. Waide, III. , Esq.
WAIDE & ASSOCIATES , P .A.
Post Office Box 1357
Tupelo MS 38804
(662) 842-7324
ATTORNEY FOR DEFENDANT
2
PD.4722801.1
FILED
FEB 07 2011
Ma~
tiCe Busby
CIR 1'1kJ,.ERK
PLAINTIFF
CIVIL ACTION NO. Ll0-441
BY____+-- - -D.C.
DEFENDANT
1.
Plaintiff uses the Mississippi Public Records Act and the First Amendment to
argue for the denial ofDHA' s request to file under seal its Motion for Partial Judgment and for a
Protective Order. Both of Plaintiffs arguments are without merit.
2.
The Mississippi Public Records Act is inapplicable because DHA has not yet filed
its Motion for Partial Judgment and for a Protective Order with the Court, and thus it is not yet a
public record governed by the Act. The gist of Plaintiffs argument, then, is that this Court does
not have the authority to keep the Motion for Partial Judgment and for a Protective Order from
becoming a public record. This contention simply is wrong. It has long been held that, because
every court has supervisory power over its own records and files , access may be denied where a
court finds that the records might become a vehicle for improper purposes. See Nixon v. Warner
Comm., Inc., 435 U.S. 589 (1978). In this vein, the Mississippi Uniform Rules of Circuit and
County Court Practice expressly grant the Court with authority for allowing filings under seal.
See Rules 9.04(0) & (H). Plaintiffs contrary submission must be rejected.
3.
PD.4729 197.1
individual's privacy trumps any First Amendment concerns. See Rossbach v. Rundle, 128 F.
Supp. 2d 1348, 1352 (S .D. Fla. 2000) (" [I]t is appropriate to seal certain records when those
particular records contain highly sensitive and potentially embarrassing personal information
about individuals."); accord Doe v. Blue Cross & Blue Shield U ofWisc., 112 F.3d 869, 872 (7th
Cir. 1997) (acknowledging that sealing records is appropriate when the records would be "highly
embarrassing to the average person").
4.
Importantly, a protective order is in place in this case, which requires all depositions to be
sealed in light of the highly sensitive allegations Plaintiff has directed at DHA and, more
specifically, its CEO. See Protective Order, attached as Exhibit "A." Plaintiff is attempting to
undermine the spirit of that protective order by contesting the filing under seal of a document
that undoubtedly will contain testimony from those depositions. The Mississippi Supreme Court
has warned against such attempts at circumventing a protective order.
See Barnes v.
Confidential Party, 628 So. 2d 283, 292 (Miss. 1993) (explaining that documents supporting a
motion to compel "should have been filed under seal, in accordance with the spirit and purpose
of [a previously-entered] order").
9.
enter an Order granting leave to DHA to file its Motion for Partial Judgment and for a Protective
Order under seal.
Dated: February 3, 2011.
Respectfully submitted,
PHELPS DUNBAR, LLP
2
PD.4729 197.1
3
PD.4729 197. 1
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have this day forwarded, via United
States mail, postage prepaid, a true and correct copy of the foregoing document to the following
counsel of record:
THIS , the
4
PD.4729 197.1
3rd
vs.
PLAINTIFF
CAUSE NO.: Ll0-441
PBQIECTIVE O:R))ER
DEFENDANT
Before the court is the Motion of Dr. Karen Fox, lnlerve~or, for protective order. The coun
has considered the motion, the argument of the parties and findd that the mQtion should be granted
in part and denied in part~. It i& .
1.
ORDERED, ADJUDGED nndDECRBED that the transcripts of all depositions taken
and to be taken in this case shall be delivered profptly to the Circuit 1odge assigned
to the case, whereupon they will be sealed by the pi~uic Judge until further order of
Circuit Judge Elect John Gregory concerning thejuse of the depositions in this case;
counsel for the panies may keep copies of che cfepositions for their use in further
Depositions in this case hereafter shall be cond,ucted with no one present except
counsel for the parties, the court reporter, the witness, any counsel for the witness,
I
and the'partie&; provided, however, that copies o'fideposilions taken in this case shall
not be provided to any counsel for any witness other dum Dr. Poxs counsel, until
I
AGREED AS TO FORM:
~
ina44
lmWaidc
Attorney fo
'ntiff~~"'
EXHIBIT
A
PHELPS DUNBAR
------------------------LLP
Louis1ana
February 7, 2011
Mississippi
Texas
Florida
Alabama
London
21996-97
Mary A. Busby
Lafayette County Circuit Court Clerk
101 Courthouse
One Courthouse Square
Oxford MS 38655
Re:
James Wayman Hahn v. Delta Health Alliance, Inc. ; Civil Action No. LI0-441
DHA 's Motion For Partial Summary Judgment and for Protective Order,
2.
Mernorandum in Support of DHA 's Motion for Partial Summary Judgm ent and
for Protective Order;
3.
Notice ofHearing,
4.
Please file the originals and return the copies stamped "Filed" in the enclosed, selfaddressed, stamped envelope. By copy of this letter, a copy of the said documents are being sent
to Plaintiffs counsel in conformity with the certificate.
Pursuant to the enclosed court ordered, the enclosed Defendant's motion, memorandum
and exhibits are to be filed under seal. And any further responses by Plaintiff or Rebuttals by
Defendant along with exhibits are to be filed under seal.
Jackson, Mississippi 39211- 6391 I Post Office Box 16114 [ Jackson, Mississippi 39236-6114
601-352-2300 I 601-360-9777 Fax I phelpsdunbar.com
Mary A. Busby
Page 2
Thanks for your assistance with this matter. If you should have any questions or need
any further information, please feel free to contact me at 601.352.2300 ext. 3460.
Sincerely,
PHELPS DUNBAR, LLP
Sally Barnett
Paralegal to Gary E. Friedman, Esquire
/sb
Enclosures
cc:
PD.4678422 .1
PLAINTIFF
vs.
NOTICE OF HEARING
TO:
PLEASE TAKE NOTICE that Defendant Delta Health Alliance, Inc.' s Motion For
Partial Summary Judgment and for Protective Order will be called up for hearing at the Lafayette
County Courthouse in Oxford, Mississippi, before the Honorable John Gregory, on Thursday,
April 14, 2011 at 9:00a.m.
This the
11
BY:
Gary E. riedman . MB #5532
Gregory Todd Butler, MB # 102907
PD.4678 184.1
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that on this day I have forwarded, by United
States mail, postage prepaid, a true and correct copy ofthe above and foregoing document to:
Jim D. Waide, III., Esq.
WAIDE & ASSOCIATES, P.A.
Post Office Box 1357
Tupelo MS 38804
(662) 842-7324
THIS the
2
PD.4678184 .1
PLAINTIFF
vs.
THIS CAUSE having come before the Court and the Court having considered the
submissions of the Parties, has determined that the Motion is well taken.
Therefore, the Court orders that the Motion and Brief of the Defendant in Support of its
Motion for Partial Summary Judgment and for Protective Order, the Plaintiffs Response and
Brief in Response to the Motion, The Defendant's Rebuttal and Brief supporting it' s Rebuttal by
the Defendant as well as all supporting exhibits shall be filed under seal.
ORDERED, this the _31_ day of January, 2011.
c,itinDGE
PD.4684467. 1
vs
DELTA HEALTH ALLIANCE, INC.
BY
FILED
PLAINTIFF
FEB 2.7-2:011
~~A(~~
~
DEFENDANT
D.C.
~otions
in the
Circuit Court ofUnion County, before Judge John A. Gregory, on Thursday, April 14, 20 11 , at 9:00
a.m., or as soon thereafter as counsel can be heard.
This the~ day ofFebruary, 2011.
Respectfully submitted,
WAIDE & ASSOCIATES, P.A.
BY
JIM
MS
fl?
AIDE
~R NO. 6857
CERTIFICATE OF SERVICE
I, Jim Waide, attorney for the Plaintiff, do hereby certify that I have this date served, via
First Class United States mail, postage prepaid, a true and correct copy of the above and foregoing
to the following:
Gary E. Friedman, Esquire
Gregory T. Butler, Esquire
Phelps Dunbar LLP
Post Office Box 16114
Jackson, MS 39236-6114
THIS the
/f6
~ - lAW
JI~~IDE
PLAINTIFF
LAFAYETTE COUNTY
F\LED
vs
FEB 24t :H
Marw{iic~ usby
CIR'C~D
K o.C.
DEFENDANT
Counsel for Plaintiff was in trial in the case styled James Harmon v. Andalusia Ford,
et al. , U.S.D.C. No. 3:08cv733-W-A, beginning on February 1, 2011 and concluding on February
14, 2011.
2.
Further, counsel for Plaintiffhas had numerous briefs and other pleadings to become
due and has been unable to research and draft the response and briefto Defendant's motion.
3.
Plaintiff has conferred with defense counsel who advises there is no objection to the granting of the
relief requested herein.
4.
Further, the hearing on all pending motions in the instant case is not set until April
14, 2011 ; as such, there is ample time for Defendant to file its rebuttal.
5.
WHEREFORE, Plaintiff requests that the Court grant his Motion for Extension of Time,
through and including March 7, 2011 , in which to serve his response and brief in opposition to
Defendant' s Motion for Partial Summary Judgment and Protective Order.
Respectfully submitted,
WAIDE & ASSOCIATES, P.A.
BY:
WaJ.t
WAIDE
MS BAR NO. : 6857
RACHEL PIERCE
MS BAR NO.: 100420
0022l587.WPD
-2-
CERTIFICATE OF SERVICE
I, Jim Waide, one ofthe attorneys for Plaintiff, do hereby certify that I have this day
served, via First Class United States mail, postage prepaid, a true and correct copy of the above
and foregoing to the following:
Gary E. Friedman, Esq.
Gregory Todd Butler, Esq.
Phelps Dunbar, LLP
4270 I-55 North
Jackson, MS 39211-6391
THIS the 21st day of February, 2011.
JIM
0022 1587.WPD
-3-
IDE
PLAINTIFF
l/11\R~i~~s~Y
VS.
DEFENDANT
SY~
NOTICE OF SERVICE OF DEFENDANT'S
THIRD SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS
TO:
wAIDE &
NOTICE is hereby given, pursuant to the local rules of this Court, that Defendant Delta
Health Alliance, Inc. has this date served the following in the above-entitled action:
BY:
PD.4819222. I
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have forwarded, via United States
mail, postage prepaid, a true and correct copy of the above and foregoing document to the
following individual :
Jim Waide, Esquire
WAIDE & ASSOCIATES, P.A.
Attorneys at Law
Post Office Box 1357
Tupelo, Mississippi 38802
AITORNEYS FOR PLAINTIFF
~&
PD.4819222.1
PLAINTU'F
vs.
DEFENDANT
'
PD.4767320. l
vs
PLAINTIFF
DEFENDANT
COMES NOW, the Plaintiff, James Waynon Hahn, by and through counsel, and files this his
Motion for Further Extension of Time in which to serve his response and brief in opposition to
Defendant's Motion for Partial Summary Judgment and Protective Order, and would show unto the
Court the following:
1.
Counsel for Plaintiff was in a lengthy trial in the case styled Harmon v. Andalusia
Ford, et al., U.S.D.C. No. 3:08cv733-W-A, which began on February 1, 2011 and lasted through
February 14, 2011.
2.
Counsel for Appellants had Oral argument before the Fifth Circuit Court of Appeals
in the case styled, "Salts, et al vs. Epps, et al", Cause No.: 10-60201, on February 28,2011
3.
Counsel for Plaintiff has also been in trial this week in the case styled Batley v.
Mississippi Marble & Granite, Inc. , Circuit Court of Greene County, Mississippi, Cause No. 200810-152(2), which began on March 1, 2011.
4.
Counsel for Plaintiff will begin another trial next week in the case styled Colvin v.
Lowndes County, Mississippi, eta!, U.S.D.C. No. 1:09CV187-M-D, scheduled to begin on March
7,2011.
00222048.WPD
5.
Further, counsel forPlaintiffhas had numerous briefs and other pleadings to become
due and has been unable to research and draft the response and brief to Defendant's motion.
6.
Plaintiff has conferred with defense counsel who advises there is no objection to the granting of the
relief requested herein.
7.
Further, the hearing on all pending motions in the instant case is not set until April
14, 2011; as such, there is ample time for Defendant to file its rebuttal.
8.
BY: _ _..lf-~.::..'"----WAIDE
BAR NO.: 6857
CHELPIERCE
MS BAR NO.: 100420
WAIDE & ASSOCIATES, P.A.
ATTORNEYS AT LAW
POST OFFICE BOX 1357
TUPELO, MISSISSIPPI 38802
TELEPHONE: 662/842-7324
FACSIMILE: 662/842-8056
EMAIL: waide@waidelaw.com
Attorneys for Plaintiff
00222048.WPD
-2-
CERTIFICATE OF SERVICE
I, Jim Waide, one of the attorneys for Plaintiff, do hereby certify that I have this day served,
via First Class United States mail, postage prepaid, a true and correct copy of the above and
foregoing to the following:
Gary E. Friedman, Esq.
Gregory Todd Butler, Esq.
Phelps Dunbar, LLP
4270 1-55 North
Jackson, MS 39211-6391
THIS the ___.3._ day of March, 2011.
00222048 .WPD
-3-
I
IN THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSISSIPPI
JAMES WAYMONHAHN
PLAINTIFF
vs
DEFENDANT
Upon Motion of Plaintiff, no objection from Defendant and for good cause shown, it is
hereby ORDERED that Plaintiff be granted through and including March 7, 20 11 in which to file
his Response and Brief in Opposition to Defendant' s Motion for Partial Stmunary Judgment and
Protective Order.
ORDERED this the
_iL_ day of _
_.t/a"-""~"""
~-----''
2011.
JUDGE
_\~l____;DAYOF
-~--PAGE~
CIRCUFTCLER~
----'~_
00221587.WPD
_ _ _ D.C.
Mississippi State University, Delta State University and Mississippi Valley State University.
Deposition of Chip Morgan, pp. 6-7.
The primary source of funds for Defendant is the "money Senator Cochran bring~ . " Morgan
depo., pp. 7, 11. The "which Senator Cochran brings" for the year .ending June 20, .2008 was
$13 ;549,437.00, whereas .the money from all other sources was $66,355.00. Delta Health Alliance
Statement of Activities for 2008, Exhibit ".D". For the 2010 buclget year, the .federal tax money
received was $31,867,827..00. For2010,.this.budgetlists no money from any source other than the
federal government. Bates Nos. 312-313 to Defendant's Response to Second Set oflnterrogatories
and Requests for Production of Documents, entitled "Budget Information - Non .Construction
Programs," Exhibit "E."
Plaintiff James Habn,.a career hospital administrator, started to work for Defendant in March
2009 as Senior Vice President for Programs. Defendant's Motion, Exhibit G thereto. Hahn reported
directly to Dr. Karen Fox, Defendant' s Chief Executive Officer. Volume I of Deposition of James
Habn, p. 64, Exhibit "F." 1 Fox was pleased with Hahn's early performance, giving him a generous
raise in December 2009 and writing a glowing report about his performance. Memorandum from
Karen Fox to Plaintiff, dated December 18, 2009, Exhibit "G."
However, just three months.afterreceivingthis exemplary evaluation, Hahn approached Dr.
.
James Keeton, the UniversityofMississippi Medical Center representative on the Defendant's Board
ofDirectors, to discuss an "intense conflict" between the University of Mississippi .M edical Center
and Defendant. Plaintiff feared that because of this conflict, the University ofMississ.ippi Medical
Centermight withdraw.support from Defendant, which could cause the collapse of the.organization.
Hahn's deposition consists oftwo volumes, which will 'hereinafter be cited as Hahn I and Hahn II.
Hahn I, p. 34. Hahn did not know the exact ~ature of the conflict, but Defendant's 30(b)(6)
representative has testified at .deposition that.the "most prominent part ofthe controversy" was that
Defendant was "requiring the University ofMississippi Medical Center for their participation, to use
'Allscripts' software."2 Besides discussing with Dr. Keeton this "intense conflict" between the
University of Mississippi Medical Center and Defendant, Hahn also informed Dr. Keeton about
"exposure" of the board "because of "fraudulent activities." Hahn I, p. 34. According to Hahn,
Defendant's employees had.been "resigning ... because of the fraudulent activities." Hahn I, p.. 35.
Hahn told Keeton that he was "concerned about ... my exposure, the board's exposure and Dr. Fox ' s
exposure ... to risk as ... a result of fraudulent activities." Hahn I, p. 34.
.
Dr. Keeton informed Hahn that he should report his concerns to the chairman, Dr. John
Hilper, who serves as ch~an ofDefendant'sBoard by virtue ofhis position as President of Delta
State University. Hahn I, .pp. 47-48 . .
On March 17, 201 0, Hahn met with Dr. Hilper, describing concerns about potential criminal
activity that was occurring in Defendant's daily operations. Hahn I, p. 60. Hahn advised Dr. Hilper
about: (1) his concern about being involved in the lease of an expensive condomii)ium apartment
located near the square in Oxfor~, Mississippi for priyate use. Hahn I, p. 60; (2) :Fox's having
unilater~y modified certain company _policies to realize individual gain, Hahn I,
purchase of two luxury automobiles forpersomil use, Hahn I, pp. 60-61;(4) Fox's unilateral change
of Defendant's automobile policies so as to _provide herself a $3,000.00 per month automobile
allowance, and adjustment of Defendant's pension plan such that a small group of top executives,
"Allscripts" refers to Allscripts Health Care Solutions, Inc," a publicly traded supplier of m~dical software.
00221574.WPD
-including both Fox and Hahn, received financial benefit, Hahn I; pp. 61, 187-88; (5) p~yment of an
interior decorator for decorating Fox'.s private borne in Memphis and .disguising those payments as
being for work for Defendant's cabinsJocated in .Stoneville, Mississippi, Hahn I, pp. 208., 21.6-:20;
Hahn II, p. 20, Exhibit "H"; (6) "budget adjustments,'" resulting in the hiring of an expensive mediapolitical advisor, Jere Nash, Hahn I, pp. 60-64, 66-61; {7) .unauthorized use of federal. funds :for the
purpose of hiring persons to lobby the Mississippi State Legislature, Hahn I, pp. IOJ-02, 108; (8)
Fox's using Defendant's funds to pay Fox's private .attomey, Hahn I, pp. 113-14, 1.16, 121; and (9)
use of Defendant's funds to pay an employee for serving as Fox's private babysitter at__her _h ome in
Memphis, Hahn I, pp. 199-200.
Finally, Hahn expressed concerns that theprograms he was hired to head were providing little
or no benefit for the intended beneficiaries, poor people 'living in the Delta. Hahn I, pp. '203-04.
Defendant's response to Hahn's report was. to.hire Roy Campbell of the Bradley Arimt Boult
Cummings LLP ("Bradley-Arant") law firm to .investigate. In response .to Campbell's questions,
Hahn also told Campbell about his concerns. At his deposition, Attorney Campbell recalled that
Hahn had reported to him that he was concerned that Fox "was going to jail" if the Board did not
intervene; had reported about her change in automobile poliCies, to provide for a $3,000.00 a month
.
car allowance, which Fox used to buy herself a Mercedes. Deposition of Roy Campbell, pp. 23-24,
Exhibit
"I."
Further, Campbell recalled that Hahn had related to him concer:ns a~out . the
condominium on the square being a place where "she can shop; "that senior officials in the company
did not know what consultant Jere Nash was doing; and that Fox had gotten Defend.cmt to pay her .
private legal bills to Attorney John Dunbar
.. Ominously, Hahn told Campbell that
.
. it was "what I
don't know" that was most worrisome. Campbell depo., p. 22.
00221574.WPD
Hahn testified in his deposition that 'he also attempted to tell Campbell
condominium inOxford'but was "rebuffed."' Hahn 1, 'p. 132 .. _
abm~t
the 'luxury
Hahn also testified at this point that Fox had told him that the condominium was going to be
'
used to house salespeople for.Allsciipts, a Chicago-based software vendor. Hahn I, pp. 13 0-31.
Campbell testified .that he investigated Hahn's charges by talking to the Chief Medical
Officer Dr. Keith Mansell, Karen Fox, and FinancialOfficer Steve Osso. Campbell depo., pp. 3 3-44.
Dr. Mansell did tell Campbell that.he was aware of $300,000.00 that had been paid to Delta
Council, and that he, Dr. Mansell, did not know the purpose of such payment. Campbell depo., p.
34.
Osso corroborated Hahn'~ report about the car allowance of$3,000.00 per month, which he
considered "excessive." Campbell depo., p. 37. Also, Osso told Campbell about a$600,000.00
total budget for Jere Nash, which Osso opined "seemed like ... was" for "access to Bennie
00221574.WPD
'
Thompson..,' Osso had also told Campbell .about concerns that "indirect costs" (those costs not
allocated to .a specific healtb program), had increased from thirty percent of the budget to seventy
percent. Campbell depo., p. 40. Osso also related to Campbell that Fox had told 'him about a
$900,000.00 bill from Allscripts, the .software :vendor. Campbell depo. , p. 4.5.. Defense counsel
instructed Campbell to refuse to answer any questions .about the Allscripts bills. Campbell depo.,
pp. 43-44. Osso didtell Campbell that he thought inappropriate obligations to Allscriptsmay have
been incurred. Campbell depo., p. 46. Defense counsel also instructed Campbell to refuse to answer
questions about who initiated the decision to fire Hahn. Canipbell depo., pp . .52-.55.
Campbell was assisted in his investigation of Hahn's allegations by Will Manuel, another
lawyer in the Bradley-Arant firm. Manuel had little independent recollection of his part in the
inv~stigation, but he.read into the record notes about what h~had been told by several-ofDefendant' s
employees.' Manuel testified that.he'had interviewed Ricky Boggen~ Defendant's in~house counsel,
and Boggen reported that he had been told that the Oxford luxury apartment was "complimentary,"
having been furnished because Defendant was also leasing an Oxford office whic};l was "under
construction:" Deposition of Will Manuel, pp. 8, 24, Exhibit "J." Boggen also reported to Manuel
that Chuck Fitch, an administrator whom Fox had brought with her from Tennessee, had ~'overspent
.
his budget by $800,000.00. Manuel depo., p. 37. Manuel related the note about the $800,000.00
was in a portion of his note under the title "Allscripts." Mariuel depo., pp. 49-50.
Manuel also related that Fox herselfhad advised him (Manuel) that "Chip [Morgan] called
Chuck [Fitch] and told him that everyone is implicated in federal wrongdoing." Manuel depo., p.
3 7.
00221574.WPD
6
,
information "that Allscripts was giving Karen F?xany financial benefit of any kind ..,, Nlanuel depo.,
.p.50.
Manuel also related that he had been told by another employee, Patrick Owens, -.that
decorating expenses for the Oxford -condominium amounted to $111,000.00 . Manuel depo. , p. 63 .
According to Manuel's notes, Jere Nash, the media consultant, was being paid $750.00 per day.
Manuel depo.,-p. 61. Manuel's notes further indicated that-Fox had shredded the attorney's fees bill
from Attorney John Dunbar. Manuel depo., p. 64. Manuel als? related that according to Owens,
there was a $700,000.00 alleged debt to Allscripts, but Owens stated he could not tell wbether or not
-this was a legitimate debt. Manuel depo., pp. 74-75 ..
Defendant claims it had Hahn's allegations "investigated by Certified Publie ..Accountant
Howard Davis, and Davis has found his charges baseless. However, Davis~ depositipn .refutes the
chiim.. !d. Rather, Davis testified he was hired as an auditor to determine whether the company's
financial statements present "fairly the financial position" of the company. Deposition of Howard
Davis, p. 4, Exhibit ''K." Davis reported to Defendant that he learned Dr. Fox did have a $3,000.00
car allowance, but he was not asked whether this was appropriate or inappropriate. He never
commented on the matter one way or the other. Davis depo., pp. 8.:9; Davis testified that he did not
know whether there was any record of the Board ofDirectors' ever approving the car allowance, out
that if an officer had approved this car allowance, without knowledge of the Board ofbirectors, that
, would be an inappropriate control procedure. Davis depo., pp. 10-11. Davis testified that he had
examined invoices of Jere Nash and determined that the invoices were consistent with-the contract
.amounts agreed upon. Davis depo., pp. 11-12.
00221574.WPD
University ofMississippi ChancellorKhayat, qy media and b1ogs. Davis d~po., pp. 12-13 ;.Jere Nash
em;lll to Chip Morgan dated M~y .2, .2009, Exhibit "L." Davis testified, however, that he had not
been shown this email when he was told to exarriinethe Nash contracts. Davis did not lmow whether
.
a media campaign to discredit the University of Mississippi President was within ihe contract terms
of what Nash was hired to do. Davis depo., .PP 12-1 J. Davis stated that amounts paid to Nash
complied withN ash's contract, but never told Defendant that Nash was being paid ah "appropriate"''
amount. Davis depo., pp. 13-15. Furthermore, Davis testified that he had no knowledge that
anything in his report had anYthing to do with the firing of James Hahn. Davis depo., p. 16.
.
. Davis testified his study of the financial documents .indicated that Defendant was paying
.
$275,000.00 per year to DeltaCouncil; the very entity which appoints the m~jority ofmembersto
Defendant's Board ofDir_ectors. Davis depo., .p. 16. Davis made no inves~igation amhendered no .-~
opinion as to whether or not the serVices being provided [?y De1ta Council to.Defendant were worth
that amount ofinon~y. !d.
. Attorney Campbell did not make any written report to the Board on his .fi~dings, but testified
. that .he made an "oral" report in which 'he made no recommendation about Hahn's employment.
Campbell depo., p. 51..
On .May 18, 2010, Hahn was notified that he was on administrative leave "effective
immediately ... ' Letter dated May 18, 2010 (Exhibit B to Complaint), Exhibit "M."
Thereafter, Defendant attempted to reach a settlement with Hahn under which Hahn would
sign a statement stating, in part, "no evidence existsof financial fraud or illegality;" that he has "no
knowledge of any concerns or other improprieties of ap.y nature at DHA;" that the Bradley-Arant
00221574.WPD
attom~ys had concluded "there was no evidence of any financial or illegality;" that he had never
reported anY of his da:ims to any '~funding entity" and -he had "no intention of making any Such
-r~port."
Hahn 'refused to sign the .proposed Release. Instead, he commenced this suit .on
Ju~y
22,
ARGUMENT I.
THERE ARE ISSUES OF M ATERIAL FACT AS TO WHETHER
PLAINTIFF'S REPORTING DEFENDANT'S LEASE OF A L UXURY
CONDOMINIUM FOR PRIVATE PURPOSES CONSTITUTED A REPORT
OF ILLEGAL ACTIVITY SUCH THAT DEFENDANT MAY BE HELD . .
LIABLE'FOR DISCHARGE IN VIOLATION .OF PUBLIC POLICY.
McArn v. AlliedBruce-TerminixCo., Inc., 626 So.2d 603,607 (Miss.1993), held that" ... an
.
employee who is discharged for reporting illegal acts ofhis employer to the erilp'loyer or anyone else
.
is not barred by the employment at will doctrine from bringing action in tort for damages against his
emp1oyer." Subsequently, Willard v. Paracelsus Heath Care Corp. , 681 So.2d 5.39 (Miss. 1996)
.("Willard F') held that a party who brings such an action is entitled to pursue all remedies, including
punitive damages. The Willard I court held:
Today, we answer in the affirmative the question of whether .such conduct, if found,
is .a n independent tort giving rise topunitive damages. The public has a legithnate
interest in seeing that people are not discharged for reporting illegal acts .'or not
participating 'in illegal acts which may result in harm to the public interest. Anyone'
who terminates an employee for such reasons should be allowed a jury insttuctf0n on
the issue of punitive damages in order to deter similar future conduct.
00221574.WPD
stated: "Willard and Sumner reported what they believed were financial irregularities and were
subsequently discharged or constructively discharged.'" I d. at 544. (Emphasis addeq)
The Mississippi Supreme Court ruled that a showing of a good-faith belief was all thatwas necessary
was reinforced in Paracelsus Health Care Corp. v: Willard, 754 So.2d 437 (Miss. 19-99) (Willard
- II), where Justice Banks, writing forthe majority, held: "Contrary to Paracelsus' argument, neither
McArn or Willard I (finding punitive damages available for retaliatory discharge), suggest that the
plaintiff must first prove that .a crime was .committed. Thus, this contention fails ." !d. at 443.
Further, these Mississippi Supreme Court holdings that Plaintiff need only prove that he in
good faith made a report of criminal activity are consistent with Mississippi statutes protecting
wbistle blowers: See Miss. Code Ann. 25-9;.. 1.71 (providing protection for an employee who "in
.
good faith" reports an alleged improper governmeri~ acticm to a state investigative boqy).
Defendant contends .that James
According to Defendant, it is not enough to show that Hahn had a good faith belief tl1at there was
criminal activity. For this proposition, Defendant cites Wheeler v. .BL Development Corp .., 415 F.3d
3 99, 404 (5th Cir. 2005). However, Wheeler was making only an "Erie" guess as to Mississippi law,
and it guessed wrong, since Wheeler contravenes the Mississippi Supreme-Court holding in Willard
L Furthermore, after Wheeler was decided, the Fifth Circuit certified to the Mississippi Supreme
Court the case of DeCarlo v. Bonus Stores, Inc., 989 So.2d 351 (Miss. 2008). In response to a
.certified question, the Mississippi Supreme Court in DeCarlo stated:
As we clearly stated in Willard I, "[d]ischarge in retaliation for an employee's good
faith effort to protect the employer from wrongdoing constitutes an independe11t tort
and may support punitive damages." Willard I, 681 So.2d at 543.
00221 574.WPD
10
That the Mississippi Supreme Court will.not impose an over~y strict requirement on exactly
what plaintiffmust report in order to be protected by the public policy exception is .also indicated
by .East Mississippi State Hosp. v. Callens, 892 So.2d soo, 804 (Miss. 2004), where the plaintiff
alleged:
that he was terminated for his efforts to correct, or at least expose, improper
treatment of some of the patients by the hospital staff.
Alternatively, Cailens asserted that 'his firing was in retaliation for his reporting
improper operations .at East Mississippi Statv Hospital, thus making his termination
actionable under Mississippi common law :as an exception to the employee-at-will
doctrine first recognized in McArn v. AlliedBruce-Terminix Co., 626 So.2d 603.~ 607
(Miss.l993).
Callens affirmed a wrongful termination verdict, even though there was no allegation that
actual .criminal activity was occurring, but
o~y
correct, or at least expose, improper treatment ofsome of the patients by the hospital staff." I d. at
804.
As was stated in DeCarlo, quoting .Willard.!:
As we clearly stated in Willard/, "[d]ischarge in retaliation for an employee's good
faith .effort to protect the employer from wrongdoing constitutes an 'independent tort
and may support punitive damages." Willard I, 681 So.2d at 543.
00221574.WPD
11
.;.
would travel all over the state and the Delta to - as vendor representatives for offscripts [sic]3
James Hahn I depo
Q:
A:
Q:
All right. You were told by whom that it was going to be used for personal
use?
I saw with my own eyes.
Personal use by whom?
The term "off-scripts" is a typographical error by the court reporter. The correct name is Allscripts, a
vendor that will be discussed elsewhere in this brief.
00221574.WPD
12
Defendant also claims that it should be granted summary judgment on the apartment issue,
because the government funding agency, HRSA, approved the lease of the apartment. Defendant
attaches an email, which it claims is an email under which a HRSA representative approved the
leasing of the apartment. See Defendant' s Motion, Exhibit Q, Exhibit "0." No representative of
HRSA has authenticated this email.
In any event, the argument that HRSA approved Defendant's expenditures assumes that
Defendant told HRSA the truth about the expenditures. Surely, the United States would not have
approved the expenditures on the apartment if it knew the apartment was not for the
Congressionally-approved purpose of serving medical needs of :r:esidents of the Mississippi Delta.
At his deposition, Dr. Hilper, the Chairman of the Defendant's Board, testified that he did
not know anything about the lease of the luxury apartment until after Hahn filed the present
complaint. Hilper depo., p. 35 . Hilper also testified that even as of the date of the taking of his
deposition, he still did not know if there were any records demonstrating any proper business use of
the apartment. Hilper depo., pp. 35, 37-38.
Similar testimony was given by board member Dr. James Keeton, who testified:
Q:
A:
Do you know today-- as we sit here today-- why the Delta Health Alliance
would need a condominium in Oxford?
No, sir.
Q:
At the time you left the Delta Health Alliance Board in 2009, were you
familiar with any services that Delta Health Alliance performed in
Oxford, Mississippi?
A:
Any services?
0022 1574.WPD
13
Q.:
Yes, .sir. Anything if had done, anjr work -it had done in Oxford.
A:
indicat~g
the same building, for business purposes. Several of these affidavits do not even :indicate that it was
the condominium ratherthan the office spaces they were using. None of these affidavits demonstrate
there was any business use of the condominium prior to the filing of this suit. When asked in
interrogatories about the business use of the apartment, the Defendant identified only three persons
whom it claimed to nave ever stayed overnight in the condominium, and one of these was Karen Fox.
Defendant's Re~ponses to .Plaint~ffs Second Set oflnterrogatories, Exhibit "R."
Defendant argues that Plaintifr' hicks standing to complain about use of the apartment for
private reasons because he
IS the
However, Hahn's testimony was that he did.not know about any improper use of the lease at the time
Fox sent him to lease the apartment. Hahn I depo., pp. 159-162, 169. It was not until Hahn had
already followed Fox's direction to negotiate and sign the lease~ that he began to .suspect wrongdoing
00221574.WPD
14
when Rox told him that she would have a '~problerri" if the board found out about the lease of the
.apartment. Hahn 1 depo. , p . 144. Only after Hahn had furnished-the apartment did Fox direct him
to take the furniture out; whereupon, she .furnished it with its current elaborate luxliry furnishings.
Hahn I depo., p. 181.. Manuel depo., p. 63.
ARGUMENT II.
DEFENDANT IS NOT ENTITLED TO A PROTECTIVE ORDER
PROIDBITING .PLAINTIF.F -F ROM INQUIRING INTO ALLEGATIONS
CONCERNING T:ij.E DISPUTE BETWEEN TilE UNIVERSITY OF
MISSISSIPPI MEDICAL CENTER AND DEFENDANT CONCERNING
ELECTRONIC HEALTH RECORDS ORALLEGA'FIONS OF "IMPROPER"
DONATIONS TO THE UNIVERSITY OF MISSISSIPPI BY ALLSCRIPTS.
Defendant asked the Court to bar Plaintiff -from askirig about the dispute concerning
"electronic-health records'' and donations to the.Uriiversity o fMississippi by Allscripts. The dispute
concerning the electronic health re~ords andthe cionati~ns by Allscripts are interrelated. Allscripts,
',
is a supplier -of electronic health records and the receipt of_the stunning amount of taxpayer money~
paid to it by Defendant. While Defendant
has -refused
to answer Plaintiff's requests:for discovery
.
.
specifying the amounts of its p~yments to Allscripts during 2009 and .201 0, _the records from 2008
also show payments qy the Defendant for electronic health records for .~e year 2008, alone, was
$1,775,385 .07. Delta Health Alliance, Inc.'.s Statement of Activities for the year ending June 30,
2008.
The discovery Plaintiff has .obtained indicates a huge increase in the budget of Delta Health
Alliance from 2008 to 2010. Therefore, it is likely that Allsciipts lias been paid far mon~to Allscripts
in 2009 and 4010, Furthermore, Delta Health Alliance made a multi-million dollar grant to the
University of Mississippi Medical Center, and required the University to use Allscripts as the vendor
00221574.WPD
15
of software for their electronic health records. Deposition of Sam Dawkins, 3 O(b)(6), _p.14, Exhibit
"S :" Plaintiffhasyet been unable to obtain records showing howmuch the Universizy of Mississippi
Medical Center has paid Allscripts.
..
.
Plaintiff's motion correctly advises the Court that .Plaintiff is seeking discovery concerning
contributions which were made to the University of Mississippi at Oxford for which Fox was
credited, but which Plaintiff believes were actuallymade by Allscripts. Plaintiff is trying to learn
whether contributions made to the University of Mississippi and credited to Fox. were actually
. made
by Allscripts in exchange for Fox influencing Defendant and the University of Mississippi Medical
Center to purchase electronic health records from Allscripts.
If Allscripts made ".donations " on behalf of Fox for the purpose of influencing federal
healthcare bus'lness, a federal crime under the Medicare Anti-Kickback Statute hasbeen committed.
United States v. McClatchey, 217 F.3d .823 (lOth Cir. 2002); United States v. Grebar, 760 F.2d 68 .
(3rd Cir. 1985); 42 U.S.C. 1395; 18 U.S.C. 24.
Defendant argues, however, that inquiring into any illegal financial activities lith respect to
Allscripts and the electronic health records, should be barred because Hahn did not tell th~ Defendant
about such kickback activities at the time he made his complaints.
However, Hahn did alert the Defendant to the fact that his wife (an employee of the University
of Mississippi Foundation) was aware of "fraud," in which Fox was involved. Hahn was
understandably c.oncemed.about revealing additional information for fear of jeopardizing his wife's
job. Hahn has lost his job for reporting illegal .activity, and he does not want his wife to suffer be
fired also. Plaintiffs counsel, therefore, legitimately advised Hahn to claim the husband-wife
privilege. Defendant can certainly take Hahn's wife's deposition, or: the corporate deposition of the
00221574 .WPD
16
~y
acts (such as receiving kickbacks) is relevant on .the issue ofintent. See Miss. Rule ofEvid. 404(b ).
