Williams v. University Medical Center Of Southern Nevada et al.,

Filing 124

ORDER that Defendants Motion for Summary Judgment on Claims One, Ten, Eleven, Twelve, and Thirteen 96 is GRANTED in part and DENIED in part. The motion is granted as to Plaintiffs negligence claim in count ten, and as to Plaintiffs defamation clai ms in counts eleven, twelve, and thirteen for any publications occurring more than two years prior to the filing of the Complaint. The motion is denied in all other respects. Plaintiffs Motion for Reconsideration of Order Striking Certain Claims Agai nst Certain Defendants 102 is DENIED. Plaintiffs Motion for Partial Summary Judgment 105 is DENIED. Parties shall file the proposed joint pretrial order within 30 days of the date of this Order. Signed by Judge Philip M. Pro on 7/28/10. (Copies have been distributed pursuant to the NEF - ECS)

Williams v. University Medical Center Of Southern Nevada et al.,

Doc. 124

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 P re se n tly before the Court is Defendants' Motion for Summary Judgment on C la im s One, Ten, Eleven, Twelve, and Thirteen (Doc. #96), filed on March 11, 2010. Plaintiff filed an Opposition (Doc. #103) on April 5, 2010. Defendants filed a Reply (Doc. # 1 0 9 ) on April 22, 2010. A ls o before the Court is Plaintiff's Motion for Reconsideration of Order Striking C e rta in Claims Against Certain Defendants (Doc. #102), filed on April 2, 2010. Defendants filed a Response (Doc. #122) on July 26, 2010. /// UNITED STATES DISTRICT COURT D IS T R IC T OF NEVADA *** ) C H A R L E S WILLIAMS, M.D., ) ) P la in tif f , ) ) v. ) ) U N IV E R S IT Y MEDICAL CENTER OF ) S O U T H E R N NEVADA; JOHN ) E L L E R T O N , M.D.; BOARD OF ) T R U S T E E S OF UMC; RORY REID; ) S T E V E SISOLAK; TOM COLLINS; ) L A R R Y BROWN; LAWRENCE ) W E E K L Y ; CHRIS GIUNCHIGLIANI; ) S U S A N BRAGER; and MEDICAL AND ) D E N T A L STAFF OF THE UNIVERSITY ) M E D IC A L CENTER OF SOUTHERN ) NEVADA, ) ) D e f e n d a n ts. ) ___________________________________ )

2 :0 9 -C V -0 0 5 5 4 -P M P -P A L ORDER

Dockets.Justia.com

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A ls o before the Court is Plaintiff's Motion for Partial Summary Judgment (Doc. # 1 0 5 ), filed on April 8, 2010. Defendants filed a Response (Doc. #112) on April 26, 2010. Plaintiff filed a Reply (Doc. #113) on May 6, 2010. The Court held a hearing on these motions on July 26, 2010. (Mins. of P ro c e e d in g s (Doc. #123).) The Court previously has set forth the factual predicate for this c a s e in prior Orders, and the Court will not repeat those facts here except where necessary to resolve the pending motions. I . DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON CLAIMS ONE, T E N , ELEVEN, TWELVE, AND THIRTEEN (Doc. #96) D e f e n d a n ts move for summary judgment on Plaintiff Charles Williams' (" W illia m s " ) claims in counts 1 (due process), 10 (negligence), 11 (defamation), 12 (d e f a m a tio n per se), and 13 (libel) as barred by the statute of limitations. Defendants c o n te n d each of Williams' remaining claims is governed by the two-year limitations period in Nevada Revised Statutes § 11.190, including his federal claim under 42 U.S.C. § 1983, w h ic h borrows the state limitations period for personal injuries. Williams responds that his constitutional claim has not accrued for limitations p u rp o s e s because it is a continuing tort. Williams contends that because he was suspended a n d lost his privileges in violation of his due process rights, and that has not been corrected, a n d the National Practitioner Data Bank ("NPDB") report remains available and is a c c e s s e d on a regular basis by hospitals and insurance companies, the due process violation is continuing and has not accrued for limitations purposes. Williams also argues D e f e n d a n ts waived the limitations defense by delaying his fair hearing date and then d e la yin g in filing the administrative record with the state court. Williams also argues he is e n title d to equitable tolling. As to his defamation claim, Williams argues each time s o m e o n e accesses the NPDB it counts as a new publication, and his report has been a c c e s s e d within the limitations period. 2

