-RJJ Chudacoff v. University Medical Center Of Southern Nevada et al, No. 2:2008cv00863 - Document 493 (D. Nev. 2012)
Court Description: ORDER Granting in part and Denying in part 346 Motion to Strike. FURTHER ORDERED that 350 Motion for Reconsideration is GRANTED. FURTHER ORDERED that 355 Joint Motion to Extend Discovery is GRANTED. FURTHER ORDERED that 356 Motion for Sancti ons is GRANTED. FURTHER ORDERED that 369 Motion for Leave to File Fifth Amended Complaint is GRANTED. FURTHER ORDERED that 392 and 402 Motions to Strike Joinders are DENIED. FURTHER ORDERED that 471 Motion to Set Trial Date is DENIED. Signed by Judge Edward C. Reed, Jr on 7/6/12. (Copies have been distributed pursuant to the NEF - MMM)
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-RJJ Chudacoff v. University Medical Center Of Southern Nevada et al Doc. 493 1 2 3 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 4 5 6 7 RICHARD CHUDACOFF, M.D., 8 9 10 11 12 ) ) Plaintiff, ) ) vs. ) ) UNIVERSITY MEDICAL CENTER; et al., ) ) Defendants. ) ) ) 2:08-cv-00863-ECR-RJJ Order 13 14 15 I. Motion to Strike Fourth Amended Complaint (#346) On January 23, 2012, Defendants Ellerton, Bernstein, Carrison, 16 Roberts, and the Medical and Dental Staff filed a “Motion to Strike 17 Plaintiff’s Fourth Amended Complaint” (#346). On January 24, 2012, 18 Plaintiff filed a response (#347), and Defendants UMC, Brager, 19 Collins, Giunchigliani, Maxfield, Reid, Weekly, and Woodbury, 20 collectively the “Board of Trustees”, filed a Joinder (#348) to the 21 Motion to Strike (#346). On February 2, 2012, Defendants Bernstein, 22 Carrison, Ellerton, Roberts, and the Medical and Dental Staff, 23 collectively the “Doctor Defendants,” filed their reply (#351). 24 Specifically, Defendants object to the reference to DOE Defendants 25 in the caption after our previous ruling (#340) that Plaintiff is 26 ordered to file a fourth amended complaint removing any reference to 27 DOE Defendants. 28 Dockets.Justia.com 1 Plaintiff responds that our previous Order (#340) disallowed 2 only the opportunity for Plaintiff to name the DOE Defendants who 3 are additional voting members of the MEC, and that DOE Defendants 4 are only mentioned in the Fourth Amended Complaint (#343) in the 5 caption and in a boilerplate paragraph reserving the right to add 6 additional defendants should the need arise. 7 In federal court, “the use of ‘John Doe’ to identify a 8 defendant is not favored.” 9 642 (9th Cir. 1980). Gillespie v. Civiletti, 629 F.2d 637, However, when the identity of alleged 10 defendants will not be known prior to the filing of a complaint, a 11 plaintiff may identify unknown defendants through discovery. Id. 12 At this stage in the litigation, especially after Plaintiff claims 13 to have discovered the identity of the voting members of the MEC, 14 Plaintiff has shown no other bases on which to include DOE 15 Defendants in a fourth amended complaint filed four years into the 16 action. Therefore, the reference to DOE Defendants should be 17 removed entirely. The Court shall allow Plaintiff the opportunity 18 to file a fifth amended complaint in compliance with this Order, 19 which must omit any mention of John Doe defendants. 20 Defendants also request sanctions. They argue that Plaintiff’s 21 refusal to follow the Court’s orders have forced Defendants to file 22 multiple motions, expending time and money. The request for 23 sanctions shall be denied, because the inclusion of DOE Defendants 24 in the caption and in a boilerplate paragraph, as well as factual 25 allegations relating to Plaintiff’s falsification of application 26 materials, do not yet rise to the required level of misconduct. 27 28 2 1 2 II. Motion for Reconsideration (#350) On February 9, 2012, Plaintiff filed a Motion for 3 Reconsideration (#350) of our Order (#340), requesting that we 4 reconsider our denial of Plaintiff’s request to add additional 5 defendants to this action. Plaintiff wishes to add “newly 6 identified people who participated in the deprivation of his due 7 process rights by voting to suspend his clinical privileges at UMC, 8 despite the fact that he had no notice or opportunity to be heard.” 9 (Pl.’s Mot. for Reconsideration at 4 (#350).) On February 9, 2012, 10 Defendants Bernstein, Carrison, Ellerton, Roberts, and the Medical 11 and Dental Staff filed an opposition (#353). 