Zimmer v. CHG Companies
Filing
42
MEMORANDUM DECISION - granting 26 the Motion for Summary Judgment and denying the 33 Motion to Strike. Signed by Judge Ted Stewart on 12/5/12. (ss)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
STEVAN ZIMMER, an individual,
Plaintiff,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION TO STRIKE AND
GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT
vs.
CHG COMPANIES, INC. dba
COMPHEALTH, a Delaware company,
Case No. 2:11-CV-681 TS
Defendant.
This matter is before the Court on Defendant’s Motion for Summary Judgment and
Plaintiff’s Motion to Strike. For the reasons stated below, the Court will deny Plaintiff’s Motion
to Strike and grant Defendant’s Motion for Summary Judgment.
I. BACKGROUND
Plaintiff, Stevan Zimmer, is a medical doctor who specializes in interventional
cardiology. On May 18, 2007, CompHealth and Dr. Zimmer entered into a Physician
Professional Services Agreement (“Agreement”). Under this Agreement, Dr. Zimmer agreed to
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work “on an independent contractor basis to furnish locum tenens physician services to
CompHealth Clients.”1 Paragraph 4.3 of the agreement states:
In the event that CompHealth cancels an Assignment with less than thirty (30)
days notice for reasons other than those allowed in Paragraph 4.1 . . .
CompHealth’s maximum liability to Physician shall be the amount of
Compensation Physician would have earned for the number of scheduled work
days between thirty (30) days and the number of days notice of cancellation
actually given . . . .2
Under Paragraph 4.1 of the Agreement, Dr. Zimmer agreed that “CompHealth may
immediately cancel this Agreement or any Assignment without notice or liability to Physician”
for several reasons, including “[u]pon Client’s request for removal of Physician for reasons
relating to professional competence or integrity.”3
A.
INNOVIS ASSIGNMENT
On May 25, 2010, CompHealth placed Dr. Zimmer on assignment at Innovis Health
located in Fargo, North Dakota (“Innovis”). Dr. Zimmer began this assignment on June 1, 2010.
On June 17, 2010, Dr. Zimmer contacted CompHealth to state that the assignment was not going
well and that he wished to terminate it. That same day, Ms. Schlaht, Client Relations Manager at
Innovis, called Patricia Peacock, a CompHealth employee to report concerns with Dr. Zimmer
and ask that he be removed from the assignment. Ms. Peacock took contemporaneous notes of
her conversation and entered them into CompHealth’s electronic note taking system. The
concerns entered into the note taking system indicate that CompHealth was informed that Dr.
Docket No. 25 Ex. B, at 1.
1
Id. ¶ 4.3.
2
Id. ¶ 4.1(d).
3
2
Zimmer was 60-70 reads behind on echocardiograms, which delayed patient care and put patients
at risk; he did not answer his pages in a timely manner; he arrived 1-2 hours late—and did not do
hospital rounds before; he was holding up $125,000 in payments because he was behind on his
documentation; he failed to place documentation in charts for patient follow up visits; and he
displayed rude/inappropriate behavior to nursing staff.4
B.
ST. FRANCIS ASSIGNMENT
On February 2, 2011, CompHealth placed Dr. Zimmer on an assignment at St. Francis
Health Center in Topeka, Kansas (“St. Francis”). About two weeks into the assignment, Chris
Lipp, Director of Cardio and Vascular Services and Director of Radiology called CompHealth
and requested that Dr. Zimmer’s assignment be terminated. Linda Larson, CompHealth’s
Manager of Operations, took contemporaneous notes of her conversation and entered them into
CompHealth’s electronic note taking system. Specifically, St. Francis informed CompHealth that
Dr. Zimmer was sitting on a case “all day long”, demanded to use equipment the hospital did not
have, advised a patient to go to another hospital for services, was not rounding on patients in a
timely manner, wanted to do stress tests instead of nuclear testing, which did not work for the St.
Francis facility; and refused to do interventional cases, which is what they hired him for.5 On
February, 18, 2011, CompHealth terminated Plaintiff’s assignment at the request of St. Francis.
Docket No. 25 Ex D, at 2-3.
4
Id. at 4.
5
3
II. MOTION TO STRIKE
Plaintiff objects that statements made by Ms. Schlaht at Innovis to Patricia Peacock at
CompHealth are hearsay and lack foundation. Accordingly, he argues that these statements
cannot be used to support a summary judgment motion. Dr. Zimmer likewise objects to
statements to CompHealth made by Chris Lipp at St. Francis for the same reasons. These
objections are misplaced.