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A two-year limitations period applies to each of Williams' claims in counts 1 (d u e process), 10 (negligence), 11 (defamation), 12 (defamation per se), and 13 (libel). See N e v . Rev. Stat. § 11.190(4)(e); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th C ir. 2004) (adopting state personal injury limitations period for § 1983 claims). Defendant U n iv e rs ity Medical Center's ("UMC") Board of Trustees ("Board") denied Williams' final a p p e a l on February 21, 2006. Williams filed his Complaint in this action on March 23, 2 0 0 9 . Consequently, Williams filed his Complaint well beyond the two year limitations p e rio d for any of Defendants' conduct. His claims therefore are barred absent some a c c ru a l, waiver, tolling, or other rule to extend the limitations period. A . Continuing Tort W h e n a tort involves continuing wrongful conduct, the statute of limitations does n o t begin to run until the conduct ends. Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2 0 0 2 ). A continuing tort exists when no single incident fairly or realistically can be id e n tif ie d as the cause of significant harm to the plaintiff. Id. "A continuing violation is o c c a s io n e d by continual unlawful acts, not by continual ill effects from an original v io la tio n ." Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981). P la in tif f 's remaining claims are not continuing torts. Each violation is discrete. For example, the failure to give adequate notice in the initial summary suspension was c o m p le te at the time it was done. Likewise, the failure to turn over documents to permit W illia m s to prepare adequately for his fair hearing, while perhaps continuous for a while, e n d e d at the fair hearing because he was damaged at that point by his alleged inability to p re p a re for the hearing without the documents. Even if Defendants' course of conduct th ro u g h o u t the disciplinary proceedings up to and including the Board's decision could be c o n s id e re d continuing conduct, the Board issued its decision on February 21, 2006. Plaintiff filed his Complaint in this case more than two years after that date. At bottom, W illia m s is complaining about the continuing effects of Defendants' acts, i.e., his inability 3

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to obtain employment in the medical field due to the continued existence of the NPDB re p o rt, not continuing acts by Defendants. Defendants have not done anything, other than d e f e n d litigation, since February 2006. Williams' claims are not continuing torts. B. Waiver " W a iv e r is the intentional relinquishment of a known right with knowledge of its e x is te n c e and the intent to relinquish it." A&M Records, Inc. v. Napster, Inc., 239 F.3d 1 0 0 4 , 1026 (9th Cir. 2001). Williams has not shown that Defendants waived the statute of lim ita tio n s defense by delaying his fair hearing date or by delaying the filing of the a d m in is tra tiv e record with the state court. Even assuming Defendants engaged in this c o n d u c t, Williams does not explain how either act constitutes a waiver of a statute of lim ita tio n s defense in relation to the claims Williams now pursues in this action. However, the Court concludes Defendants have waived the statute of limitations d e f e n s e for Williams' § 1983 claim. When a party moves for final summary judgment on a n issue, the nonmoving party must raise in their opposition all arguments or defenses w h ic h would preclude judgment in the moving party's favor or else the nonmoving party a b a n d o n s the argument or defense. Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009); J o h n s o n v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1264 (11th Cir. 2001); Diversey L e v e r, Inc. v. Ecolab, Inc., 191 F.3d 1350, 1352 (Fed. Cir. 1999); United Mine Workers of A m . 1974 Pension v. Pittston Co., 984 F.2d 469, 478 (D.C. 1993). But see Long v. Howard U n iv ., 550 F.3d 21, 24-25 (D.C. Cir. 2008) (holding statute of limitations defense "can be ra ise d at trial so long as it was properly asserted in the answer and not thereafter a f f irm a tiv e ly waived," and distinguishing United Mine Workers by asserting the defendant in that case waived its defense from the beginning by failing to assert the defense in a p le a d in g or motion). As the Eleventh Circuit stated, a party "cannot readily complain about th e entry of a summary judgment order that did not consider an argument they chose not to d e v e lo p for the district court at the time of the summary judgment motions." Case, 555 4