12 A district court may reconsider an order if the court (1) is 13 presented with newly discovered evidence, (2) committed clear error 14 or the initial decision was manifestly unjust, or (3) if there is an 15 intervening change in controlling law. Sch. Dist. No. 1J, Multnomah 16 Cty, Or. v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 17 In our Order (#340), we stated simply that voting alone is not 18 enough to show wrongful deprivation of Plaintiff’s rights. In doing 19 so, we did not properly take into account our previous finding that 20 the MEC’s act of suspending Plaintiff’s privileges without notice or 21 opportunity to be heard was a violation of Plaintiff’s 22 constitutional rights. While we noted previously that it is unclear 23 whether the MEC had the authority to do so under its Bylaws, as the 24 Bylaws suggest only that the MEC may recommend restricting a 25 physician’s privileges, not actually act to restrict them, we cannot 26 deny that the Court incorrectly denied Plaintiff’s request to add 27 the other voting members of the MEC on the basis that simply voting 28 3 1 is not enough. However, it is still troubling to the Court that 2 defendants who merely voted at the presentation of the complaints 3 and/or evidence against Plaintiff, possibly without the knowledge of 4 whether Plaintiff had been given notice beforehand, might be added 5 as defendants to a case which has been litigated for years, with a 6 prior decision on whether those acts were unconstitutional. In the 7 original Motion (#338) in which Plaintiff sought to add these 8 defendants, Plaintiff alleged that he was unable to learn the 9 identity of the other members of the MEC December 9, 2011 because of 10 Defendants’ previous refusal to provide the minutes from the 11 meetings of the MEC. This disclosure was made so late in the 12 litigation because Defendants had been claiming peer review 13 privilege, which we ruled does not apply in federal § 1983 actions. 14 Despite our concerns, we agree with Plaintiff that we 15 incorrectly denied Plaintiff the opportunity to add defendants who 16 participated in the restriction of his privileges, and because 17 Plaintiff has stated that he was unable, until now, to determine the 18 identity of those defendants, we shall grant Plaintiff the chance to 19 file a complaint in which those defendants are named, and references 20 to DOE defendants are removed. 21 22 23 III. Joint Motion to Extend Discovery (#355) On February 10, 2012, Defendants Bernstein, Brager, Carrison, 24 Collins, Ellerton, Giunchigliani, Maxfield, Reid, Roberts, the 25 Medical and Dental Staff, and UMC filed a “Joint Motion to Extend 26 Discovery” (#355). On February 14, 2012, Plaintiff filed a response 27 28 4 1 (#360). On February 24, 2012, the moving Defendants filed a reply 2 (#361). 3 Discovery was initially reopened until February 21, 2012. 4 Defendants request that we reopen discovery because Plaintiff 5 submitted last minute disclosures, and because there are several 6 discovery motions pending. In light of our Order adding additional 7 defendants and allowing Plaintiff to add a new cause of action, we 8 shall reopen discovery for a term of sixty days, with the 9 possibility of extension upon motion if necessary due to the 10 additional defendants. 11 IV. Motion for Sanctions (#356) 12 13 On February 13, 2012, Plaintiff filed a Motion for Sanctions 14 (#356). On March 1, 2012, the Doctor Defendants filed a response 15 (#371). On March 5, 2012, Plaintiff filed a reply (#385). 16 On June 15, 2011, we entered an Order (#257) approving a 17 stipulation in which the parties agreed that Defendants should 18 notify the National Practitioner Data Bank (“NPDB”) to void any and 19 all entries related to or involving Plaintiff filed by UMC between 20 the period of May 27, 2008 through June 15, 2011 by June 17, 2011. 21 The NPDB allows for the voiding of a previous report by the 22 reporting entity at any time. (NPDB Guidebook, Ex. C at 18 (#132- 23 2).) When the NPDB processes a Void, a retraction of a report in its 24 entirety, a “Report Revised, Voided, or Status Changed” document is 25 mailed to the subject and all queriers who received the previous 26 version of the report within the past 3 years.” 27 report was dated June 17, 2008. 28 (Id.) The initial It is due to this approaching 5 1 three-year anniversary that the Court so hastily approved the 2 stipulation that required the Doctor Defendants to void the report 3 by June 17, 2011. 4 In his Motion (#356), Plaintiff claims that after having 5 difficulty finding employment, he discovered that the initial report 6 was never voided from the NPDB system through a self query. 