Chaudhry v. Smith

Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 1 of 99 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 PERVAIZ A. CHAUDHRY, M.D., et al., Case No. 1:16-cv-01243-SAB 11 Plaintiffs, MEMORANDUM OF DECISION 12 FOLLOWING BENCH TRIAL AND ORDER v. ENTERING JUDGMENT IN FAVOR OF 13 DEFENDANTS AND DIRECTING CLERK SONIA ANGELL, et al., OF COURT TO CLOSE CASE 14 Defendants. ORDER DENYING PLAINTIFFS’ 15 MOTIONS FOR ADMISSION OF TESTIMONY AND DEPOSITION 16 DESIGNATIONS AND GRANTING DEFENDANT’S MOTION TO STRIKE 17 COUNTER-DESIGNATIONS 18 (ECF Nos. 160, 170, 173-182) 19 I. 20 INTRODUCTION 21 Pervaiz A. Chaudhry, M.D. (“Dr. Chaudhry”) and Valley Cardiac Surgery Medical 22 Group (“Valley Cardiac”) (collectively “Plaintiffs”), filed this civil rights action that proceeded 23 into trial against Defendants Sonia Angell (“Angell”), in her official capacity as the Director of 24 the California Department of Public Health (“CDPH”), Steven Lopez (“Lopez”), in his personal 25 capacity, and Shirley Campbell (“Campbell”), in her personal capacity, alleging a violation of 26 due process pursuant to 42 U.S.C. § 1983. 27 Following a waiver by all parties of their right to a jury trial, a bench trial was held before 28 — 2 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 2 of 99 1 the undersigned on May 4, 2021, through May 10, 2021. Having considered the testimony of the 2 witnesses and those exhibits that were admitted at trial, the Court, by this memorandum of 3 decision, issues its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal 4 Rules of Civil Procedure. For the reasons set forth below, the Court concludes that Plaintiffs 5 have not proven a violation of their due process rights and are not entitled to relief on any of 6 their claims. 7 A. Jurisdiction and Venue 8 This Court has original jurisdiction under 28 U.S.C. §§ 1331, 1441(a), in that this action 9 arises under alleged violations of the Constitution of the United States. Venue is proper because 10 the events that underlie this action occurred in the Eastern District of California, and in 11 particular, Fresno County. 12 B. Relevant Procedural history 13 On June 17, 2016, Plaintiffs Dr. Chaudhry and Valley Cardiac filed a complaint in Fresno 14 County Superior Court against Defendants Karen Smith (“Smith”), Lopez, Eric Creer (“Creer”), 15 Campbell, and Deidre Kappmeyer (“Kappmeyer”). (ECF No. 1 at 10-30.) On August 19, 2016, 16 Defendants removed the action to the Eastern District of California. (ECF No. 1.) On August 17 29, 2016, Plaintiffs filed a first amended complaint bringing two causes of action. (ECF No. 6.) 18 Both causes of action allege the violation of civil rights and due process pursuant to 42 U.S.C. § 19 1983. Plaintiffs’ first cause of action was brought against Defendant Smith in her official 20 capacity, seeking declaratory and injunctive relief. (FAC ¶¶ 62-71, ECF No. 6.) Plaintiffs’ 21 second cause of action was brought against Defendants Lopez, Campbell, Creer, and 22 Kappmeyer, in their personal capacities, seeking monetary damages for emotional distress to Dr. 23 Chaudhry, as well as economic harm to each of the Plaintiffs. (FAC ¶¶ 72-76, ECF No. 6.) 24 On December 16, 2016, District Judge Lawrence J. O’Neill denied Defendants’ motion to 25 dismiss in its entirety. (ECF No. 12.) On January 26, 2017, Defendants filed an answer to 26 Plaintiffs’ first amended complaint. (ECF No. 13.) On January 18, 2019, District Judge O’Neill 27 issued an order granting a motion for summary judgment as to Defendant Eric Creer only, and 28 denying the motion for summary judgment as to Defendants Smith, Lopez, Campbell, and — 3 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 3 of 99 1 Kappmeyer. (ECF No. 56.) The order further directed the parties to either dismiss Kappmeyer, 2 who is now deceased, or substitute a proper defendant, and on January 28, 2019, the Court 3 dismissed Kappmeyer pursuant to the parties’ stipulation. (ECF No. 60.) 4 On February 14, 2019, pursuant to the parties’ consent to magistrate judge jurisdiction, 5 this action was assigned to Magistrate Judge Stanley A. Boone for all purposes, including trial 6 and entry of final judgment. (ECF No. 64.) On February 21, 2020, the Court issued an order 7 adjudicating the parties’ motions in limine. (ECF No. 97.) 8 On March 18, 2020, pursuant to the parties’ stipulation and Federal Rule of Civil 9 Procedure 25(d), the Court ordered Defendant Angell, in her official capacity as the Director of 10 the CDPH, to be substituted in place of Defendant Smith. (ECF No. 101.) 11 On March 18, 2020, the parties filed a stipulation for the withdrawal of Dr Chaudhry’s 12 request for damages relating to emotional distress or physical manifestations of emotional 13 distress. (ECF No. 102.) On March 19, 2020, pursuant to the parties’ stipulation, the Court 14 entered an order withdrawing Dr. Chaudhry’s requests for damages which were “claim[ed] to 15 have been proximately caused by Defendants’ conduct, including but not limited to depression, 16 anxiety, sleeplessness, and cluster headaches,” and further ordered that “Plaintiffs shall not 17 introduce any evidence whatsoever in support of the general damages claims or to request 18 damages for such claims.” (ECF No. 103.) In relation to the withdrawal of Dr. Chaudhry’s 19 claims for emotional distress, on March 30, 2020, Plaintiffs submitted supplemental briefing, 20 which the Court construed as a motion for reconsideration of the Court’s February 21, 2020 21 order on the parties’ motions in limine. (ECF No. 104.) On April 27, 2020, the Court granted in 22 part and denied in part the construed motion for reconsideration of the motions in limine. (ECF 23 No. 110.) 24 On March 12, 2021, Defendants filed, and on March 18, 2021, Plaintiffs filed, notices 25 withdrawing their demand for a jury trial, waiving their right to a jury trial, and consenting to a 26 bench trial before the undersigned. (ECF Nos. 136, 141.) 27 On May 4, 2021, a bench trial commenced in this action on Plaintiffs’ claims against 28 Defendant Angell in her official capacity, and Defendants Lopez and Campbell in their — 4 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 4 of 99 1 individual capacities. (ECF No. 173.) Plaintiffs were represented at trial by counsel Hadi Ty 2 Kharazi and Thornton Davidson. Defendants were represented at trial by counsel Diana 3 Esquivel. On May 10, 2021, the evidence was closed and the trial concluded. (ECF No. 182.) 4 II. 5 OUTSTANDING EVIDENTIARY RULINGS 6 The Court addresses three remaining evidentiary issues: (A) Plaintiffs’ request to admit 7 the testimony of Laura McComb (“McComb”) from a different preceding trial; (B) Plaintiffs’ 8 late-filed designations of the deposition testimony of Adams Yussif (“Yussif”), from the same 9 preceding litigation; and (C) Defendants’ objections and request to strike Plaintiffs’ counter 10 deposition designations of Berj Apkarian (“Apkarian”) and Kalwant Dhillon (“Dhillon”), also 11 from the same preceding litigation. 12 A. Testimony of Laura McComb 13 Prior to the close of evidence in the bench trial held in this action, Plaintiffs filed a brief 14 in support of the admission of testimony given by third party witness McComb in the prior 15 separate action of Alvarez v. Fresno Community Hospital, et al., Fresno Superior Court Case No. 16 13CECG03906 (“Alvarez” or the “Perez Malpractice Case”). (Pls.’ Limited Brief Supp. 17 Admission Trial Testimony Laura McComb (“Br.”), ECF No. 177.) 18 1. Plaintiffs’ Arguments 19 Plaintiffs seek to admit the testimony from Alvarez wherein McComb testified 20 concerning the drafts of the “Plans of Correction,”1 and specifically previous testimony from 21 McComb stating the initial proposed Plan of Correction was “rejected because the hospital had 22 not been specific enough in its discipline of Dr. Chaudhry.” (Br. 2.) Plaintiffs proffer the 23 testimony is about “Campbell pressuring the hospital to more harshly[]discipline Dr. Chaudhry.” 24 (Br. 3.) Plaintiffs submit the testimony is highly relevant because it tends to show the 25 Defendants’ investigations and reports specifically sought to injure Dr. Chaudhry’s reputation, 26 1 These evidentiary rulings precede the main factual findings and legal analysis in this memorandum. The Court 27 incorporates the below factual findings and legal analysis by way of reference as to obviate the need to define terms and explain relevance of certain facts that are more fully developed in the later sections of this memorandum. 28 — 5 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 5 of 99 1 by forcing the hospital, under threat of losing Medicare funding, to remove him from his 2 position, and further impeaches Campbell. (Br. 3.) 3 Plaintiffs first argue that the introduction of McComb’s prior testimony should be 4 permitted under Federal Rule of Evidence 804(b)(1) as she is an unavailable witness due to the 5 inability to recollect the subject matter. (Br. 3-5.) Second, Plaintiffs argue McComb’s prior 6 testimony should be admitted as a statement against interest under Federal Rule of Evidence 7 804(b)(3), because as an employee of the hospital, she was risking her employment and the 8 hospital’s funding for Medicare and Medicaid by exposing the actions of the CDPH 9 investigators. (Br. 5.) Alternatively, Plaintiffs argue McComb’s testimony may also be 10 introduced because she is “feigning forgetfulness,” and given the prior sworn statements, the 11 Court may admit those statements under the exception for prior sworn inconsistent statements 12 “despite the fact that present forgetfulness is not technically inconsistent with the prior 13 statements.” (Br. 5.) 14 2. Legal Standard 15 “A deposition lawfully taken . . . may be used in a later action involving the same subject 16 matter between the same parties, or their representatives or successors in interest, to the same 17 extent as if taken in the later action.” Fed. R. Civ. P. 32(a)(8). The Rules of Evidence provide a 18 parallel exception. “A declarant is considered to be unavailable as a witness if the declarant: . . . 19 testifies to not remembering the subject matter,” Fed. R. Evid. 804(a)(3), and the following types 20 of former testimony are not by excluded by the rule against hearsay if the declarant is 21 unavailable: (A) testimony that “was given as a witness at a trial, hearing, or lawful deposition, 22 whether given during the current proceeding or a different one; and (B) is now offered against a 23 party who had--or, in a civil case, whose predecessor in interest had--an opportunity and similar 24 motive to develop it by direct, cross-, or redirect examination,” Fed. R. Evid. 804(b)(1). 25 A statement against interest is not excluded as hearsay if the statement is one that: “(A) a 26 reasonable person in the declarant’s position would have made only if the person believed it to 27 be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary 28 interest or had so great a tendency to invalidate the declarant’s claim against someone else or to — 6 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 6 of 99 1 expose the declarant to civil or criminal liability; and (B) is supported by corroborating 2 circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one 3 that tends to expose the declarant to criminal liability.” Fed. R. Evid. 804(b)(3). 4 “The decision whether to admit a deposition from a prior lawsuit is vested in the district 5 court’s sound discretion.” Hub v. Sun Valley Co., 682 F.2d 776, 777 (9th Cir. 1982). The 6 requirements of “same subject matter” and “same parties, or their representatives or successors in 7 interest” “have been construed liberally in light of the twin goals of fairness and efficiency.” 8 Hub, 682 F.2d at 778 (“The accepted inquiry focuses on whether the prior cross-examination 9 would satisfy a reasonable party who opposes admission in the present lawsuit.”). Thus, “courts 10 have required only a substantial identity of issues . . . and the presence of an adversary with the 11 same motive to cross-examine the deponent.” Id. (citations omitted) (“We too believe that the 12 two lawsuits need not involve identical issues and parties, though we reserve for another day 13 deciding whether the presence of an adversary with the same motive to cross-examine is 14 sufficient.”); see also Hynix Semiconductor Inc. v. Rambus Inc., 250 F.R.D. 452, 458 (N.D. Cal. 15 2008) (“The modern test does not require privity between the current party and the party who 16 participated in the prior proceeding.”). 17 3. Plaintiffs’ Motion Shall be Denied 18 The Court will accept for purposes of this motion that given McComb testified she did 19 not recall the conversations regarding the Plans of Correction, she is unavailable for purposes of 20 Rule 804(a)(3) as to that specific subject matter.2 However, the Court finds Defendants are not 21 successors in interest to the Plaintiffs in the Perez Malpractice Case in a manner sufficient as to 22 satisfy Rule of Evidence 804(b)(1), nor Rule of Civil Procedure 32(a)(8), even under the liberal 23 interpretations of such rules. See Hub, 682 F.2d at 778; Hynix, 250 F.R.D. 452, 458 (“[T]he test 24 is ‘inherently factual’ and depends on the similarity of issues and context of questioning.”). 25 Plaintiffs argue “Alvarez was a predecessor in interest of CDPH because they both shared 26 a common interest in upholding and defending the investigative report that impugned Dr. 27 2 The Court addresses this and related testimony of McComb and Utecht in relation to some of the issues discussed 28 in this evidentiary motion in Sections III(D)-(E) and IV(C)(2), infra. — 7 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 7 of 99 1 Chaudhry for committing medical errors in the context of his treatment of Mr. Perez.” (Br. 5.) 2 The Court rather agrees with Defendants and finds that no party in the Perez Malpractice Case 3 had a common interest with Defendants Campbell, Lopez, or CDPH. The focus of the 4 malpractice action was Dr. Chaudhry’s conduct and the standard of care as a physician, whereas 5 the hospital and its compliance with its policies and as to the federal Conditions of Participation 6 for Medicare and Medicaid, was the subject of the investigations and reports at issue in this 7 action. 8 Plaintiffs heavily depend on a previous findings and recommendations from the 9 undersigned, Howell v. Cruz, No. 119CV00782DADSABPC, 2020 WL 6700178, at *5 (E.D. 10 Cal. Nov. 13, 2020), report and recommendation adopted, No. 119CV00782DADSABPC, 2021 11 WL 24756 (E.D. Cal. Jan. 4, 2021). (Br. 4.) In Howell, the plaintiff was the same as in “his 12 other ongoing cases,” and “[a]lthough the Defendants [were] different, they [were] all employees 13 of CDCR, and in Burns, employees specifically at CSP-Corcoran.” 2020 WL 6700178, at *5. 