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F .3 d at 1329. W illia m s previously moved for summary judgment on his § 1983 claim. Defendants did not raise the statute of limitations as a possible defense in their opposition to th a t motion. The Court granted partial summary judgment to Williams on this claim. Now, a f te r having received an unfavorable result, Defendants want to raise the statute of lim ita tio n s defense to bar the claim. Defendants should have raised their affirmative d e f e n s e in response to the motion for summary judgment, but did not. The Court could h a v e granted complete summary judgment to Williams on the § 1983 claim on the prior ro u n d of briefing. Had Defendants then moved for reconsideration on the basis of the s ta tu te of limitations, the Court would have denied such a motion because Defendants c o u ld , and should, have raised the limitations argument in response to Williams' motion. Defendants therefore waived their statute of limitations defense on Williams' § 1983 claim. C . Equitable Tolling N e v a d a 's rules on equitable tolling apply to Williams' state law claims and his § 1983 claim. See Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 694 (9th Cir. 2003) (" S ta te law governs the statutes of limitations for section 1983 actions as well as questions re g a rd in g the tolling of such limitations periods."). The Nevada Supreme Court has stated th a t "the purpose of statutory time limitations for judicial review is to prevent stale issues f ro m being raised against a party." Seino v. Employers Ins. Co. of Nev., 111 P.3d 1107, 1 1 1 2 (Nev. 2005). Nevada permits the use of equitable tolling "in situations where the d a n g e r of prejudice to the defendant is absent, and the interests of justice so require." Id. (a lte ra tio n and quotation omitted). Nevada considers the following factors to determine w h e th e r equitable tolling is appropriate: the plaintiff's diligence; the plaintiff's knowledge o f the relevant facts; the plaintiff's reliance on authoritative statements that misled the p la in tif f about the nature of his rights; any deception or false assurances by the defendant; th e prejudice to the defendant that actually would result; and "any other equitable 5

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c o n s id e ra tio n s appropriate in the particular case." Id. Nevada has tolled limitations periods w h e re the plaintiff was pursuing the same issues in another court or administrative p ro c e e d in g s , but only where the party was required to proceed in the other forum, and the la w favored resolution in that forum. Siragusa v. Brown, 971 P.2d 801, 808 n.7 (Nev. 1 9 9 8 ). W illia m s has not been diligent about pursuing his claims asserted in the present litig a tio n , which he filed two years beyond the limitations period. Williams does not id e n tif y anything that would have precluded his bringing suit in this Court while s im u lta n e o u s ly pursuing his appeal of the Board's decision in state court. Williams' k n o w le d g e of the facts also weighs against equitable tolling. Williams has known about D e f e n d a n ts' conduct, both as to discrete acts and the overall course of conduct, since no la te r than the Board's decision in February 2006. Williams has not claimed he relied on any a u th o rita tiv e statements that misled him about the nature of his rights. He also has not id e n tif ie d any deception or false assurances by Defendants, beyond their failure to turn over c e rta in documents. However, Williams was aware of Defendants' refusal to turn over d o c u m e n ts a long time ago and that in no way misled him as to the running of the lim ita tio n s period. Defendants do not identify any prejudice that would result from tolling o th e r than they have a right to closure. However, that prejudice is not insignificant. Viewing all the equitable tolling factors, the Court concludes that equitable to llin g is not appropriate. Williams knew all relevant facts well before the statute of lim ita tio n s expired, yet did not file suit until two years after the limitations period ran, and h e has identified no equitable considerations that would serve to extend the limitations p e rio d under the applicable test in Nevada. D . Multiple Publications of the NPDB Report N e v a d a has not addressed whether it would apply the "single publication rule." That rule provides that any one edition of a magazine or newspaper is a single publication 6