7 Plaintiff argues that the Doctor Defendants’ failure to query the 8 NPDB and to keep track of the reports they filed against Plaintiff 9 were violations of our Order (#257). Plaintiff alleges that the 10 Doctor Defendants’ failure to void the reports have prevented him 11 from finding new employment and have impacted his personal 12 relationship with his family, and requests that he be awarded $1,000 13 per day from June 15, 2011, the date of our Order (#257) to the day 14 the award is paid, to compensate him for his actual loss, a number 15 “indicative of the amount that Dr. Chudacoff was receiving in his 16 locum tenens position at Visalia Health Care Clinic, which was 17 terminated.” (Pl.’s Mot. for Sanctions at 10 (#356).) Plaintiff 18 also seeks attorney’s fees for bringing this Motion (#356). 19 The Doctor Defendants respond that any oversight in voiding the 20 NPDB reports was accidental. The Doctor Defendants state that there 21 were two NPDB reports generated by UMC for Plaintiff, Report #1 and 22 Report #2, and Report #1 was revised after initial submission. The 23 Doctor Defendants state that although they had until June 17, 2011 24 to void the reports pursuant to our Order (#257), they took action 25 immediately on June 15, 2011 to comply with the Order (#257). On 26 that date, Shana Tello, Medical Staff Director of UMC, along with 27 Defendant Carrison, contacted the NPDB for directions on how to void 28 6 1 the reports, and took all necessary steps to void the reports and 2 received confirmation that both reports were voided. (Temporary 3 Records of Submission for the revised Report #1 and Report #2, Ex. 4 C. (#371).) The Doctor Defendants claim that Ms. Tello voided the 5 two reports in good faith, believing that she was voiding both 6 Report #1 and Report #2. However, when the original Report #1 was 7 revised, it was assigned a new document number. 8 (#371).) (Tello Aff. Ex. B Ms. Tello was not advised of the fact that voiding the 9 revised report would not void the original report. (Tello Aff. Ex. 10 B (#371).) 11 The Doctor Defendants claim that on Saturday, February 11, 12 2012, Plaintiff’s counsel sent an email to all counsel advising of 13 the NPDB report that had not been voided. 14 (#371).) (Hafter Email Ex. D The Doctor Defendants claim that they initially believed 15 Plaintiff’s counsel was mistaken when the Doctor Defendants saw 16 Plaintiff’s counsel’s email on Monday, February 13, 2012. 17 filed the instant motion on February 13, 2012. Plaintiff Defendants queried 18 the NPDB and received information indicating that the reports were 19 voided properly. (Query Results Ex. E (#371).) On February 15, 20 2012, as a result of communication with Plaintiff’s counsel, The 21 Doctor Defendants learned that there were three document control 22 numbers instead of two, due to the revision of Report #1, and the 23 Doctor Defendants immediately rectified the error. 24 2012, Report #1 was voided. On February 16, (Temporary Record of Submission, Ex. G 25 (#371).) The Doctor Defendants claim that while that report was not 26 voided until February 16, 2012, any entity who queried Plaintiff 27 prior to the February 16, 2012 void would have had a clear 28 7 1 understanding that everything was voided in June of 2011 because the 2 reports are all linked together. 3 (Query Results Ex. E (#371)) The Doctor Defendants argue that there is no proof that 4 Plaintiff has lost jobs due to Defendants’ error in believing that 5 all reports had been voided, and that they should not be held in 6 civil contempt because the error was unintentional. 7 Civil contempt “consists of a party’s disobedience to a 8 specific and definite court order by failure to take all reasonable 9 steps within the party’s power to comply.” In re Dual-Deck Video 10 Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 11 1993). “There is no good faith exception to the requirement of 12 obedience to a court order.” Id. (citing In re Crystal Palace 13 Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir. 1987)). However, 14 a party should not be held in contempt if the action appears to be 15 based on a good faith and reasonable interpretation of the court 16 order. Id. (citing Vertex Distrib., Inc. v. Falcon Foam Plastics, 17 Inc., 689 F.2d 885, 889 (9th Cir. 1982)). “‘Substantial compliance’ 18 with the court order is a defense to civil contempt, and is not 19 vitiated by ‘a few technical violations’ where every reasonable 20 effort has been made to comply.” 