A broad ruling -by the court that Plaintiff cannot obtain discovery about how much taxpayers have
paid Allscripts and abotJt any benefit to Fox _provided by Allscripts, is .inconsistent with the
Mississippi.policy permitting broad discovery. See, Miss.R.Civ.P. 26(b) (Party m;;ty obtain .any
informationthat "may lead to discovery of relevant evidence.'")
. ARGUMENT III.
TIDS COURTSHOULD ENTER AN ORDERCOMPELLING DEFENDANT
TO SUBMIT TO DEPOSITIONS, . TO , REFRAIN FROM REFUSING TO
ANSWER QUESTIONS AT THE .DEPOSITIONS, AND TO ANSWER
.
P.LAINTIFF'S SPECIFIC DISCOVERY INQUIRIES.
By letter dated December 28, 2010, .defense counsel announced that Defendant would
participat~ in no further depositions. See letter, Exhibit "T." Defendant wants the..Court to limit
Plaintiff to three more depositions, and to limit what can be asked in those depositions. Most
importantly, Defendant refused to produce crucial financial documents.
For example, Defendant refused to provide invoices describing what services Attorney John
.
Dunbar provided to the Defendant. Defendant's Response to Plaintiffs Request for Production of
Documents # 12. Exhibit "U." These documents are necessary to determine wheth~ the services
Dunbar provided were private attorney services rendered to Fox personally, or whether they were
'legitimate legal expenses of the Defendant.
00221574 ,WPD
17
Defendant .has refused to .Provide the documents evidencing payment for the ftimishings for
the luxury apartment. Defendant's Response to Request for Production of Documents ..#!.?.. Exhibit
"U." This request is relevant, because Plaintiff is claiming tbe apartment was furriishe.d in a lt~.xury
fashion, for personal use.
. Defendant bas refused to provide invoices submitted by Jere Nash for 2009-2010.
Defendant's Response to Request for Production ofDocuments #20. Exhibit "U." These are relevant
to determine the legitimacy of payments to Nash, especially since Plaintiff-has evidence that .one of
Nash's activities was to advise Chip
President.
Mor~an
by Defendant for 2009 and 2010. Defendant's Response to Request for Production of Documents
#25-28, Exhibit "U.."' Whether taxpayer money is _being illegally spent is at the heart o~tP.is lawsuit.
This Court should enter an order requiring Defendant to fully answer Plaintiff's.Requests for
Production of Documents. The Defendant is not
a private company. It is
taxpayers oftheUriited States. There is no legitimate reason to refuse to .keep Plaintiff, or any other
taxpayer, from seeing its financial records.
.
To date, Plaintiffhas been allowed to depose only two of!he nine members of the Defendant
Board of Directors. These two Claimed they had little or no knowledge about the expenditures about
00221574.WPD
18
which Plaintiff complains. There may be members of the Board of Directors who are .familiar with
Defendant's expenditures and know whose idea it was to fire Hahn . .
CONCLUSION
Defendant's Motion for Partial Summary Judgment regarding the Oxford 1uxury .apartment
is baseless and should be denied.
The Court should also deny Defendant's Motion for Protective Order, and should enter an ..
order directing the Defendant to fully participate in discovery and to .answer the outstanding Requests
for Production of Documents.
Respectfully submitted,
WAIDE & ASSOCIATES, P .A.
BY:~-Y?~
WAIDE
MS BAR NO.: 6857 .
RACHEL PIERCE
.
.
MS BARNO.: 100420
~
00221574.WPD
19
-OERTIFICA"TE OF -SERVICE
I, Rachel M. Pierce, one ofthe attorn~ys for Plaintiff, do hereqy certi:fy that !.have this -day
served, via FirstClass United :States:mail, postage prepaid, a true and .correct copy of the above and
foregoing to -the following:
..
Gary E. Fried:{llan, Esq.
Gregory Todd Butler, Esq..
Phelps Dunbar, LLP
4270 I-5.5 North
Jackson, MS 39211-6391
' ''
'I
.Jn.rku
~PIE!tcE
00221574.WPD
20
lAFAYETTe COUNlV
Fll D
MAR
vs
PLAINTIFF
DEFENDANT
Plaintiff James Wayman Hahn responds to Defendant' s Motion for Pa1iial Summary
Judgment and for Protective Order and Order Requiring Defendant to Provide Discovery, as follows :
1.
lease of a luxury condominium for private purposes constituted a report of illegal activity such
that Defendant may be held liable for discharge in violation of public policy.
2.
into allegations concerning the dispute between the University of Mississippi Medical Center and
Defendant concerning electronic health records or allegations of "improper" donations to the
of Mississippi by Allscripts.
University
,3.
to refrain from refusing to answer questions at the depositions, and to answer Plaintiffs specific
discovery inquires.
4.
0022 1574.WPD
Exhibit "A":
Exhibit "F":
Volume I ofDeposition ofJames Hahn, pp.- , 34-35, 47-48, 60-64, 6667, 187-88, 101-02, 108, 113-14, 116, 121 ,- , 144, 159-62, 169, 177,
181, 199-200, 203-04,208, 216-20;
Exhibit "G' ~ :
Exhibit "H":
Exhibit "I":
Exhibit "J":
Deposition ofWill Manuel, pp. 8, 24, 37, 49-50, 61, 63-64, 74-75;
Exhibit "K":
Exhibit "L":
Proposed Release;
Exhibit "0"
Exhibit "P":
Exhibit "Q":
Exhibit "R":
Exhibit "S":
-2-
Exhibit "T":
Letter from defense counsel, dated December 28, 2010, announcing that it
would participate in no further depositions;
Exhibit "U": Plaintiff's Second Set ofinterrogatories and Request for Production #12,
#17, #20 and# 25-28;
Accordingly, Defendant' s Motion for Partial Summary Judgment and for Protective Order
and Order Requiring Defendant to Provide Discovery, should be denied .
Respectfully submitted,
WAIDE & ASSOCIATES , P.A.
BY:~~.&w
MS BAR NO .: 6857
RACHEL M. PIERCE
MS BAR NO.: 100420
0022 1574.WPD
-3-
CERTIFICATE OF SERVICE
I, Rachel M. Pierce, one of the attorneys for Plaintiff, do hereby certify that I have this day
served, via First Class United States mail, postage prepaid, a true and correct copy of the above and
foregoing to the following:
Gary E. Friedman, Esq.
Gregory Todd Butler, Esq.
Phelps Dunbar, LLP
4270 I-55 North
Jackson, MS 39211-6391
THIS the 21st day of March, 2011.
00221574.WPD
-4-
PLAINTIFF
vs.
DEFENDANT
Plaintiff James Hahn ("Plaintiff') filed this wrongful discharge lawsuit on July
22, 2010, listing seven allegations that were supposedly reported and which he deems criminal.
Important for purposes of the instant Motion for Partial Summary Judgment is Plaintiffs
allegation that he reported that DHA' s CEO instigated the lease of a condominium in Oxford,
Mississippi for her personal use. In discovery, Plaintiff has used this allegation as a tool for
embarrassment by questioning witnesses in depositions about intimate aspects of the CEO's
personal life. DHA seeks partial summary judgment as to this one issue because Plaintiffs
theory is without legal or factual support, and dismissal of the condo allegation will stop this
unwarranted attack on Dr. Fox.
2.
CEO acted within the scope of her authority in initiating the condominium lease since DHA's
funding agent, the Health Resources and Service,s Administration (HRSA), approved the lease.
,
EXHIBIT
PD.1902044.2
39~ ,"
1999) (holding that, in wrongful discharge cases premised on reporting criminal acts, the
employee must both have a good faith belief that the reported conduct is criminal and "come
forth with evidence establishing [that the action complained of] constitute[s] criminal activity").
Finally, even assuming Plaintiff could establish some wrongdoing (which he cannot), his
participation in the leasing of the condominium would mandate partial summary judgment for
DHA under the doctrine of in pari delecto, which prevents courts from extending aid to either of
the parties to a criminal act. See Am. Int 'l Group v. Greenberg, 976 A.2d 872, 882 (Del. C. C.
2009) ("In pari delicto is a general rule that courts will not extend aid to either of the parties to a
criminal act or listen to their complaints against each other but will leave them where their own
act has placed them.").
3.
entered to forbid Plaintiffs counsel from delving into three areas having absolutely no relevance
to the instant suit. See 8 Wright & Miller, Federal Practice and Procedure, 2037, at 499-500
(2d ed. 1994) (explaining that a protective order providing that a deposition shall not be taken is
appropriate when it clearly appears that the information sought is wholly irrelevant and could
have no possible bearing on the issues of the case). These areas are:
1.
An alleged dispute between the University of Mississippi
Medical Center ("UMMC") and DHA having to do with the
implementation of a system for electronic health records;
2.
Allegations of improper donations to the University of
Mississippi by Allscripts, a provider of software for electronic
health records; and
3.
A general claim that D HA appropriated federal gr"ant
money to programs that were not executed welL
4.
2
PD .I 902044.2
DHA also requests that the protective order limit the number deposilions that may
I
be taken by Plaintiff's counsel. To date, Plaintiff's counsel has taken a total of 13 depositions
and has indicated his intent to take 13 more. Many of these depositions Plaintiff's counsel seeks
to take are of witnesses who have little or no relevant information regarding the issues in this
suit. It is well established that a trial court is entitled to prevent or limit depositions that would
be irrelevant or cumulative. See Haley v. Harbin, 933 So. 2d 261, 263 (Miss . 2005) (holding that
the trial comi impermissibly allowed discovery that was "grossly excessive in number"); see also
In re Evangeline Refining Co., 890 F.2d 1312, 1320-21 (5th Cir. 1989) (holding that the trial
comi' s refusal to issue a deposition subpoena was not an abuse of discretion where the
"deposition sought was of limited probative value and largely cumulative").
5.
In
addition
to
the
supporting
memorandum
of authorities
submitted
contemporaneously herewith, DHA relies upon the following .exhibits, a true and correct copy of
which is attached hereto:
A.
Deposition Notices;
B.
C.
D.
Plaintiff's Deposition;
E.
F.
G.
H.
I.
J.
K.
Plaintiffs Complaint;
....
3
PD.I902044 .2
3. .
L.
M.
N.
0.
P.
Q.
HRSA Approval;
R.
DHA Affidavits;
S.
T.
u.
v.
undisputed facts relied upon and not genuinely disputed, pursuant to Rule 4.03 of the Uniform
Circuit and County Court Rules:
a.
Plaintiff was hired by DHA as a Senior Vice President in April 2009 and signed
Mississippi.
c.
d.
Plaintiff negotiated and signed for the condominium lease and was responsible for
4
PD. 1902044 .2
f.
In March 2010, Plaintiff met with Dr. James Keeton, who is Vice Chancellor of
University of Mississippi Medical Center and was then a member of the DHA Board. During
that meeting, Plaintiff told Keeton that he believed criminal activities were going on at DHA.
g.
DHA eventually hired the law firm of Bradley Arant Boult Cummings, LLP, in
The law firm's investigation found that Plaintiffs allegations were without any
evidentiary support.
J.
After reviewing the investigation findings , the Board of Directors concluded that
Plaintiffs accusations of criminal conduct were not only baseless but were made in bad faith and
had cost DHA thousands of dollars in investigatory fees.
k.
Plaintiffs resignation was sought by the Board, but he refused to step down from
his position.
1.
r~spectfully
requests an entry of
5
PD.!902044 .2
BY: ~~~~~~~~------------
Gary E. riedman, MB #5532
Gregor Todd Butler, MB #1 02907
4270 I-55 North
Jackson, Mississippi 39211-6391
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: friedmag@phelps.com
butlert@phelps. com
6
PD.I902044 .2
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have this day forwarded, via United
I
States mail, postage prepaid, a true and correct copy of Defendant's MOTION FOR PARTIAL
SUMMARY JUDGMENT AND FOR PROTECTIVE ORDER to the following counsel of record:
THIS, the
7
PD. l902044 .2
--------
--
------------------- ------
ORIGINAL TRANSCRIPT
IN THE CIRCUIT COURT OF LAFAYETTE COUNTY,
MISSISSIPPI
JAMES WAYMON HAHN
PLAINTIFF
VERSUS
DEFENDANT
APPEARANCES:
JAMES D. WAIDE III, ESQUIRE
Phelps Dunbar
4270 I-55 North
Jackson, Mississippi
39211
of the Plaintiff
Phelps Dunbar
39211
at 10:30 a.m.
~------------~1
~ i1~Ec.
r'\
t..
(60 1) 825-6339
Fax (601 ) 825-J ]54
P. 0 . Box 173 1, Jackson,MS 39215
- -------- ---------- --
www.sharronallen.com
- -- - ------ ~-
Q.
A.
Brad Prewitt.
Tupelo.
washington.
discussed it.
10
Q.
11
12
13
He was working in
He and chip Morgan
14
Q.
15
A.
That's correct.
16
17
18
19
20
discussions.
21
Q.
22
23
24
25
and Dr.
35
property.
Q.
or purchase it as well?
A.
Q.
All right.
when
A.
After.
10
Q.
After?
11
A.
12
13
Q.
okay.
14
A.
I'm sorry,
15
Q.
Once --
16
A.
17
Q.
18
19
20
21
22
don't recall.
Yes.
All right.
23
A.
24
Q.
25
A.
No.
37
rooms.
A.
Q.
The law firm told the board that the law firm
A.
Yes.
Q.
10
that was?
11
A.
I don't recall.
12
Q.
13
14
identities?
15
A.
16
Q.
17
A.
That's correct.
18
Q.
19
20
A.
Do I personally know?
21
Q.
Yes, s1r.
22
A.
23
I don't know.
24
Q.
25
38
A.
I don't know.
Q.
A.
No.
Q.
built?
A.
Yes.
Q.
They did?
A.
Yes.
10
Q.
11
as you know?
12
A.
13
Q.
14
15
16
17
Q.
18
A.
19
Q.
20
knowledge?
21
A.
22
Q.
23
to your knowledge?
don't know.
24
A.
25
Q.
_ -_~-~----=---~-=-==============--==----------------~
~-------------
ORIGINAL TRANSCRIPT
IN THE CIRCUIT COURT OF LAFAYETTE COUNTY,
MISSISSIPPI
JAMES WAYMON HAHN
PLAINTIFF
VERSUS
DEFENDANT
A PPEARANCES:
JAMES D. WAIDE III, ESQUIRE
Phelps Dunbar
4270 I-55 North
Jackson, Mi ssi ssi ppi . 39211
REPRESENTING THE DEFENDANT
ALSO PRESENT:
I
(601) 825-6339
Fax (601) 825-1154
P. 0. Box 1731, Jackson , MS 39215
----- ----
--- -
Q.
1
2
roughly.
A.
2500.
Q.
Just
director?
A.
Q.
A.
Fifty-nine.
Q.
10
11
12
A.
I did.
13
Q.
14
15
A.
Q.
A.
Q.
20
A.
(Nods affirmatively)
21
Q.
23
A.
Yes, yes.
24
Q.
25
A.
Yes.
22
idea?
I'm sorry.
A.
Q.
A.
Right.
Q.
A.
defined in them.
9
10
Right.
Q.
a member.
correct?
11
A.
That's correct.
12
Q.
13
A.
14
Q.
15
A.
That's correct.
16
Q.
-- other members?
17
A. .
correct.
18
Q.
That's correct.
19
20
by
21
A.
22
23
24
less
25
~-
All right.
Q.
correct.
A.
Let
Okay.
THE WITNESS:
BY MR. WAIDE:
Q.
10
11
A.
Yes.
12
Q.
13
happen?
14
A.
15
Q.
All right.
16
17
18
19
A.
I don't know.
20
Q.
Do you know.
21
A.
I don't know.
22
Q.
23
24
--
--
A.
25
-
MR. FRIEDMAN:
-- - -
11
,.
1
2
3
4
5
Senator Cochran.
MR. FRIEDMAN:
BY MR. WAIDE:
Q.
awarded grants.
10
cochran brings.
11
Q.
12
figures, and
13
14
15
16
grants they would have gotten that would not have gone
'17
18
19
A.
All right.
well,
thought, to money
Am
certainly
20
Q.
21
A.
Yes.
22
Q.
okay.
23
24
25
A.
- - - - - - ----------- - - - - - - - -
)
UNRESTRICTED NET ASSETS
Unrestricted support and revenue:
Support:
Contributions
Federal financial assistance:
CDC Community Health Promotions Programs grant
HRSA Delta Health Initiative grant
HRSA Delta State Rural Development Network grant
AHRQ The BLUES Project grant
RD Rural Community Assistance Partnership grant
254,426.49
12,868,683.46
174,359.91
73,729.26
135,770.80
13,549,437.92
Total support
Revenue:
Program, service fee and other income
166,355.32
13,715,793 .24
1,775 ,385.07
1,245,648.68
8,390.34
160,233.72
603 ,594.76
546,500.96
308,755.41
235,675.43
165,845.34
150,953.98
162,081 .17
169,222.71
249,045.81
49 ,046.31
28,255 .69
241,334.38
476,645.93
126,078.97
127,742.80
217,924.99
35,532.60
232,434.82
56,916.09
865,849.66
24,992.86
1,057.08
6,285 ,145.56
3,594,274.63
Total expenses
11 ,879,420.19
I
NET ASSETS AT END OF YEAR
See Notes to Financial Statements.
42,468.00
1,836,373.05
,_____
EXHIBIT
))-
2,452,491~5
$
4,288 ,864.40
Page2
429,418.18
(239,303.09)
190,821.43
(16,914.45)
6,571.44
1,011,874.06
(941 ,541.06)
(5, 143.05)
2,272,156.51
(2 ,151,680.88)
1,836,373.05
31 ,830.72
152,306.35
Page 3
......
)
HRSA Delta
Health
Initiative
Grants to subrecipients:
University of Mississippi Medical Center
Delta Diabetes
Electronic Health Records
Total Univ. of Miss. Med. Center
Delta State University:
Health Education
Delta Teacher Shortage
Delta Nursing Shortage
Total Delta State University
603,594.76
546,500.96
11150,095.72
226,472.42
235,675.43
160,233.72
165,845.34
150,953.98
162,081 .17
169,222.71
1,270,484.77
$ 1,755,617.45
1 ,2451648.68
3,001,266.13
Funding Source
CDC Comm.
Health
Promotions
19,767.62
HRSA
Team
Sugar Free
$ 1,775,385.07
1,245,648.68
3,021 ,033.75
19,767.62
8,390.34
8,390.34
603 ,594 .76
546,500.96
11158,486.06
8,390.34
82,282.99
249,045.81
28,255.69
277,301.50
Total
82,282.99
308,755.41
235,675.43
160,233.72
165,845.34
150,953.98
162,081 .1 7
169,222.71
1,352,767.76
491046.31
49,046.31
249,045.81
771302.00
326,347.81
241 ,334.38
241 ,334 .38
241,334.38
241,334.38
476,645.93
476,645.93
476,645.93
476,645.93
126,078.97
127 ,742.80
217,924.99
471,746.76
126,078.97
127,742.80
217,924.99
471,746.76
35,532.60
232,434.82
56,916.09
324,883.51
35,532.60
232,434.82
56,916.09
324,883.51
885 ,849.66
885,849.66
885,849.66
885,849.66
24,992.86
1,057.08
$ 8,100,665.44
24,992.86
1,057.08
159,487.26
24 ,992.86
$ 8,285,145.56
'\
\__
DELTA HEALTHALLIANCE, INC.
STATEMENT OF FUNCTIONAL EXPENSES
FOR THE YEAR ENDED JUNE 30, 2008
HRSA Delta
Health
Initiative
Supporting Services;
General and Administrative:
Salaries
Payroll taxes & fringe benefits
Advertising
Travel
Supplies
Staff training
External evaluation
Consulting
Independent review committee
Coalition meeting cost
Technical support services
Electronic health records expense
Postage and shipping
Vehicle lease
DHA vehicle expense
Building insurance
Contractual consulting
Custodial services
Administrative fee
Accounting services
Audit
Health policy advisor
Webpage hosting
Public health education & awareness
Medical Director
Copying services
Wealth strategies advisor
Telephone
Repair and maintenance
Utilities
Building rent
Depreciation
Dues
Other
Total Supporting Services
731,866.60
130,736.22
425.00
53,034.41
17,547.47
CDCComm.
Health
Promotions
HRSA
Team
~arFree
106.37
800.00
6,418.80
14,916.71
160,000.00
3,797.00
21,600.00
14,691.79
8,655.20
1,030,583.82
1,870.08
4,959.57
51 ,856.88
6,364.27
2,540.15
7,879.51
50,826.62
4,585.26
ORA
Rural Comm.
Assistance
46,989.03
4,599.45
Indirect
Costs
362.30
44,509.36
73 ,499.54
921.24
32,687.28
68,993.73
11,274.56
Non-Grant
4,591.68
3,580.70
8,457.17
19,500.00
552.44
790.89
1,917.33
2,834.04
9,796.57
664.00
15,455.48
2,605.00
68,750.01
16,825.00
34,500.00
6.46
15,303.00
3,291 .70
369.36
52,359.39
3,560.00
38,158.05
8,217.40
2,719.44
24,574.82
190.00
3,420.00
3,590.00
49.95
10,071.25
528.00
45,833.34
249.75
5,953.92
2,880.00
1,279.50
72,670.31
27,363 .14
2,835.24
7,874.01
7,088 .90
3,862.30
96,500.89
58,654.18
87,997.94
15.23
32,468.00
272.14
3,282.50
(38,158.05)
3,866.64
398,528.54
(15,726.05)
Total
16,006.70 $
(149.69)
1,119.50
8,774.00
32,455.37
7,980.00
179,046.36
7,030.00
26,200.00
19,591.50
249.75
127,172.91
51 ,541 .08
1,850.00
1,022.93
47,656.49
3,505.48
4,854.39
$ 2,792,774.86
Funding Source
HRSA
AHRQ
Blues
87,147.91
942,055.19
219,741 .42
2,146.24
99,634.62
112,918.12
11,274.56
160,000.00
4,916.50
21,600.00
14,691 .79
17,112.37
1,050,083.82
4,346.31
8,584.50
9,796.57
24,741.00
72,485.67
14,723.00
293,629.71
27,445.00
60,700.00
19,591 .50
549.45
137,244.16
60,375.00
3,129.50
1,022.93
85,970.83
6,340.72
16,404.69
32,468.00
67,435.01
6,842.50
(15,726.05)
$ 3,594,274.63
Page 5
)
._./
Page 6
)
Page 7
2,922,292 .71
16914.45
2,939,207 .16
2 939 201 j6
Once grants are awarded, funds are drawn down by the Organization as needed to pay liabilities incurred
in the operations of the various projects approved by the grantor agencies. Each grant agreement has
its own requirements concerning drawdown of cash funds . Grant payments from the Health Resources
Services Administration (HRSA) have been subject to special restricted drawdown requirements since the
inception of the Organization due to the Organization's short time of existence. Detail documentation
supporting the requested cash drawdowns had to be furnished to HRSA prior to the release of funds so
that HRSA personnel could verify the allowability of the expenditures. This restriction was lifted
subsequent to year end .
_)
Page 8
75,485 .00
95,753 .85
1,711,523.43
37,317.82
2,037,499.94
132,131.80
467,118.08
36,283.90
4,593,113.82
(451,936.88)
Accumulated depreciation
~
~.:1~:1
H6.91
Depreciation expense for the year ended June 30 , 2008 was $429,418.18 . Of this total, $417 ,334.14 was
for assets acquired with HRSA grant proceeds, $8 ,217.40 was for assets acquired with CDC grant
proceeds and $3,866.64 was for assets acquired with RCAP grant proceeds.
Note H - Subreclpients
The Organization has contracted with nine members and partners for performance of twenty-four different
program service projects during the year ended June 30, 2008 . The subrecipients and projects are
shown on the statement of functional expenses. In connection with these contracts, 69.0% of the CDC
grant expenditures during the current y~ar was pa,ssed through to subrecipients and 74 .0 per.cent of the
HRSA grant expenditures during the year was passed through to subrecipients. The remaining grant
expenditures were expended for local projects or used to pay general and administrative expenses.
Note I - Related Parties
The Delta Health Alliance, Inc. is a not-for-profit organization made up of the following institutions: Delta
Council, Delta State University, Mississippi State University, Mississippi Valley State University and the
University of Mississippi Medical Center. The four university members of the alliance are also
subrecipients of the various federal grants received by the Organization . Delta Council has an agreement
with Delta Health Alliance, Inc. and each subrecipient to receive fees for project oversight and
administration. These fees are to be paid from grant proceeds during the first year or first and second
years of each grant period . The Organization has also received fees for administrative services from
Mississippi State University for services performed in connection with the Agromedicine project.
The organization maintains its cash in four bank demand deposit accounts at one financial insitution. At
times during the year the balance in the accounts exceeded federally insured limits. The organization has
not experienced any losses in these accounts . The organization believes it is not exposed to any
Page 9
_)
Page 10
Federal
CFDA
Number
Federal
Expenditures
93.283
93.241
11,688,836.24
93.912
174,359.91
93.226
73,729.26
445,123.60
12,382,049.01
U. S. DEPARTMENT OF AGRICULTURE:
Rural Development:
Passed through Delta Regional Authority:
Rural Community Assistance Partnership
90 .201
122,797.70
122,797.70
12,504,846.71
Note B- Subrecipients
Delta Health Alliance, Inc. provided federal awards to subrecipients as follows:
Federal
CFDA Number
93.283
93.241
Amount
Provided
11,662.92
103,460.17
125,543.72
109,517.56
Total
$ 7,222 990 17
_)
/
Page 12
I,.'\
PLAINTIFF
vs.
DEFENDANT
COMES NOW Defendant, by and through its attorneys of record, and respond to the
Plaintiffs Second Set oflntenogatories and Requests for Production of Documents as follows:
INTERROGATORIES
INTE~OGATORY
every person with whom Defendant's consultants consulted in reaching its opinion that
Plaintiff's charges are false.
RESPONSE TO INTERROGATORY NO. 1: See response to Intenogatory No. 2 in
Plaintiffs First Set of Intenogatories, Requests for Production of Documents and Requests for
Admissions.
INTERROGATORY NO.2: Please list the names, addresses and telephone numbers of
all persons who have stayed overnight at the condominium complex in Oxford, Mississippi. For
each such person, describe the purpose of the overnight stay and.state the dates of the stays.
RESPONSE TO INTERROGATORY NO.2: Defendant did not keep a record of the
confirmed that the following individuals have stayed in the condominium overnight:
n"'
Monica Huddleston """"="~
Karen Fox
l....r,,.n_c'
1'\.,...'-"
~~
-
)
In addition,
employee~
the condominium overnight as well as other former employees of DBA, but DHA has nq way of
verifying the . use at this time. DBA will supplement this response as additional information
regarding the use of the condominium is determined.
INTERROGATORY NO.3: Please list the names, addresses and telephone numbers of
all persons who have used the office space in Oxford, Mississippi.
INTERROGATORY NO. 4:
,..
documents which document the work performed by the investigators or outside consultants for
which they charged the Defendant $50,000.00, as alleged in Defendant's Counterclaim.
RESPONSE TO REQUEST NO.4: Defendant objects to this Request oh the grounds
that it seeks information protected by the attorney-client privilege. Without waiving objection,
the requested documents will be produced as Bates No. DEF-00295 to DEF-00307. The bill
from Br'adley Arant for May, 2010 has been revised to cover only the period through May 12,
2010 which is the period relevant to this Request. The total fees and costs for that period was
$17,202:66.
Defendant will consider providing unredacted copies of the relevant bills for
Bradley Arant if an agreement can be reached that provision of these unredacted bills will not
waive the attorney-client privilege other than to the extent already waived by the Defendant.
REQUEST NO. 5: Please produce for inspection and copying all documents which
. demonstrate work performed by Defendant's consultants in investigating Plaintiff's allegations.
REQUEST NO.6: Please produce for inspection and copying all documents which your
consultants gave Defendant regarding each of the charges numbered A through Gin Plaintiffs
Complaint.
REQUEST NO. 7: Please produce for inspection and copying all documents which
Defendant has generated concerning the need for an condominium complex in Oxford,
Mississippi.
REQUEST NO.8: Please produce for inspection and copying all documents pe1iaining
to Defendant's obtaining an automobile for the use and benefit of Dr. Karen Fox, including, but
not limited to, minutes of the board, leases and bills of sale.
REQUEST NO. 9:
Defendant has with Mr. Jere Nash or any company owned or controlled by Nash.
REQUEST NO. 10: Please produce for inspection and copying all contracts which
Defendant has or has had with Delta's counsel.
RESPONSE TO REQUEST NO. 10: Defendant assumes this request is for contracts
between DHA and the Delta Council. Defendant objects to this Request on the grounds that it
seeks documents that are not relevant to the instant suit and not calculated to lead to the
discovery of admissible evidence. Without waiving objection, the requested documents will be
produced as Bates No. DEF-00314 to DEF-00319.
REQUEST NO. 11: Please produce for inspection and copying all documents whereby
the board of directors of Defendant authorized payment of attorney's fees to John Dunbar.
RESPONSE TO REQUEST NO. 11: The requested document will be produced as
Bates No. DEF-00320 and DEF-00321- DEF-00322.
REQUEST NO. 12: Please produce for inspection and copying
the board hired John Dunbar to provide Defendant legal services or agree to reimburse Karen
Fox for bills submitted by John Dunbar.
RESPONSE TO REQUEST NO. 12: Defendant is not aware of any .documents falling
within the purview of this Request.
REQUEST NO. 13: Please produce for inspection and copying all bills and all other
documents describing what services John Dunbar provided to the board.
RESPONSE TO REQUEST NO. 13: Defendant objects to this Request on the grounds
that it seeks documents not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence and invades the attorney/client privilege.
REQUEST NO. 14: Please produce for inspection and copying all emails between Dr.
Karen Fox and Dr. Keith Mansall during the 2009-2010 time period.
RESPONSE TO REQUEST NO. 14: Defendant objects to this Request on the grounds
that it seeks documents not relevant to the instant suit.
REQUEST NO. 15: Please produce for inspection and copying all documents that will
describe the purposes and dates of use of the condominium in Oxford, Mississippi.
RESPONSE TO REQUEST NO. 15: To the extent not already produced, the requested
documents will be produced as Bates No. DEF-00323 to DEF-00330.
REQUEST NO. 16: Please produce for inspection and copying all documents which
describe purposes and use made ofthe office space in Oxford, Mississippi.
RESPONSE TO REQUEST NO. 16: Defendant objects to this Request on the grounds
that it seeks documents not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence.
REQUEST NO. 17: Please produce for inspection and copying all documents whereby
any furnishings for the condominium complex have been purchased.
ground~
that it seeks documents not relevant to the instant suit and not calculated to lead to the discovery
of admfssible evidence.
REQUEST NO. 18: Please produce for inspection and copying all personal notes taken
by John Hilbe1i describing occurrences at any meeting he had with Plaintiff.
REQUEST NO. 19: Please produce for inspection and copying all bills of John Dunbar
paid by Defendant.
REQUEST NO. 20: Please produce for inspection and copying all bills or invoices
submitted by Jere Nash or any entity controlled by Jere Nash for the years 2009 and 2010.
RESPONSE TO REQUEST NO. 20: Defendant objects to this Request on the grounds
that it seeks
d.ocwn~nts
not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence.
REQUEST NO. 21: Please produce for inspection and copying HRSA requirements for
approving proposed construction.
RESPONSE TO REQUEST NO. 21: Defendant objects to this Request on the grounds
that it seeks documents not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence. Furthermore, Defendant objects on the grounds that the construction
requirements of HRSA are as available to the Plaintiff as the Defendant.
REQUEST NO. 22: Please produce for inspection and copying HRSA requirements for
approving leases.
. RESPONSE TO REQUEST NO. 22: Defendant objects to this Request on the grounds
that it seeks docun1ents not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence. Furthermore, Defendant objects on the grounds that the
const~uction
REQUEST NO. 23: Please produce for inspection and copymg any bills, legislation or
other documents whereby funds have been appropriated for the benefit of Defendant for the
years 2008, 2009 and 2010.
RESPONSE TO REQUEST NO. 23: Defendant objects to this Request on the grounds
that it seeks documents not relevant to the instant suit and not. calculated to lead to the discovery
of admissible evidence. Defendant also objects on the grounds that the requested documents are
as accessible to the Plaintiff as the Defendant.
REQUEST NO. 24: Please produce for inspection and copying Defendant's Statement
of Financial Position for the years 2008,2009 and 2010.
RESPONSE TO REQUEST N~ . 24 : Defendant objects to this Request on the grounds
that it seeks documents not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence.
REQUEST NO. 25: Please produce for inspection .and copying Defendant's Statement
of Activities for the years 2008, 2009 and 2010.
RESPONSE TO REQUEST NO. 25 : Defendant objects to this Request on the grounds
that it seeks documents not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence.
REQUEST NO. 26: Please produce for inspection and copying Defendant's Statement
of Cash Flows for the years 2008, 2009 and 2010.
RESPONSE TO REQUEST NO. 26: Defendant objects to this Request on the grounds
that it se.eks documents not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence.
REQUEST NO. 27: Please produce for inspection and copying Defendant' s Statement
of Functional Expenses for the years 2008,2009 and 2010.
.
RESPONSE TO REQUEST NO. 27: Defendant objects to this Request on the grounds
that it seeks documents not relevant to the instant suit and not calculated to .lead to the discovery
of admissible evidence.
REQUEST NO. 28: Please produce for inspection and copying Defendant's Notes to
1
Financial Statemenfs for the years 2008, 2009 and 2010.
RESPONSE TO REQUEST NO. 28: Defendant obj~cts to this Request on th~ grounds
that it seeks documents not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence. The requested documents not subject to objection will be produced as
Bates No. DEF-00323 to DEF-00330.
REQUEST NO. 29:
REQUEST NO. 32: Please produce for inspection and copying all minutes whereby
Board of Directors authorized change of ERISA plan to compensate some employees at twenty
percent rate~
RESPONSE TO REQUEST NO. 32: The requested document will be produced as
Bates No. DEF-:.00321 to DEF-00322.
REQUEST NO. 33: Please produce for inspection and copying all minutes whereby
Board of Directors authorized payments of any attomeys' fees for Dr. Karen Fox.
RESPONSE TO REQUEST NO. 33: The requested document will be produced as
REQUEST NO. 34: Please produce for inspection and copying all minutes whereby
Board of Directors authorized lease of office space in Oxford, Mississippi for Dr. Karen Fox.
RESPONSE TO REQUEST NO. 34: Defendant objects to this Request on the grounds
that it seeks documents not relevant to the instant suit and not calculated to lead to the discovery
of admissible evidence.
REQUEST NO. 35:
evidencing the identities of persons who leased or used the condominium in Oxford, Mississippi.
RESPONSE TO REQUEST NO. 35: Defendant is not aware of any documents falling
BY:_L~~~~~~~~==~-
Gary E. F iedman, MB #5532
Gregory odd Butler, MB #1 02907
4270 I-5 North
Jackson, Mississippi 39211-6391
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: friedmag@phelps.com
butlert@phelps. com
CERTIFICATE OF SERVICE
I, GARY E . FRIEDMAN, do hereby certify that I have this day forwarded, via United
States mail, postage prepaid, a true and correct copy of Defendant's Response to Plaintiffs
Second Set of Interrogatories and Requests for Production of Documents to the following:
Jim Waide, Esquire
WAIDE & ASSOCIATES, P.A.
Attorneys at Law
Post Office Box 1357
Tupelo, Mississippi 38802
THIS, the
1st
II
Catalog of Federal
Domestic Assistance
Number
(b)
Federal
(c)
Non-Federal
(d)
Federal
(e)
93.912
Total
(g)
22,390,538.00
2.
0.00
3.
0.00
' 4.
0.00
5.
Totals
0.00
0.00
22,390,538 .00
0.00
22,390,538 .00
(l)DHA
a. Personnel
(4)
(3)
1,159,659
1,159,65
b. Fringe Benefits
349,405
349,40
c. Travel
131,584
131,58
d. Equipment
539,900
539,90
1,480,155
1,480,15
16,059,6 81
16,059,68
e. Supplies
f. Contractual
g. Construction
559,170
h. Other
559,17
20,279,554
0.00
0.00
0.00
2 0,279,55
2,110,984
j . Indirect Charges
,.
Total
(5)
22,390,538
0.00
2,110,98
0.00
$
$
$
$
0.00
$
$
22,390,538
0.00
0.00
DEF-00290
Revised 3/6,
(c) State
(e) TOTALS
"
8. Delta Health Initiative (93.912)
0.00
0.00
9.
0.00
10.
0.00
11.
0.00
0.00
0.00
0.00
0.00
0.00
0.00
- - - -- - - - - -
22,390,538
22,390,538
2nd Quarter
1st Quarter
51
th
3rd Quarter
4 Quarter
14. Non-Federal
15. TOTAL (sum of lines 13 and 14)
0.00
0.00
0.00
0.00
SECTION E- BUDGET ESTIMATES OF FEDERAL FUNDS NEEDED FOR BALANCE OF THE PROJECT
FUTURE FUNDING PERIODS (years)
(c) Second
(d) Third
(e) Fourth
17.
~-
19.
20. TOTAL (sum oflines 16-19)
ln.