14 As the undersigned noted therein, “the general subject matter of exhaustion and the fact that 15 Plaintiff [was] familiar with the process [was] the same in the cases,” and “[a]t each of the prior 16 depositions an adversary was present to examine Plaintiff regarding his familiarity with CDCR’s 17 administrative grievance process [and] [i]ndeed, motions for summary judgment on 18 administrative exhaustion grounds are pending in both of Plaintiff's other ongoing cases.” Id. 19 (“Therefore, Plaintiff’s deposition transcripts from his two other cases are admissible for 20 consideration in ruling on the instant motion.”). 21 The motives of the CDCR employees in deposing the plaintiff in Howell were similar if 22 not identical. There is no indication that the plaintiff in the Perez Malpractice Action had a 23 sufficiently similar motive to develop testimony on the relevant issues as Defendants in this 24 action. See Hynix, 250 F.R.D. at 458 (N.D. Cal. 2008) (“With respect to Mr. Kalter and Mr. 25 Kilbuck, the issues and motives were identical.”); Hub, 682 F.2d at 778 (“The shortcoming here 26 is that Hub failed to show that the deposition relates to issues common to both lawsuits.”); 27 Shahbaz v. Johnson & Johnson, No. CV 13-07382-AB (SSX), 2020 WL 5894590, at *15 (C.D. 28 Cal. July 31, 2020) (“Defendants were not parties to either of those cases, and Plaintiff has not — 8 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 8 of 99 1 shown that the subject matter in those actions is similar to that of this case, or even involved 2 Prolene.”); Affinity Labs of Texas, LLC v. Apple Inc., No. C 09-04436 CW, 2011 WL 232521, 3 at *2 (N.D. Cal. Jan. 24, 2011) (Hynix “is not analogous to this case.”). 4 As for Plaintiffs’ argument that McComb’s testimony should be admitted as a statement 5 against self-interest, Defendants argue there is no evidence demonstrating her employment or the 6 hospital’s relationship with the Centers for Medicaid & Medicare Services (CMS) was in 7 jeopardy or threatened. The Court agrees. Plaintiffs have failed to show that McComb risked 8 her employment or the hospital’s relationship with CMS as Plaintiffs, argue, and significantly, 9 McComb testified at trial that disagreements were not uncommon with CDPH, and specifically 10 that it was not surprising when CDPH stated it would not change certain aspects of CDPH’s 11 reports concerning alleged misquotations, because the CDPH has their “truth” and interpretation 12 of the facts, and the hospital has its own, and they do not always agree with each other. See Cty. 13 of Stanislaus v. Travelers Indem. Co., 142 F. Supp. 3d 1065, 1076–77 (E.D. Cal. 2015) (“ ‘A 14 statement is against pecuniary and proprietary interest when it threatens the loss of employment, 15 or reduces the chances for future employment, or entails possible civil liability’ . . . nothing in 16 the record suggests that Franck was responsible for those excavations or that the statements were 17 against his pecuniary interest for some other reason.”) (quoting Gichner v. Antonio Troiano Tile 18 & Marble Co., 410 F.2d 238, 242 (D.C. Cir. 1969)). 19 The Court also rejects Plaintiffs’ alternative argument that McComb’s prior testimony 20 should nevertheless be admitted because she is “feigning forgetfulness.” (Br. 5.) The Court 21 agrees with Defendants that whether McComb feigned forgetfulness goes to the weight of her 22 testimony, not the admissibility of her prior sworn testimony, and is not a legal basis for 23 admitting the prior testimony. The Court addresses the credibility, weight, and relevance of 24 McComb’s testimony in the factual findings and legal analysis sections of this memorandum. 25 Further, even if the Court were inclined to admit the testimony under the above 26 exceptions, the Court agrees with Defendants that the testimony sought to be introduced is 27 vague, and though possibly relevant if was in line with what Plaintiffs frame it to be, it is 28 irrelevant as presented and in the context of what McComb actually stated in the previous Perez — 9 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 9 of 99 1 Malpractice Case. First, Defendants correctly highlight that the proffered testimony does not 2 refer to whether the Plan of Correction is referring to the CMS, or State report. Further, the prior 3 testimony does not state that Campbell or CDPH was “pressuring the hospital to more harshly 4 discipline Dr. Chaudhry” as Plaintiffs assert, but rather, McComb specifically answered “no” to 5 the question of whether CDPH told McComb they wanted Dr. Chaudhry disciplined more 6 severely: 7 Q. Now, I’m not asking you anything about any of the changes that you made in the plan of correction, but what was the primary complaint that Shirley 8 Campbell voiced to you about the first plan of correction that was rejected? 9 A. The primary complaints dealt with the specificity of the education, listing it out, and the specificity of what occurred in the disciplinary measures for Dr. 10 Chaudhry. 11 Q. And so is it correct that the State wanted you – the State is telling you that they want harsher discipline visited on Dr. Chaudhry in this plan of correction; is 12 that right? 13 A. No. They wanted it specified clearly. Instead of saying MEC met on 8-12 and discussed the incident and levied a suspension, she wanted it clearly laid out 14 what education, what suspension, everything that MEC had for that particular incident.” 15 Q. Did she tell you that verbally, is that over the telephone or how is that 16 communicated? 17 A. In talking with her or Steve [Lopez], yes. 18 (Br. 10-11.) 19 Thus the testimony in fact shows that if anything, McComb recalled Campbell or Lopez 20 at CDPH wanted the Plan of Correction to state more clearly what the punishment actually was 21 that was in place already, not that they wanted Dr. Chaudhry punished more severely by the 22 hospital. 23 For all of the above reasons, Plaintiffs’ motion to admit the prior trial testimony of 24 McComb from the Perez Malpractice Case shall be denied. 25 B. Plaintiffs’ Late-Filed Request to Designate Deposition Testimony of Adams Yussif 26 27 On May 7, 2021, the morning of the fourth day of trial in this action, Plaintiffs filed a 28 notice of designation of deposition testimony of Yussif. (ECF No. 176.) On May 10, 2021, — 10 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 10 of 99 1 while mounting specific objections to certain designations as an alternative argument, 2 Defendants objected to the entirety of Plaintiffs’ designations on the grounds they were untimely 3 and unduly prejudicial to Defendants. (ECF No. 179.) For the reasons explained below, 4 Plaintiffs’ late-filed request to designate the deposition testimony of Yussif shall be denied. 5 Plaintiffs filed no formal motion or express request to amend the pretrial order to allow 6 for their untimely deposition designations. The Court will nonetheless construe the filing as a 7 motion to amend the pretrial order. See Fresno Rock Taco, LLC v. Nat’l Sur. Corp., No. 1:11-8 CV-00845-SKO, 2013 WL 2182864, at *7 (E.D. Cal. May 20, 2013). On such a motion, 9 Plaintiffs have “the burden of showing that an amendment to the pretrial order was necessary to 10 prevent “manifest injustice.” Galdamez v. Potter, 415 F.3d 1015, 1020 (9th Cir. 2005); see Fed. 11 R. Civ. P. 16(e) (“The court may modify the order issued after a final pretrial conference only to 12 prevent manifest injustice.”). In evaluating a motion to amend the pretrial order, the Court 13 “should consider four factors: (1) the degree of prejudice or surprise to the defendants if the 14 order is modified; (2) the ability of the defendants to cure the prejudice; (3) any impact of 15 modification on the orderly and efficient conduct of the trial; and (4) any willfulness or bad faith 16 by the party seeking modification.” Galdamez, 415 F.3d at 1020. The Court has the discretion 17 to exclude the proffered evidence if the pretrial order is violated. See Local Rule 283(c); Fed. R. 18 Civ. P. 16(f)(1)(C) (“On motion or on its own, the court may issue any just orders, including 19 those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a 20 scheduling or other pretrial order.”); Fed. R. Civ. P. 37(b)(2)(A)(ii) (“prohibiting the disobedient 21 party . . . from introducing designated matters in evidence”); Lind v. United States, No. CV-13-22 00032-TUC-JAS, 2016 WL 11652879, at *2 (D. Ariz. July 6, 2016) (“The Court holds that all of 23 Plaintiff’s untimely evidence implicated in the three motions at bar are excluded as time-barred 24 by this Court’s Scheduling Orders; this untimely evidence will not be considered by the Court 25 and will not be admissible for any purpose at the trial in this case.”). 26 The Court finds the degree of prejudice or surprise to the Defendants is substantial, given 27 the Plaintiffs’ designations were not submitted until May 7, 2021, the morning of the fourth day 28 of trial, which was the last day any witnesses testified, and after almost all witnesses that had — 11 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 11 of 99 1 completed testimony had been excused. Defendants did not have proper time to properly 2 counter-designate deposition testimony. Some ability to cure prejudice was present given 3 Defendants did mount objections to specific designations, though under time-pressure given they 4 were filed on May 10, 2021, following the weekend break after the trial day May 7, 2021, and 5 submitted while preparing for closing arguments that were held on Monday May 10, 2021, and 6 while submitting a response to Plaintiffs’ motion to admit the testimony of McComb. (ECF Nos. 7 176, 177, 179, 180, 182.) However as Defendants stated in opposition, they were unable to 8 submit counter designations to address many portions of the belated designations. (ECF No. 179 9 at 2.) 10 Given the designations were not submitted until the morning of the fourth day of trial, 11 and the final day that witnesses presented testimony, there is a substantial impact on the orderly 12 and efficient conduct of the trial. As explained in Defendants’ filing: the parties appeared for a 13 status conference on April 22, 2021 (ECF No. 149); Defense counsel informed the Court that 14 Yussif was not available to testify at trial because of his serious medical condition; counsel for 15 Plaintiffs agreed that Yussif’s deposition testimony given in the Perez Malpractice Case would 16 be used at trial in lieu of his live testimony; the Court ordered the parties to file deposition 17 designations for Yussif by April 26, 2021, and counter designations by April 29, 2021 (ECF No. 18 150); Defendants timely filed their designations (ECF No. 162); Plaintiffs did not file any 19 designations, nor object to Defendants’ designations by the deadlines; and instead filed the 20 designations on May 7, 2021. These facts also tend to show a willfulness, or at least a 21 carelessness, underlying the failure by Plaintiffs to timely designate. 22 Accordingly, in consideration of the above factors and the pretrial order in this matter, the 23 Plaintiffs’ construed motion to modify the pretrial order to designate deposition testimony of 24 Yussif shall be denied, and the late-filed deposition designations of Yussif shall be excluded 25 from consideration as evidence. See Galdamez, 415 F.3d at 1020; Fresno Rock Taco, 2013 WL 26 2182864; Local Rule 283(c); Fed. R. Civ. P. 16(f)(1)(C). 27 C. Deposition Designations of Berj Apkarian and Kalwant Dhillon 28 On April 26, 2021, in submitting objections and counter-designations to Defendants’ — 12 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 12 of 99 1 deposition designations, Plaintiffs designated testimony of Apkarian and Dhillon as counter-2 designations, despite the fact that Defendants designated no testimony from Apkarian or Dhillon. 3 (ECF No. 160 at 3-4.) On April 29, 2021, Defendants submitted objections and a motion to 4 strike the counter designations of Apkarian and Dhillon. (ECF No. 170.) Defendants argue that 5 Plaintiffs’ counter-designations violate Federal Rule of Civil Procedure 32 and the Court’s 6 pretrial orders because Defendants did not designate any portion of the Apkarian and Dhillon 7 depositions, and thus these are not proper counter-designations. (Id.) 8 Under Rule 32, after a party has offered part of a deposition into evidence, the opposing 9 party “may require the offeror to introduce other parts that in fairness should be considered with 10 the part introduced, and any party may itself introduce any other parts.” Fed. R. Civ. P. 32(a)(6); 11 see also Fed. R. Evid. 106 (“If a party introduces all or part of a writing or recorded statement, an 12 adverse party may require the introduction, at that time, of any other part . . . that in fairness 13 ought to be considered at the same time.”); In re Pac. Fertility Ctr. Litig., No. 18-CV-01586-JSC, 14 2021 WL 2075560, at *1 (N.D. Cal. May 24, 2021) (“This principle is known as the rule of 15 completeness and it exists to avert misunderstanding or distortion caused by introduction of only 16 part of a document or recording.”) (quoting United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 17 2014)) (internal quotation marks omitted). 18 Defendants argue Plaintiffs seek to use the deposition testimony of Apkarian and Dhillon 19 not to complete the testimony of any witness’ deposition testimony that Defendants designated, 20 but rather to rebut or introduce additional testimony they failed to timely designate. (ECF No. 21 170 at 2.) Defendants argue this is improper under Rule of Procedure 32 and Rule of Evidence 22 106, as they do not permit using one witness’ testimony to complete the testimony of another, 23 and do not allow for rebuttal of designated testimony. (Id.) The Court agrees. 24 Plaintiffs submitted a response to Defendants’ objections on April 30, 2021. (ECF No. 25 172.) Plaintiffs argue that they had subpoenaed Yussif who interviewed these doctors; within the 26 last two weeks before the filing, Plaintiffs were notified that Yussif was not available to attend 27 trial due to his illness; Yussif’s absence required a counter-designation of Apkarian; Plaintiffs 28 did not have Apkarian under subpoena because Plaintiffs planned on Yussif testifying; — 13 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 13 of 99 1 Defendants filed a revised report which raises “new issues”; and Defendants’ extensive 2 designations of Bella Albakova require the designation of Dhillon’s testimony. (ECF No. 172.) 