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a n d gives rise to only one cause of action for defamation, with a "statute of limitations p e rio d that runs from the point at which the original dissemination occurred." Canatella v. V a n De Kamp, 486 F.3d 1128, 1133 (9th Cir. 2007); Oja v. U.S. Army Corps of Eng'rs, 4 4 0 F.3d 1122, 1130 (9th Cir. 2006). "Where the state's highest court has not decided an is su e , the task of the federal courts is to predict how the state high court would resolve it." Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007) (quotation o m itte d ). "In answering that question, this court looks for `guidance' to decisions by in te rm e d ia te appellate courts of the state and by courts in other jurisdictions." Id. (q u o ta tio n omitted). The Court concludes Nevada likely would follow other jurisdictions in adopting th e single publication rule, given its logic that a single publication of a magazine or n e w s p a p e r gives rise to one cause of action, rather than a cause of action for every in d iv id u a l magazine or newspaper distributed. The rule "is designed to protect defendants f ro m harassment through multiple suits and to reduce the drain of libel cases on judicial re s o u rc e s ." Oja, 440 F.3d at 1131. Additionally, Nevada likely would follow the R e sta te m e n t (Second) of Torts § 577A, which sets forth the single publication rule. However, it adds the caveat that the rule: d o e s not include separate aggregate publications on different o c c a s io n s. Thus if the same defamatory statement is published in the m o rn in g and evening editions of a newspaper, each edition is a s e p a ra te single publication and there are two causes of action. The s a m e is true of a rebroadcast of the defamation over radio or television o r a second run of a motion picture on the same evening. In these c a s e s the publication reaches a new group and the repetition justifies a n e w cause of action. The justification for this conclusion usually o f f e re d is that in these cases the second publication is intended to and d o e s reach a new group. R e sta te m e n t (Second) Torts § 577A cmt. d. The United States Court of Appeals for the Ninth Circuit has concluded that the s in g le publication rule should apply to internet postings as the functional equivalent of 7

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tra d itio n a l print media. Although noting some differences, including the ability of the in te rn e t poster to take down the offending web posting in a way not possible in traditional p rin t media, the Ninth Circuit concluded that­ Internet publication is a form of "aggregate communication" in that it is intended for a broad, public audience, similar to print media. In both p rin t and Internet publishing, information is generally considered " p u b lis h e d " when it is made available to the public. Once information h a s been published on a website or print media, there is no further act re q u ire d by the publisher to make the information available to the p u b lic . O ja , 440 F.3d at 1130-31. The Ninth Circuit concluded the single publication rule made s e n s e for internet postings because, due to the sheer number of internet users and the ability to post something for public consumption for an indefinite period of time, "allowing In te rn e t publications to be subject to a multiple publication rule would implicate an even g re a te r potential for endless retriggering of the statute of limitations, multiplicity of suits a n d harassment of defendants," and would inhibit the free and open dissemination of in f o rm a tio n on the internet. Id. In Oja, the plaintiff argued that an agency's website posting that divulged p e rs o n a l information about him in violation of the Privacy Act which generally was a c c e s s ib le to anyone is similar to members of the public serially calling the defendant and b e in g told the defamatory information, and thus should not be subject to the single p u b lic a tio n rule. The Ninth Circuit rejected the plaintiff's argument, concluding that the " a c tu a l posting or publishing of information onto a website requires only a single, discrete a c t, and no additional action by the host is necessary before the information may be a c c e s s e d by the general public. Thus, unlike a series of telephone calls, once a host posts in f o rm a tio n on the Internet, the host may remain passive and does not have to respond anew e a c h time an Internet user accesses its website." Id. at 1132. The Oja Court also distinguished a case upon which Williams relies, Swafford v. M e m p h is Individual Practice Association, No. 02A01-9612-CV-00311, 1998 WL 281935 8