23 . Remarks :
--- - -
DEF-00291
Revised 3/6;
Catalog of Federal
Domestic Ass istance
Number
(b)
~--- -
p
-
-~-
-- - -
Grant Program
Function
or Activity
(a)
---~-
Fderal
(c)
Federal
(e)
Non-Federal
(f)
. Total
(g)
93.912
I.
24,599,768.00
24,599,768.00
2.
0.00
3.
I
I
0.00
4.
5.
0.00
Totals
0.00
I
I
a. Personnel ..
... ... ,
.
-~'";.
b. Fringe Benefits
c. Travel
II
., r
2,915 ;747
Total
(4)
.. ,
-...
..
..
2, 915, 74_:7_~.
- "\.:::.
878,515"'
..
. .
121,817
,
I
(3)
(2)
878,"515
I .
d. Equipment
24,599,768.00
(5)
(1) DHA
II
0.00
.$
24,599,768.00
0.00
121,817 .
,.
. 865,798
86S,798
e. Supplies
II
770,452
770,452
f Contractual
14A6l,l33
14,461,133
g. Construction
I.
252,233
252,233
h. Other
i. Total Direct Charges (sum of 6ac6h)
j. Indirect Charges
k. TOTALS (sum of 6i and 6j)
i
I
i
20,265,695
I
!
0.00
0.00
20,265,695
4,334,073
i
I
24,599,768
0.00
'
'
7. Program Income
0.00
4,3'34,073
!l
0.00
l$
0.00
l$
DE F-00292
0.00
24,599,768
$
Standard Form 424A
0.00
Revised 3/6108
(b) Applicant
I
I
(c) State
0.00
0.00
(e) TOTALS
0.00
0.00
0.00
0.00
$.
0.00
0.00
9.
10.
!
I
11.
0.00
0.00
0.00
13. Federal
4 111 Quarter
3rd Quarter
2nd Quarter
I" Quarter
24,59~,768
'$
i
14. Non-Federal
!$
...;
-.-~
..
0.00
0.00
.- o.oo
.$
0.00
SECTION E- BVDGET ESTIMATES_O_F F,.EDERAL FUNDS NEEDED FOR BALANCE OF THE PROJECT
. .- . . .
I ..
- ~.
. FUTURE FUNDING PERIODS (years)
(a) Grant Program . i
..
!I
(b) First
(c) Second
(d) Third
I
24,599,768 . .
..
..
. -
(e) Fourth
..
17.
18.
19.
20. TOTAL (sum of lines 16-19)
SECTION F- OTHER BUDGET INFORMATION
21. Direct Charges:$ 20,265,695
23 . Remarks:
OEF-00293
Revised 316/ 08
.. I
d. Equipment
Total$ 865,798
69,900
100,000
20,000
97,500
578,398
$865,798
- - - - - - - --- - - - - - - - - - - -
Two (2) automobiles required for regional travel, training, county health fairs, usage by scholars
in residence, and other DHI related activities. One vehicle will be primarily used by the Director
of Research. The second vehicle will b'e utilized by tl:,le new Project Director. Both automobiles
are estimated at a total purchase cost of $34,950 based.on historical costs.
(2 vehicles* $34,950 = $69,900)
Data Center Updates in Stoneville ($100,000)
Due to the expansion of DHA services, staff, and programs, the DHA will need to complete an
upgrade and overhaul oftheirexisting data center inStoneville, similar to the upgrade that was
'
required last year at the UMC Data Center.
Telecom Equipment ($20,000)
Telecom equipment purchases include modified racks, servers, switches and routers for the
system, but are purchased as single tmits ;that come pre-assembled from the vendor- thus
meeting the federal guidelines as "equipment". (4 units * $5, 000/unit = $20,000)
' .' . .. .
.
i : ::
.I
to
. ,; . ,,
. . '''
! ' '\
''I,
16
DEF-00294
Dat~
Invoice#
5/2512010
3386
IV
P.O. No.
Terms
SEARCH POSITION
Description
Amount
Consultant Expense for l'tlview conducted by Dr. Roy H. Sllfgo from April 7th through the 9th.
AIR TRAVEL -Consultant Saigo (Apr 6, 9)
I
...1
AUTO TRAVEL- Mileage (Residence to Airport to Residence) , .
LA.J ~ \ e ~\. ~S
MISC. EXPENSES-food, parking. gns
AUTO RENTAL- 07767548US5
Delta Health A/11
LODGIJ'J~- Cons~Jljt Sa~t: (3380J24632, 3380356610)
J
-~
\~6~,.-
o:.~=orc
Fund:
0 I
Giant
0\ () j
982.40
70.00
52.90
285.11
416.41
f::.::--%...::;;~--_...-4
-
Gl:_...._....]'-'-<~f>:..::::.:cJ0:::::._
..
ProJect:
()0
-......-..;..;::::.. __.____
Dept
7J
---
'&r
~.l&pt:
f.
- - --.........._ _
.J /,ppr.:Jved b}':~---
loste:_ fD=.<t-to
O(
t_
--
- -- ..._.__ _
Total
$1,806.82
Payments/Credits
Balance Due
$0.00
$!,806.82
Phone#
Fax#
WebSite
robchllll1ling@greenwoodsearch.com
www .grccnwoodsearch.com
~--------~--~------------~----------------------~--------------------------~
DEF-00295
' I
--
_,
Date
Invoice#
5/25/2010
3385
BiH
ro
---------
---------- -- ------ - - - - -
Description
Consulting Fees- Review conducted by Roy Saigo from April 7th
.. uw
-r\
I
~a -,~V~ .!_!_~~
.Fund:
0\
.G mnt
d-D9
GL;
/DDO
~:.t,J
( 0 :[_ ___________
- r.
I
)Joo
----------PIY.>}act:~(--00 ..
-
0(
~
''\j)j)f'O:d
---~--
0(
!:-}~------
f Ontc~:--(g -';..-( 0
!_
~ __
(o.--'f;...f 0
5,000.00
GIL:
2ttl.::O
t-:A5D'
-~------
rpl:
Amount
iSlrant
- - - - --
SEARCH POSITION
Fund:_ _Q~
Date:
u.,...u 6
O"J D :, j/5{Y"
-~
,c.pproved by:
______ - --- - --
oC
:]-\\"}:. _f
Dept:
__ _____..
Terms
P.O. No.
Project:
---
- --
----
r---
Total
$5,000.00
Payments/Credits
so.oo
..
Balance Due
$5,000.00
Phone#
Fax#
Web Site
robchanning@greenwoodsearch.com
www.greenwoodsearch.com
DEF-00296
RECEIVEil
- - ----
.. -
Invoice Amount
4,875.00
Prior Balance
0.00
Balance Due
--------
Fund:
Gry:tnt
GL:
-----;-....:0\~-/0 U~
G':'Jflt
Prolect:
----~"--... .
..
.
:-------.
t:t'.
I
-,
--....
~ ---
-~
...
Fund:
--~---
GL:____
l~O:::::..::O::::_t.fl__
- . . .AI. . l) 0
ProJect_
~-=---
---:----
Dept;
--....--...
Appi'OYSd ~
Oate:
J . . d-.-, ....10
DEF-00297
..
BRAD.LEY ARAN'f
BOULT CUMMINGS
LLP
~-..
JJ,.
\~, '~. 1
MAY 6, 2010
D0109-1085BB
()')J'i'
INVOICE #
666796
FED ID NO. 6:1-02.43316
. .. - .. $': 00
$5,856 . 30
$5,856.30
----~---
1.75
04/21/10 RDC
1.25
04/22/10 JWMA
2. 00
04/22/10 MCM .
. so
.75
DeltaH
~l'1ta4.o~
r-rm:t:._..'W.-~-+--a_r_
DEF-00298
..
BRAD.LEY -ARANT
BOULT CUMMINGS
LLP
POST OFFICE BOX 830709
BIRMINGHAM, ALABAMA 35283-0709
PAGE
DELTA HEALTH ALLIANCE
MAY 6, 2010
D0109-l08588
INVOICE #
-------nESCRIPTTON\J'rSJ.l!R'D"Vo-IT1C....,E""'S-r-- - - - - -- -- -
04/23/lO JWMA
........ --- ...
.-. ..
---
. . .. --- -
666796
- - - - - --------------- -- -
2.50
- -- - - --- - - - - - - - - - - -- - - - --
04/26/10 JWMA
1. 00
04/28/1.0 JWMA
2.50
04/29/10 JWMA
6.50
.so
04/29/lO RDC
04/30/lO JWMA
6.00
04/30/lO RDC
2.00
FEES
$5,850.00
DEF-00299
--
BRADLEY ARANT
BOULT CUMMINGS
LLP
PAGE
3
MAY 6, 2010
00109 - 108588
INVOICE #
666796
FII:D lD NO.
~JJJ'
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- -- - - - - -- - -
DESCRIP~ION
OF DISBURSEMENTS
2.25
04 / 20/10
04/20/10 f
4 . 05
COSTS
.. ..
'
$6.30
$5,856.30
.... -
DEF-00300
I~
,.
I
BRAD.LEY ARANT
BOULT CUMMINGS
LLP
POST OFFICE BOX 830709
BIR.MlNGHAM, ALABAMA 35283-{)709
PAGE
MAY 6 I 2010
. DOl09-l.OB588
INVOICE #
666 7 96
I'ED 1D NO. &:l-0143316
INDIVIDUAL SUMMARY
NAME
HOORS
- - ---- - - - - - - - - - - - - -- - JAMES W.
MARY C .
MANUEL
MORGAN
ROY D. CAMPBELL
Total
20 .5 0
2 . 50
6.25
29.25
DEF-00301
BRADLEY ARANT
BOULT CUMMINGS
/'
LL.P
POST OFFICE BOX 830709
BIRMINGHAM, ALABAMA 35283-0709
JUNE 2, 2010
D0109-l08588
INVOICE #
669804
FED ID NO, 63-Cll4Jll6
05/02/10 JWMA'
3.50
05/03/10 JWMA
9.50
05/03/10 RDC
9. DO
05/04/10 JWMA
8.50
05/04/10 RDC
4.00
DEF-00302
'
BRADLEY ARANT
BOULT CUMMINGS
LLP
POST OFFICE BOX 830709
Bffi.MINGHAM, ALABAMA 35283-0709
PAGE
DELTA HEALTH ALLIANCE
2010
D0109-10B588
JUNE 2,
INVOICE #
669804
DESCRIPTION OF SERVICES
05/05/10 JWMA
4.00
05/05/10 MCM
2.75
05/05/10 RDC
6.00
05/06/10 JWMA
6.00
05/06/10 RDC
5 . 25
05/07/10 DST
.25
05/07/10 JWMA
1 . 00
DEF-00303
. '
BRADLEY ARANT
BOULT CUMMINGS
LLP
POST OFFICE BOX 830709
BIRMINGHAM, ALABAMA 35283-0709
PAGE
JUNE 2 ( 2010
' D0109-lOB5BB
INVOICE #
669804
DESCRIPTION OF SERVICES
05/07/10 RDC
2.25
05/09/10 JWMA
2.00
.05/09/10 RDC
2.00
05/10/10 JWMA
5.50
05/10/10 RDC
4.00
05/ll/10 RDC
3.00
05/12/10 JWMA
1. DO
05/12/lO RDC
5.50
DEF-00304
. '
BRADLEY ARANT
BOULT CUMMINGS
LLP
POST OFFICE BOX 830709
BIRMINGHAM, ALABAMA 35283-0709
PAGE
4
JUNE 2 t 2010
D0109-l08588
INVOICE
669804
DESCRIPTION OF SERVICES
DEF-00305
... !
BRADLEY ARANT
BOULT CUMMINGS
LLP
POST OFR!CE BOX 830709
PAGE
11
2010
DOl09.:.l085B8
JUNE 2,
INVOICE #
669804
FED 10 NO. 63-lll4JJI6
DESCRIPTION OF DISBURSEMENTS
05/10/10
l7l.SO
05/J.O/J.O
3l.l6
COSTS
AMOUNT DUE THIS BILL
DEF-00306
BRADI:EY ARANT
BOULT CUMMINGS
LLP
POST OFFICE BOX 830709
BIRMINGHAM, ALABAMA 35283.{)709
PAGE
DELTA HEALTH ALLIANCE
12
J1JNE 2, 2010
D0109-l0858B
INVOICE #
669804
FED ID NO , 63-lll4lll6
INDIVIDUAL SUMMARY
_ _ _ _ _ _ NAME_ - - - - - - - - - - - - - - - - - - - - , - -- --
---'"""trm.'"'-- - - - - - - - - - - - - -
BETHANY TARPLEY
DAVID STEWART .
JAMES W. MANUEL
MARY C. MORGAN
ROY D. CAMPBELL
Total
DEF-00307
J . )
i ':.
.... . .....
- .
' "
"
.... .. ;
... .
. . . . .. . . .
,..
'
'
: "' ::.:
'',' '
H o
-:-::
'''
'"' "''
171,
Kossman's Inc.
1024
1712
7/21/2009
Account#:
Amount
$29,265 .62
SHIPPED
.. ...=:=:=- ::::Z:-
JUL 21 2009
. '
..
;l
. -
. P.. .-_E~..TAif'F.:J\~
Tt.i-:A!-,~lA.NCE. ~ !ND.U~ECT .
,_. ... .. :. PO sox- n. . : . . . .._ .
. . : . ..
. .
. .&<TRUST.COMPANY
':
_1 71'
. _. ,
,.
..
. .. .
.. 171~
. ...
'
..:..: . _. ._. _... ' --._.- . . ., . .. _:- : - ':>,; ._;.::_: .:~\;_ : 7;;:~;o?g ... _:._:/:.:>: . $29,265.62 .
.. ..
-..-.__ - .--,:c: : . ' -:
'AMOUNT
' . .. l .
PAY
:...
. .'
. ...... .
TO THE
ORDER
OF
':
,: Kossma~'s' Inc. .
_.
p'6 130~. 1 - 109 _:
. '
,Ciev~iand, MS 3~7~2, .. , .
J ; ra - - -------~---~~-== -
"
-----'
11
. .
.. .
. AUlHORIZED SIGNAlURE
--- --- --~-'-' --=-'-~...:. :.. _.~-----=---,-~:--~~- ~-: =---=--;::-"~'..:.::=-~~.:._ _
_,_: _____.~._:.~:.,-~'--~ _,L_:~------
DEF-00308
,.. ~-.
Invoice#
Requisition .
Draw#
Vendor # 1024
Grant: hfQ~~~
Fund it~
Project# JB~1rmlJi!oi!.~>)
-~~~~,.'}J
GL Code: 5320
Date:
7/21/09
.:~
Dept: 01
__Yxp.do'..!.r_,:__-====::::::::0.::2::::4==
- =K:::o::ss:::m:.:an=.::s:_-=:_-=_-=:_-=:_-=:_-=._-=._-=._-=._-:: _-:: _-=._ - -__Encumber.ed-Amt;- - - - - -1- - - - - - Amount of check:
Date of expens&.'i~'0!'0.~
'
Grant Source:
Indirect
5320
Buick Enclave
Requested
by:C:.;;t~ ~. . .L..
Business Mgr:
Administrative
Authorization:
c;;l._~ ~
t}c!Uj/;
$29,265.62
Date:
Date:
Date:
DEF-00309
r.
)
~~-
--
~- .
~ -.
t ..
Ol.DSMO~ILB-BUIQK.-PONTlAC-(,::A.J,)lLLA\'..-OMCCHBVl,.,~iJ~T
t". HW;f 61 SOUTII'- P.O: BOX 1109
.. 'CLEVELAND, M1SSISSIPPI 38732
.
CITY
ACCJ'HO,
AMOUNT!
QUOTED BY:
Lln:NIIOJ..Ol!R
OOOOl!l-11U.
-- ..... ----------...-- - - - - - -
__
LfllNHOl.DP.R h
INS. AGf!l'lf
--
ADD !lESS
P'I!Dl>IE
-----------------------STATE
ZIP
---------. ..
OED
- - - - - - - -
.i
DA.TB:
Vl>k.ll'll!D BY.
'') .
.
1 L-.:....
- -
- - - - - '
"/IU. r.x:PRC.'\!':I'.D WAlUt.AN'J'lES. IF ANY. BY A MANUFACTt1J'tR..OP. ST_;PP.f-n'-~~~~;r.HEtRS, NOT THTi !Jt>ALSRS,I.JNLBSS OTHURW!/;1! l'l~l'IV0 IN WRJTCNU AN!> PUR
N!SH.IlU ro THE BUYER BY Tim Dcf\l,F.R. M.ISSISSIP?I".'i J:M1'l.IIJD WI'Jt..lW'{!'Y, [;AW M!IY Cil VI:: 'J'!!B .BVYE!\ 1\DI"}!l'ION.-.L lUGHTS.''
'
"I ec['Tif:y th>t I""' <t~hlc:<:ll ml ~y .Jri.ci!ls aty 1ip1>1UT< Le.eto fully Ulldot3,.nd -nd or;ri:o lo the ttnru ami tondluuns ~I fo11b. hctein. I.n h r.vonl nl un 11101CS~c i.o price ~y tho m:lJlUfa<l\Ud( boforcltok. d<ll"<'cy, I a(;toe TQ rr Ill JirT.n!Qecln prico. MY rn:anufj(;IUL'CII utcc.ntive; or reba lA< "" vcWclc! pltrtbn."oed will be usig,lcd to Komlllln l, In~ .
USUP \.1\R~ OHl.lf : Ll ulfunnalloa you soc on lho window fvrm for tliJ.a vehicle i prt of ~~ contract. Wormorinn ""the window lot111 Q'lr.rr\rl'ji ny culllr>l) vtovision in the contract
~~
The abovo ptCipooo l ~O!I!ItituUJB Ill'- ClltitC ascccment pert>ininglo thit BSI~cmcm ~nd no othor SICCII\CQI of any ~inc.J, inuludill& but not limi<r.<J to Y<.riTal unde~t\~ndlnstb~t h"ve lx;cn m><rlt
!')' either tho buyor or Ko;oli\Io i , Lo.c.
J3y ~00.\g ruy SiCDJIU!C to this .E!uycr'J Otdcc, l 8\llhorir.c yo<J 10 in>U'tigalc my credit.
,.
1bh order 1! nul Yalod unlc~ <iJ:Pr.rl ~nd ftr,r,cptcrl hy dealer a.nd appCQ'/cd by~ tjX'"! lhlt fi,nanee Company "' to B.IIY doforrr:rl bolanco.
_ _ _ Approvc-rl X
Buy~r X - - - - - - - - - - - - - - - - - - Co-Duy~t X- .
MGR.
DEF-00310
00S99b8299
SNI ~l~
Sill3
''~!to.
TAR'
AL
Salesman _
HXJ9 Highway 82 East Greenville, MS 38701 (662) 335-2886 1-80(}-624-9948 FAX (662) 332-8038
'~/_c./--=.:4L-'-'11~.1---::,--_,.,.-_;__-
Stock# I
_JM:c:...._.:::.'r!_.::::.tt_.),.:.-r
?4-if-
7-/.tf ..of
Date
Purchaser: _])4L-J
.
P;:. ~,:..~-f~k~.d:--Me~~,...._.,Q'"""c/i+
. =t--'-G"'"l.c:fZ=t_::.:><~=
"'=-"-ee:~
. (';;;:._:-:"".!'"- / -
DOB _ _ _ _ _ S.S.# - - - - - - - - -
Co-Purchaser: ----------~-----'--T
~ ~
r"
Address: - - - - - - - - - - - - - - - - - - - - .City ; .
.
County _ _ _ _ _ _ _ _ _ _ _ _ __ .Res. Pho~~,t..::.i~3tlo .
;dvt'
Model ;;:::,4.1'
Yeara!f--
.---1
~~--riAL,~--,-~~-.-k-,-k-,--l;e...---.1~1----r)
1---.-1'7--rv.:I9R;-r--lJJ-,---.,/I----r71~---.-~~-r-~7.,---,J31
Stale---- ZIP - - - - - - -
76'>.?2
Style
Bus. Phone _ _ _ _ _ _ _ __
Sr_i V
No . Cyl.
Color _ _ __
o USED LIM_IL_Es~~L-~I_JI_ulf~lo_JI~:)~~~~~~~;~c-Tu-AL--~~
- - - -------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
&1ffiw.
YEAR
MAKE
COLOR
CYL.
oo
MOD~ ~~<
~~~
:-r~
STYLE
~~l;l~ti~BI515" &Tq
MILES
'
1 r
1Y
1-
l <3 q IL) 0 0
,.
ltflr;~ ~
PRICE
/:2ooo
TRA:DE-INVALUE
..
OWNER'S SIGNATURE
8US'r0MER SERVICES
PAYOFF TO
""
' -"~u
CITY
AMOUNTS
189 00
SECURITY GUARD
ADDRESS
ZIP
ACCT #
g:'RADE DIFFERENCE
I~"
IVV
10 00
/5o~-
SALES TAX
97
l
TOTAL PRICE
GOOD UNTIL
OUOTEDBY:
EXTENDED WARRANTY
GAP PROTECTION
LIENHOLDER
TRADE-IN PAYOFF
ADDRESS
ZIP
STATE
CA8HDOWN
LIENHOLDER#
REBATE
INS. AGENT
UNPAID BALANCE
ADDRESS
WE OWE:
CITY
J_,j7~ 5?
c Wc,3FJ5 l..:.s":?
ZIP
STATE
POLICY NO.
PHONE#
'
DATE
INSURANCE CO.:
CONTACT:
' - -
:'I
. 4
,~x
. !
..
-.:>~ 1.
(TO
~-B-uy_e_r~Si-g-na-1u_r_e-----------------~~==~
BUDGET INFORMATION- N
Catalog of Federal
Domestic Assistance
Number
(b)
tion P
I
Grant Program
Function
or Activity
(a)
Const
93 .912
Non-Federal
(d)
Federal
(e)
Non-Federal
(f)
31,867,827.00
31,867,827.00
Total
(g)
31,867,827.00
31,867,827.00
2.
3.
'-4.
{
" - 5.
Totals
0.00
0.00
0.00
Total
(5)
(1) Delta Health Init.
a. Personnel
b. Fringe Benefits
c. Travel
d. Equipment
e. Supplies
l
I
'
f. Contractual
g. Construction
h. Other
.
(2)
(4)
(3)
3,732,444
3,732,44
1,244,391
1,244,39
196,008
196,00:
1,247,280
1,247,281
423,915
423,91:
18,875,903
18,875,90:
610,390
610,391
26,330,331
0.00
0.00
0.00
26,330,33 .
5,537,496
j. Indirect Charges
k. TOTALS (sum of 6i and 6j)
31,867,827
0.00
5,537,491
$
0.00
0.00
0.00
31,867,827
0.00
7. Program Income
DEF-00312
9.
10.
11.
.12. Total (SUM OF LINES 8-11)
---
-------- --
I
I
I
I
I
I
_I
_c -----
--
(c) State
0.00
0.00
0.00
0.00
(e) TOTALS
'
0.01
0.01
0.01
. 0.01
0.01
'
.3. Federal
14. Non-Federal
15. TOTAL (sum of lines 13 and 14)
~
I
31,867,827
31.,867,827
3rd Quarter
2nd Quarter
l't Quarter
0.00
0.00
4th Quarter
0.00
0.0(
i
SECTION E- BUjDGET ESTIMATES OF FEDERAL FUNDS NEEDED FOR BALANCE OF THE PROJECT
(a) Grant Program
17.
'~ . 8.
19.
20. TOTAL (sum oflines 16-19)
I
I
I
(c) Second
(d) Third
(e) Fourth
I
I
I
I
21. Direct Charges:$ 26,330,331
23 . Remarks:
5,537,496
DEF-00313
2
..
.:.: : r:.:.: .
,.
...
.."'-"-,:i.....
I
-.
., .
!'
MEMo'RANDUM OF AGREEJ.v.lENT
.BETWEEN
THE DELt.A IIJALTH ALLIANCE and
THE DELTA COUNCIL
FOR
ADMINISTRATIVE AND FINANCIAL OVERSIGHT OF
THE DELTA HEALTH INITIATIVE PROGRAM
The Delta Health Alliance (DHA) and the Delta C-ouncil (Council), referred to as "the Parties",
have prepared this Memorandum of Agreement (MOA) to establish, support and promote a
~ollaborative partnership that will conduct some of the activities of the Delta Health Initiative
grant program. The purpose of the Delta Health Initiative Cooperative Agreement Program is to
?Iovide funding to an alliance to address longstanding unmet mral health needs (access to health
care, health education, research, job training and capital improvements) of the Mississippi Delta.
The partners of the DHA have responded to this Cooperative Agreement Program through a
program which:
1. Increases access to quality healthcare for residents of the Mississippi Delta region;
2. Increases awareness of the residents of the Mississippi Delta regiqn onhealthcare issues
to which they aJe especially vulnerable;
3. Increases numbers ofhealthcare personnel available to provide services to residents of
the Mississippi Delta region;
4 . Increases understanding of the healthcare issues that exist in the Mississippi Delta region;
and
Article 1
.
The Parties will cooperate in the oversight and completion of administrative and financial duties
relating to this collaborative effort, in accordance with the provisions of this MOA, state and
federal laws, requirements of funding agencies and the regulalioris of all organizations.
~-1...rticle
The Delta Health Alliance was formed in 2002 and operates as a 501(c)3 non-profit organization . .
The DHA was created to identify priority healthcare needs, secuJe funds, allocate resources, and
insure that goals and objectives aJe accomplished as set forth in funding agreements. To
accomplish this purpose, the DHA agrees:
1. To engage alliance participants in the planning, operation, and evaluation of activities,
which includes the identification of technical assistance and coordination development
DEF~00314
.-~
,r.
. .: . :
..
. .
. ..,
~
needs, the selection of mechanisms for implementation, and the preparation of progress
reports.
2. To serve as the central planning body for any meetings, training activities, or workgroups
conducted during the period ofthe cooperative agreement.
3. To furnish HRSA with final program documents, curricula, program plans, budgets,
subcontracts or subawards, key personnel (including consultants and contractors), etc.
prior to printing, dissemination or implementation.
4. To provide to HRSA evidepce that all proposed facilities and major alteration and
renovation (A & R) projects, whether at the grantee or subaward grantee level, meet all
the requirements delineated in the Construction and A&R Supplemental Information.
5. To accept the terms and conditions of the cooperative agreement with HRSA and
demonstrates intent to fulfill the scope of project proposed in the Delta Health Initiative
application.
6. To assemble and approve all grants and proposals submitted on behalf of the Alliance
participants, maintain communications with funding sources and projects p1incipal
investigators, and ensure that all guidelines, rules, and regulations are followed.
7. To work to identify future funds for critically needed, worthy projects of up .to five (5)
years duration nnless project(s) is/are earmarked in appropriation lar1guage or DHA
Board makes an exception.
8. To monitor individual projects goals and objectives, ensure accountability, and determine
each year if project is to continue receiving fimding.
9. To promote the Alliance pa1ticipants in their projects with stakeholders, fundin g sources,
and the general public.
10. To provide technical assistance and training to project pru.iicipauts in grants management,
ptoj ect management, implementation issues, research protocols, etc.
11. To serve as a source of information pertaining ts> procedure protocols.
12. To host an annual regional workshop for th.e purpose of building research collaborations
with regards to improving delivery ofhealthcare services in the Delta.
13. To provide ove~sight through a Board of Directors comP-osed of representatives from th_e' - -- - -
Delta Council, Delta State University, Mississippi State University, Mississippi Valley
State University and the University of Mississippi Medical Center.
14. To develop and prepare Uniform Progress Reports, Final Reports and Comprehensive
Performance Managem~nt System Reports with input provided from project participants
and disseminate to HRSA,regional, state and national agencies of interest.
15 , To assist and collaborate with project participants for the development, refinement and
DEF-00315
Article 3
Delta Council is a 72-year old 50l(c)6, nonprofit economic development organization which was
chartered in 1935. Delta Council has more than 3,500 members including retail'and wholesale
businesses, constmction companies, engineers, physicians, lawyers, manufacturers, insurance
companies, farmers, allied agricultural businesses sucth as cotton gins, elevators, fertilizer, seed,
and crop piotection companies. The committee structure of Delta Council allows all members
equal voting privileges for setting policy and implementing action relative to regional issues of
common concern. Such issues as higher education funding, flood protection, improved
highways, the contimlation of rail service, adult literacy, agricultural research, and land/watei
conservation programs are representative of the types of issues which Delta Council impacts on
behalf of business and ag1iculture in the region.
The Delta Council has an administrative services contract to provide financial services. to the
Delta Health Alliance which will continue under this grant program. This arrangement has be~n
sustained since fiscal year 2004 and.will include, but not necessarily be limited to:
'
.administrative support requested by the CEO ofDeltu Health Alliance on a daily basis.
-------------=xn~Je~--------------------------------~--~--------~---------------------
1. Cooperative activities outlined in Articles 2 and 3 under this MOA shall be subject to the
availability of funds . In no event will funds be provided to the Delta Council if they are
not first made available to DHA by HRSA through their approval and the release offunds
for draw down.
2. . The Delta Council will be reimbursed for these services in accordance with the most
recently HRSA-approved budget within the catego~y "Contractual" under
"Administrative/Financial Oversight" .
DEF-00316
., ..
""''
.,.,,.,,,,.
3. The accounting office for the Delta Council will send the Delta Health Alliance a
monthly invoice for the amount of allowable expenditures that have been incurred over
the last billing cycle. Billing cycles and reimbursement procedures will run in
accordance with guidelines set forth in the DHA Policies and Procedure manual.
Article 5
1. Any issues arising from the interpretation or implementation of this MOA may be settled
through consultations between the Parties.
Article 6
1. No inventions by the Participants are anticipated as a result of this MOA. Inventions by
any Party will be govemed by specific agreements between the inventors and their
respective employers, or among the Pa1ticipants. The conduct of research, development,
testing and evaluation activities that would predictably generate intellectual property by
cooperative activities between the Pru.ticipants will be in accordance with separate
agreements. In the event that any proprietary information is to be exchanged, the
involved Participants will enter into a Proprietary Infmmation Agreement as necessary.
Article 7
1. All tangible personal property produced or acquired under this MOA (specifically
excluding Intellectual Property rights, Background Intellectual Property, and Proprietary
Information) shall become the property of the Participant, the Government or sponsor,
depending upon whose funds were used to obtain it. There shall not be any jointly
funded property under this MOA except by the mutual agreement of all Parties.
Article 8
1. Each Party agrees to not disclose Proprietary Information provided by another Pmty to
anyone other than the MOA participants without written approval of the providing Party.
2. If Proprietary Information is orally disclosed to a Party, it shall be identified as such,
orally, at the time of disclosure and confirmed in a written surninary thereof, appropriately
marked by the ciisclosiug Party, within 10 days as being Proprietary Inf01mation.
3. In no case shall an MOA participant provide Proprietary Information of a Participant to
any person or entity for commercial p1.1rposes, unless otherwise agreed to in writing by
such Participant.
Article 9
1. Every six (6) to twelve (12) months of service, the terms and conditions of th.is
arrangement and monetary compensation to the Delta Council will be subject to review
and renegotiation, based on the actual work load experienced by the Delta Councjl,
changes to the scope of work, and changes to reporting requirements.
DEF-00317
,..
' ~ ' I
. ' .. .....;t ; ; , .
.,
, ,.,
o l'
''
.
2. If any Participant desires a modification in the MOA, the participants shall, upon
reasonable notice of the proposed modification by the Participant desiring the change,
confer in good faith to determine the desirability of such modification.
Such
modifications shall not be effective until a written amendment is signed by all
Participants hereto by their representatives duly authorized to e?Cecute such amendment.
Article 10
1. This MOA shall become effective July 1, 2006 and shall remain in force for a period of
five (5) years, unless terminated earlier by either Party for cause upon ninety (90) days,
through written notice to the other party. Either party may terminate this MOA for
convenience upon w ritten notice to the other patiy. Should
individual initiative
described in Articles 2 or 3 be terminated by either party, lt shall not affect the validity or
duration of the other initiatives under this MOA.
an
3. In the event of such termination, the Delta Council shall be entitled to receive
reimbursement for all eligible and allowable project expenses, including noncancelable
obligations, incurred prior to the date of termination.
Name: _ __L.4-'-""h;('-'"""",___,{tJ;:;:.:
. +"dt:"""'"'--------- Date:
-/ -
(J l,p
DEF:-00318
5
21-Feb-07
FixedNariable
Administrativ~ Exp
Resource Allocation
Fringes
Tina
Manning
Mary
Sluder
Ir
Roanne
Davenport
Susu
Whatley,...
Frank
Howell
4,320.36
Rxed
Expenses ..
Total
E~enditures
2,174.98
5,349.94
5,096.00
3,352.84 .
64,198.44
30%
136,677.43
30.0%
. I
38,269.68
17,975.56
Overhead/Admin
office Suppl;es
J
!Telephone
!Operating Expenses
5,670.38
3,952.48
53,323.03
156.86
6,619.42 .
I
f
l
I
I
!Totals
15,429.84
-,
.j
DC Admin Fee*
Total Admin:
en
,...;
15,429.84
30%
Chip
Morgan
7,767.80
19,106.93
18,200.00
22,103.54
64,198.44
62,945.88
*82,938.95
125,000.00
4-07,938.95
NOTE: We agreed to $275,000 as a ceiling for the term of our current 2 year agreement.
This would be FY '07 & 'OB.
u..
w
c
.. - ... !
Corporation may hold securities. At any such meeting, the secretary shall possess all of the
rights and powers incident to the ownership of s:uch securities, which, as owner thereof, the.
Corporation might have possessed if present, including the authority to delegate such authority to
a proxy. The Board may, by resolution, limit such authority or cpnfer like authority upon any
other person or persons.
-'.
,,..
Section 4. Loans
No .loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall
be issued in its name unless authorized by a resolution of the Board. Such authority may be
general or confined to specific instances.
Section 5. Checks
All checks, drafts or other orders for payment of money, notes, or other evidences of
indebtedness issued in the name of the Corporation shall be signed by such officers or agents of
t he Corporation and in such manner as shall be determined by resolution of the Board.
SeCtion 6. Deposits
All funds of the Corporation not otherwise employed shall be deposited to the credit of the
Corporation in such banks, trust companies or other depositories as the Board may select.
Section 7. Gifts
The Board shall have authority to accept any contribution or gift on behalf of the Corporation for
any purpose of the Corporation.
Article VII. -Liability of Directors
Section 1. Liability/Indemnification
The Directors of the Corporation shall not be liable or responsible for debts or obligations of the
Corporation. Any person who at any time serves, or has served, as a member of the Board, or as
an officer of this Corporation, or in any like capacity at the request of the Corporati9n, shall be
indemnified by the Corporation, to the fullest extent permitted by law, against (a) reasonable
expenses, including attorney's fees actually and necessarily incurred by them in connection with
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative and whether or not brought by or on behalf of the Corporation,
seeking to hold such person liable by reason of acting in such capacity, and (b) reasonable
payments made in satisfaction of the judgment, money decree, fine, penalty, or settlement for
which he may have become liable in such action or proceeding.
,;,\
\
Section 2. Insurance
The Corporation may purchase and maintain insurance on behalf of any person who is or was a
Director, officer, employee or agent of the Corporation, or who is serving at the request of the
Corporation as a directqr, officer, employee or agent of another corporation, partnership, joint
venture, trust or other. enterprise against any liability asserted against and incurred by such
person in or arising out of such capacity, rvb.ether or not the Corporation would have the power
to indenmi:fy such person against such liability lUlder the provisions of these bylaws or of the
laws ofthe State ofMississippi.
Page 11 of18
DE_F-00320
. ------ .
.. .....
. .. . ...
- -
--- -----:: : -
The undersigned, constituting at least eighty percent (80%) of the members of the
Board .of Directors of Delta Health Alliance, Inc., a Mississippi non-proflt corporation (the
"Corporation"), do hereby, pursuant to Miss. Code Ann. 79-11 -203, consent to the
following resolution adopted in the name of and on behalf of the Board of Directors ("l~e
Board"), without the necessity of a meeting, in lieu of a special meeting of the Board:
WHEREAS, certain actions of lhe CEO of the. Corporation, Dr. Karen Fox, have
-~----"""
b""'
ee=o...._guestioned as being without RIQR-"'er,__,a,_,u"-'-t!..!.:ho::::!r.!.!.ity,~an'-'-'d"-e::::...V:..::e'-'-'n....!.ile..::le::.:::g,..:::a!.LI-"'ac:.!n~
d _ _ _ _ _ _ __ __ __ __
WHEREAS,. earlier the Board investigated allegations and determined that each was
unsubstantiated arid without merit, and adopted .a Resolution to that effect on May 10, 2010;
and
WHER.EAS, the Board desires to make clear that the following actions of Dr. Fox
were wifhin her authority and have the Board's approval;
IT IS, THEREFORE, RESOLVED that:
1)
The Increase in retirement contributions for executive employees from 1 i .3%
to 20%, instituted to assist in recruiting and reraining qualified people vis a vis the 50%
PayScaie median salary limitations, Is within the..CEO's authority and is ratified and
approved effective as of January 1, 2010; ..