3 The Court does not find Plaintiffs’ generalized and vague arguments availing. The Court 4 has reviewed the designations of Apkarian and does not find anything that would only be 5 relevant because of the absence of Yussif as a witness at trial. None of the designations of 6 Apkarian specifically mention Yussif. Further, while Plaintiffs proffer that Yussif interviewed 7 both of “these doctors” (ECF No. 172 at 2), it is an undisputed fact that Yussif did not interview 8 Dhillon during his investigation. (UF 14, ECF No. 88 at 4.) Further, given Dhillon was a 9 surgeon and primary witness present in the operating room, it is not clear why all of a sudden the 10 fact that Defendants designated testimony from Albakova, designation of testimony from Dhillon 11 is necessary. Plaintiffs should have been keenly aware of any need to designate the testimony of 12 Dhillon well before any testimony of Albakova was designated. 13 Aside from the Court not being swayed by these specific arguments offered by Plaintiffs, 14 more importantly, the Court finds the counter-designations are not appropriate counter-15 designations under Federal Rule of Civil Procedure 32(a)(6), nor Federal Rule of Evidence 106. 16 See Phoenix Techs. Ltd. v. VMware, Inc., No. 15-CV-01414-HSG, 2017 WL 2001981, at *10 17 (N.D. Cal. May 11, 2017) (“The burden of establishing the applicability of the rule of 18 completeness falls on the party seeking to have a counter-designation played in the other party’s 19 case.”). Plaintiffs provide no legal authority or legal argument rebutting Defendants’ arguments 20 that would refute the clear application of these rules. Further, aside from failing to correspond to 21 any deposition testimony from Dhillon or Apkarian designated by Defendants, as Defendants did 22 not designate any, the counter-designations failed to identify any testimony designated from any 23 witness that these counter-designations seek to address or complete such that no adequate 24 evaluation can be made whether these designations are appropriate under the rule of 25 completeness. 26 Further, if considered designations and not counter-designations, Plaintiffs’ proffered 27 designations would be untimely in violation of the Court’s fifth amended pretrial order and April 28 14, 2021 order requiring the parties to file deposition designations on or before April 20, 2021. — 14 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 14 of 99 1 (ECF Nos. 134, 145.) Plaintiffs did not seek leave to file late designations and provided no 2 accompanying motion, request, or proffered reasonable justification for the late disclosures until 3 Defendants submitted objections. Alternatively, even if the Court were to construe Plaintiffs’ 4 April 30, 2021 response as a motion to modify the pretrial order to allow for the designation of 5 the depositions of Apkarian and Dhillon, such motion would be denied and the late-filed 6 deposition designations of Apkarian and Dhillon would be excluded, under the standards 7 discussed in the previous subsection. See Galdamez, 415 F.3d at 1020; Fresno Rock Taco, 2013 8 WL 2182864; Local Rule 283(c); Fed. R. Civ. P. 16(f)(1)(C). Specifically, the Court finds: (1) 9 the prejudice to Defendants outweighs any need to modify the pretrial order; (2) there was 10 limited ability for Defendants to cure such prejudice on the eve of trial; and (3) the modification 11 to the orderly and efficient conduct of the trial is substantial given such prejudice. 12 Accordingly, in consideration of the above, the Defendants’ objections are sustained, and 13 Defendants’ request to strike Plaintiffs’ deposition designations of Apkarian and Dhillon shall be 14 granted. 15 III. 16 FINDINGS OF FACT 17 The Court makes the following findings of fact based on the documentary and testimonial 18 evidence introduced at trial, as well as the undisputed facts stipulated to by the parties and 19 entered into the record through the Court’s December 4, 2019 pretrial order. (ECF Nos. 87, 88, 20 89.) The Court has considered the credibility of the testifying witnesses and documentary 21 evidence in resolving conflicts and determining the weight given to such evidence when 22 determining these findings of fact. 23 A. The Perez Surgery 24 At all relevant times, Plaintiff Dr. Chaudhry, was a cardiothoracic surgeon with Plaintiff 25 Valley Cardiac, and had substantial financial and leadership interests in Valley Cardiac. In 2007 26 Dr. Chaudhry joined Community Regional Medical Center (“CRMC”), located in Fresno, 27 California. Dr. Chaudhry became the busiest heart surgeon in the state of California, completing 28 about 300-350 surgeries per year, and testified that over the course of about 8 years, had — 15 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 15 of 99 1 completed about 2,000 heart surgeries. Dr. Chaudhry was instrumental in making CRMC the 2 busiest private heart surgery program in California, excluding programs such as Kaiser 3 Permanente, or university hospitals. 4 During heart surgery, the sternum is cut, the ribs are not cut from the sternum. About ten 5 to fifteen minutes after the bypass portion of the surgery is completed, the patient usually comes 6 off the heart and lung machine (often referred to as the “pump”), which is operated by the 7 perfusionist. The chest is open and the surgeon and staff observe the heart as the heart and lung 8 machine is slowed down; then when the heart is tolerating the transition and there is no bleeding, 9 the patient can gradually come off the heart and lung machine, and the machine can be shut 10 down. The surgeon then removes the catheter lines, and the chest is closed. Surgeons are 11 generally not required to stay with patients throughout the entire recovery. The anesthesiologist 12 is required to stay until the patient is awake to let the drugs wear off over three to five hours, and 13 once the anesthesiologist feels the patient is well enough, the patient goes to the intensive care 14 unit under the care of nursing staff. 15 On April 2, 2012, Dr. Chaudhry performed an open-heart surgery on a patient by the 16 name of Silvino Perez (“Patient” or “Perez”). This surgery was performed at CRMC in Fresno, 17 California. The diagnosis for Perez, both preoperative and postoperative, was (a) ascending 18 aortic aneurysm, and (b) aortic valve stenosis, bicuspid valve. Present in the operating room for 19 the surgery, in addition to Dr. Chaudhry, were the following: (a) the assistant surgeon Kalwant 20 Dhillon, M.D. (“Dhillon”); (b) the anesthesiologist Ashwin Bhatt, M.D. (“Bhatt”); (c) the 21 physician assistant Bella Albakova (“Albakova”); (d) the perfusionist Aaron Schreur 22 (“Schreur”); (e) the scrub nurse Martha Allen (“Allen”); (f) a circulating nurse Geri Breaux 23 (“Breaux”); and (g) another circulating nurse Nichole Kroes (“Kroes”). 24 By April of 2012, Dr. Chaudhry had worked with Dhillon since 2005; with Bhatt for at 25 least 1500 cases; with Allen, Kroes, and Breaux for hundreds of surgeries; with Albakova for 26 hundreds if not thousands of surgeries; and with Schreur for about five (5) years and about 250 27 surgeries. Prior to the Perez surgery, Dr. Chaudhry witnessed no animosity by Schreur toward 28 Dr. Chaudhry; had disagreements with Allen but didn’t feel she had animosity toward him; and — 16 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 16 of 99 1 witnessed no animosity by Allen or Breaux.3 2 Dr. Chaudhry generally dictates post-operative notes in the operating room at the 3 dictation table, then goes to the surgery table to make sure the patient is stable, then leaves. The 4 dictation table is about five to seven feet from the operating table. (Exs. 116, 117.) The 5 perfusionist Schreur would generally prepare a perfusion record or summary of the operation, 6 and provide that information to Dr. Chaudhry to finish the post-operative reports. In this case, 7 Dr. Chaudhry did not get the physical record to finish the dictation, and Schreur read the 8 information orally while dictating. 9 Perez came off of bypass at 11:45:47 a.m., meaning Perez was taken off the heart and 10 lung machine, but the operation was not over and the surgeons continued working. (See 11 Perfusion Record, Ex. 102 at 1.) The last entry in the Perfusion Record for the heart and lung 12 machine is at 12:09 p.m., however Schreur remained in the operating room after such time 13 performing work. Dr. Chaudhry was at the dictation table computer before 12:09 p.m. putting in 14 postoperative notes. 15 After Dr. Chaudhry completed the dictation, he went on the anesthesia side of the 16 operating room and saw that the blood pressure was a little high. Dr. Chaudhry told staff to 17 adjust the blood pressure and take off anesthesia, said to stop epinephrine, and told staff to start 18 milrinone to lower the blood pressure. 19 Dr. Chaudhry did not leave the operating room at any time prior to 12:15 p.m. At 20 approximately 12:15 p.m., and perhaps a minute or two later, Dr. Chaudhry left the operating 21 room, leaving his physician assistant Albakova and assistant surgeon Dhillon to complete the 22 surgery, including the closure of Perez’s chest. Dhillon and Albakova left the operating room 23 around 12:35 p.m. 24 After Dr. Chaudhry left the operating room and the hospital, Perez was bleeding an 25 abnormal amount. Dr. Chaudhry was called at 12:45 p.m., and Dr. Chaudhry instructed Bhatt to 26 3 Dr. Chaudhry also stated he had witnessed no direct animosity from Albakova by that time. When asked if Dr. Chaudhry knew Albakova to be a liar during their seven (7) year working relationship, Dr. Chaudhry stated they 27 broke up in May of 2013, when she was cheating on Dr. Chaudhry, so she had been caught lying at that point. However, Dr. Chaudhry trusted her, and still trusts her work as he believes she had impeccable work ethics and 28 impeccable hands in the operating room. — 17 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 17 of 99 1 continue giving blood products. Perez developed arrhythmias (abnormal heart beats) which 2 progressed to ventricular fibrillation. The remaining staff began CPR with intermittent 3 defibrillation but were unsuccessful at getting a normal rhythm back. At around 12:58 p.m., Dr. 4 Chaudhry was called to return to the operating room because the patient had arrested. CPR was 5 continued until around 1:12 p.m. when Albakova returned. Albakova then opened Perez’s chest 6 and found the heart had been perforated. Albakova tried to cannulate to allow Perez to go back 7 on cardiopulmonary bypass, but Albakova struggled and frantically spoke to Dr. Chaudhry over 8 the phone to get instructions. The anesthesiologist Bhatt then put on gloves to assist with 9 cannulation and at 1:24 p.m. Schreur commenced cardiopulmonary bypass on a limited basis. At 10 around 1:29 p.m., Dr. Chaudhry returned to the operating room with Dr. Robert Stewart 11 (“Stewart”). Stewart and Dr. Chaudhry adjusted the cannulas and Perez was returned onto a full 12 cardiopulmonary bypass. 13 It was determined that Perez’s ventricle had been lacerated by the chest compressions 14 which had caused the recently operated sternum to fracture and slice into the heart chamber. 15 This resulted in a long and difficult further operation and Perez is believed to have suffered 16 hypoxic brain injury as a result of a period of poor perfusion. 17 The Perfusion Record contains notes entered by Schreur on April 2, 2012, that read in 18 part: 19 Patient codes approximately 12:55 [p.m]. Dr. Chaudhry called at 12:58 [p.m.]. CPR is started with intermittent defibrillation. Albakova and Bhatt attempt 20 cannulation around 1:20 [p.m.]. Patient started on partial CPB around 1:25 [p.m.]. Chaudhry enters at 1:29 [p.m.] with Dr. Stewart. They take over and 21 patient is put on full CPB at 1:38 [p.m.]. Pump was primed with 2L Normosol and 60,000 units of heparin. The high heparin dose was due to the patient having 22 no circulation, thus no way for anesthesia to give loading dose. 23 (Ex. 102 at 4.) 24 Schreur also entered notes into his cellular phone throughout the day of the Perez 25 surgery. These notes state in part that: Dr. Chaudhry leaves at 12:03 p.m.; at 12:35 p.m. 26 Albakova and Dhillon finish the closing of the chest and leave; Perez is bleeding; Dr. Chaudhry 27 is called at 12:45 p.m. and tells Bhatt to give blood products; at 12:58 p.m. Dr. Chaudhry is 28 called to return; at 1:12 p.m. Albakova opens the chest, is “hysterical, but tries to take — 18 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 18 of 99 1 instructions from [Dr. C]haudhry over the phone”; and at 1:15 p.m. Bhatt put on gloves and tried 2 to help cannulate. (Ex. 512 at 1.) Schreur’s phone notes also indicate that an x-ray was taken 3 sometime between 12:45 p.m. and 12:55 p.m., and that at 5:45 p.m., Dr. Chaudhry “sa[id] to get 4 patient to cvu quickly, there is nothing else he can do. [6:15 p.m.] [C]huadhry called for 5 excessive bleeding, he calls [S]tewart to come in. [7:00 p.m.] [S]tewart reopens, and at [7:20 6 p.m.] finds surgical bleed and takes care of it.” (Ex. 512 at 1.) 7 Schreur wrote a written account of the events surrounding the Perez surgery, at the 8 request of James Robillard (“Robillard”), who was Schreur’s boss. (Ex. 511.) Schreur 9 understood Robillard requested the written account because Robillard intended to file a 10 complaint to CDPH or another agency. The written account was completed within two (2) days 11 of the surgery. Schreur’s written account states in relevant part: 12 Operation goes well and patient comes off CPB at [11:45 a.m.]. At [12:03 p.m.] Chaudhry finishes his op. note and leaves the room while patient’s chest is still 13 open, as he frequently does, leaving his PA [Albakova] and assistant surgeon to close. Patient is closed at [12:35 p.m.] and the PA and asst. surgeon leave the 14 room. The patient is still bleeding an abnormal amount and is never moved from the op. table. Chaudhry is called at [12:45 p.m.], and he gives orders to anesthesia 15 to continue giving blood products. The patient continues to bleed and by 12:55 p.m.] has put out 1500 ml of blood into the chest tubes. Patient goes into 16 hypovolemic shock and then v-fib at [12:55 p.m.]. 17 Cardiac team begins CPR with intermittent defibrillation but is unsuccessful at getting a normal rhythm back. At [12:58 p.m.] Chaudhry is called to rush back to 18 the OR because the patient has arrested and we need him immediately. Team continues CPR until [1:12 p.m.] when the PA arrives, opens the chest and finds 19 the heart has perforated. She tries to cannulate to go on CPB, but struggles greatly as she has never done this on her own before. She talks with Chaudhry on 20 the phone to get instructions. The anesthesiologist puts on gloves to assist with cannulation and at [1:24 p.m.] the perfusionist commences CPB on a very limited 21 basis using pump suckers for venous return. At this point the patient has had a MAP of around 20 mmHg for close to 30 minutes. CPR was only minimally 22 effective because the heart was perforated and unable to properly eject volume and create a pulse pressure. 