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19-2058

Fung Schwartz v. Cerner Corp.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION 

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS 

GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S 

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH 

THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY 

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City 

of New York, on the 1st day of April, two thousand twenty.

PRESENT:

DENNIS JACOBS,

SUSAN L. CARNEY,

JOSEPH F. BIANCO,

Circuit Judges.

_________________________________________

JENNIFER FUNG SCHWARTZ, M.D., JENNIFER 

FUNG-SCHWARTZ, D.P.M., L.L.C.,

Plaintiffs-Appellants,

v. No. 19-2058

CERNER CORPORATION, CERNER 

HEALTHCARE SOLUTIONS, INC.,

Defendants-Appellees.

*

_________________________________________

FOR PLAINTIFFS-APPELLANTS: Elizabeth Shieldkret, Forest Hills, 

NY.

____________

* The Clerk of Court is respectfully requested to amend the official caption as above. 
 

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FOR DEFENDANTS-APPELLEES: Patrick N. Fanning (Bethany M. 

Shelton, on the brief), PEAK 

Litigation LLP, Kansas City, MO

Appeal from an order of the United States District Court for the Southern District of

New York (Broderick, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY 

ORDERED, ADJUDGED, AND DECREED that the order entered on June 7, 

2019, is AFFIRMED.

Plaintiffs-Appellants Jennifer Fung-Schwartz, M.D. and Jennifer FungSchwartz, D.P.M., L.L.C. (“the practice” or “Plaintiffs”) appeal from the District 

Court’s order denying their motion for a preliminary injunction requiring 

Defendants-Appellees Cerner Corporation and Cerner Healthcare Solutions, Inc. 

(collectively, “Cerner”) to maintain their access to Cerner software during the 

pendency of the underlying civil action filed by Plaintiffs. We assume the parties’ 

familiarity with the relevant facts, procedural history, and arguments on appeal, to 

which we refer only as necessary to explain our decision to affirm.

Dr. Fung-Schwartz operates a podiatry practice in Manhattan. In 2006, her 

practice began using Cerner’s electronic medical record (“EMR”) software, which 

stores patient data in a Cerner-controlled system. In December 2014, her practice 

entered into a new five-year agreement (the “Agreement”) with Cerner, under which 

Cerner would provide both EMR services and electronic billing services to administer 

the practice’s billing to both private insurers and Medicare. In early 2016, having 

experienced difficulties with respect to Cerner’s billing services, Dr. Fung-Schwartz 

and Cerner resolved to terminate the Agreement as to billing services effective June 1, 

2016, but to continue the practice’s use of Cerner’s EMR services. During and after 

the negotiations that led to these decisions, the parties vigorously disputed their 

relative rights and responsibilities, particularly with regard to fees owed. 
 

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Plaintiffs allege that, with these disputes still unresolved, on October 13, 2016, 

without warning, the practice lost access to all of its records housed on Cerner 

platforms. These included all of the practice’s patient medical records, contact 

information, and schedules dating back to 2006. Plaintiffs submit that Cerner 

deliberately and wrongfully deprived them of access in an attempt to force Plaintiffs’ 

hand in the ongoing fee dispute. Plaintiffs did not regain full EMR access until 

October 18, five days later. Then, in early January 2017, Plaintiffs experienced a 

second, more minor interruption of service, limited to the software function that 

verifies patient insurance information. Cerner later explained that the verification 

function was operated by a third party, and Cerner disclaimed responsibility for the 

interruption. 

Plaintiffs then sued Cerner separately for each service interruption. This 

appeal arises out of the second lawsuit, filed in January 2017.

In July of that year, Plaintiffs sought a preliminary injunction primarily 

prohibiting Cerner from denying the practice access to its medical records. In August

2017, the District Court denied Plaintiffs’ motion for failure to demonstrate 

irreparable harm, observing that the challenged conduct occurred primarily in 

October 2016 and the matter was thus “stale.” App’x at 112. At the August 4 hearing 

for Plaintiffs’ motion, however, the District Court stated that “during the pendency 

of the motion to dismiss, the system should remain on.” Id. at 107-08 (emphasis added).

Plaintiffs timely noticed an interlocutory appeal of that denial, and this Court 

vacated the order and remanded the cause for clarification of the “intended effect of 

the District Court’s various written and oral pronouncements regarding [the] 

motion.” Fung-Schwartz v. Cerner Corp., 726 F. App’x 97, 98 (2d Cir. 2018). On June 7, 

2019, the District Court clarified that it denied the requested preliminary injunction 

because it found that “any claim of harm is not imminent and is speculative.” FungSchwartz v. Cerner Corp., No. 17-CV-233 (VSB), 2019 WL 4015259, at *1 (S.D.N.Y. 

June 7, 2019). Plaintiffs now appeal this denial, arguing that the District Court 

incorrectly determined that they failed to show irreparable harm. 
 

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To obtain a preliminary injunction, the moving party must show 

“(1) irreparable harm; (2) either a likelihood of success on the merits or both serious 

questions on the merits and a balance of hardships decidedly favoring the moving 

party; and (3) that a preliminary injunction is in the public interest.” N. Am. Soccer 

League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018). We review a 

district court’s order denying a preliminary injunction for abuse of discretion. Id. at 

36.

The District Court’s analysis of Plaintiffs’ preliminary injunction motion began 

and ended with the finding that Plaintiffs failed to demonstrate irreparable harm. In 

this, we identify no error. “Irreparable harm is injury that is neither remote 

nor speculative, but actual and imminent and that cannot be remedied by an award of 

monetary damages.” New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 660 

(2d Cir. 2015) (internal quotation marks omitted). Here, Plaintiffs argue that they 

would suffer irreparable harm if Cerner unexpectedly cut off the practice’s access to 

patient medical records. Plaintiffs have offered no evidence that Cerner is likely to do 

so, however, much less that Cerner will do so imminently. Plaintiffs contend that “the 

only reason Cerner avers that [it stopped] using the kill switch is the risk of contempt 

for violating the August 4, 2017 Orders.” Appellants’ Br. at 34. But they point to no 

record evidence that Cerner has even threatened to block Plaintiffs’ EMR access. 

Indeed, Cerner represented to the District Court in July 2018 that it would take no 

action impeding Plaintiffs’ access without first advising the District Court. App’x at 

155-56.

District courts commit no abuse of discretion when they deny requested

preliminary injunctions and the evidence supporting a claim of imminent irreparable 

harm consists only of the plaintiffs’ conjecture that the defendant might take a harmful 

step at some point in the future. See, e.g., Faiveley Transp. Malmo AB v. Wabtec Corp., 559 

F.3d 110, 120 (2d Cir. 2009) (vacating preliminary injunction when record did not 

“support the conclusion that [plaintiff] would suffer irreparable harm unless 

[defendant] was enjoined from doing what the evidence indicated it was unlikely to 
 

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do in the absence of an injunction—disseminate or otherwise irreparably impair 

[plaintiff’s] trade secrets”). Accordingly, we conclude that the District Court did not 

err in denying Plaintiffs’ motion for a preliminary injunction.

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We have considered Plaintiffs’ remaining arguments and conclude that they 

are without merit. For the foregoing reasons, the District Court’s order is 

AFFIRMED. 

FOR THE COURT: 

Catherine O’ Hagan Wolfe