2)
The travel al!owance .option, granted to certain executive employees
beginning January 1, 2010, for use of their personal vehicles on DHA business (in lieu of
submitting mileage and per diem reimbursement requests), based on projected usage at the
IRS rate and subject to periodic (at least annual) review and adjustment, was in accordance
with Board poiJcy, is within the CEO's authGrfty and is ratified and approved;
3)
DHA's reimbursement to Dr. Fox for her payment of $2,033.91 to her .
personal attorney, for consultations arising out c:if accusations or claims that she was
responsible for misuse of DHA funds and that she could be prosecuted or su ed or both, was
in accordance with DHA's bylaws, was made only after consulting the Board's Chairman
and at the direction of the CFO, a!"Jd;is ratified and approved;
4)
The employment of a part-time s~cretary (averaging 25 hours per week) in
Memphis, to assist Dr. Fox and Richci'rd Was_h1rigt6ii, whose principal work station is Dr . .
Fox's home office, is within Dr. Fox~ authority and requires neither ratification nor appro_val;
5)
The execution of the Personal Services Contract between DHA and Jackie
Glisson for his services related to the construction of the fourth Scholars-in-Residence cabin
in Stoneville, Mississippi, a copy ot'which Is a1tached hereto as Exhibit A, and payments to
Mr. Glisson by DHA totaling $4,250 made ln accordance with that contract, were within the
CEO's authority and are ratified and approved . :
1.
DEF-00321
4121 9469. 1
I
'
..
-------- -
- - - ......
.. ...
.-: -:
...
: ..
)
... .
Bruce Brumfield
:: ~ . . '
....
'.
'
Bill Kennedy
2
4(219469.1
DEF-00322
The Travel budget for the Delta Health Alliance is a significant part of our operating
budget, more so than for some agencies who provide a more limited r"ange of services
or do so in a more focused service area. The DHA's annual budget this year is
$31,767,382 and our total annual travel costs are estimated this year to be $X,
representing a Y% of available funding. The DHA plans, implements, and maintains
programs across a large region, encompassing over 25 ,000 square miles of land, most
of which is accessed through winding rural roads . Our annual travel costs are
- - - -eeR-s-iEl eFefl-FBflSG-r.:Jable-.b.)Lo.urJ..u.ad.ing_ag.encles~_g.hle_o_ib.e_d iverse nature of the services
we provide arid substantial geographic region served .
Travel, per the current federal eligible rate, is $0.50/mile and $125/night limit for hotels.
Per diem for individuals traveling that do not have access to a kitchen and the ability to
prepare their own meals is $46/day.
A variety of factors contribute to o.ur travel expenses:
I.
II.
Frequency of Travel
The DHA does not support "turn-key" projects in which we'd be able to simply
conduct one initial meeting, hand over a check for folks to work independently,
then visit again at the end of. the project to wrap up evaluation and close out
operations. The founding purpose of the DHA was specifically to provide handson support and guidance in the development, implementation and ongoing
operations of community-based efforts. Often these are projects conceived by
the people they will serve. While the need for these projects is strong and the
concept for the projects reasonable, the individuals doing the efforts very often
do not have the technical, operational, or research experience needed to operate
with little oversight.
The DHA is different from other granting agencies in this respect. We are deeply
involved in the projects we support, with Project Managers frequently-reporting 4
or more days of travel each week, with trips easi~y averaging 100 miles a day.
1
DEF-00323
Ill.
Variety of grants providing different types.of services in different regions of the state.
Fifteen different grants, ranging from $10,000 to over $25,000,000 per year, providing
conducting research, . providing job training, and building infrastructure not only in our
~ealthcare services,
o~iginal
also beyond.
Table 1. Chart of All Project Activities by County
ro
'-
ro
Funding
Agency
Project Name
BLUES
OAT- Telepsychiatry
Program
Patient Navigator
Outreach Program
Tobacco Grants
RUS - Distance
Learning & Telehe;:~lth
Baby College
Program
Church Garden
Project
Beacon Community
Grant
HRSA
AHRQ
HRSA
HRSA
MS Dept of
Health
USDA
Kings
Daughters
Foundation
MS Dept of
Health
'-
...c:
.:::
....
co
ro
type
Diabetes
program
Infrastructure.
- EHRs
Mental
Health
Patient
Access
QJ
E
0
:I:
>
Q)
'.c:
ro
ro
c..
:J
:r:
c:
Q)
:J
rr
Vl
Vl
Q)
'-
ro
c:
ro
>
QJ
0
4=
c:
E
......
...1
0.
:J
.c:
QJ
ro
Cf
'-
ro
VI
....
Q)
3
0
4=
c:
:J
VI
X
X
Q)
.c:
u
......
ro
.c:
C1l
C1l
f-
l
r
c:
ro
c:
c:
.......
f-
:J
QJ
ro
c:
.c:
Vl
C1l
0
0
.N
C1l
Other Counties
, ___
>-
Attala, Benton,
Grenada,
Laf(3yette,
Marshall,
Montgomery, .
Tippah, Union
and Yalobusha
Hinds
X
'
>
Jones
......
OJ)
Infrastructure
- EHRs
ro
Vl
Vl
Q)
Smoking
Cessation
Infrastructure
- EHRs
Early
Childhood
Vl
0
......
0
DEF-00324
...
!1l
>
DHI
en
Proj
Prolect Name
2 '
5
9
19
21
23
25
26
27
Capital Improvements
28
29
Institution
typ_e
MVSU
MHA
Ed./screening
Clinical
services
UMC
Infrastructure
DSU
Workforce
MHA
Workforce
DSU
Workforce
Capps
Cen.
Workforce
MPCA
In frastru ctu re
MVSU
Childhood dev.
DHA
OHA
Infrastructure
ro
.......
0
!1l
E
a
..c
ro
u0
VI
a
+'
aVJ
:c
Q1
Vl
<11
ro
>
<II
...
..c
<11
0.
E
;:l
:r:
:::1
0'"
ro
VI
Vl
<11
1....
0
<+==
<11
...-!
!1l
;:l
..c
;t:
0..
Ci
....
...
<11
30
ro
<+==
V1
:::1
V1
u
.....
ro
..c
ro
ro
30
UMMC~
Pharmacy
UMMC
Med .
management
Clinical
services
Q1
.....
!1l
1-
ro
u
.f-1
Q1
.....
....
!1l
:::1
1-
1-
X
X
X
X
0.0
ro
..c
Vl
ro
>-
'
X
X
0
0
X
X
Infrastructure
Delta Pharmacy Patient
Care Management
<11
..c
Patients referred
!1l
!1l
>
<11
~-
3
I
DEF-00325
'
.. .
(1j
.....
(1j
.~
DHI
Proj
#
31
32
33
34
36
37
38
40
i
41
42
'
43 ,
44
c:o
Project Name
Nutritional Needs of
Students
Institution
UM-NFS
MSU: Early
Child. lnst.
MDH
.....
....
(1j
type
Education
Delta
Council
UMMC
Childhood dev.
Clinical
services
Education
Clinical
services
E
0
..!:
(1j
CJ)
0
+'
0
ClJ
.E
"'ClJ
>
"'
(1j
....
c..
:J
ClJ
..!:
ClJ
c-
ro
CJ)
::l
CJ)
Q)
....
0
;;:::
ClJ
-'
(1j
(1j
0.
>
ClJ
~
.._
(1j
+'
:::J
(1j
..!:
Cf
V1
ClJ
3:0
;;:::
::l
V1
-+-'
(1j
..!:
C1l
(1j
Q)
+'
(1j
1-
:J
1-
(1j
ClJ
....
(1j
I-
to
c
..!:
V1
(1j
0
0
C1l
>-
1-
xl
xj
ClJ
..!:
I
X
....
'--'
USM
Clinical
services
UMMC
UMC
MSU/
MSDH
DHA
Education
Clinical
services
Clinical
services
UMMC
Multiple
Clinical
services
Tougaloo
Clinical
services
X
X
X
X
X
X
X
I
X
-,;
DEF-0032 6
\
r-..
IV.
Due to its geographic reach covering over 25,000 square miles of rural communities,
the DHA has developed a "hub and spoke" network of locations from which
operations may be conducted. This distributed approach actually significantly
reduces travel, as project managers may operate from bases closer to their own
projects, minimizing daily travel. This design is the same design used by the internet
in which "nodes" of servers located all over the world are networked together in a
huge web, allowing internet communications to jump from local server node to the
-----loeaHe-Fl-eHJ:le-s-te-FeEl-i-AfBfmati-e-A,r:atJ::J-er-tJ:laR-Q.f5-r:G-6J.t@Gl-tG-G-n.@...l+l~.~ve.-ct;.r.:ltr.a.l------
location. The distributed nature of multiple centers of operations also creates safeguard redundancies in the system, so that if one location is disabled due to natural
disaster or even intention down time (ie: renovations, construction), the other centers
will still be operating to minimize disruption of services. The DHA currently requires
four bases of operations in order to provide adequate geographic coverage and
provide a presence within the communities being served locally. These include:
Accommodations: Accommodations for traveling staff and guests have been created
in Stoneville through the construction of four cottages (three complete, one under
5
DEF-00327
construction) with approval from HRSA. Accommodations were not needed for
Ridgeland as most of the staff that operated from that location live locally. The
\
Oxford location, plans for which have been approved by HRSA, will include office
space and accommodations, due to the lack of options for affordable short-term
\
housing given the amount that would be needed. Oxford was selected due to its
proximitY to sites participating in TEAM Sugar Free, the Pharmacy outreach
program, the Nutrition grants, and the D.A.R.E. initiative- all programs that serve the
northeastern quadrant of our servic~ area. The Indianola location, also approved by
HRSA, will include office and clinic space for that community. One half of the
- -- - -5u ria 1ng wlltberennvateti--to-estabiistrarruotreach-h-e-a+th-care-cHnic-ilJCOopelclt+ofi- - - - - with the Good Samaritan Clinic and South Sunflower Hospital. The other half will be
used for office and meeting space to give the Delta Promise Community a
permanent presencein the community it serves, following the model established by
the Harlem Children's Zone. Accommodations will not be needed in this location
due to the proximity of where the staff reside.
By having multiple office locations spread across the Delta, from Stoneville in the
southwest to Oxford in the northeast, Ridgeland in the south (urban) and Indianola in
the heart of the Delta (rural), the DHA has an established presence in the
.
communities we continue to serve. These locations also provide local access points
from which DHA staff, partners and commwnity members can utilize the
teleconferencing network for both DHA business and to participate in distance
learning programs offered across the country.
DEF-00328
Pros:
Flexibility to only book dates when needed.
Maid service provided.
Cons: .
Strong potential to be locked out for availability on busy weekends (football
games). When rooms are available, they are typically at 200% cost with a
minimum of 4 days booking.
No or limited in-room cooking ability, driving up cost of meals.
Very high cost over time if lodging needs are frequent, estimated at $3,800
per month.
For preliminary fact-finding, the DHA has been working with Square Properties, LLC, a
small rental property agency located at 1403 Vim Buren Avenue in Oxford, MS.
The apartment would involve a lease renewable for up to three years at a fixed cost of
$18/sq foot annually, and would include a clause that allows the DHA to terminate the
agreement without cause or fee, with 90 days notice. The purpose for that would be to
provide flexibility in the event that needs drama.tically changed or funds became
suddenly unavailable. Total cost of the l~ase would not exceed $2,000/month.
DEF-00329
The lease .will include provisions for a minimum of 2 car parking, landlord provided
repairs and maintenance, electronic card key security system, and insurance on the
property.
Analysis
The Electronic;; Health Records project has been implementing new EHR systems in
clinics across the Delta, starting with the southern locations (where our own offices and
residences are located) and moving northward. As implementation continues to roll
- - - -R-e-FI:-I:lwar-G!.,-tl:!e-D.I=lJUS-fi.nojlJ9-a-dramaticJncr:e.ase in the need for lodglng_,_f=o,_rs=t=a.:...:..ff_ _ _ _ _ __
involved with hands-on operations . The DHA reasonably estimates it will have two EHR
personnel deployed at any given time, on average 15 days per month, for a total of 30
lodging days monthly.
Hotel costs for 30 lodging days in Oxford ranges from $3,654- $3,900. If
implementation or training needs are higher than anticipated and two people are
needed for 30 days each, the cost could rise as high as $7,300 per month.
An apartment will provide the EHR project with a fixed and known cost for lodging,
capped at $2,000 per month. Project management feels thaf staff needs will easily
make this the more cost efficient option. In addition to this tangible benefit, staff staying
at the apartment will have access to a full kitchen, allowing them to make healthier
meals for themselves at a much lower cost, reducing the per diem that need~ to be
. paid. For these. reas-ons, the DHA would like to request HRSA's approval of the use of
a leased apartment to house staff deployed to clinics in the north Delta.
DEF-00330
M~r~h ":; 5,' 2010- 3:08 p...... John Hi1-p_ert .?p.qk~ ,_: ...
1\
you."
.: ~:- .. <=~~:_:_>_C<~
. .
.
.
.
.. ,
ex ose
.J. Hahn called and cancelled 8:30 a:m. r:neetmg.
6r.ney_ an? he (~ahn) d1dn t wan~ to
P .
He said Karen Fox was hiring an att_
.
himself, me (Hilpert), or the d~g:a:mzat1on t~ nsk..
. e
d he had talked to Karen Fox three or four times .today and that peopl
He sa1
.
,
ll
with DHA were not returning ~aren Fox s ca s._
..
52 p m
Marc h 16 , 2010 - 6 . . .
-- .... .
~
,:,.'::'--.;
.. =' ! ,.,~, .~,,,__........:
..
, : .
.
.
Call from James Hahn: '~1 -thi~.k w_e'v_e had one little legal m1sunderstandmg taken
care of. you are still available I would like to me_et tomorrow."
8:30 meeting rescheduled.
if
DEF-00331
'.: ..
: . ';,,:
DEF-00332
--
. { " ::
~'
{'
'
: : : t ........ :
( )
,i
For. last six+/~ weeks James Hahn has been worried about Karen Fox:
" Personal?
&
Fights at a high level? (UMC? J;egislature? AIIScripts?)
The distraction "caused us toget off fr?ck a bit" .
ll>
This caused frustration at sen.ior levels.
6
Ricky has resigned for good.-:- r.evealed a level of frustration (trying to
meet unreasonable expectatism's) and he's a highly sensitive person- "the
most risk averse person I know~~- Ricky has moved to three or four in
order of "in the know". He wanted to leave in a good situation.
.
Ol A little more security would bring some senior leadership to the Delta .
Financial
'There is fraud and then thE!re is ..ir;nperfect judgment."
"I think if I had ever seen st~al.in.g, .that day I would be in your office.
Karen Fox knows that'S! how l~feel''1 :-<
"I've never seen anyt6.tfi.f(le~di~g .. me to belie.ve Karen Fox has stolen a
dollar."
"! have seen decisions that may not haye been wise."
"There have been occasions where Karen Fox has made decisions that
might'not please the Board.';
"I'm not a tattletale .". Jusf poor judgment.
"I am loyal to Karen Fox."- appropriate deference.
Examples?
, ;
"Karen Fox has made two or:th~~~. ~hat appeared to be strange
maneuvers with our aut0mobile policy:.. She drives -one -vehic.le -and -then - . .
changes and the policy is changed to pay her some amount of money."
Purchased two vehicles .. Both parked. Karen Fox will be given a .
veh(cle allowance. Sh~now gets $3,000.00 per m onth for a vehicl e
alloWance.
..
o James Hahn is asked to take on more financial oversight as
Richard Wash)ngton is recovering from surgery. James Hahn has
examined Jere .Nash~~ : \~PrJjract. He has seen details- $600,000.00 .
for next year is:. ".headed )e.re's way". "I (James Hahn) saw it
~.
budgeted.
'.: '<(, , ..... .,. .- ~ .r '>.
~ -- . , , \ . '
o
"I 've got to k~qyy,~[n~re,:~J~.9Y;f these kind of transactions before I will
.
take greater financial accountability."
o
"This makes me nervous." Another recent observation: need to
obtain two lobbyists. Richard Washington told .Karen Fox that
. federal law forbids paying for state lobbying. The conclusion
James Hahn reached V{~.s that Delta Council would pay and DHA
would settle it through. payr]lent to that organization .
The need for systems has lagged beh-ind. The new .CFO says "bank
accounts not reconci)ed, .etc;/ . : : :
Jl
',
' ,
: lo
t ,..
1, 1
'
DEF-00333
'
;l .
:.'
, L-.':.{ ." ~: ,
...
When Karen Fox is "not at her best" she can "become -unbearable."
That
. _wi.t~(her employees, .
, others.
"I've begged her to Work
eiTJp'l oy~e and organizational development."
She comes across a:ft.o~.~:nr~;~~s:9:0a~le too often. People iri the way will
be trampled.
":; ', 1 ;: .. . ,:1.!-' ,~t .
She is talent~~l~hd. sri1~h: ...
"I shouldn't'have to feel as nervous as I do."
Employees are tremendously loyal. Hard to talk about issues for fear of
retribwtion. Karen Fox is afraid people want to "run her off." Ricky Boggan
is gone because he could not sit down without retribution.
... i.
.
J. Hahn 1s nowhere.~JWI r~~~~l{i:.~I9D? J1mmy Keeton may have
... ..... _. ---- - _____ m.i.s.inte.r.p.r.ete.d~....--'-!)~ . .:;:,_.!,::.._~_i~~?!.~/;..~~:--- . . - ... ---..--..-- ----- _.... . . _._.:.-- ..__________________ ...... _______ . _
He will probably returr.Ho cEO job some time.
"I (J. Hahn) do wantto-se~ Karen Fox find her way to more of focus. driven ' m.ode
(?)the mission. 'I want the fights to end - politics, .
partners, competitors."
I won't be surprised to see others leave. Many people don't like to fight. . It
can be destructive. .
. . .
Karen Fox needs to .lean on the )Wisdom of the Board.
Communication heeds ..to be better.
Accountants have questions when' .policies are n!Jt well explained.
Karen Fox doesn't
of things easily.
oh'
DEF-00334
''I
,.
I
MINUTES
Delta Health Alliance Board Meeting
May 17,2010
The Delta Health Alliance Board of Directors met by conference call at 5:00p.m. with
the following present:
Board Members
Dr. John Hilpert - Chairman
Mr. Willie Baile
Dr. Greg Bohach (representing Dr. Keenum)
Mr. Bruce Brumfield
Dr. Claude Brunson
Dr. Cass Pennington
Mr. Bill Kennedy
Dr. Donna Oliver
Ms. Lisa Percy
Staff
Dr. Karen Fox - CEO
Also attending at the invitation of the board: Attorney Roy Campbell
Business
The board discussed personnel issues related to employee James Hahn and made these
decisions: Mr. Hahn would immediately be placed on administrative leave with pay and
asked to sub!nit his resignation no later than 5:00p.m. on May 20, 2010. Attorney Roy
Campbell was authorized to act on the board's behalf in these matters.
DEF-00335
I~
~HE
PLAINTIFF
vs.
NO. L10-441
DEFENDANT
**********************************************************
VIDEOTAPED DEPOSITION OF JAMES WAYMON HAHN
VOLUME I
**********************************************************
COPY
<J
Reported by:
TUPELO, MS
38802-0761
EXHIBIT
------------- 1 F
------------ ----- -
Page 34
JAMES WAYMON HAHN
'
2
3
Q.
affairs, which was a new position for him, and during that
Center and Delta Health Alliance and certainly Dr. Keaton was
10
11
many employees and had been quoted as, you know, being
12
13
exist perhaps.
14
Q.
15
A.
Right.
16
Q.
Okay.
17
18
question was:
A.
The
19
20
22
23
Q.
24
A.
Yes.
25
Q.
Page 35
JAMES WAYMON HAHN
statement that the reason you met with Dr. Keaton was because
A.
Q.
Okay.
A.
10
11
12
observed.
13
Q.
14
at all.
15
I -- agai n ., e xp lain
16
A.
Okay .
Right .
17
Q.
18
A.
Absolutely.
19
Q.
-- to guess
20
A.
Right.
21
Q.
22
23
of 2010?
24
25
A.
Right.
)
VOLUME I
Page 47
JAMES WAYMON HAHN
A.
No.
Q.
A.
No .
Q.
A.
10
Q.
Okay.
11
A.
And his
12
13
his participation.
14
pulling it.
15
Q.
Okay.
16
A.
Yeah.
17
Q.
18
19
20
21
A.
22
Q.
23
A.
That's correct.
24
Q.
All right .
25
A.
VOLUME I
Page 48
JAMES WAYMON HAHN
that I do so.
Q.
Go to Dr. Hilpert.
A.
Yes.
Q.
A.
Q.
10
A.
11
12
13
14
the question.
15
MR. FRIEDMAN:
16
MR. WAIDE:
17
18
19
Q.
(Mr. Friedman)
MR. FRIEDMAN:
20
21
myself.
22
Q.
(Mr. Friedman)
23
A.
I can.
24
25
Your
Couldn't have said i t better
Q.
Keaton did?
VOLUME I
Page 60
JAMES WAYMON HAHN
be budgets
budgetary adjustments.
Q.
A.
Internal auditors.
Q.
Who is that?
10
A.
Steve Osso.
11
to recall.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
This is speculative.
That represented in my
the fact that our pension plan, which was originally very
-------=V~OLUME --'I~-
Page 61
JAMES WAYMON HAHN
included, I
plan.
Q.
A.
I've
10
11
12
13
Q.
All right.
16
A.
I don't know.
17
recall.
18
Q.
Okay.
19
A.
20
Q.
All right.
14
15
not
That -- those are the matters I
21
22
23
24
25
-------------
-- - - - - - - - - - -.Jl._QL'QME_.....___________ _
Page 62
JAMES WAYMON HAHN
Anything else?
A.
Q.
Okay.
As it relates
Nash first .
these allegations you made about Jere Nash and the budgetary
9
10
11
A.
Q.
All right .
12
13
Excuse me.
16
MR. WAIDE:
17
18
19
20
21
is not in the complaint, but you just asked him about what he
22
14
15
A.
--
Our position as a
23
MR. FRIEDMAN:
I understand.
24
MR. WAIDE:
25
The
VOLUME I
Page 63
JAMES WAYMON HAHN
MR. FRIEDMAN:
understand
understand
MR. WAIDE:
MR. FRIEDMAN:
MR. WAIDE:
10
11
Well
From my attorney.
I didn't
12
MR. WAIDE:
-- he was -- okay.
Delta
13
14
15
16
17
18
19
20
21
MR. WAIDE:
22
23
24
MR. FRIEDMAN:
25
MR. WAIDE:
Page 64
JAMES WAYMON HAHN
MR. FRIEDMAN:
MR. WAIDE:
I understand.
(Mr. Friedman)
it out to me.
A.
10
not used.
11
Q.
12
13
14
Excuse me.
15
16
17
18
MR. FRIEDMAN:
Jim.
19
20
Which one
MR. WAIDE:
itself.
21
MR. FRIEDMAN:
22
MR. WAIDE:
23
MR. FRIEDMAN:
24
25
MR. WAIDE:
No.
I can depose you next and I
VOLUME I
Page 66
JAMES WAYMON HAHN
increased to $600,000?
hours a week.
4
5
Q.
Okay.
Well, no.
A.
No.
Q.
Now after Mr. Osso -- that's who you say told you
about this?
A.
Right.
10
Q.
11
12
discuss this in which she told you about the -- what was
13
14
Mr. Nash?
15
16
17
A.
I had a -- no.
18
19
finances?
20
A.
21
Q.
Correct.
22
A.
No, I don't.
23
Q.
24
that the arrangement with Nash was for $100,000 and the
25
500,000 was general DHA budget that was not specifically for
------------
VOLUME I _ __
Page 67
JAMES WAYMON HAHN
Nash?
A.
No.
Q.
A.
Q.
600,000
A.
10
11
responsibility or
12
13
Q.
14
A.
That's right.
15
Q.
16
A.
17
Q.
No?
18
A.
19
Q.
20
A.
No, I don't.
21
Q.
All right.
22
A.
I'm sorry.
No, I don't.
23
Q.
All right.
24
25
correct?
VOLUME I
Page 87
JAMES WAYMON HAHN
A.
these cars
Q.
10
11
12
A.
What's written on F.
13
Q.
What's written on F.
(Thereupon, the document to be referred to
14
15
16
Q.
17
your deposition.
18
19
20
21
A.
22
Q.
do.
Employees shall
23
24
25
VOLUME I
Page 88
JAMES WAYMON HAHN
A.
Correct.
Q.
Anything
A.
I don't know.
Q.
A.
8.
Q.
10
11
12
13
vehicles too and once they get tired of them, they can park
14
15
16
Q.
17
A.
I have no idea.
18
Q.
19
20
changed?
21
A.
22
Q.
23
24
25
)
-----------------------------------------_J~LUME~I~-----------------------------------
Page 101
JAMES WAYMON HAHN
Q.
A.
No?
Q.
A.
Q.
Who?
A.
Q.
Work with
10
A.
Lobbyists.
11
Q.
What lobbyists?
12
A.
State lobbyists.
13
Q.
14
A.
15
Q.
16
lobbyists?
A.
17
18
19
Q.
20
A.
Yeah.
21
Q.
Did he -- did Mr. Boggan tell you who paid for the
22
lobbyists?
A.
23
24
There wasn't much speculation on our part about who paid for
25
it.
------
VOLUME
I
------------------
Page 102
JAMES WAYMON HAHN
Q.
A.
Q.
what facts do
A.
Dr . Fox's comment.
Q.
lobbyist .
A.
No.
10
Q.
11
A.
Yes.
12
Q.
All right.
13
I heard that.
14
A.
After conversation.
15
Q.
16
secured.
17
A.
Right.
18
Q.
But you don't know who paid for the lobbyist as you
19
20
A.
21
Q.
22
23
24
25
Q.
How?
VOLUME _I_.
Page 108
JAMES WAYMON HAHN
this.
the complaint.
The question was whether you told anybody that that act was a
criminal act.
A.
Yes, I have.
Q.
(Mr. Friedman)
A.
9
10
Who?
speaking
Q.
11
12
13
A.
14
taxpayers
15
16
17
legislature.
18
Q.
Okay.
19
A.
20
Excuse me.
I reported
Just to be clear on
21
the record, James, I think his question was not what you
22
reported.
23
24
question, Gary?
25
A.
Yes.
Page 113
JAMES WAYMON HAHN
A.
Q.
A.
Q.
A.
I did.
Q.
Who?
10
A.
do.
11
12
to either or both.
13
Q.
14
15
investigation?
16
A.
17
Q.
Mr. Campbell?
18
A.
Yes.
19
Q.
20
21
that is illegal?
A.
22
23
24
25
Q.
Okay.
.___ VOL~ _I
Page 114
JAMES WAYMON HAHN
A.
Okay.
Q.
asking.
A.
Yes.
Q.
Okay.
A.
John Dunbar.
Q.
Now when you said you gave -- that Dr. Fox gave the
I'm just
I want to make --
administrative employee?
An
10
A.
Yes.
11
Q.
Who?
12
A.
Patrick Owens.
13
Q.
14
A.
No.
15
Q.
16
A.
I believe I do.
17
Q.
18
A.
19
20
21
Q.
22
A.
23
Alliance.
24
Q.
Who?
25
A.
Patrick Owens.
- --- - -- Y.QL~ _I
Page 116
JAMES WAYMON HAHN
A.
Q.
A.
Don't know.
Q.
A.
Yes.
Q.
Why?
A.
Now
10
11
12
13
We
14
15
16
17
18
Q.
19
A.
Okay.
20
Q.
21
assume Fitch, Boggan and you were told that y'all could be
22
implicated, correct?
23
24
25
A.
Is that correct?
_ V9LU$ _I
Page 121
JAMES WAYMON HAHN
Q.
A.
Q.
10
A.
Right.
11
Q.
12
13
14
Yes.
15
16
17
exposed.
Q.
18
19
20
reputation?
21
A.
Yes.
22
Q.
24
A.
Yes.
25
Q.
23
DHA?
We're going
Page 144
JAMES WAYMON HAHN
Q.
A.
in a mess.
Q.
A.
10
Q.
11
A.
Because at the
12
13
14
that.
15
Q.
16
position that Dr . Fox did not have the authority to have you
17
18
19
20
A.
authority.
. Q.
21
admitted she did not have the authority to enter into this
22
lease?
23
A.
24
25
VOLUME I
Page 159
JAMES WAYMON HAHN
'
you know, maybe this is a tough term, but, you know, that's
I'm not an
Q.
unit.
A.
10
Q.
11
12
13
A.
14
Q.
See that?
15
A.
I don't.
MR . WAIDE:
16
17
Gary?
18
19
schedule.
20
A.
Okay.
21
Q.
(Mr. Friedman)
22
All right.
23
A.
Right.
24
Q.
25
Page 160
JAMES WAYMON HAHN
A.
terms, the length of the lease, the amount of the lease, the
5
6
Q.
A.
Most of them.
Q.
Most of them.
10
11
12
A.
No, I don't.
13
Q.
14
15
A.
Right.
16
Q.
-- i t says:
17
18
A.
Right.
19
Q.
20
blank.
21
A.
Right.
22
Q.
23
A.
I don't know.
24
Q.
25
A.
Not likely.
Page
~61
Q.
A.
Q.
A.
Perhaps I did.
We were instructed
Q.
10
A.
Right.
11
Q.
12
13
signature on there?
A.
14
15
16
17
'
Q.
18
is one page and above your name and title that you say is
19
20
21
22
23
A.
No .
24
Q.
All right ..
25
A.
Right.
Page 162
JAMES WAYMON HAHN
Q.
negotiations, correct?
A.
That is correct.
Q.
10
this and you knew that there were blanks and things in here
11
12
A.
Right.
13
Q.
14
A.
Good question.
15
Q.
16
A.
17
18
19
get i t done.
20
21
22
done.
24
Get i t done.
A.
25
--
got it done.
23
- - - -----
So are you saying that you did not put your name on
---
Yeah.
VOLUME I
- - - -- - - - - - --------------------
Page 169
JAMES WAYMON HAHN
(
Q.
A.
Incorrect.
Q.
Incorrect .
A.
Right.
Q.
8
9
10
11
I'm asking
12
13
14
15
A.
Yes.
Are you
16
17
18
Q.
19
20
21
A.
22
Q.
23
A.
No.
24
Q.
Thank you.
25
Have you
VOLUME I
Page 177
JAMES WAYMON HAHN
Q.
All right.
federal funds?
A.
Personally, I do.
Q.
You do.
10
that was -- that Dr. Fox -- it wasn't any matter that Dr. Fox
11
12
13
14
Q.
15
A.
That' s correct.
16
Q.
17
18
A.
Yes.
19
Q.
Okay.
20
A.
21
Q.
Okay.
22
cor~ect?
23
A.
I was.
24
Q.
25
A.
I did.
---------------------------~Q~UME
I ______________________ _
Page 181
.JAMES WAYMON HAHN
Q.
1
2
A.
Right.
Q.
furnished, correct?
A.
That's correct.
Q.
correct?
10
A.
Incorrect.
11
Q.
12
A.
13
to know what I'd spent when I had put furnishings in and she
14
had ordered them all taken out and replaced with all new
15
furnishings.
16
Q.
18
A.
19
Q.
And down
17
20
date.
Mr. Washington
21
A.
Yes.
22
Q.
23
A.
Yes.
24
Q.
25
A.
Right.
'
_______ _
Page 199
JAMES WAYMON HAHN
/
get them.
4
5
6
I received no -- I received no
I've asked for the monies, can't
Q.
A.
paid.
(phonetic) .
10
11
12
Q.
13
14
15
16
A.
Yes.
17
Q.
D.
18
A.
D.
19
Q.
I'm going to
Okay.
20
21
money?
22
A.
23
24
25
_________________________________________
V
~
OLUME
=-=
I
some
____________________________________
Page 200
JAMES WAYMON HAHN
period of time.
directors and HRSA approved that, you know, may very well be
Q.
A.
I do not.
description.
Q.
12
Q.
13
A.
I don't know.
14
Q.
11
15
I don't
A.
10
know.
guessing?
16
A.
17
Q.
Based on
18
A.
19
Q.
20
A.
21
22
Q.
23
24
25
were
A.
)
VOLUME I
Page 203
JAMES WAYMON HAHN
Q.
A.
No.
Q.
A.
No.
Q.
A.
Q.
10
lives in the carriage house has never worked for Dr. Fox?
She's a medical student.
11
A.
I have no
12
Q.
13
A.
No.
14
Q.
15
worked?
16
A.
Well, I know --
17
Q.
Without guessing.
18
A.
19
20
salary.
21
$34,000-a-year range.
I saw her
22
Q.
23
A.
24
Q.
25
saw?
Page 204
JAMES WAYMON HAHN
A.
Yes.
Q.
Okay.
A.
3
4
were?
8
9
Q.
Qkay.
10
11
know and Dr. Fox discussed with me the fact that Christy
12
13
Q.
14
A.
I don't remember.
15
16
17
Q.
18
A.
Yeah.
I mean --
19
Q.
What?
20
A.
I don't remember.
21
22
23
Q.
24
Dr. Hilpert?
25
A.
In the complaint.
I
- - - VOLUME
- - ------------------------;-------
Page 208
JAMES WAYMON HAHN
)
1
The
A.
10
Moving to SF.
Q.
11
12
13
14
15
Defendant.
16
SE.
Apologize.
--
A.
17
18
19
20
21
gentleman's name.
22
23
24
25
across a
I can if necessary.
But an interior
- "l_OI.!_ill1E _ I _ __
_ _
Page 216
JAMES WAYMON HAHN
A.
I mean, what
Q.
Well, I
A.
Do we know?
Q.
A.
Q.
A.
Q.
or not, do you?
10
A.
11
Q.
Okay.
12
13
Do you
14
A.
15
Q.
What?
16
A.
17
Q.
18
A.
19
20
Q.
21
A.
By whoever I asked.
22
Q.
23
A.
I don't know.
24
25
Q.
You're sure.
I
.!
V_Ol,.J,JME _ I
Page 217
JAMES WAYMON HAHN
A.
1
2
Q.
3
4
with her?
A.
he was.
was.
Sure.
Q.
A.
Yeah.
10
Q.
No.
12
A.
13
Q.
14
A.
I don't know.
15
Q.
Okay.
16
A.
17
Q.
Intelligence.
19
A.
Yeah.
20
Q.
11
18
21
22
23
I believed the check was for -I didn't ask you what you believed.
You
said
Okay.
gay?
did you?
A.
of them.
24
Q.
25
A.
No.
VOLUME _I
Page 218
JAMES WAYMON HAHN
Q.
This money --
A.
That's my phone.
Q.
you know of anything as you sit here that was done improperly
8
9
question.
Q.
12
(Mr. Friedman)
MR. WAIDE:
10
11
Yeah.
question.
A.
13
14
15
16
17
disbursements that you have made, and so, our system did not
18
19
20
21
22
Q.
(Mr. Friedman)
23
you sit here today, can you think of anything in your mind
24
25
V.OL~
As
Page 219
JAMES WAYMON HAHN
MR. WAIDE:
a legal conclusion.
Q.
(Mr. Friedman)
A.
question.
I'm sorry.
Q.
No, it doesn't.
A.
Try again.
10
Q.
11
12
13
A.
14
15
investigation.
16
Q.
17
either Mr.
18
19
Mr. Glisson?
20
A.
MR. WAIDE:
21
22
I told
Excuse me.
Glisson payments.
23
Q.
(Mr. Friedman)
24
A.
25
Mr. Glisson.
VOLUME_ ;r . .
Page 220
JAMES WAYMON HAHN
responsibility .
Q.
A.
A lot of experience.
Q.
Thanks.
8
9
A.
10
11
12
13
the stakeholders .
14
Q.
15
procedures.
16
17
she did
18
criminal.
19
A.
inv~lving
20
21
22
Q.
23
What I want
24
to know is:
25
VOLID1E _I
CONFIDENTIAL
MEMORANDUM
TO:
James Hahn
FROM:
DATE:
SUBJECT:
Thank you for your exceptional effort and dedication to Delta Health Alliance during this past year.
The DHA has experienced significant challenges in 2009 that have touched all aspects of operations from
business and accounting to partner coordination to research and evaluation. We have also seen marked
improvements in our operations and have had very positive outcomes that I believe will help improve the
health of Delta citizens. The success of the DHA in addressing these challenges would be impossible if it
were not for the skills, diligence and determination of our talented associates . DHA's management team
and Board of Directors are deeply grateful for your contribution to this success.
As a result of your efforts, you have received a positive Performance Evaluation. To recognize your
contributions, the board of directors has voted to distribute a one-time merit-based performance payment
to all DHA employees who have been with the organization since January 1, 2009 and who scored at
least 3.6 (above Satisfactory) in their overall performance rating. The amount of merit pay awarded
equates to the conesponding relative strength of your overall performance review rating. This incentive
payment of $7833.33 has been calculated. However, federal and state taxes and F.I.C.A. will be
deducted according to your current W-2 and the net amount direct-deposited to your bank.
Additionally, you will also receive a 3.2% cost of living adjustment to your annual salary beginning
January 1, 2010. Information pertaining to this increase will be mailed later.
The future will undoubtedly hold new challenges, but also reveal new opportunities to improve or expand
the services needed in our communities. We can move forward with confidence, knowing that our
employees share our dedication to improving the health and well-being of our communities.
Warmest wishes to you and your family during this holiday season,
KCF/rw
cc: Richard A. Washington
Karen Fox
EXHIBIT
I
435 Stoneville Road. Stoneville. MS 38776 I (mail) P.O. Box ?77
~ tnneville .
MS 38776
PLAINTIFF
vs.