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(T e n n . Ct. App. 1998) (unpublished). Swafford involved an NPDB report which provided a lle g e d ly defamatory information to health care entities requesting the information from the d a ta bank. The Swafford court concluded the single publication rule did not apply "because e a c h time a certified entity directly requested the information from the electronic data-bank h e ld by the NPDB, the NPDB itself provided the information directly to the requesting e n tity." Id. (citing Swafford, 1998 WL 281935 at *8). Swafford compared the NPDB to c re d it report cases where someone makes a false report to a credit reporting agency, which th e n publishes that information when it receives a specific request. As set forth in S w a f f o rd , courts have not applied the single publication rule in such cases, finding that each d is c re te request is a new publication to a new audience. Swafford, 1998 WL 281935 at * 6 -8 . The Oja Court distinguished Swafford as follows: S w a f f o rd is distinguishable from our present concern, and is not in c o n sis te n t with application of the single publication rule to the vast m a jo rity of Internet publications. Unlike a typical Internet publication, th e information at issue in Swafford was not available for the general p u b lic to access, nor could any unregistered and non-specific entities a c c e s s the registered databank. Given the exclusive and controlled a c c e s s to the NPDB "pay-to-play" databank, the release of the o f f e n d in g information could hardly be considered an "aggregate c o m m u n ic a tio n " comparable to typical Internet publication, where a c c e s s is generally available to anyone at any time. Indeed, the limited a c c e s s scenario set forth in Swafford resembles Oja's telephone call a n a lo g y where the agency releases the information anew each time th e re is a request. Swafford is much more akin to the release of p e rs o n a l credit reports by those agencies that track and compile credit in f o rm a tio n ; in such cases, it has been widely accepted that the tra n s m is s io n or publication of the information does not warrant a p p lic a tio n of the single publication rule, and each transmission or p u b lic a tio n is actionable. Id . at 1133; see also Canatella, 486 F.3d at 1136 (also distinguishing Swafford because the p la in tif f 's information was widely available to the general public on the webpage, even if th e public had to perform a search on his name to find it). The Court concludes that in addition to adopting the single publication rule, N e v a d a also would follow Oja, Swafford, and the Restatement's comment regarding the 9

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d if f e re n c e between general internet publishing and a second publication of the same in f o rm a tio n to a new audience. A report to the NPDB database is not the same as a single e d itio n of a newspaper. It can be accessed only by a select group of individuals and only u p o n their request. It is not widely and generally available and thus is not a single, a g g re g a te publication. Each time the information is released to a requester, it is published anew . Defendants have a nonfrivolous argument that Williams can trigger future p u b lic a tio n s by applying to hospitals who then would request the NPDB report, and thereby in c re a se damages and re-trigger the limitations period. But Defendants can remove the p o s tin g or modify it at any time, and thus can control whether the information is published to future requesters. Defendants thus can avoid the concerns of increased liability and c o n tin u o u s resetting of the statute of limitations that underlie the single publication rule. Additionally, once the issue of whether the NPDB report is defamatory is resolved, either D e f e n d a n ts may remove or modify the report if it is found to be defamatory, or Williams w ill not be able to bring future claims based on the report due to issue preclusion if it is f o u n d not to be defamatory. Moreover, this same argument could apply in the credit report s itu a tio n , where a plaintiff could trigger requests for his credit history by taking actions w h ic h would induce third parties to request his credit history. However, courts have not a p p lie d the single publication rule to that analogous situation. Williams has presented evidence that the NPDB report has been accessed within th e last two years. Consequently, Williams' defamation claims are timely for any requests m a d e for the NPDB report within two years of the filing of the Complaint. In sum, the Court will grant Defendants' motion for summary judgment based on th e statute of limitations as to count 10 (negligence), and counts 11 (defamation), 12 (d e f a m a tio n per se), and 13 (libel) for any defamatory publications prior to two years before th e filing of the Complaint. The Court will deny Defendants' motion as to count 1 (due 10