23 At [1:29 p.m.] Chaudhry finally arrives in the OR, 31 minutes after being called 24 for a stat return. With him is another cardiac surgeon, Dr. Robert Stewart. They adjust the cannulas and at [1:39 p.m.] the perfusionist brings the patient up to full 25 flow CPB. At [1:55 Chaudhry asks an aid to get his car keys and repark his car from the patient drop off area so it doesn’t get towed (he obviously had left the 26 hospital facility while his patient was still on the OR table and had to drive back after being called). The patient is stabilized on CPB but is unable to come off. At 27 [3:53 p.m.] the patient is placed on ECMO support. At [5:45 p.m.] Chaudhry again leaves the room despite the patient bleeding profusely into the chest tubes. 28 At [7:00 p.m.] Dr. Stewart arrives back to assess the patient. He opens the chest — 19 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 19 of 99 1 and finds a surgical bleed, which he then repairs. The patient stabilizes somewhat, but continues to ooze blood into the chest tube. At [9:40 p.m.] the 2 patient is brought to the CVU on ECMO and IABP support. 3 It is now [April 5, 2012] and the patient remains on ECMO and IABP. His neurological status is not known, but he has not woken up yet. It would appear 4 that there is significant, if not total, brain death. However, this can’t be fully determined at this time. 5 I believe this case needs to be thoroughly investigated. There is gross negligence 6 in this case where it took the primary cardiac surgeon over 30 minutes to return to the OR after being called to treat the cardiac arrest of his patient. He had left the 7 building while his patient was still on the table, and likely while the patient’s chest was still open and his condition was critical. These situations are very 8 common where a patient does not do well post-CPB and needs to go back on in order to reperfuse and recover. In this specific case, had the surgeon been there to 9 perform the procedure in a timely manner, I believe the patient’s chances for recovery would be high. But because it took so long, partial brain damage is all 10 but a certainty. Ultimately, death is very likely in the next few days for this patient. It is unacceptable that the patient was subjected to this kind of gross 11 negligence. 12 I must emphasize that my identity remain anonymous in regards to this case. This surgeon has so much power at this institution that if it was found I had made a 13 complaint against him he would certainly come after me and have me fired. It is for this reason that he has avoided complaints on multiple ethics issues in the past 14 involving sexual misconduct, operating while intoxicated, and substandard care . . . 15 (Ex. 511 at 1-2.) 16 In writing the chest was “still open,” Schreur meant that the sternal wires had not been 17 closed putting the sternum back together. In writing “as he frequently does,” Schreur meant that 18 it was Dr. Chaudhry’s custom to allow his assistant surgeon and physician assistant to close the 19 chest in such manner, which would entail Dr. Chaudhry leaving the operating room.4 20 B. The Investigation of the Perez Surgery by CDPH 21 Here, the Court will summarize the role of the relevant agencies and employees that 22 4 23 Dr. Chaudhry and Schreur were the only witnesses that testified during this trial that were physically present in the operating room for the Perez surgery. Dr. Chaudhry testified that he disagreed with Schreur’s account. Dr. Chaudhry also testified he learned Perez “coded” at 12:59 p.m., and Dr. Chaudhry was back at the hospital at 1:18 24 p.m. Dr. Chaudhry proffered the medical staff bylaws, his call coverage contract, and his privilege cards, all state he has to answer page calls in fifteen (15) minutes and be in hospital in thirty (30) minutes, and that he was at hospital 25 within nineteen (19) minutes. Dr. Chaudhry proffered that the “swipe card” records reviewed while testifying meant Dr. Chaudhry was in the hallway at 1:18 p.m. and thus he must have been on the second floor on the way to the 26 operating room, and running through to the operating suite. The Court addresses the credibility of this testimony in conjunction with all of the admitted evidence and testimony, including the designated testimony of witnesses that 27 did not testify in person at this trial nor were specifically deposed in this action, but were present in the operating room, in the legal analysis section below. 28 — 20 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 20 of 99 1 conducted the investigatory and regulatory functions involved in this action, as was presented to 2 the Court in the testimony of Defendants, other witnesses, and documentary evidence. In 3 Section IV(A), infra, the Court provides the relevant statutes and regulations underlying the 4 agencies and survey investigation process. 5 The CDPH oversees licensed health care facilities, and does not directly oversee 6 physicians such as Dr. Chaudhry. Rather, the Medical Board of California oversees physicians. 7 Complaints made to CDPH regarding covered health care facilities are processed by 8 CDPH through the Aspen Complaint Tracking System (“ACTS”), and entered into an ACTS 9 complaint/incident investigation report. (See Ex. 502.) The form is a California form approved 10 by the federal government. CDPH staff fills in information and CDPH assigns a supervisor to 11 the complaint. After staff has verified sufficient information, the evaluator gives the information 12 to the supervisor to make a decision whether it is referred to the Centers for Medicare and 13 Medicaid Services (“CMS”) or stays with the State.5 CDPH employees conduct the initial 14 survey investigation, then the report goes to CMS. CMS then determines what should be done 15 on the federal side, and then directs the state agency how to proceed. 16 CDPH and CMS investigation surveys are completed by assigned surveyors. Surveyors 17 collect sources of evidence consisting of observations, interviews, or record reviews, analyze that 18 data, put the deficient practices together if applicable, and submit the information to a supervisor 19 or manager for review. The written report outlining the deficient practice is called a Statement 20 of Deficiencies (“SOD”), or referred to as a “2567.” Both CDPH and CMS may issue a SOD. A 21 SOD is submitted to the hospital to address systemic problems of the hospital or facility, 22 including compliance with the Conditions of Participation for CMS. 23 A Plan of Correction (“POC”) is created after the investigated facility obtains the SOD, 24 whether state or federal, and the hospital or other facility enters their corrective plan of action 25 5 CMS is a component of the Department of Health and Human Services, administers the Medicare program.” Fox Ins. Co. v. Centers for Medicare & Medicaid Servs., 715 F.3d 1211, 1214–15 (9th Cir. 2013). The term “State” is 26 used generally herein to refer to the investigations conducted or reports issued by CDPH as an agency of the state of California, or its employees, as opposed to the federal CMS investigations or reports. In Section IV(A), the Court 27 provides the statutes and regulations governing the relationship between CMS and CDPH and the parallel processes for the investigations they conduct, and reports they issue. 28 — 21 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 21 of 99 1 into a blank column on the SOD document to address the stated deficiencies, for the purpose of 2 ensuring the facility does not repeat the deficient practices. The left-hand side of the document 3 contains the SOD, and the right-hand side contains the POC. CDPH uses the format for a POC 4 as provided by CMS. Following completion of a SOD/POC, the hospital or facility is required to 5 post the SOD/POC, generally by either putting the report in a survey results binder, or on a 6 bulletin board, where the public can ask to see or have access. 7 A SOD does not target a particular individual practitioner or doctor, though a facility may 8 discipline individual practitioners afterward or in relation to the POC. CDPH does not have the 9 direct authority to deny or limit Medicare reimbursement to the facility, as that falls under the 10 authority of CMS. For a federal survey, CDPH submits the survey report to CMS for final 11 review, not directly to the hospital. 12 At all relevant times, Defendant Lopez, Defendant Campbell, formerly named Defendant 13 Kappmeyer, and nonparties Joan Spence (“Spence”) and Adams Yussif (“Yussif”), were 14 employees of the CDPH and acting under color of state law. As CDPH employees, they were 15 not federal employees during the relevant investigation, but acted as agents of the federal 16 government in applying the rules and regulations that govern health care facilities for which 17 CDPH has jurisdiction over. 18 In 2012 and part of 2013, Lopez was employed by CDPH as a Health Facilities Evaluator 19 Supervisor, and assigned to the Fresno District Office. From October 31, 2013 to August 2, 20 2016, he held the position of Staff Services Manager I. As of the time of his testimony in this 21 trial, he was a Health Facilities Evaluator Manager II. 22 At all relevant times, Defendant Campbell was employed by the CDPH as a Health 23 Facilities Evaluator Manager I. Prior to her promotion to that position that occurred in 2012 24 around the time of the Perez investigation, she was a Health Facilities Evaluator Supervisor. 25 Since November 30, 2014, Defendant Campbell has been retired. Spence was Campbell’s 26 supervisor at the time of the investigation. 27 At all relevant times, Yussif was employed by the CDPH as a Health Facilities Evaluator 28 Nurse, with surveyor identification number 27126. Lopez was Yussif’s supervisor during the — 22 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 22 of 99 1 State investigation and relevant time when the State reports were issued. In 2012, Lopez and 2 Campbell were peers, as they were both supervisors. In 2012, Kappmeyer was not on Lopez’s 3 team, and did not report to him. By 2013, Lopez reported to Campbell. 4 On April 11, 2012, CDPH received an anonymous call alleging that Dr. Chaudhry left the 5 operating room while Perez’s chest was still open, then left the hospital before the surgery was 6 completed leaving his physician assistant Albakova to take over the surgery, and that Perez went 7 into cardiac arrest. The complaint was processed by CDPH and entered into an ACTS 8 complaint/incident investigation report. (See Ex. 502.) The ACTS complaint triggered a State 9 investigation. The intake spot for “SA Contact” stands for “State Agency Contact.” Campbell 10 was the State Agency Contact listed on the initial state intake form because Campbell is the 11 supervisor generally assigned to oversee CRMC. However, Lopez was the supervisor that 12 assigned CDPH surveyor Yussif to this initial State-complaint investigation after Lopez was 13 informed by Spence, the district manager of CDPH at the time, when the anonymous complaint 14 for the Perez surgery was put into the system. (See Exs. 500 at 9, 502.)6 15 On or about April 16-19, 2012, CDPH began the initial State investigation of the 16 anonymous complaint. Given the Perez surgery allegations were considered a serious priority, 17 there needed to be an on-site visit begun within 24 to 48 hours, and Yussif commenced such on-18 site investigation. During his investigation, Yussif did not interview Drs. Chaudhry, Dhillon, or 19 Bhatt, nor the physician assistant Albakova. Dr. Chaudhry was aware someone from CDPH was 20 at CRMC investigating the Perez surgery. Dr. Chaudhry found out about the investigation when 21 Dr. Jeffrey Thomas (“Thomas”) told him the “State” was there. Dr. Chaudhry provided a written 22 statement for Thomas, and turned it into the medical staff office at CRMC. 23 Yussif, the state surveyor of record collected evidence and evaluated the evidence for the 24 initial State investigation. Lopez’s role at CDPH included reviewing SODs under the agency’s 25 6 The Court notes that Plaintiffs’ counsel pressed Campbell that it was in fact her that assigned the complaint to Yussif. In deposition testimony from the Perez Malpractice Case designated by Defendants, the Court notes that 26 Yussif in fact testified that Campbell called him and asked Yussif to investigate CRMC. (Dep. Adams Yussif November 9, 2015 (“Yussif Dep.”), 25:22-26:6.) However, an email dated April 11, 2012, reflects that Spence 27 wrote to Lopez “can you assign this please in the absence of Shirley [Campbell].” (Ex. 500 at 9.) Campbell was cc’ed on the email. (Id.) Campbell conceded in testimony it is possible she could have assigned to Yussif. Whether 28 Campbell or Lopez assigned the initial investigation is not determinative of any ultimate conclusions by the Court. — 23 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 23 of 99 1 principles of investigation, looking at supportive evidence, and ensuring the written product 2 followed the principles of documentation. Lopez and Campbell were not directly coordinating 3 the State investigation while it was ongoing at CRMC, however, as supervisor, Lopez was aware 4 of the allegations and Yussif’s preliminary findings from the initial State investigation, and 5 generally oversaw the investigation at that point. It is an undisputed fact that at all relevant 6 times, Lopez verified and supervised the two investigations of CRMC as related to the heart 7 surgery operation of Perez by Dr. Chaudhry, and made the final decision as to the accuracy of 8 the State Report published in 2013.7 (UF 4.) 9 While Yussif was supervised by Lopez, given CRMC was assigned to Campbell, Lopez 10 would have reviewed the information and communicated the preliminary findings of the State 11 investigation to Campbell to determine the next step, and the next step here was to inform CMS 12 that there were problems that may need to be investigated on the federal side. CDPH is expected 13 to report to CMS any serious problems with the hospital provider, and here, the complaint and 14 preliminary findings obligated CDPH’s office to inform CMS of the results of the April 2012 15 investigation into CRMC, which then authorized the federal complaint validation survey that 16 began on July 13, 2012. Thus, based on the results of Yussif’s initial investigation, the CMS 17 investigation was triggered. 18 C. The CMS Investigation 19 Campbell and Kappmeyer were co-surveyors assigned to the federal-complaint validation 20 investigation which took place from July 13, 2012 to July 17, 2012 (the “CMS Investigation”). 