NO. L10-441
DEFENDANT
**********************************************************
VIDEOTAPED DEPOSITION OF JAMES WAYMON HAHN
VOLUME II
**********************************************************
COPY
TAKEN AT THE INSTANCE OF THE DEFENDANT
IN THE OFFICES OF McLAUGHLIN LAW FIRM
338 NORTH SPRING STREET, TUPELO, MISSISSIPPI
ON NOVEMBER 12, 2010, BEGINNING AT 2:06 P . M.
Reported by:
. 'i l
f.-- ~
TUPELO, MS
38802-0761
EXHIBIT
Page 20
JAMES WAYMON HAHN
A.
Yes.
Q.
All right.
this cabin?
A.
mean, I
think that's a
reasonable assumption.
Q.
10
11
12
correct?
A.
13
Right.
14
things to me.
15
16
past.
17
Q.
18
A.
Yes.
19
Q.
20
A.
21
22
23
more
24
25
YOLQME II
ORIGINAL TRANSCRIPT
PLAINTIFF
VERSUS
DEFENDANT
APPEARANCES:
JAMES D. WAIDE III, ESQUIRE
Phelps Dunbar
4270 I-55 North
Jackson, Mi ssi ssi ppi
39211
James Hahn
of the Plaintiff
Phelps Dunbar
39211
at 10:35 a.m.
:t.
(601) 825-6339
Fax (601) 825-1154
P. 0. Box 1731, Jackson, MS 39215
www.sharro nallen.com
22
Q.
okay.
Go ahead.
A.
MR. FRIEDMAN:
17 pages.
7
8
BY MR. WAIDE:
Q.
I'm sorry
11
A.
okay.
12
Q.
13
I've seen
10
It's
All right.
concern.
14
A.
Fair enough.
15
Q.
16
17
18
A.
okay.
19
Q.
20
21
can.
A.
okay.
22
K.F., no transparency, no
23
24
25
Budget is politically
Bank
23
Board
board.
go1ng on.
went to auditor.
why
I'm
10
11
12
13
people.
14
F word.
No CEO decorum.
15
spirit.
16
toward her.
self-promoting, arrogant
17
18
He broke it off.
19
20
21
22
intervene.
23
24
25
She has
Top
specifics.
of Page 95:
No accountability.
Everyday happenings.
24
allowance.
10
employment-at-will employees.
11
20 percent.
12
13
14
No one knew.
15
16
17
18
19
20
21
22
office.
23
24
get a condo on
25
th~
45
A.
Chuck
project, which Karen Fox found out about only after the
fact.
Q.
10
A.
Karen Fox.
11
Q.
12
A.
No.
13
Q.
14
coming due.
15
16
A.
17
Q.
18
A.
19
Q.
20
21
22
MR. FRIEDMAN:
23
24
25
52
Q.
MR. FRIEDMAN:
I'm
BY MR. WAIDE:
Q.
baseless?
MR. FRIEDMAN:
I'm
9
10
BY MR. WAIDE:
11
Q.
12
13
MR. WAIDE:
that?
14
15
MR. FRIEDMAN:
16
MR. WAIDE:
17
MR. FRIEDMAN:
If I go to my offi ce .
18
go1ng to be?
19
20
I just want
21
BY MR. WAIDE:
22
Q.
some of
23
24
25
-- - --
_LL...-..,...__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____
;;;.....;...,;-.....;;;;;....o;.;;;~.=..;;
-..;;;
;;..,;
=
;;.._;,
-_
___,
.
--
53
1
2
A.
Yeah.
Q.
A.
to accumulate information.
Q.
10
11
12
A.
13
14
15
decision on
16
give him
17
18
19
'
Q.
to
All right.
20
21
22
A.
23
Q.
24
A.
25
-- ---- --
think it was
-- -- - - . -
- - - --- -
54
2
3
4
Q.
A.
I don't.
to
I thought I did, but I cannot
All right.
If
Do you see
do.
10
A.
11
Q.
12
13
14
15
A.
16
Q.
okay.
That's
Is that
17
where the board authorized Dr. Fox to pay Dr. Fox 's
18
legal bills?
I'm going to object and
19
MR. FRIEDMAN:
20
21
22
23
MR. WAIDE:
privilege, Gary?
MR. FRIEDMAN:
24
25
- - - ...____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __J
55
10
11
BY MR. WAIDE:
Q.
12
13
14
condominium.
15
16
17
18
A.
19
20
that I did.
21
Q.
All right.
22
23
deposition.
24
A.
25
Q.
okay.
--- --
-U..------------------~-=-------....;;;;...~....;;;...;;..;,;;;..;;;;;.;-:...:::.;:;..=.~
-- - - -
--------
--
ORIGINAL TRANSCRIPT
IN TH E CIRCUIT COURT OF LAFAYETTE COUNTY,
MISSISSIPPI
JAMES WAYMON HAHN
PLAINTIFF
VERSUS
DEFENDANT
APPEARANCES:
JAMES D. WAIDE III, ESQUIRE
Phelps Dunbar
4270 I-55 North
Jackson, Mississippi
39211
James Hahn
~ ~~P.ciates
of the Plaintiff
Phelps Dunbar
39211
at 12:58 p.m.
(60J) 825-6339
Fax (60]) 825-1154
P. 0. Box 1731, Jackson , MS 39215
www.sharronallen.com
I
I
I
1
2
about it?
A.
Q.
A.
he told me.
10
Q.
11
any further?
12
A.
13
14
15
18
19
20
21
Q.
policies:
24
25
All right.
II
II
And
okay.
22
23
that, no, s1 r.
16
17
24
A.
A.
It may be 1n
10
11
12
not.
' ')
13
14
15
17
18
19
20
21
23
----- ---
okay.
16
22
Q.
24
25
-- - --
Q.
37
exactly how.
Q.
the top.
10
I'm
see~ng.
A.
11
I wrote that at
12
13
Tennessee.
14
15
Q.
16
A.
17
Q.
18
A.
19
sir.
20
21
22
23
Q.
24
25
didn't talk to
49
Alliance, LLC?
A.
Q.
LLC, yeah .
A.
No, sir.
Q.
A.
Yes ,
Q.
Who is Allscripts?
page.
s1
r.
Do you have an
10
'
A.
11
12
know.
13
Q.
14
A.
15
Q.
16
A.
18
19
20
Q.
A.
--------
outstanding amount."
24
25
22
23
Meaning from
17
21
Fitch~~--
50
A11 scripts.
Q.
that?
A.
Q.
Is
10
11
12
wrote down.
Q.
13
14
15
you:
16
17
18
MR. FRIEDMAN:
not to answer.
19
20
MR. WAIDE:
Excuse me.
client here.
21
MR. FRIEDMAN:
22
MR. WAIDE:
Like I said.
23
24
client.
,.I
25
MR. FRIEDMAN:
Yes.
61
Jere Nash.
A.
Jere Nash.
Q.
A.
That's right.
consulting."
Q.
Consulting.
A.
Q.
A.
2
3
10
s1 r.
to go through him."
13
14
Q.
15
A.
16
dash, work."
17
Q.
18
Indianola project .
19
there?
20
..
him.
11
12
A.
21
project.
22
wrote down.
23
Q.
24
25
1 ike.
./
63
Q.
office.
A.
Q.
That's
10
furniture.
11
A.
12 '
down that Karen Fox chewed him out and that he reported
13
14
this?"
That's what I can tell from what I wrote
15
16
down.
17
18
19
Q.
wrote down.
20
21
page.
22
23
24
25
A.
I did
Q.
64
A.
Q.
A.
sh~edded
the bills?
to Patrick owens."
Q.
A.
8
9
10
Q.
11
MR. FRIEDMAN:
answer.
12
Go ahead.
13
14
BY MR. WAIDE:
15
Q.
16
wrote down.
17
A.
18
Q.
19
A.
oh, yes.
20
okay.
That's what
wrote down.
21
Q.
22
A.
Let's see.
Yeah.
23
24
25
that.
74
about there?
A.
Q.
11
means?
A.
11
9
10
11
11
11
Q.
12
A.
That's what
13
14
15
16
17
18
19
20
21
22
23
24
25
wrote down.
"chip Morgan
attends board."
Q.
Is
don't .
Q.
A.
And that's
75
Q.
Allscripts or not?
A.
Q.
All right.
A.
Yes.
Q.
legal counsel?
was he
10
A.
11
Q.
12
A.
13
14
Q.
Legislation?
15
A.
16
17
wrote
~t,
Q.
18
19
writing or something?
20
21
A.
was asked who wrote it, she hung him out to dry."
22
23
24
25
ORIGINAL TRANSCRIPT
IN THE CIRCUIT COURT OF LAFAYETTE COUNTY,
MISSISSIPPI
JAMES WAYMON HAHN
PLAINTIFF
VERSUS
DEFENDANT
APPEARANCES:
JAMES D. WAIDE III, ESQUIRE
Phelps Dunbar
4270 I-55 North
Jackson, Mississippi
39211
Karen Fox, M. D.
A.
Q.
All right.
done?
10
11
12
wa~
actually
Is that
issue.
13
Q.
Let's say it --
14
A.
15
financial statements.
16
Q.
17
A.
okay.
18
Q.
19
Let's assume --
month on an apartment.
20
A.
urn-hum. (Affirmative)
21
Q.
22
23
24
A.
we
25
Q.
You wouldn't?
would.
----- -ll=====..::==========================-========:I-----
it?
A.
Q.
Right.
A.
Q.
10
A.
That's right.
11
Q.
12
13
14
15
No, no.
That's correct.
Am I correct?
I
mean, you're
correct, yeah.
Q.
16
17
inappropriate.
18
A.
That's right.
19
Q.
20
A.
21
22
That's correct.
Q.
All right.
notice 1n here
23
24
25
A.
Right.
'!
1
2
3
4
Q.
Q.
Yes, s1r.
A.
No.
7
8
9
10
A.
No.
11
Q:
12
13
14
15
16
expertise?
17
18
19
20
MR. FRIEDMAN:
that.
A.
21
22
executive compensation.
23
BY MR. WAIDE:
24
25
Q.
That's my question.
10
A.
I don't know.
get it anyway.
6
7
Q.
A.
No, I don't.
Q.
1s that an accounting
10
11
12
A.
13
14
15
Q.
It
16
17
18
board of directors?
19
20
21
22
A.
23
A.
24
Q.
25
also about the Jere Nash work and Jere Nash's firm's
11
work?
A.
Right.
Q.
A.
I did.
Q.
Q.
11
had billed.
12
A.
13
14
the company and read what the agreement was that he was
15
going to do.
16
17
18
But whether he
eve~
21
A.
No, sir.
22
Q.
would not?
23
- -
10
20
No, sir.
Health Alliance.
19
Do you
24
25
number was.
--
- u.--- -
- -
-- -- ------------------------------1
~-
--
. -
12
A.
(Reviews document)
Q.
would.
A.
5
6
No, sir.
No.
it.
10
11
12
You want me
A.
don't
13
14
15
A.
okay.
16
Q.
17
18
investigation.
19
A.
No, sir.
20
Q.
21
the contract and see if the bills and the .contract are
22
in agreement?
23
A.
That's right.
24
Q.
25
13
A.
Yes, sir.
Q.
correct?
A.
That's right.
Q.
MR. FRIEDMAN:
that.
10
11
MR. WAIDE:
12
MR. FRIEDMAN:
13
before.
14
15
16
A.
17
18
about.
19
BY MR. WAIDE:
II.
20
Q.
21
A.
No,
22
Q.
Sl
r.
23
24
25
No, sir.
A.
-
14
Q.
-- are you?
A.
No, s1r.
Q.
A.
I don't --
9
10
MR.
A.
13
14
FRIEDMAN:
I object to that.
11
12
That wouldn't be 1n
MR. FRIEDMAN:
second --
BY MR. WAIDE:
Q.
15
16
17
A.
18
Q.
19
A.
No.
20
Q.
21
Alliance that?
22
A.
No, s1 r.
23
Q.
24
25
'
15
1
2
No, s1 r.
MR. FRIEDMAN:
a second.
misleading.
like that.
MR. WAIDE:
That is
10
11
12
13
MR. FRIEDMAN:
14
15
16
17
18
ask~d
BY MR. WAIDE:
Q.
19
20
that what Mr. Nash was doing for Delta Health Alliance
21
22
23
A.
No, s1 r.
24
Q.
All right,
25
.r.
Sl
Did anybody
16
James Hahn?
A..
No, s1 r.
Q.
A.
No, s1 r.
Q.
lobbying.
10
11
12
A.
urn-hum. (Affirmative)
13
Q.
correct?
14
A.
Yes, s1 r.
15
Q.
16
17
18
19
was my understanding.
Q.
That
That's, right.
20
21
22
A.
No, s1 r.
23
Q.
Did not?
24
A.
No, s1 r.
25
Q.
Tina Manning
.r::_rom:
pnt:
l'o:
Subject:
jerenash@ bellsouth.net
Saturday, May 02, 2009 7:07 AM
Chip Morgan
Ideas
(!] CUIIENTmt I
EXHIBIT
): )pression that folks who live in that world work to avoid embarrassment within that world (regardless of what
is happening in real life). I could, of course, have all of this wrong, but there are folks who I suspect you could
bring to your tactical-planning table (ostensibly to help solve this problem) but who also can help provide some
"fl-Otivation for RK to do "the right thing" simply because they live on the same social/peer group planet that he
does. There are lobbyists, political operatives, lawyers with the major law firms, doctors in private practices,
and key businessmen who inhabit that world BUT who also over the years have evidenced a personal interest in
. health care policy (and who would be pissed at what UMC is doing). Many of them I feel sure would enjoy
being part of your team.
As I have said before, DHA brings two advantages to the table of public policy in Mississippi that previous
organizations have not. One is money. You have the ability to hire great staff and fund serious programs, but
you also have the ability to pay for the best team of consultants available to help steer you through these
thickets. Second is the Delta Council. Among the core group of white folks who have political power in the
state, the Delta Council and its members and officers are right there in the middle of that mix. You have used
those two advantages to get the DHA to where it is today; you just need to keep exercising them tluough this
mess.
I recognize what I have written represent generic options rather than specific recommendations, but I also don't
know how you want to play it. I'm more of a nuclear war kind of guy: I believe the only way to make progress
in Mississippi is to blow up existing institutions and start new. I fully recognize there are less extreme points of
view (and that oftentimes those less extreme options can work out and engender progress). So, I put the ball
back in your court. I am happy to think through maldng any of these options happen and how they might
interact with the options you are considering. Just let me know. I'll be on my cell phone all weekend.
.-: :.. :
II_I8RADLE:Y
lblJ
ARANT
BOULI .CUMMING~~
!,l\.1111\phCllllljh~h~.,rll\1
May 18,2010
Pursuantto action of the Delta Health Alliance Board of Directors on May 17.
2010, enc:l on behalf of its chairman, Dr. John M. Hilpert, I write to request your
resignation from employment with Delta Health Alliance. The Board has voted to place
you on administrative leave with pay effective immediately and expects to receive your
reslgnatioh, in wnling, no Isler than 5:00 p,m, Thursday, M~y 20, 2010, effective at that
time. Admit~istrativt:l leave means you are to remain physically sepElreted from all Delta
Heallh Alliance offivE1-S ~nd other facilities, you are forbidden access to all technologyt
file~. and CJther property of the organization, and you will c6nduc! r'lO bw;iness on behalf
of or in the name of.the corporation. You could be personJ!Iy liable for any action taken
in violation ot these restriction~,;.
Please addr9ls~ your resignation i:lir~ctly to Dr. Hilpert and deliver it to the Delta
Health Alliance offir.:e;:; in Stoneville, Mississippi.
Pleas~
RDC/rfT\n
cc:
Dr. John lVI. Hilpert (via eme1il)
ques~ions.
EXHIBIT
MUTUAL R6LEASE
One of the parties released and releasing hereul'lder Is Delta Health Alllan~e.
2.
Another party released t~nd releasing hereunder .is James W, Hahn, including his
heirs, sutc;~ss or~ . a.dministtators, ~Osr'!ts and/or representatives, hereinafter referred to, jointly
ano ihdividually, separately end collectively, as "Hahr.l''.
3.
~s
the "Agr~ement."
AG~EE~
4.
FOR ANO lN CONS!DERA TION cf !Jf-\A allowing Hahn to rernaih employed al'ld
accrue. and receive benefits through
2010, the total VPlue of which is
$
-' the sufficiency <:~nd adequacy of which is horeby expressly
acknowlod!jed, Hahn doeE hereby irrevocably ~nd unconditionally relel!~;;e, aequll, remlse, aM
forever discharge OHA, togethl'Sr with Its sub$idiarles and related companlaE, director.>, offlcersT
departments, divisior-as, branches, servan\!l, agents, insurers, employees, assigns, suc:cesgors,
attorneys, and any person or entity now or previously acting, oirectly or Indirectly, in the interest
of or on behalf of DHA. or any of the foregoing In any C(lpacity whatsoever (hereinafter rMw~d
to ~s the NDHA Released Parties"), from any and all rights , obli9ations, liens.. claim&, damages,
demands, liabilities, equities, actions, C<IUSM of actions and legaltheorie$ of whatever klnq,
!Joth known and unknown, c!Tstlosad aru:f undisclosed, however dehDminated, from the
baginnlng of titne up b and incltJding the time o1 thll! S".igning or thls Agreement, includlr'l~ but no\
llmited to claims1or front or bacl< pay, income from any ~ource, declaratory or illjUll<Aive reli~f.
compensatory or punitive Clatn~get;, wages, remuneration, benefits, cost.s, expenses, attorneys'
fees, or thing of value wnahsoe\ler, of or by Hahn ~Jgains1 the DHA Released Partie/5,
5.
Without limiting ths scope of 1he foregoin~ il'l any way, Hahn specifically releases
all claims relating to, a-rising ovt of or in any way connected with the employment, andfor
termination of employment of f"'iahh by lhe DHA Rele~sed Parties, \he retaliation against Hahn
for reporting perceived violations of law or wlicy, t.he failure to offer employment or re
empfoyme.r'lt ro H<Jhn in any position a\ ally tirnf!. the failure 'to properly comp_ehsata Hahn at any
time, or the failure td pay medlnal end related expens;~& .or other beriefns of any kind or nature
to or for the benefit of Hahn at any t!ma, Including but not limited to an cl~ims undar1ha
8nployaa Retire:ns!lt lnoome Sec.lJfilY Act of 1974 (''cRIFiA'') , Trtla VB of the Civil Righls Aol of
1964, the Clvil Rights Ac;te of 1866 and 1671, thG Atneric:ans Wif.h Disabilities Act, the Age
Dlscrimi'lalion in Employment .1\ct. lhe Older Workers Benefit Protection Act, all as amended,
and any ottter federal, state or Joca1l taw, statutory or common: it being ihe express intellt of
Hahn to ~ntE:lr into thll;. fult ~nct (Inc;~! seUiemenf and compromise of any and all clalms against the
DHA Released Part'u;!s.
.
6.
Hahh agre~s that hls employ~ent with DHA has baen permanently and
irrevocably tenrlin<:~ted, C~hd a\;1tees that t'le will nr;l, ::1pply far or otherwise seek re-employment or
independenl c;ontraC1or status with DHA Slid Hs: affiliated er,Hties and that DHA ahd il..s affiliated
entities have no ooJ\g(3tlOI'I, contractual or otherwise, to rehire, re~mploy or hire hll'l'l ln the
EXHIBIT
41;!04383.1
future. Hah11 further acknowledges and agrees \hal he Is nol now and will not in the future be
eligible for such employment or contractor statws.
7.
ro induce DHA Lo anler into this Agreement. Hphn'::; Wife
Hahn,
joins in !hir;; Agreement snd hsr4:>by irrevocably und unconditionally releasl:ls, acquits, remises.
and forever discharges ths DHA Released Parties frorn any ar,d all rights, obll9ations, liens,
claims, damages, demands, liabilities, equities, actions, c~I.Jsas of actions and legal theories of
whatever kind. both known and Ut1l<)1own. disclosed and undkH;Io:>ed, however danominaled,
from the beginning of time up to and including the time of lhe signing of this Agreement,
including but not limited to claims ior front or b~c~ pay, inoome"from any source. declaratory or
\njunc;tive relief. ccrnpansatory or punitive damages, w.ager; , rf.lmllneratlon, costs, expsnses,
attorl'ley$' fues. or thing of val11e whatsoever, of 0r by hBr against the DHA Released Parties.
8.
for and in consideration of the foregoing releases by Hahn and
Hahn
(hereinafter "the Hahn::!"), OHP. hereby irrevocat;ly and 1mr-ohdiUonally rele01ses, acqu!ls,
remises:. and for~ver dlscht;.~rg~~ the Hahl'\s lmr., an~~ ahd ::111 rlgh1,s, obligations, liens, claims,
damages, demends, Jiabllltt~s. eqtti6es, action<; r..&us~s or -et~;!iont. and legal theories of
whatever kind, both knr>V-tn anr.< ;.ml<nown, rlisclosad and lmdisclossd, however denominated,
from the be-ginning 11f tima I.JP \o an~ including the time of the signing of this Agrf!ement.
. including but not limit~d ra Its daimr, for dec;l:am1oty ol' injtlnctrve relief, compem;atol)l or punitive
damCigss, cast.a, ~xpeiiSes, a.ttome-ys' fees, O( 11~1ng of vz.)ua whatt:Qever, of or by DHA against
\he Hahns.
9.
In ruMher corrsidGraiion !hereof. the Hahns agree that this Agreement, the
contents ;;~nd subje~~l rncattsr re.l!Jtinn to or p~rt-:!!in!ng 1o thi!.l Agreement, and the consideration tor
thi~ Agreement, eh,'!.ll not be di~C::US$ed, referred to nr communicated by them (or by either of
them) to any oat~!. pre~ent Dr tuttm~ e'l'lploy~es r..1 DHA. to third parties or to ;;~ny other person or
entity, or in <my WBV pllbllviz:ed, <:!i.~-::losed, di:;r,u~sed or dls.%'h1l11a!ed by them (or by aTlhl;lr of
lhem). ur1lesJr. e:--.pressly required by \<\(ri\ten cot.Hi c1rder or !i~lbpC11i!t:a 'ro do so. It is understood
by 1he Hahhs that by ~ntenng into l.his Agreerf'lr:nt thP. DHJ\ Rel~ased Parties are lo receive the
Hahns' full L~oo~crl?don anc~ oornpli<mca with the daaire of DHA to rne.lnl~in lM Inial
confidenti<~lity -:1f any tr'!'TrtmW.lon Wllh!c'. !l"le ki'\C'1Nlodge or .:>oss?.ss!on of the Hahn~ that Is
connected with, related \o, or in af'JY vr.!ly loucheJs upon, daims of lhe Hahns a,gainat the DHA
Released Parties, unles$ discloswr~ is ex:pressly reqLllrf;:ld by a wrilien court order or subpoeha.
The Hahns fur':lie' :;:.1ree !h<~t neitl1~1' they, nc,r f!~her of them.. w)ll in an; manner encourase any
inves~irJation or Hti8~tinf1 r;ont~"'pla\13d or brc1 'f;'.ht by or lh behalf of any other person or class of
person!i making flll~g<~tions or :;:\s~erting c\aifl"') agairt91 the DHA Released Parties ralating to
Hahe't's empiD)Ir11ertl Wit~ !JHA. ~;nlgs~: e}:pre$?l~ n;quh~d by wiHiiln r:ourt older. or subpoena.
10.
In tt'1P. eivr;:nf th'3! ~re HF.Jh!le: rer.::l;e-, ?JrE) s~.rv~~ct with. or are noli"ed oF a court
order N ~::ubpr..o:r~ wn~ch lmplir.m.t~::; in any" rNarvlr..r Wh<Jt.ii0c\'~r tn~ r,cr;fldentiality provisions of
this .A.grec-rnenl, ;:,ey ~h!:lll prom!J:!!y l"'!)~iiy DHA, t>f s~"'''e, IIi Ord~!r l~ permit DHI\ 1o con1est tht;~
order or SL'.':>~o:Jr~ . shl;Uld i! r.l~<>irs to dr' ~P. !'~orice sh~P tie c;~drs~sed lo: Flo:.r 0. Campbell. Ill,
Bradley Arant Bl)tJll C~wnrnit.l~, li.P, Jsa E:. Caplt\'1 SiJt~ 400, }I}CKfiPn, MS 38201.
.
11.
The C:OllficJr-mti,qJity rwovl!>ions C1l this A9tf'lE!ItiP,nt sht~lt not, however, apply to
prevent Hahn fforn ;;~bivising hi~> <~ttorl"ley and! or 13.x returr1 prep~w of the seltlernent of his
claims and lh~ t:~~rt~k1~1-~ttion 1t'~l-:e: Jl;l\l \h~r{!QI.
t'\1~ E'Xten! thai Hahn discloses such
inforrnation \o h:~, -a\lotnet. o:ia.( i'f.llurn nreprl~ er, Hahn shall t~dvi~e saicl oer$on of this
Agreement. r.J~hn funhr:Jt' agsr.cs that stwukl h1s <!hcrney 01' la:x retum pr~parer taks any action
ro
:t
4/:?04;\01.1
that would be :a tJraach oi the c:anfldentiality provisi:ms of this AQT9Bment if dons by Hahn, then
the r-em~dias est;;~b!llllhad in this p,greem~r;t tor- lhe brMch or th~ coniidf;lntiality provisions may
be invoked against riahn to. the same exlent as if Hahn ha1d personally breached sald
pr-ovisions.
12.
A violation of the oordldentiality. provis.io"ns 1~1 this Agr~ement, inoludlhg 1f10
above, by the Halms, ~Jr eitller oflhem. shall constitLrtf: a mal erial breach of the Agreemeht
t:htit!ing DHA to liqt.lidated and s!ip:ulaled damages !rem H~hn ir1 ar'l amounl e.quarto three titnes
the CJonsider<~lion paid by OHA (recited ir. ~4 above). I! is unl~rs!ood thal sutJh liquidated
damages is an atl~mpl to ref.lson:abty forecast th~ probable ac1ualloe.::: which will result to DHA
in H1e event that any such 111forrnation ill divulged, and that surn is not a penalty, . Additionally, in
case of viol~liol' Hahn agmes In p?':' DHI\'s atiome~~ k.e11 and other costs associated with
enforcing the t-onfJr:lf'!n'ir.!llty pr0v:sinm ~f lhi"' A;trP.t~rnent..
~~3.
re~olll1lon are
confidEmlia-1.
14.
lt i!; ll;Jd:lm!oo'\1, ilgrf.ler.i a-.M stipJI?.1t';cl behmt;n 1hP.- parties iha! tt'le
considerations de~c;.ri'osli h13rein ElrA in r;:nmPI!:>In &nci full nccoro. ~atisfactlon anr.1 discharge of
disput~d c!airns ~rr.i th~\ DHA 1jom> rol in ar.y lTlElnnar b~t vlMtlS of lhis .Ag:reerrl'flnl, dr payment
of the consideration 1hf:lrflfore, adrn!t llabl!lty to R:"Jyone :a1> ;;, regult of any incident, act or
omission, e:nd 11. is t?.~O!;mized th;~t DHA has d~Sni~o rl;'ld conUnues lo rleny any and all liability.
R~lher,by !;lnterir.g imo \his .A.gr~t';'l~ent D 1-1A rv~r~ly in!~inds to avold the co~l of pos~:;ible
litigation ahd its uncert~inty, in the 9Vent of lltigatiD/1 af the clallns hereitl r~l0ased.
I 5.
n is
e.>pr~~s 1 y ~""P.CoRnl.<.~r.l by
all
is to
'If:>,
Hohi~ .~qr~~~ th<)l he ~t1a1! r..e e~~~lusi.rf!!y ll<!ble ftJ( the paymrr.nt pf any and all
federal, stgt_r,o: ~11r.llnc~1 l'<'(e!O: of i?.n\' ~l'lc7 whai~{1~VI?f whit~h mf/1/ be or becorne due a.s lila result
of the abov6 allo.;;~tbr1 ~fth11 crm~klar~!ir:'lft rerce~vM by l'lim fror't1 ~ha si::t!ierno11t of the c;lalma
disputecl h9r~in f>lot:l will jl)r;!emnliy ;;,nd f.o!d rr~rmh:-ss l)HA fmm pl.'\ymPtnt of laxes, interest or
pel"'la!tie':! tl"~tJt ~r.~ !eq'llf':1'J by ::Jny ()0\1Elr;)n1r.ll"'! i:!\'?f!PL~~~ ~it ~rry ltm.;- !i:'> !!"te te8Ult of p<1yment of
the cr:msidr~rai:i!:>, ~~'\ ~orth hm'~'i(l,
o; '.hat \h"'3tEl r nv~ :,<;;~~::~ fl') ~s-'>lg:.,...erts (wheJthh' by oper;~tlon of I<JW, in writin!1
or ou,erwlse) cf any <J-f his r;le~irnG wr,atsoe'Jer r.or liens GJ'$ated, and 1hat he
~lo,)F.! tms. !:)l"J~~>!OI.!:'! tlower 111 i('!lel<~':ie ?.tli !.I <tim~ ':If ?nY lialure .arlsl11g out of or
in ~ny w;.o; ~,~rv er;,p.rl, r!irE'i;lf~r ''!' k2!r~-~t-ll~l, (() !r;s; err.ployrred wlth DHA;
b! ~M~ a~ an ~111plt'}'e'~ M DHP., nr;o (i~r. rfl,:Krif.ld ~~~ hi~ concem~ of alllnstances
M wiH~' hta ;J'1'tCl:ti:vF.ld ~r) b~ ';'iJ'Ii"'fJf:i~l itn)ro~ri~l~B"S, which 'rnolude those
~
r<rttFH'b rh;:-:1 v~c1 o irwa:>tig<llel,l b, Hovmard R. Davis, Jr. ('Davis"), a CPA With .') oYV ~
the tlrm Tayler, Powell, Wi!scu\ and H<~rtforct, P .A- in Gree:nwood, Miosi~slppl,
:md are disCilMI*.d in Davi!}'s !eli~n ciah~o ~M.rcr 2!1, 2010 ("Davi~'s lelter'');
to \hoM
u~l'scarns;
t'flc.t!b.;~z:e::J o~l tl1.:: O<:~vi~ tlrtci Bradley Araht inves!iga\ions the Board of
Directors of DHA found and concluded that no evidence r:1xists of any
liflanciol iratJd or rll~ga~y, tnc~t 11e i;; sa:ti:.fu~d wilh ahd at;ct!prs thal finding
and conclU$10n wi~hout rr.serv~vion, ;;mo chat he has no knowled.ge of or
r;on~ems at>Cllfl _,(lll orhe!r financla; irnpropriElties of ~ny natura at DHA;
f)
~)
l,hat he h:~s :ISII'!!f ob~mver;l 7'!~\1 r.onrl~tr.t or ar.t1on~. ''e/oat or written, of any
::-J:1'.'l'r i:nlt\ fl' 1'!?li)IJc;-AS Clr mpti?.SE:tif:Q(i\lo.~'i tf'~J( 1ili0Llld b;e i'SfJ'OI"~ed tO allY
1
'1'/ttn
,;J-Jh
$\JQ;t rspt;~rl;~:.
thtJl t~u;;
suits, etc., in c;:<;>ncl , t.:l!r:J or :-:cpom:l~l ~~.in, ~ -:;(i~~t1(JC t'\1 !/. i;-,~I . J;i !!.$. ot'ln enforcing thia
4!704.383 .1
I"
,,
1 I
t\ '
It 'II
1-'"''""
inden1nity p~ovl~lon, sr,c otMrwitl:l> f;r;,(Y'I 2-r:y lr;:i!;l i'~GI.Itrt=u:f dir.~clly tit indirectly by reason of the
fals\ty pr Inaccuracy ,_,;: ;;.r. 1/ rt1pmse: \t;~ti.:>r ~na.r.kll bc(r:h by !he )-{ahns or b)' 6J\hel!' of them.
18.
For <'>rlO in tohslcleratlor, of lhe foregoing release of her by the Hahns, Fox
nareby irre-voci'ibty and uncondition~liY releaseJB, acquits, remises, :<~nd fou2vor dJschargss the
Hahns from any and all rights., oblig::>t)ons, li;:ons, c:laims, dEJm~ges, demands, liabllltles, equitlos.
aclions, c~uses of ac1i0na and leJ;:~al lheorles of whatelt~r l<ind, both known fillnd unknoWn,
disclosed and undisclosed, however d~nomin;;.ted, T!'~IYI lhf.l beginning of Ume up to and
Including 1he time ol' the si~Jning of this Agrl'!em.:mt, inoi~Jolng but not limited lo any claim5 for
declaratory or injunctive relief, yompem~atory or punili11e: dJEJmages, costs, e>){pel"lses, attomsys'
fees, or thi n!:J of vali.le 11.1haiso B\I'Br.
19.
This A8rr;~Grn~r.l coni?~!'~ th~ 8 1 'l!;r~ l:lr;r<?&t\~~r,l, ur.ri'?.'rstanrlinr. llnd slipvl8lion
between and among the p<!irtle~ l'lereto. Tne t~rnrs c! this hgre~ment are contractual, not a
mere rec:ita!, and m;.1y hil 13rtft;)rr.:ed ;n -.ou!~. ~~~waiver by MY p.arLy of a hre;;ch or viol~tion of
any provision of this ,A,grei;!m'='m {'i'l~ll ooi he constrr.1ec;i as ::; Vlvive< n( any other provision or of .
any subsequent brP.rJt~h ar \riola~rr.>~"~ r;.! th!7 A!l~MTnfl~:. 1!"1~ pr~lli~ion!O of this As-reement are
severable ?hcl indE'nnnr.lFtnt.. :~nti lhr;o lt\\1.':-~l~Jlt~ !ll~~';l:1 1 ity nr ,)q t~nf~~coability of ~ll~ provi~ion
herein shallliOt, Blffo;.,.;-1' tbf.> Vt?lidi1y, \l~!?lity '::0( '=''~forcr.';:t.blfi~)' i' t,h~ remainint;t f,lffJVisions of this
Agreement rJ-is Agr~err;errt 115 o~";'ltH?.d ir') t-.I!Jve he ,:;on c:l~;:Jft~rl jnin~ly by \n~ p9rli~s. Any
uncerlai"ly or r3mbig(lity sn;;~JJ nC1t bf:l constwed br or F.lqnili~>t. Gl~'>Y other party ba$ed on
altribuOon of draf~l'ig tc1 any pArtv.
'''ll
'.?r>.
:be f,.:\'r1~ :?.c~,.],....i~ci[Ji'l 1h31 'l,; ~-, hr:t:; h~Jd
po,.~/?1;~\on oi F.>fl~ ahd all facts
with re9aro to hi~lt1fi! (,! ~\171 :.: ,,fJiil~; 71nd ~h~ f.'f'l h : < ~ )J'') 8 I'!Hil~()Ml'JI~ tim(:\ ahd opportunity
lo consult with an P-1 1 f.O"I1~'/ ?..nd/or ~.1ch C1fl1er .;~c.\VIso(r, a~ eP.:Gh hae rlaem1~d appropriate- to be
fully advised of lhf. ri;Jh!.s ~.nr) ('lblia~~i~~n.':l >ncurr~\l ~~ 'r'/f.iiVi';d ll'i!~eby Th~ tt~m's of this
Agreemen~ at~ <"..c;Jr-?~CJ ti, f!nd tr)is; A!lf~~~ttnuJ'It is {i:.(t;ut~..:i ..vithDIJI mliancn L?pon p.ny
represf:nt~tion t';y (h1~ OHA l=l.e\s?i~: E:l;\ P~r~i~ll or f\f)~' ::JI th~lr r~~)i".o!t'.l.~f"'1ativHs, mv;l the Hahns
hllve carftfiJfiy ra;-)1' JtJil? ~q.re~rr,!!Jnl: ~l'id or;'lt:h f.\1;}'11; H'P.I l'.lW'r'C' or' ns/her OWf11r~;~~! will.
E.t\CH QF !,lS ~1~r:: m~A,TJ YH~ H~'fl.ti3(1!T-!r~ MIJTJ..I,A.l, Rf.I..F.ASE AND SETil.EMENT .
AGf<EEMt:NT ,t~:IJrJ FJU..Y i.J'~t)Ef~Si;\l,H:lS AND VOLUNTARILYAGRE~S TO BE LEGALLY
BOUND BY.THi$ t\GKEP-1\/icll i.
4/20438:!.1
,.., w '1.~~-1111
-............... . . . .
__.
APPROVED BY:
Hahn
APPROVED BY:
APPROVED BY:
John Duriba(,
C.
Fox
6
4/204383.1
STATE OF MISSJSSIPPI
COUNTY OF LAFAYETTE
Before me, a Notary Public In ;;Jt'ld for aOJid State and County, duly commissioned and
cp..l~lified, persohetlly appeared Jarnes W. Hahn and----~ Hahn known (or ploven to me
upon sufficient ldenllfir;;ation) to b~ the parsons df!5cribed In \h~ foregoing Instrument, and
he/she e:xecuterl the sCtme :'IS nls/hcl act and dead.
;'lcknowiedged that
this-~
day of _ _ _ __ , 201 0.
NotaJ'y Public
My commission E-lX(>irt"'s;
SlATE OF MISSISSlPPI
COUNTY OF_,_ _
Before me. a Notary Publil:; in and for said State and County, duly cornrnissioned and
qualilied, personalry app~arcd John Hilpert known (or proven to me upon suffloicnt
ldentlflcatloh) to bo. the person described in ~he iureJoil'lg insti'\Jrnent, who- acknowled9eCi that,
as Chairrnan of ihe So;;m;l or Din'ictors of Delt~ itealtl-, AI!PanGe, Inc., he executed the same a~
his act and de~d.