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p ro c e s s ) and counts 11 (defamation), 12 (defamation per se), and 13 (libel) for any d e f a m a to ry publications within two years of the filing of the Complaint. I I . PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER STRIKING C E R T A I N CLAIMS AGAINST CERTAIN DEFENDANTS (Doc. #102) W illia m s seeks reconsideration of the Court's prior Order (Doc. #90) granting s u m m a ry judgment in favor of Defendants UMC and the Board on count one, and the Board f o r counts eleven, twelve, and thirteen. Williams further requests the Court grant summary ju d g m e n t in favor of Williams on his due process claim against UMC and the Board. Williams argues the Court's prior Order was based on a lack of evidence that the Board and U M C participated in the due process violations. Williams contends he now has evidence he ra ise d the due process violations to the Board, and thus he has established the Board's p a rtic ip a tio n in the constitutional violation. Williams contends the Court thus not only s h o u ld reconsider its prior ruling, it should enter partial summary judgment in favor of W illia m s on count one against the Board and UMC. Williams also argues he has evidence th e Anesthesia Committee declined to take action against Williams and was going to c o n d u c t further investigation on the same day the NPDB report was sent to the data bank. Williams requests the Court reconsider the grant of summary judgment as to the Board on th e defamation claims. Defendants respond that Williams has not presented new evidence because it was w ith in Williams' knowledge as to whether he presented his due process arguments to the B o a rd . Williams thus could and should have presented that evidence and argument p r e v i o u s l y. A. Count One T h e Court will not reconsider its prior Order on count one as to UMC and the B o a rd . Williams contends Defendants have not provided him with all documents in d is c o v e ry, and he only recently received from Defendants the background statement he 11

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p re s e n te d to the Board prior to the Board's final decision which shows he raised the due p ro c e s s violations to the Board. Even assuming Defendants failed to turn over the d o c u m e n t upon which Williams now relies, this information was within Williams' k n o w le d g e . Williams would know whether he presented certain arguments to the Board, a n d he could have filed an affidavit in support of his arguments. Williams could and should h a v e presented this evidence in response to Defendants' summary judgment motion, but f a ile d to do so. The Court therefore will deny Williams' motion to reconsider the Court's p rio r Order as to count one. B . Defamation Counts W illia m s also seeks reconsideration of the grant of summary judgment as to the B o a rd in relation to the defamation counts. Williams contends he has new evidence in the f o rm of minutes from the meeting of the Anesthesia Committee which show the Committee w a n te d to conduct further investigation into the issues surrounding Williams' suspension. That same day, the NPDB report was filed even though the Committee had not completed a n investigation or recommended any action. Williams does not explain how the A n e s th e s ia Committee meeting minutes overcome the Court's prior ruling that Williams f a ile d to present evidence of personal participation by the Board or that the Board acted w ith actual malice. The Court will deny the motion to reconsider with respect to the d e f a m a tio n counts. I I I . PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. #105) W illia m s argues that based on the Court's prior Orders, he now is entitled to s u m m a ry judgment on his claims for negligence per se (count 10), breach of the covenant of g o o d faith and fair dealing (count 9), and defamation claims (counts 11, 12, 13). Defendants respond that issues of fact remain as to each claim. /// /// 12

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A . Negligence Per Se (Count 10) W illia m s argues Defendants' violation of the Bylaws satisfies the duty and b re a c h elements of negligence, and no genuine issue of material fact remains that D e f e n d a n ts' failure to comply with the Bylaws caused him damages. Defendants respond th a t genuine issues of material fact remain as to breach and causation. B e c a u s e this claim is barred by the statute of limitations, as discussed above, the C o u rt will deny Williams' motion for summary judgment on this claim. Even if this claim w e re not barred, genuine issues of material fact remain as to causation. Williams contends th a t if he had been provided proper notice and given all documents as required, he would h a v e been able to defend himself better. He notes that when he was able to fully defend h im s e lf by the state medical board, that body took no action against him. However, that he d id not have his license to practice medicine revoked does not necessarily mean that D e f e n d a n ts still might not have made the same substantive decisions about his privileges at U M C if they had followed the Bylaws' procedural requirements. Whether the result would h a v e been different is a jury question. The Court will deny Williams' motion for summary ju d g m e n t on this claim. B . Breach of the Covenant of Good Faith and Fair Dealing (Count 9) W illia m s argues he entered into an enforceable contract with Defendants and D e f e n d a n ts breached the implied covenant of good faith and fair dealing by filing the N P D B report and failing to provide evidence to support it, failing to amend the NPDB re p o rt after Williams identified a problem with it, using "word on the street" evidence re la tin g to alleged drug use, considering drug abuse and wastage even though later denying it was a factor in any decisions, delaying the fair hearing, disrupting Williams' presentation o f evidence at the fair hearing, moving forward despite the Anesthesia Committee's in c o m p le te investigation, faxing new evidence to Williams the day of the fair hearing, ra isin g allegations relating to Williams' privileges application at the hearing, delaying 13