21 Spence was a supervisor over the CMS Investigation. Dr. Everette Davis (“Davis”), also 22 provided consultant work on the federal investigation. During this time, as CRMC was not 23 7 When the proposed POC was later returned by CRMC, Lopez’s role was to review the right hand side of the POC, looking at the content and the action that was needed in order to address the deficient practice. Lopez would read 24 the left side for content (SOD), and for supportive evidence that relates to the deficient practice, as the right side of the form (POC), must address actions in order to correct deficiencies. Lopez does not generally, and did not in this 25 case, retrieve or review all of the investigative notes or supportive data at that time, but rather, reviewed the content of the deficient practice, the sources of evidence, and how it relates to the deficient practice in order to guide the 26 hospital to direct their corrective actions. Before issuance, the report would then go to next level of review, because of the involvement of an administrative penalty. Specifically here, the report would have gone to the manager of the 27 office, then to Davis as the medical consultant, then to the office of legal services for CDPH, and then to the Branch Chief prior to issuing the combined SOD and POC form. Lopez was not involved during this further review. 28 — 24 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 24 of 99 1 assigned to Lopez as a supervisor, Lopez was not involved in this part of the process. 2 Campbell initially received the complaint typed on an ACTS form used to initiate a CMS 3 investigation, and then entered the information into the ACTS system. (See Ex. 501 at 1; Ex. 4 103 at 1.) Under “Intake,” the form stated: 5 Patient was having open heart surgery and his surgeon, Dr. Pervaiz Chaudhry, left the operating room while the chest was still open and then left the hospital before 6 the surgery was done leaving his PA to take over their surgery while he went to lunch. Patient was bleeding profusely. The patient arrested in the operating room 7 and the surgeon was not even in the hospital to attend to the patient. It took Dr. Chaudhry 30 minutes to get back into the operating room and by then the patient 8 had very little blood pressure for approx 30 minutes. The patient had to be put on life support and is in a coma. ¶ The patient went into hypovioemic shock and 9 then cardiac arrest. The patient was resuscitated and stabilized with the support of ECMO and a balloon pump. This patient is now in a state of near total brain 10 death as a result of being in arrest for such a long duration. 11 (Exs. 103 at 1, 501 at 1.) 12 The CMS Investigation covered CRMC’s compliance with the federal Conditions of 13 Participation under the Code of Federal Regulations. Once the CMS survey begins, it follows 14 the federal process of collecting data and determining whether or not there is a deficient practice, 15 and CDPH has ten (10) business days in order to submit a SOD to CMS for review. While the 16 investigation’s focus was the Perez surgery incident, it was broader in that it looked at CRMC’s 17 policies and procedures, the governing body, hospital staff, and reviewed the hospital system as a 18 whole to ensure proper functioning under the Conditions of Participation. 19 There were five CMS categories of deficiencies that were investigated by Campbell and 20 Kappmeyer: (1) Medical Staff; (2) Medical Staff Bylaws; (3) Surgical Services; (4) Organization 21 of Surgical Services; and (5) Operating Room Policies. (Ex. 501 at 1.) Campbell and 22 Kappmeyer essentially shared the category of Surgical Services because Campbell was looking 23 at the overall facility, and within that category is the Professional Affairs Committee, the 24 Surgical Committee, and the Medical Executive Committee. Kappmeyer covered Operating 25 Room Policies, and Campbell covered Medical Staff and Medical Staff Bylaws. 26 During the CMS investigation Campbell and Kappmeyer shared notes and exchanged 27 information. Physical interviews were conducted at CRMC for four (4) or five (5) days. Dr. 28 Chaudhry was the only staff person identified by name in the complaint. Campbell and — 25 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 25 of 99 1 Kappmeyer determined who was in the operating room, and then proceeded to interview people 2 who facility staff identified, and as relevant to the categories of investigation. The investigation 3 included review of the rules and regulations, bylaws, and the staff who had oversight over the 4 relevant areas. Interviewees are somewhat predetermined given the categories, and the facility 5 itself has its own list of key people within these categories. To obtain a greater perspective on 6 the hospital’s functioning, interviews of doctors and staff not involved in the Perez surgery were 7 utilized. 8 During the relevant time period, Laura McComb (“McComb”) was an Associate 9 Administrator of Risk Management, Patient Safety and Regulatory Issues, for CRMC. 10 McComb’s work included creating POCs in response to SODs, and specifically prepared POCs 11 in response to the State and CMS SODs for the Perez matter. McComb has known Campbell 12 approximately thirty (30) years or more, and had worked together on CMS surveys before 2012. 13 McComb did not witness any animosity by Campbell toward the hospital or the staff involved, 14 and never experienced any personal bias by Campbell before July 2012 against anyone Campbell 15 was conducting surveys concerning. McComb is identified as “Administrative Staff 2” in the 16 Federal CMS Report. Thomas Utecht (“Utecht”), Chief of Quality Control of CRMC, was 17 McComb’s immediate supervisor during the relevant time. 18 While McComb’s staff initially sat in on the interviews conducted by Yussif in April of 19 2012, when the CMS investigation began in July of 2012, McComb was requested to exclude her 20 staff from being present during interviews. McComb raised a concern to CRMC’s legal 21 department of the risk of misquotations, however the legal department agreed to not have staff 22 present. This was not the first time this type of request was made during survey investigations, 23 and surveyors, including Campbell and Kappmeyer, had made the request to McComb that 24 investigators be the only people in the room with interviewees in other matters prior to the Perez 25 investigation. 26 During the CMS investigation, Campbell conducted an interview of Dr. Chaudhry. At 27 the end of the interview with Dr. Chaudhry, Campbell informed him that he could return to her 28 and provide additional information. Campbell did not know of Dr. Chaudhry before the — 26 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 26 of 99 1 investigation and testified she had no animosity or bias toward him. 2 Campbell and Kappmeyer did not interview Dhillon, Bhatt, nor Albakova. Campbell was 3 informed that Albakova was in Russia and unavailable for an interview. Campbell did not try to 4 email or call Albakova in Russia.8 5 Campbell interviewed a Dr. Synn, a member of the board of trustees of the facility, to 6 obtain general information on the governing body. Campbell interviewed Thomas, the president 7 of the medical department, to obtain information on conditions and systemic issues. Campbell 8 conducted a phone interview with Robillard. 9 Yussif interviewed Schreur during the April 2012 investigation, and Kappmeyer 10 interviewed Schreur in July of 2012 during the CMS Investigation. Campbell did not interview 11 Schreur. 12 Campbell interviewed Allen, and Campbell’s recorded notes reflect that Allen told 13 Campbell that Dr. Chaudhry was “still there to end of skin closing.” (Ex. 104 at 16; 5/4 149.)9 14 Kappmeyer interviewed a Julianne Ely, a manager for the surgery department, regarding 15 policies and procedures, and issues regarding Dr. Chaudhry. Kappmeyer interviewed a Julie 16 Carson, a manager of cardiovascular surgery, for the purpose of ascertaining requirements for 17 cardiovascular versus general surgery, concerning the different policies, procedures, rules, 18 regulations. Kappmeyer interviewed Griselda Owens, to obtain information on Conditions of 19 Participation. Kappmeyer interviewed Drew Walker, for general information regarding 20 construction and climate control in the OR. Kappmeyer interviewed Stan Zulewski, a facilities 21 8 22 In designated deposition testimony from the Perez Malpractice Case, Albakova stated she never told anyone at CDPH that she was out of the country, though she might have told “them,” referring to CRMC, that she was leaving 23 the country. (Dep. Bella Albakova Vol. I, April 8, 2015 (“Albakova Dep. Vol I”), at 242:14-243:23.) However, Albakova never actually left the country, but was rather on “vacation” at home in Fresno, and is not aware of how CDPH concluded she was out of the country. (Id.) Albakova never received any communication from CDPH and 24 stated she was available until she left in the beginning of May 2012 for vacation. (Id.) 25 9 Further, designated testimony of Allen from the Perez Malpractice Case reflects she testified that Dr. Chaudhry came over to the operating table during the skin closing after dictating notes. (Dep. Martha Allen Vol. I Dec. 9, 26 2014 (“Allen Dep. Vol I”), at 581:2-582:23.) However, Yussif’s notes of the interview with Allen dated April 18, 2012, reflect Allen told Yussif that Dr. Chaudhry “left the room and Dr. Dhillon and Bella [Albakova] were closing 27 up.” (See Ex. 507 at 7.) Campbell initially testified that she did not interview Allen, stating Kappmeyer interviewed Allen, and Campbell stated she vaguely remembered Allen’s timeline did not match with other reports. However, 28 Campbell’s recollection was then refreshed by her notes that indicated she did interview Allen. — 27 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 27 of 99 1 manager, to obtain information regarding climate control or other infection control issues. 2 Campbell interviewed Utecht in July of 2012, to evaluate whether the Perez incident was 3 a systemic problem or isolated individual problem. Campbell utilized McComb as a kind of 4 point-person to help coordinate documents and interviews. Campbell interviewed McComb for 5 input regarding other staff and to obtain documents pertaining to policies and procedures. 6 Campbell reviewed the peer review file as to both Dr. Chaudhry and Albakova. During 7 the CMS investigation, Campbell did not review any “swipe cards” which recorded when 8 doctors, nurses and necessary personnel entered private rooms like the operating room. 9 In resolving conflicts in testimony and evidence, when conducting a CMS investigation, 10 Campbell is trained not to interrogate, but to take the information as given, and then proceed to 11 making a judgment call based on all of the information, drawing a conclusion, and utilizing 12 interviews, policies, procedures, rules, regulations, bylaws, information from committees, and 13 essentially everything that is provided or obtained. 14 The Court will excerpt some of the relevant notations in the ACTS 15 Complaint/Investigation Report (Ex. 103), reflecting the investigation and interviews conducted 16 by Campbell and Kappmeyer, that were incorporated in part or whole into the CMS SOD. The 17 report states in part: 18 Based on staff interview, clinical record and administrative document review, the hospital failed to ensure quality medical care was provided to patients and failed 19 to ensure Medical Staff Bylaws and regulations were enforced when Cardiovascular Surgeon 1 (CV 1) left an open heart surgery prior to the closure of 20 the chest. CV 1 instructed a non-surgeon practitioner (Physician Assistant 1) to close the chest and did not appoint a qualified medical professional in his absence. 21 The dictated operative report for Patient 1’s surgery did not reflect the participation of the non-surgeon. The operative report for Patient 1 did not reflect 22 the critical condition of the patient after surgery . . . . . . The cumulative effect of these systemic problems resulted in the hospital’s 23 inability to ensure the provision of quality health care in a safe environment . . . 24 . . . On 7/13/12 at 10:35 a.m., during an interview, CV 1 stated he directed PA (Physician Assistant) 1 to finish the case which meant she was to perform the 25 remainder of the surgery – closure of the chest with wires (reference to the staples) and the rest of the closing. CV 1 stated he had checked all tubes and all 26 was routine. CV 1 stated he allowed PA 1 to practice above her privilege card as “she was preparing for an Advanced Quality Practice Exam and for that, she 27 needed so many cases with opening and closing the chest, and to cannulate the insertion of a cannula or tube into a hollow body organ the heart …’ CV 1 said he 28 was ‘… always there when she did this, until this time.’ CV 1 stated he left the — 28 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 28 of 99 1 surgery and went up to the unit to complete orders for the patient at about 11:30 a.m., and then left the hospital premises at about 12:40 p.m. PA 1 was out of the 2 country and was unavailable for an interview. 3 On 7/13/12 at 11:40 a.m., during an interview, CV1 acknowledged the entry that Patient 1 was transferred to the surgical intensive care unit in stable condition was 4 an error. HE stated this was his routine entry but it did not happen ( meaning the patient was not transferred to the SICU in stable condition but was transferred to 5 the cardiovascular intensive care unit in critical condition) in this case. During an interview on 7/16/12 at 11:30 a.m., MD 2 and Administrative (Admin) 6 Staff 2, both stated CV 1 left the operating room prior to closure/stapling of the bones back together. MD 2 and Admin Staff 2 stated PA 1 had stapled the bones 7 in this case without the Cardiovascular Surgeon being present. MD 2 and Admin Staff stated that CV 1 violated the hospital’s Rules and Regulations under the 8 Bylaws which does not permit the primary surgeon to leave the operating room prior to the patient being established as stable . . . 9 Based on observation, staff interview, and clinical record and administrative 10 document review, the hospital failed to ensure surgical services were provided in accordance with acceptable standards of practice when: 11 1. Cardiovascular Surgeon 1 (CV 1) left the operating room and the hospital 12 premises prior to the stapling of the ribs back to the sternum (bone to bone closure) and prior to the closure of the remainder of the surgical site (fascia – 13 tissue that holds soft organs in place, muscles and skin) during an open heart surgery for Patient 1 in violation of the hospital’s “Rules and Regulations” . . . 14 3. The CV 1 did not accurately dictate the operative report to reflect non-surgeon 15 participation in the closing of the chest surgical site for Patient 1 and did not accurately reflect the condition of Patient 1 after the surgical procedure . . . 16 17 (Ex. 103 at 2-4.) 