WITNESS rny hr;nd and Nolori.al Seal al Offit;e this~~ ci~y of _ _ _ _ _ , 2010.
Notary PiJbllc
7
4/,?04383 , ,
SIATEOF~---
COUNTYOF~~-
Sefore me. :a Nott:Jry Public in and for s~id State and Co\.Jhty, duly commissioned and
qualified. persotlaHy appeBred Karen C. Fox, knD"..vn (or y:woven to me upon sufficil:mt
loentificalion) to be thP, person dastribed in thr.: foregoing ir.strurnent. and acknowler;lged thaL,
as Chief ExecUI)ve Officer of Delta HeaHh Alliance, Inc. er1d in her IndiVIdual capacity. she
executed !he same (3S her act etnd deed.
Notary Public
My c;omrnlssion expires:
..
--- .. ......... ,
.r
Page 1 of2
Karen Fox
Cc:
Ricky Boggan; James W. Hahn; Richard Washington; Laura Clark; Sydney F. Dean
Karen,
Approval of apartment, see below.
Sydney,
Can you please be sure to get me a copy of the lease once Its finalized, to be forwarded to HRSA?
Thanks!!!
Beth
Good day BethSorry that this did hot reach you prior to the weekend. After review of your lodging analysis for Project
#5, it is clear that because the proJect is expanding into other areas where lodging is more expensive,
that the option for a leased apartment would be a cost savings for the anticipated duration and needs
of the project. HRSA concurs with this approach. Please send a copy of the lease once it has been
signed. Thank you and if you have any question, do not hesitate to contact me.
Bridget Ware
From: Beth McCullers [mailto:bmccullers@deltahealthalliance.org]
Sent: Friday, July 17, 2009 4:19PM
To: Ware, Brldg~t (HRSA)
Subject: RE: DHI Review of lodging options for EHR Project #5
EXHIBIT
Afternoon Bridget!
Sorry to trouble you. Karen asked me to let her know if we have approval from HRSA for this concept.
They would like to look into apartments this weekend, ifthis is an acceptable approach to take .
...
,..,
Page 2 of2
I know you had mentioned on the phone that theoretically it was ok, but I think Karen was looking for
an email or something to that effect, before they go to the trouble of finding a specific place.
Bridget,
Thanks again for your time on the phone this morning. As I had mentioned, the DHA has conducted a review of
our options for temporary housing for staff associated with the EHR project, as the project continues to roll out to
the more remote counties of the northern Delta area.
We believe that a leased apartment is the most cost-efficient approach but wOuld appreciate your input as well.
Please let us know if HRSA has any concerns before we move forward with negotiations.
Thanks!
Beth
Beth McCullers, MHA
Director Sponsored Programs
Delta Health Alliance
P. O, Box 277
Stoneville, MS 38776
Phone: 662.820.8789
www. deltaheatthal/iance. orq
2/2/2010
----------------------------------------- .. - -
ORIGINAL TRANSCRIPT
IN THE CIRCUIT COURT OF LAFAYETTE COUNTY,
MISSISSIPPI
JAMES WAYMON HAHN
PLAINTIFF
VERSUS
DEFENDANT
APPEARANCES:
JAMES D. WAIDE III, ESQUIRE
Phelps Dunbar
4270 I-55 North
Jackson , Mississippi
39211
ESQUIRE
ALSO PRESENT:
I
(601) 825-6339
Fax (60]) 825-1154
P. 0. Box J 73], Jackson, MS 39215
--
--~---
--------
--
----
www.sharronallen .com
---------
~---
-- --------
--- -
. .______________j
30
Q.
5
6
A.
How
As a
1n oxford?
A.
No, s1r.
10
Q.
11
12
A.
No, s i r.
13
Q.
14
15
16
17
18
19
20
MR. NEWSOME:
question.
Q.
MR. KITCHENS:
25
object to form.
You can
answer, but . . .
23
24
reason why
21
22
THE WITNESS:
Oh, okay.
BY MR. WAIDE:
Q.
31
A.
Q.
MR.
NEWSOME:
MR.
WAIDE:
10
11
12
13
14
17
18
Is
BY MR. WAIDE:
Q.
15
16
MR.
NEWSOME:
Q.
19
20
21
oxford, Mississippi?
22
A.
No.
23
24
25
MR.
that.
FRIEDMAN:
NEWSOME:
Right.
I'm
32
BY MR. WAIDE:
Q.
20107
A.
correct.
Q.
I'm sorry.
oxford , Mississippi?
A.
Any services?
Q.
Yes, sir .
10
11
A.
12
Q.
13
14
did you warn him at that time that that could resul t i n
15
16
A.
1\Jo, s 1 r .
17
Q.
18
19
20
firing?
21
A.
No , s1 r.
. 22
Q.
23
A.
No, s1 r.
24
Q.
25
. .)
j
'(>'
PLAINTIFF
vs.
DEFENDANT
COMES NOW Defendant, by and through its attorneys of record, and respond to the
Plaintiffs Second Set ofintenogatories and Requests for Production of Documents as follows:
INTERROGATORIES
INTE~OGATORY
every person with whom Defendant's consultants consulted in reaching its opiniori that
Plaintiffs chc,1rges are false.
RESPONSE TO INTERROGATORY NO. 1: See response to Interrogatory No. 2 in
Plaintiffs First Set of Interrogatories, Requests for Production of Documents and Requests for
Admissions.
INTERROGAtORY NO.2: Please list the names, addresses and telephone numbers of
all persons who have stayed overnight at the condominium complex in Oxford, Mississippi. For
each such person, describe the purpose of the overnight stay andstate the dates of the stays.
RESPONSE TO INTERROGATORY NO. 2: Defendant did not keep a record of the
confinned that the following individuals have stayed l.n the condominium overnight:
Monica Huddleston
Karen Fox
Marlin Womack
EXHIBIT
,i
,,
In addition, employees of the University of Mi~sissippi School of Pharmacy may have stayed in
the condominium overnight as well as other former employees of DHA, but DHA has np way of
verifying the . use at this time. DHA will s.upplement this response as additional information
regarding the use of the condominium is determined.
INTERROGATORY NO.3: Please list the names, addresses and telephone numbers of
all persons who have used the office space in Oxford, Mississippi.
RESPONSE TO INTERROGATORY NO.3: Defendant has not kept a record of the
individuals using the office in Oxford and therefore, has no way of determining the names of all
individuals who have used it. However, since November 12, 2010 when the office became
operational, the following DHA employees have used it:
Richard Washington 1
Monica Huddleston
Davis Hayes ~
Taylor Strickland
n ~ 1Rush Mayo 1\fG" h~ !Uf'
RobertDale ~ou~b~
~A ..... ft
Josh Davis " ~\..1(\ l~'T"'"~"
Marlin Womack
Karen Fox
Creston Burse
1
DHA will supplement this response as additional information regarding the use of the office is
determined.
INTERROGATORY NO. 4:
ORIGINAL TRANSCRIPT
IN THE CIRCUIT COURT OF LAFAYETTE COUNTY,
MISSISSIPPI
JAMES WAYMON HAHN
PLAINTIFF
VERSUS
DEFENDANT
APPEARANCES:
JAMES D. WAIDE III, ESQUIRE
Phelps Dunbar
4270 I-55 North
Jackson, Mlssissippl
39211
of the Plalntlff
Phelps Dunbar
39211
at 12:00 p.m.
(601) 825-6339
Fax (601) 825-1154
P. 0. Box 1731 , Jackson , MS 392J 5
www.sharronallen .com
__ _!
14
A.
Yes.
years.
Q.
A.
10
Q.
11
A.
um-hum.
12
Q.
13
(Affirmative)
about?
14
A.
15
controversy,
16
17
18
Q.
19
A.
20
21
Q.
22
Allscripts?
23
MR. FRIEDMAN:
24
MR. WAIDE:
25
A chicago-based
A.
PHELPS
DUNBAR
- - - - - - - - - - - - LLJ>
Louisiana
Mississippi
Texas
Flori da
A labama
1 London
GARY E. FRIEDMAN
P:artncr
ltc~idc nt
in Mississip,,i
DircCI (60 1) 360-9355
#21996-0097
friedmag@phelps.com
Dear Jim:
As I have expressed to you on several occasions recently, it is my opinion that you are
pursuing several lines of questioning during depositions that are i,r relevant to any issue in Mr .
.f{ahn' s suit. Furthennore, it is my opinion. that . you have pu.rsu ed . all~gations of sexua~
ihlproprieti8 by Dr. Fox even though you have adip:itted to;1n~ tllat 'Dr. )viru1s~ll told you tt'lat 4~
never"'did have sex with her. These scurrilous aUeg~tic;n1's _. of sexual' ~inpropriety are ' liighly
embarrassing to Dr. Fox. However, it has becmne obvious tliatyou intend to ..coritim.ie with these
lines of questioning. Consequently, I have decided to file an appropriate motion to address these
issues. As you know, we will not have a 'pennaneri.t judge for this case until after the first of the
year so I do not know how long it will take to have my motion heard after briefing is completed.
Therefore, I have decided not to make any further witnesses available for depositions until my
motion is resolved by the Court. This necessarily will include Dr. Fox's deposition which
previously had been scheduled for Febmary 15. As part of my motion, I intend to ask the Court
to limit both the number of depositions that can be taken and the time within which they can be
ta.lcen.
I continue to believe strongly that the allegations of sexual impropriety by Dr. Fox are
being pursued strictly for the purpose of harassment and to help force settlement of the case. As
stated above, this patiicularly is true given Dr. Mansell ' s statement to you that it never happened.
Therefore, regardless of the Court's future mling on my motion referenced above, I ask that you
stop pursuing this line of questioning. If you do not do so, my client has instmcted me to
consider pursuing appropriate sanctions at the conclusion of this case. ...
I assure you that I am i1ot happy to have to .write_ a i~tte1: hke thfs, esp~cia]ly in ligl~t b.f
pur long history in many suits. However, this suit seems to have becom,e particularlY adversarial.
'or course, I will be happy to try to resolve tl1es'e issues with _you at anY tiin ~ aild would. welcorn'e
a call from you to try to reach some resolution and get this case back on track. ..
EXHIBIT
COUNSELORS AT
LAW------------ ~
4270 I-55 North I Jackson, Mississippi 39211-6391 I Post Office Box 16114 1 Jackson, Mississippi 39236-6114
601-352-2300 I 601-360-9777 Fax J oh~lmrlnnhorrn~
-------~--
Sincerely yours,
PHELPS DUNBAR LLP
GEF/klr
PLAINTIFF
vs
CAUSE NO .: Ll0-441
DEFENDANT
COMES NOW Plaintiff and propounds this Second Set of Interrogatories, Requests For
Production of Documents, and Requests for Admissions to Defendant, as follows:
INTERROGATORIES:
INTERROGATORY NO. 1: Please list the name, address and telephone number of every person
with whom Defendant's consultants consulted in reaching its opinion that Plaintiffs charges are
false.
INTERROGATORY NO.2: Please list the names, addresses and telephone numbers of all persons
who have stayed overnight at the condominium complex in Oxford, Mississippi . For each such
person, describe the purpose of the overnight stay and state the dates of the stays.
INTERROGATORY NO.3: Please listthenames, addresses and telephone numbers of all persons
who have used the office space in Oxford, Mississippi.
INTERROGATORY NO. 4: Please state the total cost of the furnishings of the condominium
complex in Oxford, Mississippi.
REQUESTS FOR PRODUCTION OF DOCUMENTS:
REQUEST NO.1: Please produce for inspection and copying the budget of the Defendant for the
year 2008.
REQUEST NO.2: Please produce for inspection and copying the budget of the Defendant for the
year 2009.
EXHIBIT
00216946. WPD
' <
REQUEST NO.3: Please produce for inspection and copying the budget of the Defendant for the
year 2010.
REQUEST NO.4: Please produce for inspection and copying all bills or other documents which
document the work performed by the investigators or outside consultants for which they charged the
Defendant $50,000.00, as alleged in Defendant's Counterclaim.
REQUEST NO.5: Please produce for inspection and copying all documents which demonstrate
work performed by Defendant's consultants in investigating Plaintiffs allegations.
REQUEST NO.6: Please produce for inspection and copying all documents which your consultants
gave Defendant regarding each of the charges numbered A through G in Plaintiffs Complaint.
REQUEST NO.7: Please produce for inspection and copying all documents which Defendant has
generated concerning the need for an condominium complex in Oxford, Mississippi.
REQUEST NO. 8: Please produce for inspection and copying all documents pertaining to
Defendant's obtaining an automobile for the use and benefit of Dr. Karen Fox, including, but not
limited to, minutes of the board, leases and bills of sale.
REQUEST NO.9: Please produce for inspection and copying all contracts which Defendant has
with Mr. Jere Nash or any company owned or controlled by Nash.
REQUEST NO. 10: Please produce for inspection and copying all contracts which Defendant has
or has had with Delta's counsel.
REQUEST NO. 11: Please produce for inspection and copying all documents whereby the board
of directors of Defendant authorized payment of attorney' s fees to John Dunbar.
REQUEST NO. 12: Please produce for inspection and copying all documents whereby the board
hired John Dunbar to provide Defendant legal services or agree to reimburse Karen Fox for bills
submitted by John Dunbar.
REQUEST NO. 13: Please produce for inspection and copying all bills and all other documents
describing what services John Dunbar provided to the board.
REQUEST NO. 14: Please produce for inspection and copying all emails between Dr. Karen Fox
and Dr. Keith Mansall during the 2009-2010 time period . .
REQUEST NO. 15: Please produce for inspection and copying all documents that will describe the
purposes and dates of use of the condominium in Oxford, Mississippi.
00216946. WPD
-2-
I~
'I
REQUEST NO. 16: Please produce for inspection and copying all documents which des.cribe
purposes and use made of the office space in Oxford, Mississippi.
REQUEST NO. 17: Please produce for inspection and copying all documents whereby any
furnishings for the condominium complex have been purchased.
REQUEST NO. 18: Please produce for inspection and copying all personal notes taken by John
Hilbert describing occurrences at any meeting he had with Plaintiff.
REQUEST NO. 19: Please produce for inspection and copying all bills of John Dunbar paid by
Defendant.
REQUEST NO. 20: Please produce for inspection and copying all bills or invoices submitted by
Jere Nash or any entity controlled by Jere Nash for the years 2009 and 2010.
REQUEST NO. 21: Please produce for inspection and copying HRSA requirements for approving
proposed construction.
REQUEST NO. 22: Please produce for inspection and copying HRSA requirements for approving
leases.
REQUEST NO. 23: Please produce for inspection and copying any bills, legislation or other
documents whereby funds have been appropriated for the benefit of Defendant for the years 2008,
2009 and 2010.
REQUEST NO. 24: Please produce for inspection and copying Defendant's Statement ofFinancial
Position for the years 2008, 2009 and 2010.
REQUEST NO. 25: Please produce for inspection and copying Defendant's Statement of Activities
for the years 2008,2009 and 2010.
REQUEST NO. 26: Please produce for inspection and copying Defendant's Statement of Cash
Flows for the years 2008, 2009 and 2010.
REQUEST N 0. 2 7: Please produce for inspection and copying Defendant's Statement ofFunctional
Expenses for the years 2008, 2009 and 2010.
REQUEST NO. 28: Please produce for inspection and copying Defendant's Notes to Financial
Statements for the years 2008,2009 and 2010.
REQUEST NO. 29: Please produce for inspection and copying all minutes of Defendant's Board
of Directors meetings in which James Hahn was discharged.
00216946.WPD
-3-
REQUEST NO. 30: Please produce for inspection and copying all minutes whereby Board of
Directors authorized a $3,000.00 car allowance for Dr. Karen Fox.
REQUEST NO. 31: Please produce for inspection and copying all minutes whereby Board of
Directors authorized the lease of a condominium in Oxford, Mississippi.
REQUEST NO. 32: Please produce for inspection and copying all minutes whereby Board of
Directors authorized change of ERISA plan to compensate some employees at twenty percent rate.
REQUEST NO. 33: Please produce for inspection and copying all minutes whereby Board of
Directors authorized payments of any attorneys' fees for Dr. Karen Fox.
REQUEST NO. 34: Please produce for inspection and copying all minutes whereby Board of
Directors authorized lease of office space in Oxford, Mississippi for Dr. Karen Fox.
REQUEST NO. 35: Please produce for inspection and copying all documents evidencing the
identities of persons who leased or used the condominium in Oxford, Mississippi.
Respectfully submitted,
WAIDE & ASSOCIATES, P.A.
MWAIDE
S BAR NO.: 6857
RACHEL PIERCE
MS BAR NO.: 100420
WAIDE & ASSOCIATES, P.A.
ATTORNEYS AT LAW
POST OFFICE BOX 1357
TUPELO, MISSISSIPPI 38802
TELEPHONE: 662/842-7324
FACSIMILE: 662/842-8056
EMAIL: waide@waidelaw.com
Attorneys for Plaintiff
00216946.WPD
-4-
...
.... '
CERTIFICATE OF SERVICE
I, Jim Waide, one of the attorneys for Plaintiff, do hereby certify that I have this day served,
via First Class United States mail, postage prepaid, a true and correct copy of the above and
foregoing to the following:
Gary E. Friedman, Esq.
Gregory Todd Butler, Esq.
Phelps Dunbar, LLP
4270 I-55 North
Jackson, MS 39211-6391
THIS the _1l_ day of December, 2010.
JIM
002 16946.WPD
-5-
IDE
PLAINTIFF
vs.
DEFENDANT
NOTICE OF SERVICE
To:
and correct copy of Plaintiff's Response to Defendant's Third Set of Requests for Production
of Documents upon all counsel of record.
The undersigned retains the original of the above document as custodian thereof.
SO NOTICED on this the
WAIDE
BAR NO.: 6857
CHEL M. PIERCE
MS BAR NO.: 100420
WAIDE & ASSOCIATES, P.A.
ATTORNEYS AT LAW
POST OFFICE BOX 1357
TUPELO, MISSISSIPPI 38802
TELEPHONE: 662/842-7324
FACSIMILE: 662/842-8056
EMAIL: waide@waidelaw.com
LAFAYETTE COUNTY
FILED
00223208.WPD
'
'
'
CERTIFICATE OF SERVICE
I, Jim Waide, one of the attorneys for Plaintiff, do hereby certify that I have this day served,
via electronic mail, a true and correct copy of the above and foregoing to the following:
butlert@phelps.com
THIS, the
JI
00223208.WPD
-2-
AIDE
FILED
JAMES WAYMON HAHN
vs.
PLAINTIFF
M 3 1 1.011
~u
DEFENDANT
Defendant DHA filed its Motion for Partial Summary Judgment and for
On February 21, 2011, Plaintiff requested an extension of time to file his response
to DHA ' s motion, which the court granted making Plaintiff's response due on or about March 7,
2011.
3.
response to Defendant' s motion, which the court granted making Plaintiff's response due on or
about March 21,2011.
4.
Defendant DHA' s Rebuttal is currently due on or about April 1, 2011 and the
hearing on all motions in the instant case is set for April 14, 2011.
5.
DHA requests an extension until April 8, 2011 to respond and file its rebuttal to
Plaintiff's Response to DHA's Motion for Partial Summary Judgment and for Protective Order.
PD.489 1486.1
6.
Plaintiff will not be prejudiced by this extension, and this Motion is not being
Due to the nature of this Motion, DHA requests to be relieved from submitting a
separate memorandum.
WHEREFORE, PREMISES CONSIDERED, the DHA respectfully requests until and
including April 8, 2011 , a seven (7) day extension of time, to file its Rebuttal in Support of its
Motion for Partial Summary Judgment and for Protective Order.
DATED this the 291h day ofMarch, 2011.
Respectfully submitted,
BY:
Gary E. Friedman, MB #5532
Gregory Todd Butler, MS Bar No.: 102907
PHELPS DUNBAR, LLP
4270 I-55 North
Jackson, Mississippi 3 9211-63 91
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: friedmag@phelps.com
butlert@phelps.com
Attorneys for Defendant
DELTA HEALTH ALLIANCE, INC.
PD.489 1486.1
CERTIFICATE OF SERVICE
I, TODD BUTLER, do hereby certify that I have this date mailed through the United
States Postal Service, postage prepaid, a true and correct copy of the above and foregoing
G. TODD BUTLER
PD.489 I486. I
FILED
PLAINTIFF
APR 11 2011
vs.
DEFENDANT
through its undersigned counsel, and respectfully moves the Court for a second extension of time
to file its Rebuttal in Support of DHA ' s Motion for Partial Summary Judgment and for
Protective Order. DHA would show unto the Court as follows:
1.
Defendant DHA filed its Motion for Partial Summary Judgment and for
to DHA' s motion, which the court granted making Plaintiffs response due on or about March 7,
2011.
3.
response to Defendant's motion, which the court granted making Plaintiffs response due on or
about March 21, 2011.
4.
5.
On March 29, 2011, DHA requested an extension until April 8, 2011 to respond
and file its rebuttal to Plaintiffs Response to DHA's Motion for Partial Summary Judgment and
for Protective Order.
?0.4945565 .1
6.
Since the filing of that motion, counsel for both parties have been engaged in
settlement discussions that could resolve all of the issues in this case.
Those settlement
Accordingly, DHA respectfully requests until and including April 12, 2011 to file
its Rebuttal in Support of its Motion for Partial Summary Judgment and for Protective Order.
8.
The hearing on the motion in the instant case is not until April14, 2011.
9.
Plaintiff will not be prejudiced by this extension, and this Motion is not being
Due to the nature of this Motion, DHA requests to be relieved from submitting a
separate memorandum.
WHEREFORE, PREMISES CONSIDERED, the DHA respectfully requests until and
including April 12, 2011 to file its Rebuttal in Support of its Motion for Partial Summary
Judgment and for Protective Order.
PD.4945565.1
gth
BY:
Gary E. Friedman, MB #5532
Gregory Todd Butler, MS Bar No.: 102907
PHELPS DUNBAR, LLP
4270 I-55 North
Jackson, Mississippi 39211-6391
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: friedmag@phelps.com
butlert@phel ps. com
Attorneys for Defendant
DELTA HEALTH ALLIANCE, INC.
PD.4945565. I
CERTIFICATE OF SERVICE
I, TODD BUTLER, do hereby certify that I have this date mailed through the United
States Postal Service, postage prepaid, a true and correct copy of the above and foregoing
PD.4945565.1
vs.
DEFENDANT
ORDER
The Court on its own motion hereby continues, to a date to be determined, the hearing on
all pending motions in this matter previously set for Thursday, April 14 at 9:00a.m.
The Clerk of the Court is directed to provide a copy of this Order to all counsel of record .
i1/biay of~,
2011.
GE
-~
JAMES WAYMONHAHN
V.ft>-~\\_...0
PLAINTIFF
t:. 1.~\\
r.~\\ \ ',)~
""
~s'o~
vs.
\c
DEFENDANT
~'t
Rebuttal in Support of DHA's Motion for Partial Summary Judgment and for a Protective Order
and states as follows:
I. INTRODUCTION
Piaintiffs oppositional response includes eight and one half pages of "facts," most of
which are completely irrelevant to the instant motion.
argument is permeated with legal authority that has no applicability whatsoever to this action.
The strategy with respect to DHA's partial-summary-judgment request is apparent: Plaintiff
hopes to muddy the straightforward issues before this Court to fabricate genuine issues of
material fact where none exist. With respect to DHA's request for a protective order, Plaintiff
has all but conceded that he is engaged in a fishing expedition. DHA reiterates its request for
partial summary judgment and for a protective order.
II. ARGUMENT
A.
Plaintiffs oppositional response proceeds in the following fashion. First, he argues that
DHA has advanced the wrong legal standard for application of the McArn exception to
PD.4891154.1
Eas e:spoused
the correct standard, he has satisfied it. Both arguments are wrong.
With respect to the correct legal standard, Plaintiff initially takes the curious position that
"the Mississippi Supreme Court will not impose an overly strict requirement on exactly what [a]
plaintiff must report in order to be protected by the public policy exception" and that there need
not even be an "allegation that actual criminal activity was occurring .... " Pl. Resp. Mem. at
11.
These submissions are incorrect, as both plainly contradict the long-standing rule that
McArn is a very "narrow exception" used to protect only those who report "criminal conduct."
See McArn v. Allied-Terminix, 626 So.2d 603, 607 (Miss. 1993) (noting the creation of a
"narrow public policy exception"); Jones v. Fluor Daniel Servs. Corp., 959 So. 2d 1044, 1048
(Miss. 2007 (noting that the reported conduct must be deemed "cril;Ilinal").
Given the invalidity of these initial contentions, Plaintiff then advances the standard that
a p1ain~jff need only have "a good faith belief of criminal conduct." Pl. Resp. Mem. at 11. This
standard, however, is equally incorrect. Though Plaintiff cites several cases in support of his
position, none of those cases hold that only a good faith belief is required. Rather, as advanced
in DHA's principal memorandum, a plaintiff must have both a good faith belief that the reported
conduct is criminal and "come forth with evidence establishing [that the action complained of]
constitute[s] criminal activity." Wheeler v. BL Development Corp., 415 F.3d 399, 404 (5th Cir.
1999); Renick v. Nat'l Audubon Soc., Inc., 2009 WL 377288 (N.D. Miss. 2009) ("A good faith
belief that an action was criminal is insufficient to invoke the McArn exception.").
It is disingenuous for Plaintiff to suggest that both a good faith belief and evidence that
the reported conduct is criminal are necessary only in federal court, for both state and federal
opinions are in accord. In Hammons v. Fleetwood Homes of Miss., Inc., 907 So. 2d 357, 360
-2PD.4891154.1
(Miss. Ct. App. 2005) (emphasis added), for exampre;:'it was plainly held that, although
"[a]pplicability of the exception does not require that a crime has already been committed, [) it
th~
Other courts have consistently cited Hammons for the rule "that an employee must prove that he
complained of employer acts that 'warrant the imposition of criminal penalties, ... which caused
his discharge." E.g., Kyle v. Circus Circus Miss., Inc., 2010 WL 2539576 *3 (N.D. Miss .
2010); 1 see also Wheeler v. BL Development Corp., 415 F.3d 399, 404 (5th Cir. 1999) (A
plaintiff must "come forth with evidence establishing [that the action complained of]
constitute[s] criminal activity."). A contrary rule, that employees need only have a good faith
belief that what they report is criminal, would open the floodgates for lawsuits and eviscerate the
Supreme Court's repeated insistence that McArn constitutes a "narrow" exception to the at-willemployment doctrine. E.g., Jones, 959 So. 2d at 1047.
In a final attempt to avoid summary judgment, Plaintiff makes the alternative argument
that his "evidence is sufficient" to prove that DHA's condominium lease was criminally
actionable. Pl. Resp. Mem. at 11-12. But this argument has no merit whatsoever.
To begin with, Plaintiffs suggestion that HRSA did not actually approve the
condominium lease is nonsensical on its face. Though DHA included HRSA's approval e-mail
as an exhibit to the principal motion, Plaintiff challenges the e-mail as being unauthenticated. Pl.
Resp. Mem. at 13.
authentication under Mississippi Rule of Evidence 901 (b)( 4) because of their distinctive
characteristics. Nonetheless, even if they did, DHA has attached to this Rebuttal the affidavit of
the DHA employee who received the HRSA approval. See Kearley v. State, 843 So.2d 66, 70
It should come as no surprise to Plaintiff that Mississippi state law requires both a good faith belief and
evidence that the reported conduct is criminal, for his counsel in this case also represented the plaintiff in Kyle
v. Circus Miss., Inc., 2010 WL 2539576 *3 (N.D. Miss. 2010).
- 3PD.48 9 1154.1
(Miss. 2002) (holding 'that a recipient may authenticate an e-mail). That affidavit verifies that a -
request was sought from HRSA for approval of the condominium lease and that an approval email was indeed received. Beth McCullers Affidavit, Ex. W.
There also is no record evidence to support Plaintiff's accusation that HRSA was
somehow misled about the condominium lease. Pl. Resp. Mem. at 13. As set forth in DHA' s
principal motion, Plaintiff himself testified at his deposition that he had "met Dr. Fox [at the
condominium] for professional purposes a handful of times . ... " See Plaintiff's Deposition at
137, Ex. D.
discover-y responses, as well as the affidavits attached to the principal motion, reveal that the
leased condominium was repeatedly used for business purposes. It is of no moment that Plaintiff
is unsatisfied with the exact amount of time spent at the condominium for DHA business. The
McArn exception is a doctrine rooted in protecting employees who report criminal activity; not
one that provides employees with a cause of action anytime they disagree with the business
decisions of their employer.
What this matter ultimately boils down to is Plaintiff's apparent belief that, if the leased
condominium was used at any point for personal rather than business purposes, the public-policy
exception may be invoked.
McArn, however. Fatal to Plaintiff's claim is the fact that he has pointed to no authority that
even remotely suggests that some collateral personal use of the leased condominium would be
criminal. Case law interpreting McArn expressly holds that a plaintiff must inform the court of
why the reported activity is criminal by citing either to a. statute or to case law. E.g., Kyle, 2010
WL 2539576 *4 (explaining that "the plaintiff has never cited a statute or case law
- 4PD.489 1154 .1
cite to either in this case, and partial summary judgment is therefore proper.
B.
A PROTECTIVE ORDER
DISCOVERY ABUSE.
IS
NECESSARY
TO
PREVENT
FUTURE
In its principal motion, DHA explained that a protective order was warranted because
Plaintiff's counsel has abused discovery by conducting a fishing expedition into three areas
having absolutely no relevance to the instant suit:
An alleged dispute between the University of Mississippi
1.
Medical Center ("UMMC") and DHA having to do with the
implementation of a system for electronic health records;
2.
Allegations of improper donations to the University of
Mississippi by Allscripts, a provider of software for electronic
health records; and
3.
A general claim that DHA appropriated federal grant
money to programs that were not executed well.
Plaintiffs oppositional response does nothing, as a legal matter, to justify his groundless
exploration into these areas.
Plaintiff treats the first two areas as "interrelated" and essentially goes on to concede the
issue of relevancy. DHA has explained that these areas are off limits because of the nature of
this suit.
In particular, Plaintiff has brought this action under the McArn exception to
Mississippi's at-will-employment doctrine, which means that Plaintiff must prove that he was
terminated for reporting criminal conduct.
Plaintiff's
oppositional response never contends that, prior to his termination, Plaintiff reported to DHA or
anyone else that anything illegal was going on with respect to Allscripts. Instead, Plaintiff
readily acknowledges at page 16 and 17 that it was not until depositions began that the Allscript
2
Again, Plaintiff should be familiar with the requirement that he must inform the Court of how the reported
conduct is criminal by citing either to a statute or case law, since his counsel in this case was also counsel for
the plaintiff in the Kyle case.
-5PD.489 11 54. l
- allegations arose, and he :flli-ther acknowleages"-tha:t-even then he refused to answer any questions .
regarding the alleged wrongdoing. This Court should put an end to Plaintiffs admitted strategy
of "trying to learn" if anything illegal occurred between DHA, UMC, and Allscripts, for even if
he was successful it would be irrelevant to this lawsuit since he did not report it prior to his
discharge as required to have a cognizable claim under McArn. See Pl. Resp. Mem. at 16.
To reiterate, Plaintiff never attempts to contradict the relevancy argument actually
presented by DHA in its principal memorandum. Rather, Plaintiff tries to spin the issue by
stating that "one defense being raised in this case is that the expenditures by Defendant may have
not been 'used well' but were not 'criminal."' Pl. Resp. Mem. at 18. He then uses this claim to
argue that discovery is necessary to determine whether criminal conduct has indeed occurred. Id.
The problem with this line of argument is that it puts the cart before the horse: it is irrelevant
whether anything illegal occurred because Plaintiff never reported it, as required under McArn.
See Jones, 959 So. 2d at 1048.
With respect to the third area, Plaintiff provides no real discussion addressing relevancy
of the discovery he has sought regarding the general claim that DHA appropriated federal grant
money to programs that were not executed well. Instead, he ties his sweeping discovery requests
to statements such as DHA "is not a private company" and thus its financial records should be
open for all the world to see. See Pl. Resp. Mem. at 18. This statement, however, is completely
false. DHA is indeed a private company and is entitled to the same protection guaranteed to all
other private litigants: that a plaintiff not conduct an harassing fishing expedition into matters
wholly irrelevant to pending litigation See Articles and Bylaws, Article II, sec. 1 at 4, Ex. C.
- 6PD.4891154.1
C.
AN ORDER- COMPELLING
WARRANTED.
DISCOVERY . IS
NOT
NECESSARY OR .:._ .
Plaintiff concludes his Response by requesting that the Court enter an Order compelling
Defendant to participate in depositions and requiring Defendant to produce certain documents
First, Plaintiff argues that he is entitled to invoices "describing what
.to the Defendant.
DHA, the Defendant
in this case, reimbursed Fox for those services pursuant to DHA's indemnification provision.
for those bills had nothing to
do with any of the bases for Plaintiff's wrongful discharge action. In fact, Plaintiff does not even
argue in his Brief that there is any relevance to the allegations of the suit. His only argument is
that these documents are "necessary to determine whether
- 7PD:48911 54. 1
..........
for Paitial Summary Judgment. However, even if"Partial .Summar:y Judgment is denied; the
requested documents still would be irrelevant because the issue raised by the Plaintiff is whether
the condominium was used in substantial part for personal purposes rather than for business
purposes.
The amount paid for the furnishing of the condominium is irrelevant to this
determination and again is nothing but part of the Plaintiff's fishing expedition.
Plaintiff next asks the Court to order the Defendant to provide invoices submitted by Jere
Nash. Plaintiff argues that these are relevant to determine the legitimacy of payments to Nash
"especially since Plaintiff has evidence that one ofNash's activities was to advise Chip Morgan
'
on how to discredit the University of Mississippi President." Whether Nash did advise Morgan
on how to discredit the University of Mississippi President and whether DHA had anything to do
with any such efforts has absolutely nothing to do with any of the Plaintiff's claims underlying
his wrongful discharge suit and which are delineated in his Complaint. This, like Plaintiff's
other requests, is nothing more than a fishing expedition to further Plaintiff's effort to satisfy his
curiosity about the general business practices of DHA. This suit simply is not the vehicle for
such an exercise. However, Plaintiff argues that since DHA is funded by the tax payers, there is
no legitimate reason to refuse to keep Plaintiff from seeing its fmancial records.
This is
- 8PD.4891154 .1
limit on the number of"depositio:o.s...Plaintiff is allowed to take since he has indicated that he isgoing to take at least 13 additional depositions if allowed to do so. Defendant is amendable to
Plaintiff being allowed to take three additional depositions, giving him a total of 14 which surely
is reasonable under the circumstances. It will then be up to the Plaintiff to determine if he
wishes to use those depositions to take Members ofDHA's Board of Directors.
III. CONCLUSION
WHEREFORE, PREMISES CONSIDERED, DHA respectfully reiterates its request
for an entry of partial summary judgment and for a protective order limiting further discovery.
DATED : April12, 2011.
Respectfully submitted,
PHELPS DUNBAR, LLP
. . ... - - - . .-
..
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have this day forwarded, via United
States mail, postage prepaid, a true and correct copy of Defendant's REBUTTAL IN SUPPORT
OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR PROTECTIVE ORDER to the
- 10PD.4891154.1
e:f'E cou~"f<
JAMES WAYMONHAHN
v.r~f\LE.O
1\?R \
vs.
DELTA HEALTH ALLIANCE, INC.
~"
W\&
~ 1~\\
C su.s'o'l
~i~~&fl_\{
c\fli
PLAINTIFF
CIVIL ACTION NO. Ll0-441
\\
DEFENDANT
e'!
REBUTTAL IN SUPPORT OF DHA'S
MOTION FOR PARTIAL SUMMARY JUDGMENT
AND FOR PROTECTIVE ORDER
COMES NOW Defendant, Delta Health Alliance, Inc. ("DHA"), and submits this
Rebuttal in Support of DHA's Motion for Partial Summary Judgment and for a Protective Order
and states as follows:
1.
2.
For the reasons set forth more fully in DHA's principal Memorandum in Support
of Motion for Partial Summary Judgment and for a Protective Order and in its
Rebuttal Memorandum in Support of Motion for Partial Summary Judgment and
for a Protective Order, DHA's request should be granted.
3.
3.
-1PD.4978993.1
BY:~~~~~~======~
Gary E. F iedman, MB #5532
Gregory lfodd Butler, MB #102907
4270 I-5) North
Jackson, Mississippi 39211-6391
-2PD.4978993.1
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have this day forwarded, via United
States mail, postage prepaid, a true and correct copy of Defendant's REBUTTAL IN SUPPORT
OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR PROTECTIVE ORDER to the
- 10PD.4891154.1
~ -
JAMESWAYMONHAHN
vs.
I, Beth McCullers, am a person of the full age of majority ami have personal knowledge
of the following:
1. .
I am the Director of Sponsored. Programs for Delta Health Alliance, Inc. ("DHN')
I make
DRA~s
Motion for "Partial Summary Judgment and for a Protective Order. 1 have been advised
that the purpose of this authentication is to verify that thee-mails are true and correct
3.
4.
f have personaiiy reviewed and examined Exfuoit Q, which includes (1) e-mru1s.f
EX~ IBIT
w
PD.4892637.1
. 5. .
I attest that the e-mails ap.peafi.ng.. iu EXhibit Q were generated at the time and date
indicated therein. I further attest that that the e-mails appearing in Exhibit Q are true and correct
copies of the electronic mail messages I sent and received.