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n o tic e of the fair hearing date, and withholding documents as privileged when they were n o t. D e f e n d a n ts respond that the Court already ruled in its decision on Defendants' p rio r summary judgment motion that genuine issues of fact remain as to whether Williams a n d Defendants entered into a contract. Defendants also argue the alleged conduct W illia m s sets forth do not arise to a breach of the covenant, and in any event, there are is su e s of fact as to the alleged conduct. Under Nevada law, whether an enforceable contract was formed is a question of f a c t. Whitemaine v. Aniskovich, 183 P.3d 137, 141 (Nev. 2008). Consequently, the Court p re v io u s ly ruled on Defendants' motion for summary judgment that a fact issue remained as to whether the parties formed a contract through the grant of privileges which incorporated th e Bylaws. Further, issues of fact remain as to whether Defendants breached the implied c o v e n a n t of good faith and fair dealing. Whether a party acted in good faith is a fact q u e s tio n . Mitchell v. Bailey & Selover, Inc., 605 P.2d 1138, 1139 (Nev. 1980). Viewing th e facts in the light most favorable to Defendants, a reasonable jury could conclude the acts to which Williams refers do not amount to a breach of the covenant of good faith and fair d e a lin g . Moreover, Defendants dispute Williams' characterizations of the alleged conduct. The Court will deny Williams' motion on this claim. C . Defamation (Counts 11-13) W illia m s moves for summary judgment on his defamation claims, arguing no g e n u in e issue of fact remains that the NPDB report was false, made with malice, and caused h im damages. Defendants respond that issues of fact remain as to falsity and malice. T h e Court will deny Williams' motion. Under Nevada law, it is a question for th e Court as to whether a statement is capable of a defamatory construction. Posadas v. C ity of Reno, 851 P.2d 438, 442 (Nev. 1993). However, if a statement is "capable of d if f e re n t constructions, one of which is defamatory, resolution of the ambiguity is a 14

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q u e s tio n of fact for the jury." Id. The NPDB report is ambiguous and the Court already d e te rm in e d it is capable of a defamatory construction. Resolution of whether it is in fact d e f a m a to ry is now a jury question. Moreover, factual questions remain as to whether Defendants acted with actual m a lic e . Actual malice is a subjective inquiry into the defendant's belief regarding the s ta te m e n t's truthfulness. Nev. Indep. Broad. Corp. v. Allen, 664 P.3d 337, 344 (Nev. 1 9 8 3 ). While Williams has presented evidence raising an issue of fact on actual malice s u f f ic ie n t to defeat Defendants' prior motion for summary judgment, viewing the facts in th e light most favorable to Defendants, a reasonable jury could find in Defendants' favor. The Court therefore will deny Williams' motion for summary judgment on the defamation c la im s . I V . CONCLUSION IT IS THEREFORE ORDERED that Defendants' Motion for Summary J u d g m e n t on Claims One, Ten, Eleven, Twelve, and Thirteen (Doc. #96) is hereby G R A N T E D in part and DENIED in part. The motion is granted as to Plaintiff's negligence c la im in count ten, and as to Plaintiff's defamation claims in counts eleven, twelve, and th irte e n for any publications occurring more than two years prior to the filing of the C o m p la in t. The motion is denied in all other respects. IT IS FURTHER ORDERED that Plaintiff's Motion for Reconsideration of O rd e r Striking Certain Claims Against Certain Defendants (Doc. #102) is hereby DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Partial Summary J u d g m e n t (Doc. #105) is hereby DENIED. /// /// /// /// 15

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IT IS FURTHER ORDERED that the parties shall file the proposed joint pretrial o rd e r within thirty (30) days of the date of this Order.

D A T E D : July 28, 2010 _______________________________ PHILIP M. PRO United States District Judge

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