18 D. The Issued State and CMS Reports 19 As a result of the investigations, review process, and completion of the POC portion by 20 CRMC, CDPH prepared a Statement of Deficiencies and Plan of Correction, dated February 14, 21 2013 (“State 2567” or “State Report”), and a Statement of Deficiencies and Plan of Correction, 22 dated August 23, 2012 (“CMS 2567” or “Federal Report” or “CMS Report”). 23 The State 2567 did not contain Dr. Chaudhry’s name, and referred to him as 24 “Cardiovascular Surgeon 1 (CVS 1).” The State 2567 referred to Perez as “Patient 1,” Albakova 25 as “PA 1,” and Dhillon as “MD 1.” The top of the State 2567 contains the heading “California 26 Health and Human Services Agency [-] Department of Public Health.” (Ex. 113 at 1 27 (capitalization altered).) The State 2567 notes that: “Representing the Department of Public 28 Health: Surveyor ID # 27126, HFEN.” (Ex. 113 at 1.) As noted above, Yussif’s surveyor — 29 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 29 of 99 1 identification number is 27126. 2 The State 2567 Statement of Deficiencies (“State Report” or “State 2567”) found, among 3 other things, that “CVS 1 left the OR at 11:45 a.m.,” that “PA 1 and MD 1 sutured the chest 4 closed with metallic wire at approximately 12:00 p.m. and then left the OR,” that “CVS 1 left the 5 open-heart surgery on Patient 1 prior to closing of the chest and prior to stabilization in violation 6 of hospital medical staff bylaws,” and “CVS 1 left in-charge an individual not qualified to be left 7 in charge (PA 1).” (Ex. 113 at 3, 7.) 8 The CMS 2567 did not contain Dr. Chaudhry’s name, and referred to him as 9 “Cardiovascular Surgeon 1 (CV 1).” The CMS 2567 referred to Perez as “Patient 1,” Albakova 10 as “Physician Assistant 1,” Utecht as “MD 2,” and McComb as “Administrative (Admin) Staff 11 2.” The top of the CMS 2567 contains the heading “Department of Health and Human Services 12 [-] Centers for Medicare & Medicaid Services.” (Ex. 505 at 1 (capitalization altered).) The 13 CMS 2567 noted the document “reflect[ed] the findings of [CDPH] – Licensing and Certification 14 during a Complaint Validation Survey conducted on 7/17/12.” (Ex. 505 at 1.) The CMS 2567 15 also noted: “Representing the [CDPH] – Licensing and Certification: Shirley Campbell RN 16 HFEMI, and Deidre Kappmeyer RN HFES.” (Id.) 17 The CMS 2567 found that the following “Conditions of Participation were not met: 42 18 CFR 482.22 Medical Staff and 482.51 Surgical Services.” Regarding Medical Staff, the CMS 19 2567 stated “the hospital failed to ensure quality medical care was provided to patients and failed 20 to ensure Medical Staff Bylaws and regulations were enforced when Cardiovascular Surgeon 21 (CV 1) left an open-heart surgery prior to the closure of the chest [and] instructed a non-surgeon 22 practitioner (Physician Assistant 1) to close the chest and did not appoint a qualified medical 23 professional in his absence.” (Ex. 505 at 1.) Regarding Surgical Services, the CMS 2567 stated 24 “the hospital failed to ensure surgical services were provided in accordance with acceptable 25 standards of practice when . . . (CV 1) left the operating room and the hospital premises prior to 26 the stapling of the ribs back to the sternum (bone to bone closure) and prior to the closure of the 27 remainder of the surgical site (fascia – tissue that holds soft organs in place, muscles and skin) 28 during an open heart surgery for Patient 1 in violation of the hospital’s ‘Rules and Regulations.’ — 30 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 30 of 99 1 (Ex. 505 at 6-7.) 2 The CMS 2567 found the hospital did not meet the Conditions of Participation for 3 deficiencies including but not limited to: (1) “the hospital failed to ensure quality medical care 4 was provided to patients and failed to ensure Medical Staff Bylaws and regulations were 5 enforced when Cardiovascular Surgeon 1 (CV 1) left an open-heart surgery prior to the closure 6 of the chest,” (2) “CV 1 instructed a non-surgeon practitioner (Physician Assistant 1) to close the 7 chest and did not appoint a qualified medical professional in his absence,” (3) “[t]he dictated 8 operative report for Patient 1’s surgery did not reflect the participation of the non-surgeon,” (4) 9 [t]he operative report for Patient 1 did not reflect the critical condition of the patient after 10 surgery,” and (5) “the hospital failed to ensure surgical services were provided in accordance 11 with acceptable standards of practice.” (Ex. 505) 12 The CMS 2567 also noted that during an interview, “CV 1 stated he left the surgery and 13 went up to the unit to complete orders for the patient at about 11:30 a.m. and then left the 14 hospital premises at about 12:40 p.m.” (Ex. 505 at 3.) The CMS 2567 also noted during an 15 interview that: “MD 2 and Administrative (Admin) Staff 2, both stated CV 1 left the operating 16 room prior to closure/stapling of the bones back together . . . [and] stated PA 1 had stapled the 17 bones in this case without the Cardiovascular Surgeon being present . . . [and] CV1 violated the 18 hospital’s Rules and Regulations under the Bylaws which does not permit the primary surgeon to 19 leave the operating room prior to the patient being established as stable.” (Ex. 505 at 3-4.) 20 Campbell reached the conclusion that Dr. Chaudhry instructed Albakova to close Perez’s 21 chest in his absence, and that the action violated CRMC’s policies and procedures. Campbell’s 22 conclusion was based on the totality of the interviews, including Schreur, Allen, Breaux, 10 Dr. 23 Chaudhry, Utecht, McComb, and Robillard, in conjunction with a review of the hospital bylaws 24 10 Specifically, Campbell relied in part on Kappmeyer’s notes of interview with Breaux, although this interview is 25 not expressly reflected in the CMS Report. Kappmeyer’s notes of her July 13, 2012 interview with Breaux reflect that Breaux stated the operation went well; “Dr. Chaudhry left. Both Dr. Dhillon and Bella performed closure. 26 (They start @ separate ends) Dr. Dhillon is a general surgeon. [Dr. Chaudhry [d]id not sit at desk to do orders . . . or operative report. This was his practice. He rarely stayed in OR to orders/operative report.” (Ex. 509 at 6.) 27 Yussif’s notes reflect Breaux informed him that Dr. Chaudhry’s “usual is to leave the PA and the [assistant] surgeon to close the chest,” and “[w]hen [Dr. Chaudhry] left the chest was not closed.” (Ex. 507 at 2.) 28 — 31 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 31 of 99 1 and procedures. Campbell based the finding that Albakova was not qualified to close the chest 2 on the peer review file of Albakova, the bylaws, and by looking at what Albakova was granted 3 privileges for, as such privileges were not granted on Albakova’s privilege card. 4 Admitted into evidence is a CDPH document entitled “7/12/12 CRMC list of information 5 needed,” which describes what documents would have been requested from the facility for 6 CDPH, and to have available to Campbell and her team to review. (Ex. 105.) The list 7 specifically references: “Privileges for physician assistants specific to the cardiovascular surgical 8 program.” (Ex. 105.) Through this request, Campbell received Albakova’s privilege card and 9 her peer review file. Campbell reviewed the privilege card of Albakova but did not take it from 10 facility as they do not take confidential documents. As to the question of whether a 11 cardiovascular surgeon may delegate a duty to a general surgeon in the operating room, 12 Campbell’s investigation found that the designee had to be a qualified professional as expressly 13 allowed on their privilege card, as indicated by the peer review information, and CRMC’s rules 14 and regulations.11 15 Campbell found Dr. Chaudhry’s absence caused Perez’s decline due to Dr. Chaudhry’s 16 designation to Albakova in closing the chest; there were issues from something being torn or cut 17 during the reattachment of the sternum; and Albakova did not have the privilege on her card to 18 be able to close. Based on CRMC’s bylaws and polices, Campbell concluded there were 19 systemic failures that caused the patient to have cardiac arrest, any one of such failures could 20 have caused the cardiac arrest, and concluded there were violations because Albakova didn’t 21 have permission to do the wiring closure. 22 CRMC was subject to a governing document entitled “Community Regional Medical 23 11 Campbell testified she did not specifically remember looking at the general surgeon Dhillon’s privilege card but does know that Albakova did not have such privilege on her card. Campbell testified that in determining whether 24 Dhillon or Bhatt were qualified or not appropriately credentialed, Campbell believes she spoke with Utecht who told her such designee had to be a cardiovascular thoracic surgeon, but does not recall for certain. Utecht testified that he 25 never told Campbell that Dhillon or Bhatt were “not qualified as medical doctors in the operating room.” The Court notes that the line of questioning specifically referenced whether Dhillon and Bhatt “were not qualified as medical 26 doctors,” not whether they had certain privileges or were qualified do the closing of the chest during the surgery, or whether Albakova could assist in the closing with Dhillon. Campbell further testified she did not recall seeing 27 anything specific, such as a bylaw or rule that identified what a qualified physician was, nor seeing anything specific that stated Dr. Bhatt nor Dhillon were not qualified. 28 — 32 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 32 of 99 1 Center Bylaws of the Medical Staff 2011.” (Ex. 521 (capitalization altered).) CRMC’s bylaws 2 provided in relevant part, under the subsection entitled “EXERCISE OF PRIVILEGES,” that: “A 3 practitioner shall be entitled to exercise only those clinical privileges or practice prerogatives 4 specifically granted. Said privileges must be hospital specific and within the scope of the 5 person’s license, certificate, or other legal credential authorizing practice in this State. Clinical 6 privileges shall be exercised pursuant to these Medical Staff Bylaws, Rules and Regulations, and 7 Medical Staff and hospital policy, and subject to the authority of the Department Chairpersons 8 and the Medical Executive Committee.” (Ex. 521 at 48.) 9 Campbell also relied upon the “Rules and Regulations and Policies of the Medical Staff,” 10 dated 2011, which provide in relevant part, within Section D entitled “Coverage Arrangement,” 11 that: 12 Each attending physician shall personally provide or otherwise arrange for continuous care and coverage for each of his or her patients who present to the 13 hospital for clinical care or who are currently hospital inpatients or who have been seen on consultative basis. If a physician is unable to provide care for his or her 14 patients, then the physician must provide coverage through another appropriately credentialed physician. The covering physician must be available and qualified to 15 assume responsibility for the patients during the entirety of the attending physician’s absence and must be aware of the status and condition of any hospital 16 inpatient which he or she is to cover. Failure to ·arrange appropriate coverage shall be grounds for corrective action as defined in articles VI and VI I of the 17 Medical Staff Bylaws. 18 (Ex. 520 at 1, 12 (capitalization altered.) Specifically, Campbell used this provision to conclude 19 that Dr. Chaudhry did not appoint a qualified medical professional in his absence. 20 CRMC’s rules and regulations also provide: “The operative report shall include . . . [t]he 21 specific procedures performed and a description of significant surgical tasks that were conducted 22 by practitioners other than the primary LIP (significant surgical procedures include: opening and 23 closing . . . “[c]omplication, if any . . . [and] [p]ostoperative diagnosis.” (Ex. 520 at 30-31.) 24 Campbell concluded the operative report (Ex. 101), did not show Albakova’s involvement nor 25 indicated the critical condition of the patient after the surgery. 26 1. The Time Dr. Chaudhry left the Operating Room and the use of the Term Stapling of the Bones 27 28 The CMS Report reflects the following statement regarding Campbell’s interview with — 33 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 33 of 99 1 Dr. Chaudry, referred to as “CV 1”: 2 On 7/13/12 at 10:35 a.m., during an interview, CV 1 stated he directed PA (Physician Assistant) 1 to finish the case which meant she was to perform the 3 remainder of the surgery – closure of the chest with wires (reference to the staples) and the rest of the closing). CV 1 stated he had checked all the tubes and 4 all was routine. CV 1 stated he allowed PA 1 to practice above her privilege card as “she was preparing for an Advanced Quality Practice Exam and for that she 5 needed so many cases with opening and closing the chest, and to cannulate the heart…” CV 1 said he was “… always there when she did this, until this time.” 6 CV 1 stated he left the surgery and went up to the unit to complete orders for the patient at about 11:30 a.m., and then left the hospital premises at about 12:40 p.m. 7 8 (Ex. 112 at 17; Ex. 505 at 17.) 9 It is an undisputed fact that Dr. Chaudhry did not leave the operating room prior to 12:15 10 p.m. (UF 11.) While Dr. Chaudhry’s post-operative dictation reported leaving at 12:15 p.m., 11 Campbell did not specifically see or incorporate that time stamp in her report, as the specific 12 time Dr. Chaudhry left the operating room was not key to Campbell’s findings as to whether the 13 hospital’s bylaws were violated. Rather, Campbell’s focus was on whether Albakova had the 14 privilege under the hospital’s governing policies to close the chest without Dr. Chaudhry present 15 in the operating room. As stated above, Campbell concluded Albakova did not have such 16 privilege based on a review of Albakova’s privilege card, her peer review file, and the hospital’s 17 governing policies. Campbell also considered that during the interview, Dr. Chaudhry told 18 Campbell he was always with Albakova until this time, and the compilation of these facts 19 allowed Campbell to reach the conclusion that there was a violation of the bylaws and applicable 20 rules and regulations, which was not dependent on the time of departure from the operating 21 room. 22 Campbell never specifically asked Kappmeyer which surgeon was referred to in 23 Kappmeyer’s notes of Schreur’s interview where it states “after [patient] stabilized surgeon 24 closes chest.” (Ex. 509 at 8.) Campbell relied on Kappmeyer’s notes of her interview with 25 Schreur, which stated: “Surgery went well. Came off bypass [at] 11:45. After [patient] 26 stabilized, Surgeon closes chest. Dr. Chaudhry left about 20-15 minutes after coming off bypass. 