6.
I declare under penalty of peijury that the foregoing is tru.e and correct to the best
-2PD.4892637.l
JAMES WAYMONHAHN
FILED
PLAINTIFF
vs.
FEB 0 8 Z011
Plaintiff James Hahn ("Plaintiff') filed this wrongful discharge lawsuit on July 22, 2010.
See Complaint, Ex. K. Since then, his counsel has engaged in a fishing expedition into matters
I
wholly unrelated to his lawsuit. To date, Plaintiff's counsel has taken 13 depositions and has
conveyed his intent to schedule at least 13 more. See Deposition Notices, Ex. A; see also
Plaintiff's CouD.sel's Letter, Ex. B (mdicating that, among others, Plaintiff's counsel plans to
depose "each individual board member" of DHA). 1 Much of the deposition questioning thus far
has centered around allegations that have nothing to do with Plaintiff's lawsuit or that are
To prevent further
discovery abuse, DHA respectfully requests both a grant of partial Summary Judgment2 and a
EXHIBIT
:0
DHA has a nine-member Board of Directors. See Articles and Bylaws, Article II, sec. 2 at 4, Ex. C.
To be sure, DHA intends to later move for Summary Judgment with respect to all of Plaintiffs allegations.
PD.4595826.2
The
Policies and Procedures Manual makes clear that DHA is an at-will employer. See DHA Policies
and Procedures Manual, section 2 at 7-8, Ex. F. In addition, Plaintiff signed an employment
agreement on April 20, 2009, which classified him as an at-will employee:
See Plaintiffs
concern, and the Chairman ofDHA's Board of Directors, Dr. John Hilpert, was contacted.. See
For purposes of this motion, the facts are set forth in the light most favorable to Plaintiff. DHA reserves its
right to contest these facts at a late~ time.
- 2PD.4595826.2
James Keeton's Deposition at 24~26, Ex. H. Hilpert subsequently met with Plaintifno discuss
the allegations. See John Hilper's Deposition at 40-41, Ex. I.
Following the meeting, DHA hired the law fm of Bradley Arant Boult ClJmmings, LLP,
in Jackson, Mississippi to investigate Plaintif:fs allegations. See Roy Campbell's Deposition at
7, Ex. J. The law fum
conduc~ed
57, Ex. I. Plaintiffs resignation was then sought by the Board, but he refused to step down from
his position. Id at 40. The instant lawsuit followed after Plaintiff was terminated on May 28,
2010. See Complaint, Ex. K.
Plaintiff's sole claim for relief is ,
~5.
Judgment is the
.See id. at
~5(B).
. allegation
J
DHA seeks
- 3PD.4595826.2
as
Plaintiff's counsel also has abused discovery. by conducting a fishing expedition into
three areas having absolutely no relevance to the instant suit. These areas are:
1.
An alleged dispute between the University of Mississippi
Medical Center (''UMM:C") and DHA having to do with the
implementation of a system for electronic health records;
2.
Allegations of improper donations to the University of
Mississippi by Allscripts, a provider of software for electronic
health records; and
3.
A general claim that DHA appropriated federal grant
money to programs that were not execute.d well.
E.g. John Hilper's Deposition at 10-15, Ex. I; James Keeton's Deposition at 10-14, Ex. H; and
Chip Morgan's Deposition at 34-39, Ex. M . -None of these areas have any possible relevance to
Plaintiffs claim. of wrongful discharge.
In spite of this,
Plaintiff'~
substantial amount of his time in depositions questioning witnesses about these area.S and has
indicated that he will take additional depositions regarding the same.
-4PD.4595826.2
III. ARGUMENT
A.
Summary judgment is appropriate when there "are no genuine issues of material fact, and
the moving party is entitled to judgffient as a matter of law." Deaton v. Farm Bureau Cas. Ins.
Co., 994 So. 2d 164, 167 (Miss. 2008). Once the moving party demonstrates that no genuine
oth~rwise.
See
Simpson v. Boyd, 880 So. 2d 1047, 1050 (Miss . 2004). In so doing, "the non-movant party may
not rest on the assertions of the Complaint but must introduce admissible evidence that would
create .a genuine issue of material fact for a jury." AAA Cooper Transp. Co. v. Parks, 18 So. 3d
909, 913 (Miss. App. 2009). A genuine factual dispute exists "only if the evidence is such that a
.1
re~
Applicable Law
"Mississippi follows the 'at-will' employment doctrine and has done so for over 100
years." Rosamond v. Pennaco Hosiery, Inc., 942 F. Supp. 279, 285 (N.D. Miss. 1996). This
means that, "[i]n the absence of a contract of employment for a specified term, all employees are
deemed to be at-will." Id. In this case, both the Policies and Procedures Manual the Plaintiff
signed for and the employment agreement he entered into on April 20; 2009 reiterate that
Plaintiff was an at-will employee. See DHA Policies and Procedures Manual, section 2 at 7-8,
Ex. F; see also Plaintiff's Employment Contract, Ex. G.
terminated for "a good reason, a wrong.reason, or no reason" at all -just not an impermissible
reason. See Kelly v. Mississippi Valley Gas Co., 397 So.2d 874, 875 (Miss. 1981).
- 5PD.4595826.2
One of the impermissible reasons carved out by the Mississippi Supreme Court is the
very narrow public policy exception set forth in McArn v. Allied-Terminix, 626 So.2d 603, 606
(Miss. 1993). Under McArn, an employee may not be fired for reporting an employer's criminal
acts. Id. To utilize the McArn exception, however, the employee must both have a good faith
belief that the reported conduct is criminal and "come forth with evidence establishing [that the
action complained of] constitute[ s] criminal activity." Wheeler v. BL Development Corp., 415
F.3d 399, 404 (5th Cir. 1999); see also Renick v. Nat'! Audubon Soc., Inc., 2009 WL 377288
(N.D. Miss. 2009) ("A good faith belief that an action was criminal is insufficient to invoke the
.
McArn exception.") [See attached unpublished opinion]. In the absence of the employee being
able to carry his or her burden of proof, the at-will emplqyment doctrine precludes an action for
.
wrongful discharge. Wheeler, 415 F.3d at 404; see also Coats v. Penrod Drilling Corp., 785 .
F.Supp. 614, 625 (S.D. Miss. 1992).
3.
The allegations with respect to DHA's lease ofa condominium in Oxford, Mississippi at
the direction of Dr. Fox do not present a cognizable basis for relief. DHA is a private entity that
is partially funded through governmental grants . See Plaintiffs Deposition at 137, Ex. D. The
Health Resources and Services Administration (HRSA) is the U.S. Department of Human
Services' agency that oversees the distribution of federal funds to :PHA. See Affidavit of
Richard Washington, Ex. N. Apparently, Plainti.ff's theory is that
and therefore the
leasing of the condominium constitutes criminal use of federal funds. Because it is undisputed
the condominium was used for DHA business purposes and there is no admissible evidence that
leasing the condominium is criminally actionable, Plaintiff's claim fails.
-6PD.4595826.2
Jt cannot be disputed tJ:ia.t Dr. Fox acted within her authority as CEO in leasing the
condominium on behalf of DHA. According to DHA's Articles and Bylaws, "[t]he CEO shall
have general supervisory authority to sign, make; and execute .. . lease? . ... " See Articles and
Bylaws, Article V, 1, Ex. C. Dr. John Hilpert, President of DHA's Board of Directors,
confirmed that Dr. Fox had the
~uthority
DHA without Board approval. See John Hilper's Deposition at 33-34, Ex. I. Thus, the only
approval needed was from HRSA, which ser-Ves as DHA's funding agent.
To that end, DHA submitted a proposal for the condominium lease to HRSA. See DHA
Condominium Proposal, Ex. 0; see also Karen Fox Affidavit,~ 5, Ex. P. The proposal analyzed
the travel and housing needs for individuals working on D.H A projects, particularly in the
Oxford, Mississippi area, because it was to serve as a base of operations for projects in the
southern and western quadrants of the Mississippi Delta. See DHA Condominium Proposal at 5, .
The proposal analyzed the hotel costs in Oxford versus the cost of leasing a
Ex. 0.
condominium and concluded that it would be a substantial cost savings to DHA to lease a
condominium capped at $2,000 per month. !d. at 8.
On July 20,2009, HRSA approved leasing of the condominium in Oxford, Mississippi:
After review of your lodging analysis for Project #5, it is clear that
because the project is expanding into other areas where lodging is
more expensive, that the option for a leased apartment would be a
cost savings for the anticipated duration and needs of the project.
:HRSA concurs with this approach. Please send a copy of the lease
once it has been signed.
Ex. Q.
See
At his deposition, Plaintiff admitted that he thought the leasing of the condominium was
prop~r
if it had been approved by DHA's Board of Directors, HRSA, and Dr. Fox.
- 7PD.4595826.2
See
. Plaintiff's Deposition at 145, Ex. D: As discussed above, it is uncontradicted thatHRSA and Dr.
Fox approved the leasing of the condominium. Furthermore, DHA's Policies and Procedures,
which include the Articles and Bylaws, state that the Board of Directors delegated to the CEO,
Dr. Fox, the general authority to make and execute leases. See Articles and Bylaws, Article V,
1, Ex. C; see also John Hilper's Deposition at 33-34, Ex. 1 (explaining that .condo leas.e was
within CEO's authority). Plaintiff should have been aware of this since he received a copy of
DHA's Policies and Procedures. See Plaintiffs Deposition at 26-27, 165, Ex. D. In light of
.
.
these facts, Plaintiff neither can establish that he had a good faith belief that the reported .conduct
regarding the condominium was criminal, nor present evidence establishing that the leasing of
the condominium in any way constituted criminal activity. And, as a result, he cannot meet
either of the requirements of the McArn exception to Mississippi's at-will doctrine.
tha~
In fact, Plaintiff himself testified as follows: "I have met Dr. Fox [at the
condominium] for professional purposes a handful of times .... " See Plaintiff's Deposition at
.137, Ex. D: DHA, moreover, has attached as exhibits the affidavits of individuals who attest that
they have used the Oxford, Mississippi condominium on DHA business. See collectively DHA
Affidavits, Ex. R; see also Karen Fox Affidavit at ~4, Ex. P. In the end, even if evidence of
personal use could be produced, it is undeniable that the condominium was used for DHA's
.
business purposes as well. Plaintiff can point to no criminal statute that would prohibit such
collateral use, and DHA is thus entitled to partial summary judgment.
-8PD.4595826.2
Even assuming Plaintiff could make a: fact question regarding the reason for leasing the
condominium
a~d
that such was criminally illegal in spite ofHRSA approval (which he cannot),
DHA still is entitled to partial summary judgment. Plaintiff admits that he alone was the person
who negotiated and signed for the condominium lease, as v;rell as a separate office, on behalf of
DHA. See Plaintiffs Deposition at 23-24, 148, Ex. D. He further admits that he was responsible
for furnishing the condominium.
negotiation, Plaintiff acknowledged that the lease he signed combined the condominium and the
office into one agreement. Jd. at 157. He then testified that, although he understood it was an
."uncustomary" way of doing things, he was under "very fast pressure to get it done." Id. at 160,
162~ This line of questioning concluded with the following:
Q.
By getting it done, did you read that- get it done even if
it's wrong?
A . . Yeah.
!d. at 162.
In light of Plaintiffs role in securing the condominium lease, even assuming Plaintiff
could make a fact question regarding the reason for leasing the CO!fdominium and that such was
criminally illegal in spite of HRSA approval, the doctrine of in pari delecto precludes Plaintiffs
wrongful discharge claim. "[M]ost American jurisdictions ... embraceD to some extent the
venerable in pari delicto doctrine. Am. Int'l Group v. Greenberg, 976 A.2d 872, 882 (Del..Ch.
2009). Latin for "in equal fault," in pari delicto is the general rule that courts "will not extend
aid to either of the parties to a criminal act or listen to their complaints against each other but
will leave them where their own act has placed th~m." 1 Am. Jur. 2D Actions 40.
underlying idea is that
t~ere
- 9PD.4595826.2
"The
'Thus, a.Sslli:tilrig-fot the sake of argument' that it was a criminal act on behalf of DHA to
lease the condomUrium., it is uncontradicted that it was the Plaintiff who negotiated the terms for
. the condominium, signed the lease on behalf of DHA and was in charge of furnishing the
condominium for DHA. See Plaintiff's Deposition at 23-24, Ex. D. Consequently, ifleasing the
condominium was a criminal act, as Plaintiff clai.rn,s, Plaintiffwa.S an integral part of the criminal
enterprise since he was the one who negotiated the lease for the alleged criminal use of federal
funds. The doctrine of in pari delicto therefore forbids Plaintiff from recovering on this theory
and partial .s ummary judgment is warranted for this alternative reason.
B.
IP., 613 So. 2d 846 (Miss. 1993). Courts have broad discretion when it comes to protective
orders. Id. Put simply, a courts may enter any protective order "which justice requires." Miss.
R. Civ. P. 26(d).
questioning regarding Dr. Fox's personal life, such questioning should no lon~er be permitted.
As discussed above, Plaintiffs counsel has used his allegations about DHA's condominium lease
as a springboard to intrude on Dr. Fox's personal life. Because partial summary judgment is
appropriate on that claim, all further questioning in that regard should be prohibited. Moreover,
Plaintiff's counsel has abused the discovery process by conducting a fishing expedition into three
areas having. absolutely no relevance to the instant suit and by deposing and seeking to depose an
inordinate number of witnesses, some for the sole purpose. of ad<:Lressing subject matter that is
irrelevant to this suit. This Court must intervene.
- 10PD.4595826.2
1.
Irrelevant Matters
Rule 26(d) of the Mississippi Rules of Civil Procedure provides that, upon a showing of
good cause, a Court may enter a protective order "that discovery not be had" or "that certain
matters not be inquired into[.]" Whether there is good cause depends on the nature and character
of the infor:mation sought through depositions balanced by the factual issues involved in a
particular case. See 8 Wright & Miller, Federal Practice and Procedure, .2035, at 484-86 (2d
ed. 1994). Good cause exists when the opposing party seeks wholly irrelevant information. Jd.
203 7, at 499-500 (explaining that a protective order providing that a deposition shall not be taken
is appropriate when it clearly appears that the information sought is wholly irrelevant and could
have no possible bearing. on the issues of the case); see also Leighr v. Beverly Enterprises-
Kansas, 164 F.R.D. 550, 551-52 (D. Kan. 1996) (stating that a court "may grant a protective
order prohibiting the taking of a deposition when it believes that the information sought is
wholly irrelevant to the issues or prospective relief').
The three areas in which Plaintiffs counse.l has sought discovery that have absolutely no
relevance to the issues in this lawsuit are discl].ssed in turn below.
a.
14-~9,
Deposition at 13-15, Ex. T; Cindy Boykin's Deposition at 7-8, Ex. U. Plaintiff first raised this
issue in his deposition, the first deposition taken in this CCl.Se, when asked why he had met with
Dr. Keeton. See Plaintiffs Deposition at Page 35-36, Ex. D. Plaintiff testified as follows when
questioned about the relevance of the alleged dispute to his suit:
- 11PD.4595826.2
~-
Q.
. .. You sayyou believe large sums of money were spent
. for the benefit ofUMC by DHA;_is that right? ...
A.
The answer's not that easy. The monies are spent for the
purpose of helping poor people in the Mississippi Delta. That's the
pllipose of the monies.
Q.
. .. Did you or did you not make the. statement that you
believe large sums of money were spent for the benefit of UMC?
A.
Yes.
Q.
Tell me specifically what you base that on other thaD.
speculation.
A.
Q.
Of that transactions?
Q.
A.
It's outstanding.
Q.
Now is there anything illegal that you know of with DHA
. providing this money to UMC to .:... for the purpose of electronic .
medical record software and hardware? Anything Wr-ong with
that?
A.
A.
It's my understanding UMC had obligations that perhaps
there was a disagreement about whether. they were being fulfilled.
Q.
Well, this is about DHA What did DHA do wrong? Do
you know of anything DHA did wrong ill this alleged transaction? .
- 12PT) 4 'iQSR26.2
~-
...
A:
I don't- I don't - I'm not sure of anything that DHA did
wrong as it related to that relationship. As it related to those
monies, I didn't spend those monies, didn't disburse it.
!d. at 38-40.
Evidence regarding the alleged dispute between illv1MC and DBA is not relevant to the
instant suit and not calculated to lead to the discovery of a_dmissible evidence for two reasons.
First, it is not in Plaintiffs complaint. Plaintiff's Complaint specifically lays out the grounds for
his craim of wrongful discharge and the allegations about which he claims he complained and
which led to his termination.
See Complaint, at
~~
5, 7, Ex. K.
was
irrelevant. To report -a claim of wrongful discharge, Plaintiff must "come forth with evidence
. establishing [that the action complained of] constitute[s] criminal activity." See Wheeler v. EL
Development Corp., 415 F.3d 399, 404 (5th Cir. 1999). As quoted above, not only did Plaintiff
not testify that DHA had engaged in criminal conduct, but he also specifically testified that he
was not aware of anything DHA had donewrong that related to the relationship with UMMC.
See Plaintiff's Deposition at 40, Ex. D. Therefore, the line of questioning is irrelevant to his
wrongful discharge claim and Plaintiffs attorney should be precluded from pursuing it in
discovery.
b.
by Allscripts
Dr. James E. Keeton, the Vice Chancellor for UM11C, was the first witness deposed by
Plaintiff's counsel. In that deposition, Plaintiff's attorney -raised for the first time an allegation
that Dr. Karen Fox had received some type of financial advantage from Allscripts which
provided electronic health records software to DHA. See James Keeton's Deposition at 13-14,
Ex. H. Plaintiffs attorney continued to pursue this line of questioning in several subsequent
- 13Pn 4o;Q5&26.2
depositions. E.g., Sam Dawkins' Deposition at 14-15; Ex:T;Chip Morgan's Deposition at 29-
30, Ex. M; Ricky Boggan's Deposition at 17-19, Ex. S. This questioning was the first reference
to the A11scripts issue in this suit.
DHA's attorney had been told that Plaintiff had made a statement to the effect that his
wife knew about some unspecified fraud that he was not at liberty to discuss.
See Roy
Campbell's Deposition at 30, Ex. J. The following questioning in Plaintiff's deposition resulted:
Q.
You have made the statement at times that your wife knows
about the fraud or some fraud? Is that right? Have you toldA.
I don't know.
A.
I told Roy [Roy Campbell of the law firm of Bradley Arant
Boult and Cummings] that- you know, that my wife was -told me
about some matters of concern.
Q.
Right.
Id
Plaintiff's attorney was taking on November 29, 2010, that the Plaintiff's attorney told the
attorney for DHA that the alleged fraud about which Plaintiff's wife knew, had to do with a
claim. that Dr. Fox had received some type of financial advantage from Allscripts. See Ricky
- 14PD.4595826.2
,----..,
criminal. conduct to anyone at DHA prior to his termination, and refused to discuss it in his
deposition. It was not until his attorney raised the Allscripts issue in depositions on November
29, 2010 that DHA had ever heard about the allegation.
The Court should prohibit Plaintiff's attorney from pursuing this line of questioning for
two reasons, either of which make this
lin~
allegation regarding the dispute between U},.1]v1C and DHA, the :AUscripts issue does not appear
in Plaintiffs Complaint. Therefore, it cannot serve as a basis for his wrongful discharge suit.
Second, Plaintiff must produce admissible evidence that he reported the Allscripts issue as a
c1i minal act _to his employer and was terminated as a result. McArn v. Allied-Terminix, 626
So.2d 603, 606 (Miss. 1993). Plaintiff has admitted that he refused to tell anyone what his wife
knew not only prior to his termination but at his own deposition. See Plaintiffs Deposition at
25, 29, Ex. D. Obviously, DHA coul~ not terminate him for something about which they did not
know.
For the reasons discussed above, the alleged issue with Allscripts is not relevant to the
instant suit and not calculated to lead to the discovery of admissible evidence. Consequently,
pursuit of this issue in discovery can only be a fishing expedition or
:, and the Court should enter a protective order prohibiting pursuit of this line
of questioning. Alternatively, if Plaintiffs attorney is allowed to pursue this line of questioning,
the Court should allow the Defendant to reopen the Pl~tiffs deposition and require the Plaintiff
to answer questions about the Allscripts issue, including the basis for his knowledge.
- 15PD.4595826.2
c.
The Claim That DRA Used Federal Grant Money'for Programs That
Were Not Executed Well
In Paragraph 7 of his Complaint, Plaintiff states: "In addition to the above criminal
wrongdoing, . Plaintiff was concerned because the 2009 budget provided for hundreds of
thousands of dollars for programs which provided little or no meaningful services." When asked
to explai.J+ what this allegation meant, Plaintiff testified:
A.
I was concerned that the 2009 budget - that there were
swings in amounts of monies that were going for programs that
provided no - no benefit. There seemed to be no - seemed to be
arbitrary.
See P~aintiff's Deposition at223, Ex. D. Plaintiff further testified as follows:
Q.
So the money was - am I .understanding that the money
was appropriated for this program, but the program wasn't
executed well? Is that what you are saying?
A.
Q.
A.
A lot of different - a lot of different factors.
different factors.
A lot of
Id. at 225-226.
Plaintiff's attorney has used this allegation to engage in a general investigation of all of
DHA'.s programs. E.g., John Hilper's Deposition at 25, Ex. I; Jane Calhoun's Deposition at 915, Ex. V; Sam Dawkins' Deposition at 19, Ex. T. Even if Plaintiff is correct that some of
DHA's programs were not executed wei( Plaintiff may be able to show incompetence or
negligence but he cannot point to any criminal conduct by DHA. Therefore, the Court should
terminate this abuse of discovery by entering a protective order prohibiting any "further pursuit of
this line of questioning.
- 16PD.45958262
2.
Thus far, Plaintiff has taken a total of 13 depositions and has indicated his intent to hle
13 more. See Deposition Notices, Ex. A; see also Plaintiffs Counsel's Letter, Ex. B. Many of
these depositions are of witnesses who have little or 110 releva.I?-t information regarding the issues
in this suit. See 8 Wright & Miller, 2037, at 499-500 (explaining that a protective order
providing that a deposition shall not be taken is appropriate
w~en
information sought is wholly irrelevant and could have no possible bearing on the issues of the
case).
DHA does not dispute that Plaintiff should be allowed to take a reasonable number of
depositions. However, 13 depositions simply are unreasonable, particularly considering the fact
that Plaintiffs attorney has used depositions thus far to pursue irrelevant lines of questioning: It
is well established that a trial court is entitled to prevent or limit depositions that would be
irrelevant or cumulative. See Haley v. Harbin, 933 So. 2d 261, 263 (Miss. 2005) (h_olding. that
the trial court" impermissibly allowed discovery that was "grossly excessive innumber"); see also
In re Evangeline Refining Co., 890 F.2d 1312, 1320-21 (5th Cir. 1989} (holding that the trial
court> s r"efusal to issue a deposition subpoena was not an abuse of discretion where the
'
- 17PD.4595826.2
~ -- .
depositions takerr thus far, as well as the fact that the depositions sought would be cumulative
and used to delve into matters unrelated to this lawsuit, DHA counsel would not object to
Plaintiff's counsel being allowed to take 3 more depositions .IV. CONCLUSION
As discussed above, Plaintiffs counsel has attempted to abuse the discovery process in .
three distinct ways. First, he has questioned deposition witnesses regarding'
Second, he has used discovery to explore three areas having absolutely
no relevance to the instant suit. Finally, he haS taken an expressed intent to take a total of 13
depositions. For the reasons set forth above, Defendant respectfully requests partial summary
judgment _and a Protective Order prohibiting Plaintiffs attorney from questioning '.i.tnesses.
regarding Dr. Fcix's personal life, the alleged dispute between UMMC and DHAj the alleged
improper donations by Allscripts, and the claim . that DHA used federal grant money for
programs that were not executed well.
- 18 PD.4595826.2
Respectfully submitted,
BY:
------"-""=-2i---+=--fJj_
.
__
Gary E. FIIed.rD.an,
lvffi #5532
I
- 19PD.45958262
~ -
CERTIF1CATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have this day forwarded, via United
States mail, postage prepaid, a true and correct copy of Defendant's MEMORANDUM IN
GARY EIFRJEDMAN
-20PD.4595826.2
Page 1
Not Reported in F.Supp.2d, 2009 WL 377288 (N.D.Miss.)
(Cite as: 2009 WL 377288 (N.D.Miss.))
v.
NATIONAL AUDUBON SOCIETY, INC., Defen.
dant.
Civil Action No. 3:.07-CV-68-SAA.
Feb. 12,2009.
West KeySurnmaryFederal Civil Procedure 170A
~2497. 1
MEMORANDUM OPINION
S. ALLAN ALEXANDER. United States Magistrate
Judge.
*1 Defendant National Audubon Society, Inc.
[the Society] has moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure,
Page2
Not Reported in F.Supp.2d, 2009 WL 377288 (N.D.Miss.)
(Cite as: 2009 WL 3772"88 (N.D.Miss.)) .
Approved expenditures were accounted for by Mary
Lynn Riley, an Accounting Manager at SPAC.
FNi. See docket no. 43-4, p. 12.
In December 2004, Reni'ck rece)ved a copy of his
2004 performance management plan, which was a
generally positive review. Lindsay, however, did
comment on Renick's sometimes insensitive .Jan. guage: "[e]specially at times of frustration and unwary about how it is perceived, Mark's comments and
jokes sometimes are taken as insensitive or negative.
I am asking Mark to examine this and make positive
adjustments ." Docket no . 43-2, p. 9.
In August 2005, departing employee Sean Higgins complained to Lindsay that Renick had used
racially insensitive and inappropriate comments during a car trip to a work function. Docket no. 43-2, p.
13-14. Lindsay referred the ~omplaint and Renick's
rebuttal to Linda Brooke, who was the Vice President
of Human Resources for the Society based at the Society's headquarters in New York. Docket no. 43-2, p.
17. Brooke investigated the allegations by interviewing several SPAC employees. As a result of this investigation, Renick was placed on final warning on
October 25, 2005 for using language that could be
interpreted as racist and insensitive and warned that
another confirmed report of use of such language
would result in his termination. Docket no. 43-6, p.
21.
In response to Cluck's letter, the Society's national fmance office conducted an internal review in
December 2005 of SPAC's 21st Century Grant ex-
Go~.
Works.
Page 3
Not R eported in F.Supp.2d, 2009 WL 377288 (N.D.Miss.)
(Cite as: 2009 ~ 377288 (N.D.Miss.))
6
II. DISCUSSION
A. SUMMARYJUDGMENTSTANDARD
Summary judgment is appropriate "if the pleadfile,
ings, the discovery and disclosure materials'
and any affidavits show that there is no genuine .issue
as to any material fact and that the movant is entitled
to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
"The moving party must show that if.the .. evidentiacy
material of record were reduced . to admissible evidence in court, it would be insufficient to permit the
nonmoving party to carry its burden." Beck v. Texas
State B of Dental Examiners, 204 F.3d 629, 633
(5th Cii-.2000), citing celotex Corp. v. Catrett, 477
U.S . 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). After a proper motion for summary judgment
is made, the burden shifts to the non-movant to set .
forth specific facts showing th?~t there is a genuine
issue for trial. Anderson v. Liberty Lobbv, Inc., 477
U .S. 242, 249, 106 S.Ct. 2505, 91 L.Ed .2d 202
~ Beck 204 F.3d at 633; Allen v. Rapides Parish School Ed., 204 F.3d 619, 621 (5th Cir.2000);
Ragas v. Tennessee Gas Pipeline Company, 136 F.3d
455, 458 (5th Cir.l998). Substantive law determines
what is material. Anderson, 477 U.S. at 249. "Only
disputes over' facts that might affect the outcome of
the suit under the governing Jaw. will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted." Id at 248. If the non-movant sets forth
specific facts in support of allegations essential to his
claim, a genuine issue is presented. Celotex. 477 U.S .
at 327. "\Vbere the record, taken as a whole, could
not lead a rational trier of fact to find for the non-
on
Page 4
Not Reported in F.Supp.29-> 2009 WL 377288 (N.D.Miss.)
(Cite as : 2 009 WL 377288 (N.D.Miss.))
moving party, there is no genuine issue for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp ..
475 U .S. 574, 587, 106 S.Ct 1348, 89 L.Ed.2d 538
(1986); Federal Savings and Loan. Inc. v. Krajl. 968
F.2d 500, 503 (5th Cir.1992). The facts are reviewed
drawing all reasonable inferences in favor of the nonmoving party. Allen. 204 F.3d at 621 ; PYCA Industries. Inc. v. Harrison County Waste Water Management Dist.. 177 F.3d 351, 161 (5th Cir.1999); Bane
One Capital Partners Corp. v. Kneipper, 67 F.3d
1187. 1198 (5th Cir.1995). If the moving partY meet
its burden, the non-movant must identify specific
facts demonstrating there is a genuine issue for trial.
Little v...Liquid Air Corp.. 37 F.3d 1069, 1075 (5th
Cir.1994); see Edwards v. Your Credit, Inc .. 148 F.3d
427, 432 (5th Cir.1998). Unsubstantiated assertions,
improbable inferences and unsupported specula~ion
are not sufficient to defeat a motion for summary
judgment. Nuwer v. Mariner Post-Acute Network,
332 F .3d 310, .] 13 (5th Cir.2003) (internal citations
omitted). In the absence of proof, the court does not
"assume that the nonmoving party could or would
prove the necessary facts ." Little. 37 FJd at 1075.
B. WRONGFUL DISCHARGE
*4 This. action is brought in federal court pursu~
ant to 28. U.S.C. 1332, and both parties agree that
Mississippi law is applicable. Mississippi has adhered
to the employment-at-will doctrine since 1858. Perry
v. Sears. Roeb uck & Co .. 508 So.2d 1086, 1088
(Miss.1987). This common law rule allows for an
employment contract to be terminated by either party,
with or without justification. Wheeler v. BL Developmen.t. 415 F.3d 399. 402 (5th Cir.2005), citing
HeartSouth, PLLC. v. Boyd, 958 So.2d 1095, 1108
(Miss.2003). The Mississippi Supreme Court carved
out a narrow exception to this doctrine in McArn v.
Allied Bruce-Termine:x Co., Inc.. 626 So.2d 603
(Miss.1993)". Under McArn, an employee who is discharged for refusing to participate in an illegal act or
for r eporting the illegal acts of his employer or anyone else is not barred from bringing an action in tort
damages against his employer. 626 So.2d at 607.
A good faith belief that an action was criminal is
insufficient to invoke the McArn exception. Stephen.
v. Winston County, Mississippi, 2008 WL 4813829,
*7-8 (N.D.Miss.2008), citing Wheeler. 415 F.3d at
404. The Fifth Circuit has declined to extend the narrow public policy exception to the employment at
will doctrine found in McArn to include an employee
As a _threshold issue to invoke the McArn exception, Renick must demonstrate that the activities that
he complained of, specifically at Lindsay requested
that he allocate certain expenses to the Grant, constituted either criminal activity or a directive that he
. ...engage. in criminal activity. Renick, however, is not
required to prove that a criminal act actually occurred.
Page 5
Not Reported in F.Supp.2d, 2009 WL 377288 (N.D .Miss.)
(Cite as: 2009 WL 377288 (N.D.Miss.)}
that Lindsay, the Society's employee, has violated
this law. Docket no. 48, p. 15. However, neither party
has presented .suffic]ent evidence to demonstrate
whether the fund~ used for and from the Grarit are
federal or state funds for purposes of applying 977 -ll to the instant litigation. Further, the defendant
has failed to show that there exists no genuine issue
of material fact regarding the alleged criminal activity or alleged requests to engage in criminal activity.
.The facts are simply too numerous and contradictory
for the court to malce a determination on this issue
under the current standards. A jury must' malce that
determination. The court has reviewed the laws and
regulations referenced by the. plaintiff and determined
that there remains a genuine issue of material fact as
to whether & 97-7-ll is applicable to this matter.
Thus, defendant's motion for summary judgement
should be denied.
C. VIOLATION OF AUDUBON'S EMPLOYEE
HANDBOOK
Renick contends that the Society violated its em-
ployee handbook by terminating him in retaliation for
reporting Lindsey's allegedly illegal activities, which
was a vio lation of its whistle blower policy. Under
Mississ~ppi Jaw, an employee handbook . cannot be
considered a contract when the handbook contains an
express disclaimer that the relationship may be terminated at any time. Lee v. Golden Triangle Plan. n.ing and Development Dist.. 797 So.2d .845, 848
(Miss .200l) citing to Hartle v. Packard Elec.. 626
So.2d 106, 109 (Miss.l992). The employee handbook
contained a valid disclaimer by outlining that under
the employment-at-will policy either party may terminate the relationship at any time for any reason.
This disclaimer providing that the relationship may
terminated at any time, negates any contractual obligation found in the handbook. Without a contractual
obligation to follow its policies . in the handbook,
there can be no claim that the defendant violated its
handbook. As there are no obligations under the
handbook with respect to th.e whistle blower policy,
the court need not inquire into Renick's allegations,
and the court grants . the Society's motion for summazy judgment on this issue.
D. INTENTIONAL llVFLICTION OF EMOTIONAL
DISTRESS
Renick also contends that the Society's actions
amount to the infliction of emotional distress. In order to prevail in a claim for intention.al infliction of
emotional distress, Renick must show that the conduct complained of was "so outrageous in character,
and so extreme in degree, as to go beyond all possibl"e
bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community."
Pegues v. Emerson Elec. Co.. 9i3 F.Supp. 976, 982
(N.D.Miss.J 996), quoting Restatement (Second) of
Torts 46 cmt. d. (1965). Furthermore, "liability
clearly does not extend to mere insults, indignities,
threats, annoyancf<S, petty oppression, or other trivialities." Lawson v. Heidelberg Eastern., 872 F.Supp.
335. 338 CN.D.Miss.l995), quoting Restatement ill
cmt. d.. Damages for such clajms are typically not
recoverable in employment disputes. Pegues. 913
F.Supp. at 982. Rather, "(o]nly in the most unusual
cases does the conduct move out of the 'realm of an
ordinary .employment dispute' into the classification
of 'extreme and. outrageous,' as required for the tort
of intentional infliction of emotional distress." Prunty
v. Arkansas Freightwavs, Inc .. 16 F.3d 649, 654 (5th
Cir.1994), citing Dean v. Ford Motor Credit Co. 885
F.2d 300, 307 (5th Cir .1989) and Wilson v. Monarch
Paper Co. , 939 F.2d 1138, 1145 (5th Cir.l99l).
*6 Renick alleges that Lindsay's constant requests to allocate certain expenses to the Grant and
his refusals to do so caused Lindsay to threaten to fire
him, which ultimately created a stressful work environment, and that his relationship with Lindsay deteriorated to the point that she would hardly spe(j.]c to
him in staff meetings. Docket no. 48, p. 18-19. While
this indeed may have been an uncomfortable work
environment, the plaintiff has not alleged any conduct that can be considered so egregious as to be considered outrageous in civilized society. Moreover, he
has not presented any evidence of behavior that is
. outside the realm of an ordinary employment dispute.
In light of the plaintiffs failure to meet his burden to
present evidence of Dutrageous or extreme behavior,
the court grants the defendant's motion for summary
judgment on this issue of intentional infliction of
emotional distress.
E. NEGLIGENT INFLICTION OF EMOTIONAL
DISTRESS .
The Society seeks judgment on Renick's claim of
negligent infliction of emotional distress, asserting
that the claim is barred by the exclusive remedy
f"Ound in the Mississ.ippi Workers Compensation Act .
[the CompAct], Miss.Code Ann . 71-3-9, et seq .
(1972). The courts have .consistency held that this
Page 6
SO ORDERED .
. N.D.Miss.,2009.
Renick v. Nationa!Audubon soc., Inc.
Not Reported in F.Supp .2d, 2009 WL 377288
(N.D.Miss.)
END OF DOCUMENT
JAMES WAYMONHAHN
PLAINTIFF
vs.
DEFENDANT
Plaintiffs oppositional response includes eight and one half pages of "facts," most of
which are completely irrelevant to the instant motion.
argument is permeated with legal authority that has no applicability whatsoever to this action.
The strategy with respect to DHA's partial-summary-judgment request is apparent: Plaintiff
hopes to muddy the straightforward issues before this Court to fabricate genuine issues of
material fact where none exist. With respect to DHA's request for a protective order, Plaintiff
has all but conceded that he is engaged in a fishing expedition. DHA reiterates its request for
partial summary judgment and for a protective order.
II. ARGUMENT
A.
DHA has advanced the wrong legal standard for application of the McArn exception to
EXHIBIT
y
PD.489 1154. 1
Mississippi's at-will-employment doctrine. Second, 11-argues that, even if DHA has espoused
the correct standard, he has satisfied it. Both arguments are wrong.
With respect to the correct legal standard, Plaintiff initially takes the curious position that
"the Mississippi Supreme Court will not impose an overly strict requirement on exactly what [a]
plaintiff must report in order to be protected by the public policy exception" and that there need
not even be an "allegation that actual criminal activity was occurring .... " Pl. Resp. Mem. at
11.
These submissions are incorrect, as both plainly contradict the long-standing rule that
McAm is a very "narrow exception" used to protect only those who report "criminal conduct."