Hearsay is an out of court statement that “a party offers into evidence to prove the truth of
the matter asserted in the statement.”6 “By contrast, ‘[i]f the significance of an offered statement
lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and
the statement is not hearsay.’”7 The statements by hospital staff to CompHealth are not hearsay
because they are not offered to prove the truth of the matter asserted. These statements are
offered only to show CompHealth’s motivations for exercising Paragraph 4.1(d) of the
Employment Agreement and thus, do not rely on whether the statements are true.8
Plaintiff additionally objects to the admissibility of the contemporaneous notes that were
entered into CompHealth’s electronic note taking system by CompHealth employees when they
received complaints about Dr. Zimmer. The Court finds that these records fall under the
business records exception in Rule 803(6) of the Federal Rules of Evidence. Specifically, the
6
Fed. R. Evid. 801(c)(2).
Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1087 (10th Cir.
2001) (quoting Fed. R. Evid. 801 advisory committee’s note (1972)).
7
See e.g., Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1423 (10th Cir. 1991)
(evidence not hearsay because it was not offered to prove the truth of its contents, but to show
defendant’s motivation during a reduction in force).
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Court finds that the record was made at or near the time the complaint was received by someone
with knowledge, the record was kept in the course of a regularly conducted activity of a business
or organization, making the record was a regular practice when complaints were received, and
there is no indication of a lack of trustworthiness.
Foundation requires a witness to have personal knowledge of matters about which he
testifies.9 However, Mr. Lipp and Ms. Schlaht need not have personal knowledge of any alleged
issues of incompetence. They need only have personal knowledge that they notified CompHealth
of Innovis’ and St. Francis’ desire to terminate Dr. Zimmer. Likewise Ms. Peacock and Ms.
Larson only need have personal knowledge about what they were told. Ms. Peacock and Ms.
Larson were the employees of CompHealth who were contacted by Innovis and St. Francis, and,
as such, have firsthand knowledge of the requests for removal. They can personally attest to the
fact that CompHealth was notified of a client’s request that CompHealth remove Dr. Zimmer
from the assignments. Further, they can each testify to the reasons given to CompHealth for the
requested removal. For that reason, their testimony has proper foundation. Therefore, the Court
will deny Plaintiff’s Motion to Strike.
III. MOTION FOR SUMMARY JUDGMENT
A.
STANDARD OF REVIEW
Summary judgment is proper if the moving party can demonstrate that there is no genuine
dispute as to any material fact and it is entitled to judgment as a matter of law.10 The Court may
See United States v. Nieto, 60 F.3d 1464, 1468 (10th Cir. 1995).
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10
See Fed. R. Civ. P. 56(a).
5
look to pleadings, depositions, answers to interrogatories and affidavits.11 In considering whether
genuine issues of material fact exist, the Court determines whether a reasonable jury could return
a verdict for the nonmoving party in the face of all the evidence presented.12 The Court is
required to construe all facts and reasonable inferences in the light most favorable to the
nonmoving party.13
B.
DISCUSSION
Under Utah law,14 in order to establish a breach of contract, plaintiff must show (1) the
existence of a contract; (2) performance under that contract by the party seeking to recover; (3) a
breach of the contract; and (4) resulting damages.15
Plaintiff’s complaint alleges that Defendant breached its contract with Plaintiff when it
cancelled Plaintiff’s assignments without thirty days’ prior notice and failed to pay Plaintiff for
the difference between the required thirty days’ prior notice and the time of the actual notice
provided. Defendant responds that, under the contract, it is not required to pay Plaintiff for such
time if the cancellation occured “[u]pon Client’s request for removal of Physician for reasons
See. e.g., Celotex Corp. v. Catrell, 477 U.S. 317, 323–24 (1986).
11
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924
F.2d 182, 183 (10th Cir. 1991).
12
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
13
Paragraph 5.5 of the employment Agreement provides that “[t]his Agreement shall be
governed by the laws of the State of Utah.”
14
See e.g., Eleopulos v. McFarland & Hullinger, LLC, 145 P.3d 1157, 1159 (Utah Ct.
App. 2006).
15
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relating to professional competence or integrity.”16 As it is undisputed that the cancellation of
Plaintiff’s assignments were made pursuant to requests from Defendant’s clients, the only
question before the Court is whether or not those requests were related to professional
competence or integrity.
In Utah, “[c]ontract construction ‘begins and ends with the language of the contract.’”17
Each contract provision is considered “in relation to all of the others, with a view toward giving
effect to all and ignoring none.”18 “[A]s the Utah Supreme Court recently explained, the
interpreting court must first determine whether the contract’s language is ambiguous.”19 “A
contract term is ambiguous ‘if it is capable of more than one reasonable interpretation because of
uncertain meanings of terms, missing terms, or other facial deficiencies.’”20 “This is a question
of law for the court to decide without reference to parol evidence.”21 “When the parties offer
opposing interpretations that are reasonably supported by the contract’s language, the court
should consider extrinsic evidence that supports the parties’ interpretations of the contract.”22 “In
Docket No. 25 Ex. B, ¶ 4.1(d).