27 Bella routinely put in wires.” (Ex. 509 at 8.) This is despite the fact that this would equate to 28 Dr. Chaudhry leaving the operating room at approximately 12:00 or 12:05. The CMS Report did — 34 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 34 of 99 1 not include specific reference to Schreur’s interview conducted by Kappmeyer. 2 The State 2567 reported that Schreur (identified as “Staff 1”), stated during the interview 3 with Yussif, that Dr. Chaudhry had left the operating room at “approximately 11:45 a.m., prior to 4 the closure of the chest,” and that Albakova and Dhillon “closed the chest and then left the OR.” 5 (Ex. 113 at 5.) Yussif’s notes from the initial State investigation reflect the following statement 6 indicating Schreur stated the following to Yussif: “We came off bypass at 11:45 a.m. . Then 7 they started to close up the [chest]. Dr. Chaudhry assessed and then stepped away and his PA 8 and Dr. Dhillon K.S. closed up. This is normal. They both hold the wires and pull and then 9 close the [chest]. [Dr. Chaudhry] left the room at that point maybe to go talk to the family.” 10 (Ex. 115 at 5) Campbell testified she was not aware of these notes when she completed the CMS 11 Report, nor when the amended State Report came out. 12 The CMS 2567, states in one part that: “Cardiovascular Surgeon 1 (CV 1) [Dr. Chaudhry] 13 left the operating room and the hospital premises prior to the stapling of the ribs back to the 14 sternum (bone to bone closure) and prior to the closure of the remainder of the surgical site 15 (fascia – tissue that holds soft organs in place, muscles and skin) during an open heart surgery for 16 Patient 1 in violation of the hospital’s ‘Rules and Regulations.’ ” (Ex. 112 at 6-7; Ex. 505 at 6-17 7.) The CMS 2567, specifically reported that Utecht and McComb (identified as MD 2 and 18 Admin Staff 2) had both stated during an interview on July 16, 2012, that Dr. Chaudhry (“CV 19 1”) had left the operating room “prior to closure/stapling of the bones back together,” and that 20 “MD 2 and Admin Staff 2 stated PA 1 had stapled the bones in this case without the 21 Cardiovascular Surgeon being present.” (Ex. 505 at 12; Ex. 112 at 12.)12 22 12 McComb testified that at the time she saw the CMS Report, she believed the reference to Dr. Chaudhry leaving at 23 11:30 a.m. was inaccurate as the presentation of Dr. Chaudhry’s interview in the CMS Report did not make sense. McComb recalled telling Campbell that she had misquoted McComb, as McComb testified she never said Albakova stapled the chest/sternum after Dr. Chaudhry left, as stapling of the bones together are not words she would use 24 because that is not how that type of surgical closing occurs. McComb testified that she requested Campbell to correct the statements in the CMS Report, and that Campbell said they were not changing anything. This did not 25 shock McComb as in working with 2567s, she believes CDPH has their truth based on their investigations and interviews, and CRMC has their truth, and they do not always agree with each other, and at times, there are 26 conversations about inaccuracies. By the time she spoke with Campbell about her concerns, McComb had formed the opinion that Dr. Chaudhry was in the operating room when the sternum bones were closed, based on her review 27 of the medical records, including the time stamp at the end of Dr. Chaudhry’s dictation indicating 12:15 p.m., and review of the in/out sheets. 28 — 35 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 35 of 99 1 A largely similar notation of the interview with McComb and Utecht was entered into the 2 State Report authored by Yussif. (Ex. 113 at 6.) However, the State Report omits reference to 3 the term stapling in regards to this interview, and instead is phrased as: “On 7/16/12 . . . MD 4 . . 4 . and . . . [Admin 1], both stated CVS 1 left the OR prior to closure of the chest bones back 5 together. MD 4 and Admin Staff 1 stated that CVS 1 violated the hospital’s Rules and 6 Regulations under the Bylaws which do not permit the primary surgeon to leave the OR prior to 7 the patient being established as stable.” (Compare Ex. 113 at 6; Ex. 505 at 12) The CMS Report 8 was generally available to Yussif to utilize in completing the State Report, and there were 9 multiple ways that Yussif could have accessed this information at the office, such as a file 10 cabinet, and it is common in these types of investigations for one investigator on CMS side to 11 borrow from the State, or vice versa, such as in the case of an inability to interview a particular 12 individual. Other than the CMS Report being available, Campbell as a supervisor did not direct 13 Significantly however, despite her disagreement with the alleged misquotations regarding the closure of the sternum 14 bones, McComb testified she did not disagree with the statement in the CMS Report (Ex. 112 at 4), that Dr. Chaudhry left the operating room prior to the “closure” of the chest. This was based on McComb’s belief the team 15 was finishing the last stitches and placing bandages, so Dr. Chaudhry’s exit was right around the time of chest “closure.” Thus, McComb affirmed in testimony that she had no disagreement with the portion of the CMS Report 16 that Dr. Chaudhry “left the operating room prior to closure.” 17 Utecht testified that he never told Campbell Dr. Chaudhry left the operating room prior to stapling of the bones back together. When Utecht first reviewed the SOD, Utecht testified he saw the inaccurate quote, but didn’t have a 18 chance to correct at that point, other than through McComb making a phone call explaining that it was incorrect. Utecht testified he did not speak to Campbell or tell her that CDPH needed to make corrections to the findings, and 19 did not recall any conversation with Campbell where Campbell said something to the effect of “we are not changing anything.” 20 On the other hand, Campbell testified there is no doubt in her mind that she heard the term “stapling” by Utecht and 21 McComb; that McComb did not call her to tell Campbell that these statements were incorrect or that medical professionals do not use such a term; that if somebody had called her, she would have double-checked her notes, and 22 worked with them; that if it was clear there was a mistake, there would a “long conversation” with CMS, because they are the only agency that can alter the records at that point, and she would have to explain why it wasn’t reported 23 accurately; and Campbell testified this has never happened in her entire career. 24 McComb also testified that she did not witness any animosity by Campbell toward the hospital or the staff involved, and never experienced any personal bias by Campbell before July 2012 against anyone she was conducting surveys concerning. 25 McComb did not recall telling anyone besides Campbell that the quotes were incorrect. Lopez testified the first time 26 he was aware the hospital was objecting to statements attributed to employees McComb, Schreur, or Utecht, was well after the POCs had been submitted. 27 The Court addresses the credibility of this testimony and ultimate relevance in the legal analysis section below. 28 — 36 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 36 of 99 1 Yussif to use any of the information in the CMS Report in the State Report. 2 E. CRMC’s Internal Actions, the Medical Executive Committee’s Investigation Supported by Outside Expert, & Process of Creating Plan of Correction 3 4 As noted on the State 2567 and CMS 2567, on April 12, 2012, the Medical Executive 5 Committee for CRMC (the “MEC”) “notified [Dr. Chaudhry] by letter to comply with the 6 medical staff bylaws requiring him to remain in the hospital and be available when patients are 7 still in the Operating Room or to arrange for appropriate coverage,” and that the “President of the 8 Medical Staff telephoned the physician and informed [Dr. Chaudhry] of the same expectations 9 and admonished him that failure to adhere to this directive would result in an immediate 10 summary suspension.” (Exs. 112 at 2, 503 at 4, 505 at 2.) The State 2567 and CMS 2567 also 11 state that on April 12, 2012, the MEC: 12 determined it would be in the best interest of both [Dr. Chaudhry] and the MEC if the case was reviewed by an outside expert. It immediately took steps to send the 13 case in question out for an independent review by an experienced expert cardiovascular surgeon, even though it was recognized this would cause a time 14 delay in resolution of the matter. On 7/18/2012 the practitioner and the assisting cardiovascular surgeon were directed by the President of the Medical Staff to 15 amend their documentation in the patient record to reflect what accurately happened on 4/2/12. The amended documentation was entered into the record on 16 7/19/2012. 17 (Id.) McComb received the information regarding the outside expert recommendation to enter 18 into the POC through working with the MEC. 19 During the federal CMS investigation in July of 2012, there were rumors discussed 20 within CRMC that Davis was making remarks concerning the ability of Davis or CDPH to shut 21 the hospital’s program down. McComb never directly heard Davis make comments regarding 22 shutting the hospital down, no witness in this trial testified that they directly heard these 23 statements, and Davis affirmed in testimony that CDPH does not comport themselves in this 24 alleged fashion. Dr. Chaudhry claims Davis refused to meet with him despite Dr. Chaudhry’s 25 desire to present information from his perspective of the Perez surgery as a cardiothoracic 26 surgeon. Due to the schedule of the survey team, Davis affirmed that if another team member 27 interviewed Dr. Chaudhry, he would not have completed another interview. 28 On or around August 8, 2012, CRMC received a letter informing CRMC that it was being — 37 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 37 of 99 1 placed under CMS survey jurisdiction. The August 8, 2012 letter directed CRMC to submit 2 evidence of correction to address the survey to the CMS office in San Francisco office and the 3 CDPH Fresno District office. 4 McComb was generally aware of the ability of CMS to terminate CRMC’s right to 5 Medicare and Medicaid reimbursement. Specifically, she was aware as of August 8, 2012 when 6 CRMC received the letter placing CRMC under CDPH survey jurisdiction that because CRMC 7 was “out of condition” with the CMS Conditions of Participation, that CRMC was on a 8 termination track until they demonstrated compliance. McComb was aware that loss of 9 reimbursement would be devastating to the hospital, as more than 50% of CRMC’s income was 10 reimbursement. 11 On August 15, 2021, Dr. Chaudhry made a presentation at a meeting with the MEC and 12 voiced concerns that the actions of the MEC would have a negative impact on Dr. Chaudhry. 13 Following Dr. Chaudhry’s appearance before the MEC on August 15, 2012, Dr. Chaudhry was 14 dispatched a letter dated August 21, 2012, from Dr. Thomas, President, Medical Staff, of 15 Community Medical Centers. (Ex. 123 at 1.) The letter states Dr. Chaudhry’s appearance was 16 part of the MEC’s ongoing investigation of “issues concerning medical care and [Dr. 17 Chaudhry’s] behavior.” (Id.) The letter also described the recommendations by unanimous vote 18 of the MEC that were supported by the findings of an outside reviewer. (Id.) Under the heading 19 “Medical Record Documentation,” the letter states: “The investigation revealed that [Dr. 20 Chaudhry’s] medical record documentation [was] severely deficient,” and the MEC 21 recommended that Dr. Chaudhry be required to complete a University of California, San Diego 22 Physician Assessment and Clinical Education (PACE) program in medical record documentation 23 within six months. (Id.) 24 The August 21, 2012 letter also informed Dr. Chaudhry that the MEC, after the 25 investigation supported by the outside reviewer, made the following conclusions as to the April 26 2, 2012 surgery of Perez: 27 • There is evidence that the patient was unstable following the conclusion of surgery; 28 — 38 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 38 of 99 1 • As a result, the patient was not ready to leave the OR; 2 • The responsibility for the patient’s care under these circumstances rested with you; 3 • In leaving the OR and the hospital, you failed to designate another physician 4 qualified to provide the necessary coverage or care for this patient 5 • As a result of your failure, there was an untimely response to the patient’s deteriorating condition; 6 • You have already been directed to either be present or to provide suitable 7 coverage (presence of a privileged cardiothoracic surgeon) following cardiac surgery cases until the patient is stable in the intensive care unit (“ICU”). This 8 requirement shall remain in place; 9 • You have already been directed to remain in the OR until the patient’s chest is closed; and 10 • Therefore, a fourteen-day (14) day medical staff membership and clinical 11 privileges suspension is imposed and shall be served within three (3) months of August 5, 2012. 12 (Ex. 123 at 1-2.) As of August 21, 2012, Dr. Chaudhry aware of all these points raised in the 13 letter. 14 At some point during the investigations, McComb contacted the Physician Assistant 15 Board for the State of California (“PA Board”), and received materials and information 16 clarifying and explaining the responsibility of the overseeing surgeon in working with a 17 physician assistant when a patient is under general anesthesia. After receiving the information, 18 McComb discussed the information with some of the CRMC surgeons, including Dr. William 19 Dominic (“Dominic”), and provided such information regarding how oversight worked and what 20 the expectations of the PA Board were at that time. Based on the information from the PA 21 Board, McComb determined that the CMS SOD was accurate in that there was not proper 22 oversight of the Perez surgery. As for the requirements of supervision as it related to the 23 operating room and the personal presence of a supervising physician, McComb confirmed the 24 requirement was not on the privilege card of physician assistants at CRMC prior to the CDPH 25 and CMS investigations. 26 Accordingly, McComb worked with the director of medical staff office at CRMC to 27 review the privilege cards of the physician assistants, including Albakova’s; worked to ensure 28 — 39 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 39 of 99 1 the cards were updated to include the required information; and included such fact in the POCs.13 2 Specifically, the POC for both the CMS 2567 and State 2567 note: 3 The Allied Health Professional (Physician Assistant) privilege card was modified in accordance with Title 16 to state that the personal presence of an approved 4 supervising physician is required when performing surgical procedures under general anesthesia. The privilege card was approved at MEC on 5/10/2012 and 5 Board of Trustees on 7/17/2012. 