21 891). Id. (citing Vertex, 689 F.2d at The burden is on the moving party to show the violation by 22 clear and convincing evidence. Id. (citing Vertex, 689 F.2d at 23 889). 24 We are convinced that the Doctor Defendants’ failure to void 25 all reports was not a wilful violation of the stipulated court Order 26 (#257). However, Plaintiff has shown by clear and convincing 27 evidence, and the Doctor Defendants do not dispute, that the Doctor 28 8 1 Defendants failed to follow the court Order (#257) requiring any and 2 all NPDB reports made by UMC for Plaintiff be voided. Failure to 3 void the reports, although unintentional, does not constitute 4 substantial compliance of the Order (#257) in these circumstances. 5 Plaintiff argues that the Doctor Defendants could have queried the 6 NPDB to ensure that all reports had in fact been voided. The Doctor 7 Defendants have shown that they did attempt to void two reports, and 8 received Temporary Records of Submission confirming that those 9 reports have been voided. The Query Results (Ex. E (#371)) show 10 also that two reports were voided, but lists an initial action, made 11 on 6/17/2008. While those Query Results are shown in a way that 12 Defendants could have mistakenly believed that the initial report 13 was voided, the end result is that a report that should have been 14 voided in June 2011 remained on the NPDB for eight additional 15 months, a direct violation of the Order (#257). 16 We reject, however, Plaintiff’s argument that he is entitled to 17 $1,000 per day since June 15, 2011 until an award is made. He 18 argues that this number represents his actual loss as a result of 19 the Doctor Defendants’ failure to follow our Order (#257), because 20 he was receiving this amount in his locum tenens position at Visalia 21 Health Care Clinic, which was terminated because he could not obtain 22 clinical privileges at their hospital. It has not been shown that 23 his position at Visalia was terminated due to the NPDB reports, nor 24 are we convinced of the propriety of awarding such a large amount. 25 He also requests at least $250,000 as a coercive fine, a number that 26 appears to represent his potential salary at jobs he has pursued in 27 the past year. 28 The Doctor Defendants argue that there is simply no 9 1 evidence that Plaintiff lost jobs due to the Doctor Defendants’ 2 error in voiding the NPDB reports. We agree that Plaintiff has not 3 shown that the lost jobs were a result of the NPDB reports, or that 4 he is entitled to the amount of compensation he requests. Plaintiff 5 is entitled to fees associated with bringing the Motion for 6 Sanctions (#356), but the Court cannot determine, on the basis of 7 the information before it, what additional fines Plaintiff should 8 receive. Therefore, the Court will grant the parties time to brief 9 the issue. 10 11 V. Motion for Leave to File Fifth Amended Complaint (#369) 12 On March 1, 2012, Plaintiff filed a Motion for Leave to File 13 Fifth Amended Complaint (#369), requesting leave to add a cause of 14 action for a contractual theory of the breach of implied covenant of 15 good faith and fair dealing. On March 8, 2012, Defendants Bernstein, 16 Carrison, Ellerton, Roberts, and the Medical and Dental Staff filed 17 a response (#387). On March 15, 2012, Defendants Brager, Collins, 18 Giunchigliani, Maxfield, Reid, Weekly, Woodbury, and UMC filed a 19 response (#401). On March 19, 2012, and on March 26, 2012, 20 Plaintiff filed replies (##406, 422). 21 In our Order (#366), we found that Plaintiff had alleged 22 tortious breach of the implied covenant of good faith and fair 23 dealing rather than a contractual one, based on Plaintiff’s 24 complaint and the tort-style damages he seeks. Plaintiff now seeks 25 to add a contractual cause of action for breach of the implied 26 covenant of good faith and fair dealing, arguing that Defendants 27 violated the Bylaws, Credentialing Manual, and other governing 28 10 1 documents in their treatment of Plaintiff’s privileges. Plaintiff 2 alleges that those documents created a contractual relationship 3 between himself and Defendants. He includes specific factual 4 allegations pertaining to the provisions of the governing documents 5 Defendants violated in the proposed fifth amended complaint (#3696 1). 