16
United States v. Dunn, 557 F.3d 1165, 1172 (10th Cir. 2009) (quoting Daines v. Vincent,
190 P.3d 1269, 1277 (Utah 2008)).
17
Cafe Rio, Inc. v. Larkin-Gifford-Overton, LLC, 207 P.3d 1235, 1240 (Utah 2009)
(quoting Green River Canal Co. v. Thayn, 84 P.3d 1134, 1141 (Utah 2003)).
18
19
Dunn, 557 F.3d at 1172 (citing Daines, 190 P.3d at 1275-76).
Id. (quoting Daines, 190 P.3d at 1275).
20
Id. (citing Daines, 190 P.3d at 1276).
21
Id. (citing Daines, 190 P.3d at 1275-76).
22
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contrast, when the contract language is not susceptible to contrary interpretations, the contract is
not ambiguous, and its plain meaning should be enforced.”23
Defendant argues that the Agreement is not ambiguous and should be interpreted by its
plain meaning. Defendant urges that a simple Webster’s Dictionary definition of competence
should govern, and that under such a definition competence means “having requisite or adequate
ability or qualities.”24 Under Utah law, ‘”[i]n interpreting contracts, the ordinary and usual
meaning of the words used is given effect,’ which ‘ordinary meaning . . . is often best determined
through standard, non-legal dictionaries.’”25
Defendant’s proffered definition is consistent with the other terms of the agreement,
including the other terms which describe Plaintiff’s responsibilities under the agreement.
Paragraph 1.5 of the agreement requires Plaintiff to “faithfully and diligently render Services
pursuant to the highest professional and ethical standards and in accordance with accepted
standards of care. [Plaintiff] shall furnish Services in accordance with all applicable state and
federal laws, Client policies, procedures, by-laws and standards . . . for the medical profession
and Physician’s specialty.”26
Id. (citing Daines, 190 P.3d at 1277).
23
Docket No. 25, at 11 (quoting Merriam-Webster’s Collegiate Dictionary 253 (11th ed.)).
24
S. Ridge Homeowners’ Ass’n v. Brown, 226 P.3d 758, 759 (Utah Ct. App. 2010)
(quoting Warburton v. Va. Beach Fed. Sav. & Loan Ass’n, 899 P.2d 779, 782 (Utah Ct. App.
1995)).
25
26
Docket No. 25 Ex. B, ¶ 1.5.
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Plaintiff argues that the Agreement contains no definition of professional competence and
does not provide guidance about what that term might mean. However, the mere fact that a term
is not defined in the Agreement does not make it ambiguous. Plaintiff does not offer any
alternative definitions for professional competence, nor does Plaintiff offer any evidence that
when Dr. Zimmer signed the Agreement he intended that professional competence have any
specialized meaning, or that he acted in reliance on some other meaning of the term.
This is not a case where “the parties offer opposing interpretations that are reasonably
supported by the contract’s language.”27 As Plaintiff has not supplied the Court with an
alternative meaning reasonably supported by the language of the contract, and as the meaning
proffered by Defendant is supported by the language of the contract without any strained reading
of the term, the Court has no cause to look outside the four corners of the document to find an
ambiguity.
As the contract is unambiguous, the Court need only determine whether Defendant
received requests for Plaintiff’s removal from Innovis and St. Francis for reasons related to
Plaintiff’s professional competence. Defendant argues that Innovis and St. Francis reported
serious concerns about whether Plaintiff had the ability or qualities needed to successfully
perform interventional cardiology services at their hospitals. They articulated those concerns and
requested that Plaintiff’s assignments be terminated.
Defendant received complaints from Innovis that Plaintiff could not adequately keep up
with the required workload and was putting patients at risk, holding up payments and the work of
27
Dunn, 557 F.3d at 1172 (citing Daines, 190 P.3d at 1275-76).
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other doctors, and was difficult to work with. Similarly, Defendant received complaints from St.
Francis that Plaintiff was unable or unwilling to treat some patients, had difficulty working with
the hospital’s equipment, had difficulty following the testing procedures used at the hospital, and
refused to perform the job for which he was hired. Once it received these complaints, Defendant
was justified in terminating Plaintiff’s assignments under Paragraph 4.1 of the Agreement. For
these reasons, and as there are no disputed issues of material fact, the Court finds that Defendant
did not Breach its contract with Plaintiff.
IV. CONCLUSION
Based on the foregoing, it is therefore
ORDERED that Plaintiff’s Motion to Stike (Docket No. 33) is DENIED. It is further
ORDERED that Defendant’s Motion for Summary Judgment (Docket No. 26) is
GRANTED.
The Clerk of the Court is directed to enter judgment in favor of Defendant and against
Plaintiff.
DATED December 5, 2012.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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