See McAm v. Allied-Terminix, 626 So.2d 603, 607 (Miss. 1993) (noting the creation of a
"narrow public policy exception"); Jones v. Fluor Daniel Servs. Corp., 959 So. 2d 1044, 1048
(Miss. 2007 (noting that the reported conduct must be deemed "criminal").
Given the invalidity of these initial contentions, Plaintiff then advances the standard that
a plaintiff need only have "a good faith belief of criminal conduct." Pl. Resp. Mem. at 11. This
standard, however, is equally incorrect. Though Plaintiff cites several cases in support of his
position, none of those cases hold that only a good faith belief is required. Rather, as advanced
in DHA's principal memorandum, a plaintiff must have both a good faith belief that the reported
conduct is criminal and "come forth with evidence establishing [that the action complained of]
constitute[s] criminal activity." Wheeler v. BL Development Corp., 415 F.3d 399, 404 (5th Cir.
1999); Renick v. Nat'l Audubon Soc., Inc., 2009 WL 377288 (N.D. Miss. 2009) ("A good faith
belief that an action was criminal is insufficient to invoke the McArn exception.").
It is disingenuous for Plaintiff to suggest that both a good faith belief and evidence that
the reported conduct is criminal are necessary only in federal court, for both state and federal
opinions are in accord. In Hammons v. Fleetwood Homes of Miss., Inc., 907 So. 2d 357, 360
-2PD.4891154.1
(M-iss ~
Ct.:. -App. 20D5) (emphasis added), for example, it- was plainly held .:that; although
"[a]pplicability of the exception does not require that a crime has already been committed, [] it
does require that the acts complained of warrant the imposition of criminal penalties .... "
Other courts have consistently cited Hammons for the rule "that an employee must prove that he
complained of employer acts that 'warrant the imposition of criminal penalties, ... which caused
his discharge."
E.g., Kyle v. Circus Circus Miss., Inc., 2010 WL 2539576 *3 (N.D. Miss.
2010); 1 see also Wheeler v. BL Development Corp., 415 F.3d 399, 404 (5th Cir. 1999) (A
plaintiff must "come forth with evidence establishing [that the action complained of]
constitute[s] criminal activity."). A contrary rule, that employees need only have a good faith
belief that what they report is criminal, would open ~he floodgates for lawsuits and eviscerate the
Supreme Court's repeated insistence that McArn constitutes a "narrow" exception to the at-willemployment doctrine. E.g., Jones, 959 So. 2d at 1047.
In a final attempt to avoid summary judgment, Plaintiff makes the -alternative argument
that his "evidence is sufficient" to prove that DHA's condominium lease was criminally
actionable. Pl. Resp. Mem. at 11-12. But this argument has no merit whatsoever.
To begin with, Plaintiff's suggestion that HRSA did not actually approve the
condominium lease is nonsensical on its face. Though DHA included HRSA's approval e-mail
as an exhibit to the principal motion, Plaintiff challenges the e-mail as being unauthenticated. Pl.
Resp. Mem. at 13.
distin~tive
characteristics. Nonetheless, even if they did, DHA has attached to this Rebuttal the affidavit of
the DHA employee who received the HRSA approval. See Kearley v. State, 843 So.2d 66, 70
It should come as no surprise to Plaintiff that Mississippi state law requires both a good faith belief and
evidence that the reported conduct is criminal, for his counsel in this case also represented the plaintiff in Kyle
-3PD.4891154.1
(Miss. 2002) (holdingthaf"a recipient may authenticate an e-mail). That affidavit verifies that a. request was sought from HRSA for approval of the condominium lease and that an approval email was indeed received. Beth McCullers Affidavit, Ex. W.
There also is no record evidence to support Plaintiffs accusation that HRSA was
somehow misled about the condominium lease. Pl. Resp. Mem. at 13. As set forth in DHA's
principal motion, Plaintiff himself testified at his deposition that he had "met Dr. Fox [at the
condominium] for professional purposes a handful of.times .... " See Plaintiffs Deposition at
137, Ex. D.
discovery responses, as well as the affidavits attached to the principal motion, reveal that the
leased condominium was repeatedly used for business purposes. It is of no moment that Plaintiff
is unsatisfied with the exact amount of time spent at the condominium for DHA business. The
McArn exception is a doctrine rooted in protecting employees who report criminal activity; not
one that provides employees with a cause .of action anytime they disagree with the business
decisions of their employer.
What this matter ultimately boils down to is Plaintiffs apparent belief that, if the leased
condominium was used at any point for personal rather than business purposes, the public-policy
exception may be invoked.
McArn, however. Fatal to Plaintiffs claim is the fact that he has pointed to no authority that
even remotely suggests that some collateral personal use of the leased condominium would be
criminal. Case law interpreting McArn expressly holds that a plaintiff must inform the court of
why the reported activity is criminal by citing either to a. statute or to case law. E.g., Kyle, 2010
WL 2539576 *4 (explaining that "the plaintiff has never cited a statute or case law
-4PD.489J 154.1
demonstrating that mere failure to report income is criminal in nature"). 2 Plaintiff has failed to . -- -
cite to either in this case, and partial summary judgment is therefore proper.
B.
A PROTECTIVE ORDER
DISCOVERY ABUSE.
IS
NECESSARY
TO
PREVENT
FUTURE
In its principal motion, DHA explained that a protective order was warranted because
Plaintiff's counsel has abused discovery by conducting a fishing expedition into three areas
having absolutely no relevance to the instant suit:
1.
An alleged dispute between the University of Mississippi
Medical Center ("UMMC") and DHA having to do with the
implementation of a system for electronic health records;
2.
Allegations of improper donations to the University of
Mississippi by Allscripts, a provider of software for electronic
health records; and
3.
A general claim that DHA appropriated federal grant
money to programs that were not executed well.
Plaintiffs oppositional response does nothing, as a legal matter, to justify his groundless .
exploration into these areas.
Plaintiff treats the first two areas as "interrelated" and essentially goes on to concede the
issue of relevancy. DHA has explained that these areas are off limits because of the nature of
this suit.
In particular, Plaintiff has brought this action under the McArn exception to
Mississippi's at-will-employment doctrine, which means that Plaintiff must prove that he was
terminated for reporting criminal conduct.
Plaintiff's
oppositional response never contends that, prior to his termination, Plaintiff reported to DHA or
anyone else that anything illegal was going on with respect to Allscripts. Instead, Plaintiff
readily acknowledges at page 16 and 17 that it was not until depositions began that the Allscript
2
Again, Pl8,intiff should be familiar with the requirement that he must inform the Court of how the reported
conduct is criminal by citing either to a statute or case Jaw, since his counsel in this case was also counsel for
-5PD.4891 154.1
- ----- .
allegations~atose, and
regarding the alleged wrongdoing. This Court should put an end to Plaintiff's admitted strategy
of "trying to learn" if anything illegal occurred between DHA, UMC, and Allscripts, for even if
he was successful it would be irrelevant to this lawsmt since he did not report it prior to his
discharge as required to have a cognizable claim under McArn. See Pl. Resp. Mem. at 16.
To reiterate, Plaintiff never attempts to contradict the relevancy argument actually
presented by DHA in its principal memorandum. Rather, Plaintiff tries to spin the issue by
stating that "one defense being raised in this case is that the expenditures by Defendant may have
not been 'used well' but were not 'criminal."' Pl. Resp. Mein. at 18. He then uses this claim to
argil e that discovery is necessary to determine whether criminal conduct has indeed occurred. !d.
Th-.: problem with this line of argument is that it puts the cart before the horse: it is irrelevant
whether anything illegal occurred because Plaintiff never reported it, as required under McArn .
See Jones, 959 So. 2d at 1048.
With respect to the third area, Plaintiff provides no real discussion addressing relevancy
of the discovery he has sought regarding the general claim that DHA appropriated federal grant
money to programs that were not executed well. Instead, he ties his sweeping discovery requests
to statements such as DHA "is not a private company" and thus its fmancial records should be
open for all the world to see. See Pl. Resp. Mem. at 18. This statement, however, is completely
false . DHA is indeed a private company and is entitled to the same protection guaranteed to all
other private litigants : that a plaintiff not conduct an harassing fishing expedition into matters
wholly irrelevant to pending litigation. See Articles and Bylaws, Article II, sec. 1 at 4, Ex. C.
-6PD.48 9ll54.l
C.
AN ORDER- -- COMPELLING
WARRANTED.
DISCOVERY . IS
NOT
NECESSARY
OR .:__ ..
Plaintiff concludes his Response by requesting that the Court enter an Order compelling
Defendant to participate in depositions and requiring Defendant to produce certain documents
First, Plaintiff argues that he is entitled to invoices "describing
to the Defendant.
DHA, the Defendant
in this case, reimbursed Fox for those services pursuant to DHA's indemnification provision.
The bill submitted by Dunbar and DHA's indemnification of Fox for those bills had nothing to
do with any of the bases for Plaintiffs wrongful discharge action. In fact, Plaintiff does not even
argue in his Brief that there is any relevance to the allegations of the suit. His only argument is
that these documents are "necessary to determine whether the services Dunbar provided were
-7PD:489J 154.1
for Pa.rtiaLS.U,IIllilary Judgment However, even if Partial Summary Judgment is -denied, the
requested documents still would be irrelevant because the issue raised by the Plaintiff is whether
the condominium was used in substantial part for personal purposes rather than for business
purposes.
The amount paid for the furnishing of the condominium is irrelevant to this
determination and again is nothing but part of the Plaintiffs fishing expedition.
Plaintiff next asks the Court to order the Defendant to provide invoices submitted by Jere
Nash. Plaintiff argues that these are relevant to determine the legitimacy of payments to Nash
"especially since Plaintiff has evidence that one of Nash's activities was to advise Chip Morgan
on how to discredit the University of Mississippi President." Whether Nash did advise Morgan
on how to discredit the University of Mississippi President and whether DHA had anything to do
with any such efforts has absolutely nothing to do with any of the Plaintiffs claims underlying
his wrongful discharge suit and which are delineated in his Complaint. This, like Plaintiffs
other requests, is nothing more than a fishing expedition to further Plaintiffs effort to satisfy his
curiosity about the general business practices of DHA. This suit simply is not the vehicle for
such an exercise. However, Plaintiff argues that since DHA is funded by the tax payers, there is
no legitimate reason to refuse to keep Plaintiff from seeing its fmancial records .
This is
-8PD.4891154.1
-limit on the number of depositions Plaintiff is allowed to tq.ke since he has indieated- that he is
going to take at least 13 additional depositions if allowed to do so. Defendant is amendable to
Plaintiff being allowed to take three additional depositions, giving him a total of 14 which surely
is reasonable under the circumstances. It will then be up to the Plaintiff to determine if he
wishes to use those depositions to take Members ofDHA's Board ofDirectors.
III. CONCLUSION
WHEREFORE, PREMISES CONSIDERED, DHA respectfully reiterates its request
for an entry of partial summary judgment and for a protective order limiting further discovery.
DATED: April12, 2011.
Respectfully submitted,
PHELPS DUNBAR, LLP .
-9PD.4891154.1
_ . CERTIFICATEDF,SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have tbis day forwarded, via United
States mail, postage prepaid, a true and correct copy of Defendant's REBUTTAL IN SUPPORT
OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR PROTECTIVE ORDER to the
GARY
- 10PD.4891154.l
FRIEDMAN
FILED
APR 14 2011
VS.
PLAINTIFF
CIVIL ACTION NO. Ll0-441
DEFENDANT
---H:*~-1
1.
2.
For the reasons set forth more fully in DHA' s principal Memorandum in Support
of Motion for Partial Summary Judgment and for a Protective Order and in its
Rebuttal Memorandum in Support of Motion for Partial Summary Judgment and
for a Protective Order, DHA's request should be granted.
3.
-11'0.4978993 . 1
BY: ~~~~~~=======-
Gary E. F iedman, MB #5532
Gregory odd Butler, MB #102907
4270 I-5 North
Jackson, Mississippi 39211-6391
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: friedmag@phelps.com
butlert@phel ps. com
-2PD.4978993 .1
CERTIFICATE OF SERVICE
I, GARY E. FRIEDMAN, do hereby certify that I have this day forwarded, via United
States mail, postage prepaid, a true and correct copy of Defendant's REBUTTAL IN SUPPORT
OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR PROTECTIVE ORDER to the
- 10PD.489 11 54.1
vs.
DEFENDANT
STATE OF MISSISSIPPI
COUNTY OF WASHINGTON
I, Beth McCullers, am a: person of the full a:ge of majority and have personal knowledge
of the following:
1.
I am the Director of Sponsored Programs for Delta Health Alliance, Inc. ("DHA")
DRA's Motion for Partial Summary Judgment and for a Protective Order. I have been advised
that the purpose of this authentication is to verify that the e-mails are true and correct.
3.
1 have personally reviewed and examined Exhibit Q, which includes (1) e-maiis I
sent to BTidget Ware of the Health Resources and Human Services Administration (HRSA), on
July 16, 2009 and July 17, 2009; (2) an e-mail I received from Bridget Ware on July 20, 2009;
and (3) an e-mail I forwarded to Karen Fox on July 20, 2009, in which I copied Ricky Boggan,
James Hahn, Richard Washington, Laura Clark, and Sydney Dean. The purpose of these e-mails
was to gain approval for the lease of temporary housing.
EXHIBIT
I
PD.4892637.1
5.
I attest that the e-mails appearing in Exhibit Q were generated at the time and date
indicated therein. I further attest that that the e-mails appearing in Exhibit Q are true and correct
copies of the electronic mail messages I sent and received.
6.
I declare under penalty of perjury that the foregoing is true and correct to the best
MY COMMISSION EXPIRES:
- 2PD.4892637 .1
F LE
vs.
FEB 0 8 2011
PLAINTIFF
CIVIL ACTION NO. Ll0-441
DEFENDANT
wholly unrelated to his lawsuit. To date, Plaintiffs counsel has taken 13 depositions and has
conveyed his intent to schedule at least 13 more. See Deposition Notices, Ex. A; see also
Plaintiffs Counsel's Letter, Ex. B (indicating that, among others, Plaintiffs counsel plans to
depose "each individual board member" of DHA). 1 Much of the deposition questioning thus far
has centered around allegations that have nothing to do with Plaintiffs lawsuit or that are
advanced only as a mearis of embarrassing DHA's Chief Executive Officer. To prevent further
discovery abuse, DHA respectfully requests both a grant of partial Summary Judgment 2 and a
Protective Order governing the remainder of the discovery.
EXHIBIT
X
. I
DHA has a nine-member Board of Directors. See Articles and Bylaws, Article II, sec. 2 at 4, Ex. C.
To be sure, DHA intends to later move for Summary Judgment with respect to all of Plaintiff's allegations.
PD.4595826.2
II. BACKGROUND 3
The
Policies and Procedures Manual makes clear that DHA is an at-will employer. See DHA Policies
and Procedures Manual, section 2 at 7-8, Ex. F. In addition, Plaintiff signed an employment
agreement on April 20, 2009, which classified him as an at-will employee.
See Plaintiffs
. believed criminal activities were going on at DHA. !d. at 34. This, of course, caused Keeton
concern, and the Chairman of DHA's Board of Directors, Dr. John Hilpert, was contacted. See
For purposes of this motion, the facts are set forth in the light most favorable to Plaintiff. DHA reserves its
right to contest these facts at a later time.
-2PD.4595826.2
James Keeton's Deposition at 24-26, Ex. H. Hilpert subsequently met with Plaintiff to discuss
the allegations. See John Hilper's Deposition at 40-41, Ex. I.
Following the meeting, DHA hired the law firm of Bradley Arant Boult Cummings, LLP,
in Jackson, Mississippi to investigate Plaintiffs allegations. See Roy Campbell's Deposition at
7, Ex. J. The law firm conducted an extensive investigation and found Plaintiffs allegations to
be withoutany evidentiary support whatsoever. See id.
After reviewing the investigation findings, the Board of Directors concluded that
Plaintiffs accusations of criminal conduct were not only baseless but were made in bad faith and
had cost DHA thousands of dollars in investigatory fees. See John Hilper's Deposition at 40-41,
57, Ex. I. Plaintiffs resignation was then sought by the Board, but he refused to step down from
his position. !d. at 40. The instant lawsuit followed after Plaintiff was terminated on May 28,
2010. See Complaint, Ex. K.
Plaintiffs sole claim for relief is that he was terminated for reporting illegal acts of his
employer, in violation of Mississippi's public policy exception to the employee-at-will doctrine.
!d. In his Complaint, Plaintiff lists seven allegations that were supposedly reported and which he
~5.
Judgment is the allegation that he reported that Dr. Fox instigated the lease of a condominium in
Oxford, Mississippi for her personal use. See id. at
~5(B).
Plaintiff
apparently seeks to make this line of questioning relevant to the condominium issue by
theorizing that the real reason Fox had DHA lease the Oxford condo was so she could have a
place to engage in intimate relations with DHA's former Chief Medical Officer. DHA seeks
- 3PD.4595826.2
partial summary judgment as to this one issue because Plaintiffs theory is without legal or
factual support, and dismissal of the condo allegation will stop this unwarranted attack on Dr.
Fox.
Plaintiffs counsel also has abused discovery by conducting a fishing expedition into
three areas having absolutely no relevance to the instant suit. These areas are:
1.
An alleged dispute between the University of Mississippi
Medical Center ("UMMC") and DHA having to do with the
implementation of a system for electronic health records;
2.
Allegations of improper donations to the University of
Mississippi by Allscripts, a provider of software for electronic
health records; and
3.
A general claim that D HA appropriated federal grant
money to programs that were not executed well.
E.g. John Hilper's Deposition at 10-15, Ex. I; James Keeton's Deposition at 10-14, Ex. H; and
Chip Morgan' s Deposition at 34-39, Ex. M. None of these areas have any possible relevance to
Plaintiffs claim of wrongful discharge.
In spite of this,
Plaintiff~
substantial amount of his time in depositions questioning witnesses about these areas and has
indicated that he will take additional depositions regarding the same.
- 4PD.4595826.2
III. ARGUMENT
A.
Summary judgment is appropriate when there "are no genuine issues of material fact, and
the moving party is entitled to judgment as a matter of law." Deaton v. Farm Bureau Cas. Ins.
Co., 994 So. 2d 164, 167 (Miss. 2008). Once the moving party demonstrates that no genuine
issues of material fact exist, it is the non-moving party's obligation to prove otherwise. See
Simpson v. Boyd, 880 So. 2d 1047, 1050 (Miss. 2004). In so doing, "the non-movant party may
not rest on the assertions of the Complaint but must introduce admissible evidence that would
create a genuine issue of material fact for ajury." AAA Cooper Transp. Co. v. Parks, 18 So. 3d
909, 913 (Miss. App. 2009). A genuine factual dispute exists "only if the evidence is such that a
reasonable jury could return a verdict for the nonmoving pruiy." Raiola v. Chevron USA , Inc.,
872 So. 2d 79, 83 (Miss. App 2004).
2.
Applicable Law
"Mississippi follows the 'at-will' employment doctrine and has done so for over 100
years." Rosamond v. Pennaco Hosiery, Inc., 942 F. Supp. 279, 285 (N.D . Miss . 1996). This
means that, "[i]n the absence of a contract of employment for a specified term, all employees are
deemed to be at-will." !d. In this case, both the Policies and Procedures Manual the Plaintiff
signed for and the employment agreement he entered into on April 20, 2009 reiterate that
Plaintiff was an at-will employee. See DHA Policies and Procedures Manual, section 2 at 7-8,
Ex. F; see also Plaintiff's Employment Contract, Ex. G.
terminated for "a good reason, a wrong reason, or no reason" at all - just not an impermissible
reason. See Kelly v. Mississippi Valley Gas Co., 397 So.2d 874, 875 (Miss. 1981).
-5PD.4 595826.2
One of the impermissible reasons carved out by the Mississippi Supreme Court is the
very narrow public policy exception set forth in McArn v. Allied-Terminix, 626 So.2d 603, 606
(Miss. 1993). Under McArn, an employee may not be fued for reporting an employer's criminal
acts. !d. To utilize the McArn exception, however, the employee must both have a good faith
belief that the reported conduct is criminal and "come forth with evidence establishing [that the
action complained of] constitute[ s] criminal activity." Wheeler v. BL Development Corp., 415
F.3d 399, 404 (5th Cir. 1999); see also Renick v. Nat'! Audubon Soc., Inc., 2009 WL 377288
(N.D. Miss. 2009) ("A good faith belief that an action was criminal is insufficient to invoke the
McArn exception.") [See attached unpublished opinion]. In the absence of the employee being
able to carry his or her burden of proof, the at-will employment doctrine precludes an action for
wrongful discharge. Wheeler, 415 F.3d at 404; see also Coats v. Penrod Drilling Corp., 785
F.Supp. 614, 625 (S.D. Miss. 1992).
3.
-6PD.4595826.2
.It cannot be disputed that Dr. Fox acted within her authority as CEO in leasing the
condominium on behalf of DHA. According to DHA's Articles and Bylaws, "[t]he CEO shall
have general supervisory authority to sign, make, and execute . .. leases .... " See Articles and
Bylaws, Article V, 1, Ex. C.
confirmed that Dr. Fox had the authority to approve the lease of the condominium on behalf of
DHA without Board approval. See John Hilper's Deposition at 33-34, Ex. I. Thus, the only
approval needed was from HRSA, which serves as DHA's funding agent.
To that end, DHA submitted a proposal for the condominium lease to HRSA. See DHA
Condominium Proposal, Ex. 0; see also Karen Fox
Affidavit,~
the travel and housing needs for individuals working on DHA projects, particularly in the
Oxford, Mississippi area, because it was to serve as a base of operations for projects in the
southern and western quadrants of the Mississippi Delta. See DHA Condominium Proposal at 5,
Ex. 0.
The proposal analyzed the hotel costs in Oxford versus the cost of leasing a
condominium and concluded that it would be a substantial cost savings to DHA to lease a
condominium capped at $2,000 per month. !d. at 8.
On July 20, 2009, HRSA approved leasing of the condominium in Oxford, Mississippi:
After review of your lodging analysis for Project #5, it is clear that
because the project is expanding into other areas where lodging is
more expensive, that the option for a leased apartment would be a
cost savings for the anticipated duration and needs of the project.
HRSA concurs with this approach. Please send a copy of the lease
once it has been signed.
See HRSA Approval, Ex. Q. A copy of the HRSA approval was e-mailed to several DHA
employees, including the Plaintiff, on July 20, 2009 at 6:53 a,m. !d.
At his deposition, Plaintiff admitted that he thought the leasing of the condominium was
proper if it had been approved by DHA's Board of Directors, HRSA, and Dr. Fox.
- 7PD.4595826.2
See
Plaintiffs Deposition at 145, Ex. D; As discussed above, it is uncontradicted that HRSA and Dr.
Fox approved the leasing of the condominium. Furthermore, DHA's Policies and Procedures,
which
inc~ude
the Articles and Bylaws, state that the Board of Directors delegated to the CEO,
Dr. Fox, the general authority to make and execute leases. See Articles and Bylaws, Article V,
1, Ex. C; see also John Hilper's Deposition at 33-34, Ex. I (explaining that condo lease was
within CEO's authority). Plaintiff should have been aware of this since he received a copy of
DHA's Policies and Procedures. See Plaintiff's Deposition at 26-27, 165, Ex. D. In light of
these facts, Plaintiff neither can establish that he had a good faith belief that the reported conduct
regarding the condominium was criminal, nor present evidence establishing that the leasing of
the condominium in any way constituted criminal activity. And, as a result, he cannot meet
either of the requirements of the McArn exception to Mississippi's at-will doctrine.
Given that the condominium lease received all necessary approvals, Plaintiff is left with
the novel argument that Dr. Fox used the condominium for personal use and that such use
somehow constituted criminal misappropriation of federal funds. This argument, however, is a
non starter because there is no doubt
purposes.
tha~
In fact, Plaintiff himself testified as follows: "I have met Dr. Fox [at the
condominium] for professional purposes a handful of times . ... " See Plaintiffs Deposition at
137, Ex. D: DHA, moreover, has attached as exhibits the affidavits of individuals who attest th.at
they have used the Oxford, Mississippi condominium on DHA business. See collectively DHA
Affidavits, Ex. R; see also Karen Fox Affidavit at
~4,
personal use could be produced, it is undeniable that the condominium was used for DHA's
business purposes as well. Plaintiff can point to no criminal statute that would prohibit such
collateral use, and DHA is thus entitled to partial summary judgment.
-8PD.4595826.2
Even assuming Plaintiff could make a fact question regarding the reason for leasing the
condominium and that such was criminally illegal in spite ofHRSA approval (which he cannot),
DHA still is entitled to partial summary judgment. Plaintiff admits that he alone was the person
who negotiated and signed for the condominium lease, as well as a separate office, on behalf of
DHA. See Plaintiffs Deposition at 23-24, 148, Ex. D. He further admits that he was responsible
for furnishing the condominium.
negotiation, Plaintiff acknowledged that the lease he signed combined the condominium and the
office into one agreement. Id. at 157. He then testified that, although he understood it was an
"uncustomary" way of doing things, he was under "very fast pressure to get it done." Id. at 160,
162. This line of questioning concluded with the following :
Q.
By getting it done, did you read that - get it done even if
it's wrong?
A.
Yeah.
Id. at 162.
In light of Plaintiffs role in securing the condominium lease, even assuming Plaintiff
could make a fact question regarding the reason for leasing the condominium and that such was
criminally illegal in spite of HRSA approval, the doctrine of in pari delecto precludes Plaintiffs
wrongful discharge claim. "[M]ost American jurisdictions ... embrace[] to some extent the
venerable in pari delicto doctrine. Am. Int 'l Group v. Greenberg, 976 A.2d 872, 882 (Del. Ch.
2009). Latin for "in equal fault," in pari delicto is the general rule that comis "will not extend
aid to either of the parties to a criminal act or listen to their complaints against each other but
will leave them where their own act has placed them." 1 Am. Jur. 2D Actions 40. "The
underlying idea is that there is no societal interest in providing an accounting between
wrongdoers." Am. Int'l Group, 976 A.2d at 882.
-9?0.4595826.2
/'""'\ .
Thus, assurnJng for the sake of argument that it was a criminal act on behalf of DHA to
lease the condominium, it is uncontradicted that it was the Plaintiff who negotiated the terms for
the condominium, signed the lease on behalf of DHA and was in charge of furnishing the
condominium for DHA. See Plaintiffs Deposition at 23-24, Ex. D. Consequently, if leasing the
condominium was a criminal act, as Plaintiff claim,s, Plaintiff was an integral part of the criminal
enterprise since he was the one who negotiated the lease for the alleged criminal use of federal
funds. The doctrine of in pari delicto therefore forbids Plaintiff from recovering on this theory
and partial summary judgment is warranted for this alternative reason.
B.
IP., 613 So. 2d 846 (Miss. 1993). Courts have broad discretion when it comes to protective
orders. !d. Put simply, a courts may enter any protective order "which justice requires." Miss.
R. Civ. P. 26(d).
Justice requires a protective order in this case.
questioning regarding Dr. Fox's personal life, such questioning should no longer be permitted.
As discussed above, Plaintiffs counsel has used his allegations about DHA's condominium lease
as a springboard to intrude on Dr. Fox's personal life. Because partial summary judgment is
appropriate on that claim, all further questioning in that regard should be prohibited. Moreover,
Plaintiffs counsel has abused the discovery process by conducting a fishing expedition into three
areas having. absolutely no relevance to the instant suit and by deposing and seeking to depose an
inordinate number of witnesses, some for the sole purpose of addressing subject matter that is
irrelevant to this suit. This Court must intervene.
- 10PD.4595826.2
1.
Irrelevant Matters
Rule 26(d) of the Mississippi Rules of Civil Procedure provides that, upon a showing of
good cause, a Court may enter a protective order "that discovery not be had" or "that certain
matters not be inquired into[.]" Whether there is good cause depends on the nature and character
of the information sought through depositions balanced by the factual issues involved in a
particular case. See 8 Wright & Miller, Federal Practice and Procedure, 2035, at 484-86 (2d
ed. 1994). Good cause exists when the opposing party seeks wholly irrelevant information. !d.
2037, at 499-500 (explaining that a protective order providing that a deposition shall not be taken
is appropriate when it clearly appears that the information sought is wholly irrelevant and could
have no possible bearing on the issues of the case); see also Leighr v. Beverly Enterprises-
Kansas, 164 F.R.D. 550, 551-52 (D. Kan. 1996) (stating that a court "may grant a protective
order prohibiting the taking of a deposition when it believes that the information sought is
wholly irrelevant to the issues or prospective relief').
The three areas in which Plaintiffs counsel has sought discovery that have absolutely no
relevance to the issues in this lawsuit are discussed in turn below.
a.
E.g. Ricky
Boggan's Deposition at 17-18, Ex. S; James Keeton's Deposition at 14-19, Ex. H; Sam Dawkins'
Deposition at 13-15, Ex. T; Cindy Boykin's Deposition at 7-8, Ex. U. Plaintiff first raised this
issue in his deposition, the first deposition taken in this case, when asked why he had met with
Dr. Keeton. See Plaintiffs Deposition at Page 35-36, Ex. D. Plaintiff testified as follows when
questioned about the relevance of the alleged dispute to his suit:
- 11 PD.4 595826.2
Q.
. . . You say you believe large sums of money were spent
for the benefit ofUMC by DHA; is that right? . ..
A.
The answer's not that easy. The monies are spent for the
purpose of helping poor people in the Mississippi Delta. That's the
purpose of the monies.
Q.
. . . Did you or did you not make the statement that you
believe large sums of money were spent for the benefit ofUMC?
A.
Yes.
Q.
Tell me specifically what you base that on other than
speculation.
A.
Q.
Of that transactions?
A.
Transactions of monies paid to the University of
Mississippi Medical Center for hardware/software that would be
used as part of the project of establishing electronic health record
network with the Mississippi Delta.
Q.
A.
It's outstanding.
Q.
Now is there anything illegal that you know of with DHA
providing this money to UMC to - for the purpose of electronic
medical record software and hardware? Anything wrong with
that?
A.
A.
It's my understanding UMC had obligations that perhaps
there was a disagreement about whether they were being fulfilled.
Q.
Well, this is about DHA. What did DHA do wrong? Do
you know of anything DHA did wrong in this alleged transaction? .
- 12PD.4595826 .2
A.
I don't - I don't- I'm not sure of anything that DHA did
wrong as it related to that relationship. As it related to those
monies, I didn't spend those monies, didn't disburse it.
Id. at 38-40.
Evidence regarding the alleged dispute between UMMC and DHA is not relevant to the
instant suit and not calculated to lead to the discovery of admissible evidence for two reasons.
First, it is not in Plaintiffs complaint. Plaintiff's Complaint specifically lays out the grounds for
his claim of wrongful discharge and the allegations about which he claims he complained and
which led to his termination. See Complaint, at
~~
5, 7, Ex. K.
not testify that DHA had engaged in criminal conduct, but he also specifically testified that he
was not aware of anything DHA had done wrong that related to the relationship with UMMC.
See Plaintiff's Deposition at 40, Ex. D. Therefore, the line of questioning is irrelevant to his
wrongful discharge claim and Plaintiff's attorney should be precluded from pursuing it in
discovery.
b.
Dr. James E. Keeton, the Vice Chancellor for UMMC, was the first witness deposed by
Plaintiff's counsel. In that deposition, Plaintiff's attorney raised for the first time an allegation
that Dr. Karen Fox had received some type of fmancial advantage from Allscripts which
provided electronic health records software to DHA. See James Keeton's Deposition at 13-14,
Ex. H. Plaintiff's attorney continued to pursue this line of questioning in several subsequent
- 13PD.4595826 .2
depositions. E.g., Sam Dawkins' Deposition at 14-15; Ex: T; Chip Morgan's Deposition at 2930, Ex. M; Ricky Boggan's Deposition at 17-19, Ex. S. This questioning was the first reference
to the Allscripts issue in this suit.
DHA's attorney had been told that Plaintiff had made a statement to the effect that his
wife knew about some unspecified fraud that he was not at liberty to discuss.
See Roy
Campbell's Deposition at 30, Ex. J. The following questioning in Plaintiffs deposition resulted:
Q.
You have made the statement at times that your wife knows
about the fraud or some fraud? Is that right? Have you toldA.
I don't know.
A.
I told Roy [Roy Campbell of the law firm of Bradley Arant
Boult and Cummings] that- you know, that my wife was- told me
about some matters of concern.
Q.
A.
I'm not going to - I can't - I can't go there. I told - I
explained that to Mr. Campbell.
Q.
Right.
!d. at 31. It was not until a break between depositions that the
Plaintiffs attorney was taking on November 29, 2010, that the Plaintiff's attorney told the
attorney for DHA that the alleged fraud about which Plaintiffs wife knew, had to do with a
claim that Dr. Fox had received some type of financial advantage from Allscripts.
- 14PD.4595826.2
See Ricky
criminal conduct to anyone at DHA prior to his termination, and refused to discuss it in his
deposition. It was not until his attorney raised the Allscripts issue in depositions on November
29, 2010 that DHA had ever heard about the allegation.
The Court should prohibit Plaintiffs attorney from pursuing this line of questioning for
two reasons, either of which make this line of questioning irrelevant to the suit. First, as with the
allegation regarding the dispute between UMMC and DHA, the Allscripts issue does not appear
in Plaintiffs Complaint. Therefore, it cannot serve as a basis for his wrongful discharge suit.
Second, Plaintiff must produce admissible evidence that he reported the Allscripts issue as a
criminal act to his employer and was terminated as a result. McArn v. Allied-Terminix, 626
So.2d 603 , 606 (Miss. 1993). Plaintiff has admitted that he refused to tell anyone what his wife
knew not only prior to his termination but at his own deposition. See Plaintiffs Deposition at
25, 29, Ex. D. Obviously, DHA could not terminate him for something about which they did not
know.
For the reasons discussed above, the alleged issue with Allscripts is not relevant to the
instant suit and not calculated to lead to the discovery of admissible evidence. Consequently,
pursuit of this issue in discovery can only be a fishing expedition or a means to attempt to
embarrass Dr. Fox, and the Court should enter a protective order prohibiting pursuit of this line
of questioning. Alternatively, if Plaintiffs attorney is allowed to pursue this line of questioning,
the Court should allow the Defendant to reopen the Plaintiffs deposition and require the Plaintiff
to answer questions about the Allscripts issue, including the basis for his knowledge.
- 15PD.4595826.2
c.
The Claim That DHA Used Federal Grant Money for Programs That
Were Not Executed Well
In Paragraph 7 of his Complaint, Plaintiff states: "In addition to the above criminal
wrongdoing, Plaintiff was concerned because the 2009 budget provided for hundreds of
thousands of dollars for programs which provided little or no meaningful services." When asked
to explain what this allegation meant, Plaintiff testified:
A.
I was concerned that the 2009 budget - that there were
swings in amounts of monies that were going for programs that
provided no - no benefit. There seemed to be no - seemed to be
arbitrary.
Q.
So the money was - am I understanding that the money
was appropriated for this program, but the program wasn't
executed well? Is that what you are saying?
A.
Q.
A.
A lot of different - a lot of different factors.
different factors.
A lot of
!d. at 225-226.
Plaintiffs attorney has used this allegation to engage in a general investigation of all of
DHA'.s programs. E.g., John Hilper's Deposition at 25, Ex. I; Jane Calhoun's Deposition at 915, Ex. V; Sam Dawkins' Deposition at 19, Ex. T. Even if Plaintiff is correct that some of
DHA's programs were not executed well, Plaintiff may be able to show incompetence or
negligence but he cannot point to any criminal conduct by DHA. Therefore, the Court should
terminate this abuse of discovery by entering a protective order prohibiting any further pursuit of
this line of questioning.
- 16PD.4595826.2
2.
Thus far, Plaintiff has taken a total of 13 depositions and has indicated his intent to take
13 more. See Deposition Notices, Ex. A; see also Plaintiffs Counsel's Letter, Ex. B. Many of
these depositions are of witnesses who have little or no relevant information regarding the issues
in this suit. See 8 Wright & Miller, 2037, at 499-500 (explaining that a protective order
providing that a deposition shall not be taken is appropriate when it clearly appears that the
information sought is wholly irrelevant and could have no possible bearing on the issues of the
case).
DHA does not dispute that Plaintiff should be allowed to take a reasonable number of
depositions. However, 13 depositions simply are unreasonable, particularly considering the fact
that Plaintiff's attorney has used depositions thus far to pursue irrelevant lines of questioning. It
is well established that a trial court is entitled to prevent or limit depositions that would be
irrelevant or cumulative. See Haley v. Harbin , 933 So. 2d 261, 263 (Miss. 2005) (holding that
the trial court impermissibly allowed discovery that was "grossly excessive in number"); see also
In re Evangeline Refining Co., 890 F.2d 1312, 1320-21 (5th Cir. 1989) (holding that the trial
court' s refusal to issue a deposition subpoena was not an abuse of discretion where the
"deposition sought was of limited probative value and largely cumulative").
While there are no specific limits in state court to the number of depositions that can be
taken, Plaintiffs counsel would be limited to five non-party depositions in federal court. See
Uniform Local Rule 26(d)(2). This is significant, since the Mississippi Supreme Court has
chosen to follow the lead of the federal courts in interpreting like procedural rules governing
discovery. See Nichols v. Tubb, 609 So.2d 377, 383 (Miss.l992) ("It is well known that our
Mississippi Rules of Civil Procedure were copied from the Federal Rules of Civil Procedure, and
we construe ours as the Federal courts construe the federal rules.").
- 17PD.4595826.2