7 Our previous Order found that the previous complaint pled only 8 a cause of action for tortious breach of the implied covenant of 9 good faith and fair dealing. The statute of limitations to plead a 10 contractual claim has not yet run. While Nevada has not yet 11 determined whether a hospital’s bylaws can create an enforceable 12 contract between the hospital and its staff, as well as between the 13 staff and its members, other courts have found the bylaws to create 14 such a contract. See Williams v. University Medical Center of 15 Southern Nevada, 688 F.Supp.2d 1134, 1141-42 (D. Nev. 2010); Janda 16 v. Madera Community Hosp. 16 F.Supp.2d 1181, 1184 (E.D. Cal. 1998). 17 Therefore, we find that Plaintiff may file a fifth amended complaint 18 alleging a contractual breach of the implied covenant of good faith 19 and fair dealing. 20 21 22 VI. Motions to Strike Joinders (## 391, 402) Plaintiff requests that we strike Documents ## 391, 395, 396, 23 397, 398, 399, and 400 as untimely. These documents were filed on 24 March 14, 2012, and Plaintiff argues that each of the documents is a 25 few days or weeks late. He also argues that some of the joinders 26 simply do not make sense, as when the Board of Trustees join in an 27 opposition while having filed their own opposition. 28 11 1 Defendants argue in their opposition (#430) that the joinders 2 were filed because of Plaintiff’s inappropriate Notice of Non3 Opposition (#389). The joinders were simple form joinders that did 4 not raise new arguments, did not prejudice Plaintiff or constitute 5 unfair surprise, and therefore Defendants request that the instant 6 Motion to Strike (#402) be denied. 7 On February 14, 2012, Plaintiff filed a Motion to Strike 8 Defendants’ Rebuttal Expert, a motion that the Board of Trustees 9 argues was directed at the Doctor Defendants, who filed their 10 opposition. When Plaintiff filed a Notice of Non-Opposition, 11 arguing that UMC and the Board of Trustees’ lack of opposition meant 12 the motion should be granted, the Board of Trustees and UMC filed 13 their joinder, albeit in an untimely manner. Because the Board of 14 Trustees has shown good cause in filing untimely joinders, all of 15 which are form joinders and cannot constitute surprise, and were 16 prompted by Plaintiff’s filing of a notice of non-opposition, the 17 Court shall deny Plaintiff’s Motion to Strike (#402). 18 19 VII. Motion to Set Trial Date (#471) 20 On May 3, 2012, Plaintiff filed a Motion to Set Trial Date 21 (#471). In light of the new amended complaint, ongoing discovery, 22 and pending motions, this motion (#471) shall be denied. Many of 23 those pending motions, including the motion to file an amended 24 complaint, were filed by Plaintiff. We caution Plaintiff that 25 filing numerous frivolous motions will not assist the Court in 26 moving along an action as complex as this one. 27 28 12 1 VIII. Conclusion 2 IT IS, THEREFORE, HEREBY ORDERED that the Motion to Strike 3 (#346) is GRANTED IN PART AND DENIED IN PART: Plaintiff shall remove 4 references to DOE Defendants, but sanctions will not be awarded. 5 IT IS FURTHER ORDERED that the Motion for Reconsideration 6 (#350) is GRANTED. Our previous Order (#340) was incorrect insofar 7 as we denied Plaintiff the opportunity to add additional voting 8 members of the MEC. 9 IT IS FURTHER ORDERED that the Joint Motion to Extend Discovery 10 (#355) is GRANTED. Discovery shall be reopened for a period of 11 sixty days following the filing of Plaintiff’s fifth amended 12 complaint pursuant to this Order. 13 IT IS FURTHER ORDERED that the Motion for Sanctions (#356) is 14 GRANTED. Plaintiff may submit a motion within twenty-one (21) days 15 seeking fees and additional amounts. Responses and replies may be 16 filed in accordance with the Federal Rules and the Local Rules. 17 IT IS FURTHER ORDERED that the Motion for Leave to File Fifth 18 Amended Complaint (#369) is GRANTED. Plaintiff may file a fifth 19 amended complaint adding a cause of action for the contractual 20 breach of the implied covenant of good faith and fair dealing, 21 adding voting members of the MEC, and removing all references to DOE 22 Defendants within fourteen (14) days of the date of entry of this 23 Order. We are not unmindful of the burden this places on the 24 parties at such a late date, but find that in light of the late 25 disclosure of the voting members of the MEC, leave to amend must be 26 granted. 27 28 13 1 IT IS FURTHER ORDERED that the Motions to Strike Joinders 2 (#392, 402) are DENIED. 3 IT IS FURTHER ORDERED that the Motion to Set Trial Date (#471) 4 is DENIED. 5 6 7 DATED: July 6, 2012. 8 ____________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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