6 After the event occurred, the Chair of the Department met individually with the practitioner and the Physician Assistant. They were directed that the personal 7 presence of an approved supervising physician is required when performing surgical procedures under general anesthesia at all times. 8 9 (Ex. 503 at 4; Ex. 505 at 2.) 10 On January 28, 2013, CDPH dispatched a letter to CRMC attaching the State 2567 SOD 11 and providing the following information regarding completion of a POC and appeals process: 12 If you disagree with any deficiency, you may submit a written appeal to the district administrator/district manager of this office. A formal appeal process will 13 be afforded to you if and when an administrative penalty notice is issued to your facility for an immediate jeopardy deficiency. Please do not request a formal 14 appeal of any penalties until the notice of a penalty is issued. The plan of correction must be returned within 15 calendar days of receipt of 15 the statement of deficiencies. 16 (Ex. 131 at 2.) This letter was signed by Campbell, on behalf of Spence. 17 After receiving the SOD from CDPH in January of 2013, and as noted above, Utecht did 18 not directly contact Campbell or anybody at the CDPH to express concern or raise a dispute with 19 the SOD. CRMC completed the process of submitting the POC, and the hospital did not submit 20 any formal appeal. 21 In her role of creating and overseeing the POCs for CRMC, McComb generally believed 22 the State SOD and the CMS SOD for the Perez matter were roughly identical, and the POC 23 13 Dr.. Chaudhry claims he met with Thomas before his interview with Campbell, and they specifically discussed at 24 the time that physician assistants did not have privilege cards generally, but only specifically for the emergency room. Dr. Chaudhry claims the hospital was making cards while he was a director, and gave clinical input to the 25 hospital. Dr. Chaudhry claims that when the survey team came to do interviews, the privilege card for the emergency room stated that a PA could close the bone and skin, and the hospital was satisfied, but the State was not 26 satisfied in this regard. The hospital then went on to specifically make the privilege cards for each PA. Dr. Chaudhry recalled every PA coming into the medical staff office, lined up getting their privilege cards and signing 27 applications, and avers this was a reason he was aware of the State investigating. McComb doesn’t remember specifically, but affirmed it would be custom practice to give the modified privilege card to Campbell and believes 28 the card was modified in May of 2012, following the surgery. — 40 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 40 of 99 1 created addressed both. As for the above noted inaccuracies that McComb claims she brought to 2 the attention of Campbell, McComb depends on the fact the POC incorporates a general 3 disclaimer stating the facility does not agree with all things written in the SOD, and the focus of 4 the POC is on the deficiencies beyond the inaccuracies. However, there is no ability of the 5 facility to enter a specific note of disagreement within the POC to address a specific error, if a 6 specific objection was placed in the POC, it was McComb’s understanding the POC would not 7 be accepted. 8 McComb was involved in creating multiple drafts that of the POCs, but was never 9 requested by anyone at CDPH to specifically discipline Dr. Chaudhry. Because CDPH’s 10 jurisdiction only authorizes investigations of hospitals, not individual doctors, Dr. Chaudhry was 11 not directly permitted to complain to CDPH regarding the State 2567 or to CMS regarding the 12 CMS 2567. 13 F. Publication of the State and CMS Reports 14 CDPH did not have a website in 2012, but had a sort of online directory to exchange 15 information between CDPH offices. It is an undisputed fact that on or about October 10, 2013, 16 the CDPH published on its website the State 2567 regarding the events of April 2, 2012. (UF 17 19.) 18 It is an undisputed fact that CDPH did not publish the CMS 2567. (UF 20.) 19 G. Events After Publication Including Amending of the State Report 20 Following the publication of the State 2567, the Medical Board of California began 21 investigating Dr. Chaudhry. (UF 28.) In June 2014, the handwritten notes of the CDPH 22 investigators were provided to Dr. Chaudhry’s attorneys who were representing him in the Perez 23 Malpractice Case. In early December 2014, the Medical Board of California determined that it 24 would take no action against Plaintiff Chaudhry, and it closed the case. That information was 25 provided to CDPH on December 12, 2014. 26 It is undisputed that on November 25, 2014, the CDPH amended the State 2567 27 Statement of Deficiencies (“Amended State 2567”) based on information from CRMC’s hospital 28 risk manager interview and comparison with clinical hospital records that show Dr. Chaudhry — 41 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 41 of 99 1 left the operating room at about 12:15 p.m. It is also an undisputed fact that the Amended State 2 2567 still stated that when Dr. Chaudhry left the operating room, Perez was unstable and that Dr. 3 Chaudhry had an unsupervised and unqualified staff in charge in the operating room. The 4 Amended State 2567 was published on the CDPH website. 5 Specifically, both the original and amended reports state in one section that: “Based on 6 staff interviews, clinical record and administrative document review, the hospital failed to 7 implement Cardiovascular Surgery Service policies and procedures and medical staff bylaws 8 when Cardiovascular Surgeon (CVS 1) left the Operating Room (OR) . . .” (Compare Ex. 503 at 9 4 to Ex. 504 at 2.) The original State 2567 then continues: “and the hospital premises prior to the 10 closure of the chest for the open heart surgery on Patient 1.” (Ex. 503 at 4.) In contrast, the 11 Amended State 2567 continues: “. . . before Patient 1 fully stabilized following the conclusion of 12 open heart surgery.” (Ex. 504 at 2.) The original State 2567 then states: “CVS 1 directed 13 Physician Assistant (PA) 1 to be left in-charge, an individual not qualified to be left in-charge of 14 the CV surgery. After CVS 1 left the OR, Patient 1 suffered massive blood loss, cardiac arrest 15 and loss of oxygen to the brain.” (Ex. 503 at 4.) This portion of the Amended State 2567 is 16 identical and only appears to add two words, specifically: adding the word “also” before the 17 word “directed,” and added the word “cardiovascular” before the acronym “CV.” (Compare Ex. 18 503 at 4 to Ex. 504 at 2.) 19 Another change is where the original State 2567 states: “The clinical record for Patient 1 20 was reviewed on 4/17/12 . . . CVS 1 left the OR at 11:45 a.m. PA 1 and MD 1 sutured the chest 21 closed with metallic wire at approximately 12:00 p.m. and then left the OR.” (Ex. 503 at 5.) The 22 Amended State 2567 states: “The clinical record for Patient 1 was reviewed on 4/17/12 . . . 23 Patient 1 came off bypass at 11:45 a.m. PA 1 and MD 1 proceeded to complete the surgery by 24 closing Patient 1’s chest. The closing of Patient 1’s chest consists of closing several layers. 25 CVS 1 left the OR shortly after 12:15 p.m. PA 1 and MD 1 left the OR after completing the 26 surgery shortly thereafter.” (Ex. 504 at 3.) 27 The Amended State 2567 reports that Dr. Chaudhry stated during an interview that he 28 directed Albakova to finish the case, meaning closure of the chest with wires; and that Dr. — 42 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 42 of 99 1 Chaudhry allowed Albakova to practice above her privilege card. (Ex. 504 at 7.) The Amended 2 State 2567 also reports that Schreur stated during an interview that Dr. Chaudhry left the 3 operating room prior to the complete closure of the chest. (Ex. 504 at 6.) 4 As noted above, Lopez became aware CRMC was objecting to statements attributed to 5 employees including McComb, Schreur, and Utecht, well after the POCs had been submitted. 6 From the date of publication of the State 2567 on CDPH’s website of October 10, 2013, until the 7 amended State 2567 issued on November 25, 2014, there was no additional investigation 8 completed by Lopez’s department. When Lopez became aware of the inconsistencies, Lopez 9 reported it up to his branch chief and to the office of legal services, it went through the process to 10 review, and the amendments were made to the State 2567. Lopez’s involvement in the 11 amendment was peripheral as it was the Sacramento headquarters office and the office of legal 12 services that looked at the specific sections of the State 2567 and recommended changes after the 13 issues came to their attention by the hospital. 14 Following the incorporation of the draft changes, Lopez reviewed the proposed Amended 15 State 2567 before approving and sending it to go through the same process with the branch chief, 16 office of legal services, and the Sacramento headquarters for final review before being 17 reprocessed and reposted. The changes between the original and amended reports did not alter 18 Lopez’s opinion regarding Yussif’s conclusions that Dr. Chaudhry left the operating room before 19 completion of the closing of the chest, and Lopez still determined that the information contained 20 in the original State 2567 was “materially accurate.” Lopez did not report the changes or 21 reported inconsistencies to CMS. 22 Campbell retired on November 30, 2014, but was not aware at the time that the Amended 23 State Report was created around November 25, 2014. Campbell was generally aware there was a 24 discussion to amend the State Report, but had no specific knowledge one of the changes was to 25 reflect that Dr. Chaudhry left at 12:15 p.m. and not 11:45 a.m. Campbell did not participate in 26 the discussion to make the changes to the State 2567. 27 / / / 28 / / / — 43 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 43 of 99 1 H. Dr. Chaudhry’s Removal from Directorship, Non-Renewed Contracts, and 2 Plaintiffs’ Claimed Damages 3 Dr. Chaudhry became Director of Cardiovascular Surgery at CRMC around 2009. On or 4 about July 27, 2012, Dr. Chaudhry received a letter removing him from the position. (Ex. 122.) 5 The letter stated in part: 6 As you should be aware, a full validation survey will be conducted at [CRMC] 7 within the next several weeks . . . [as a] result of preliminary findings shared by [CMS] resulting from a recent review of an incident which occurred in the 8 operating room with one of your patients. In light of the findings and impeding survey, we are compelled to take action that demonstrates our commitment to 9 meeting the CMS Conditions of Participation and to the care of our patients . . .It is hereby requested that you immediately step down as Medical Director of 10 Cardiac Surgery and Thoracic Services at both CRMC and Fresno Heart & Surgical Hospital. 11 (Ex. 122.) 12 Dr. Chaudhry claims he received approximately $200,000 per year under the directorship 13 contract, though the money technically flowed through Valley Cardiac. The Court notes that one 14 directorship contract introduced into evidence with an unspecified term, appears to state Valley 15 Cardiac would receive compensation not to exceed $99,468 per year. (Ex. 125 at 3-4.) Another 16 directorship contract for a term of January 1, 2012 to December 31, 2012, appears to state Valley 17 Cardiac would receive compensation not to exceed $136,800 per year. (Ex. 124 at 4.) No other 18 directorship contracts were introduced into evidence. 19 Dr. Chaudhry claims damages flowing from a Call Coverage Agreement. (Ex. 126.) that 20 The contract paid $2,500 per 24 hour period on call, and the money flowed into Valley Cardiac, 21 and a portion flowed into Dr. Chaudhry’s medical income. The term of this contract ended on 22 November 30, 2013, and it was not renewed. 23 Dr. Chaudhry claims lost income that previously flowed from a Consultant Services 24 Agreement. (Ex. 127.) Dr. Chaudhry was the direct signatory to this contract which provided 25 compensation in the amount of $300 per hour, for total compensation not to exceed $200,000 per 26 year. (Ex. 127 at 1, 4.) The term of this contract expired in June of 2013 and it was not 27 renewed. 28 — 44 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 44 of 99 1 Dr. Chaudhry also received income from performing cardiovascular surgery. Dr. 2 Chaudhry claims that in the year 2012, his total medical income was approximately 2.06 million 3 dollars; in 2013 it was approximately 1.7 million dollars; in 2014 it was approximately 1.4 4 million dollars; in 2015 it was negative or net $53,000; in 2016 it was negative; in 2017, there 5 was no net income; and in 2018 it was negative. 6 Dr. Chaudhry claims that after the State Report was “published” to CRMC, the hospital 7 talked to “everybody” and the committees, it became the “word” that Dr. Chaudhry had 8 abandoned his patient with the chest open and his physician assistant to complete the surgery. 9 As a result, he became “stigmatized” resulting in CRMC backing off, and cardiologists wouldn’t 10 call him. By 2014, Dr. Chaudhry claims he had no surgery referrals, and his practice was 11 essentially killed. Dr. Chaudhry claims that 2018 was the last year he performed a surgery, and 12 was doing one or two cases in the previous years. 13 Dr. Chaudhry claims he was unable to maintain or afford the rising costs of 14 medical malpractice insurance by February of 2018. The cost of insurance from NORCAL 15 insurance became unaffordable due to multiple pending medical malpractice cases that were 16 ongoing in the year 2018, including the Perez Malpractice Case. Specifically, on March 19 and 17 20, 2018, the jury in the Perez Malpractice Case awarded damages against the defendants in that 18 matter, Dr. Chaudhry and CRMC, in an amount in excess of 60 million dollars. The verdict 19 amount was ultimately reduced by settlement, to be paid by CRMC and Dr. Chaudhry’s 20 insurance carrier. 21 Dr. Chaudhry claims he cannot obtain consultant work, which would not require 22 malpractice insurance, because the medical community has lost trust in him and he cannot 23 present as a credible witness now. In December of 2017, Dr. Chaudhry moved to Pakistan to 24 teach, and also performs occasional heart surgeries. Dr. Chaudhry claims he is now making 25 approximately $6,250 per month working in Pakistan, and that this is not enough to make “ends 26 meet,” and that he regularly borrows from family. 27 In sum, Dr. Chaudhry claims that his income was on an upward trajectory with business 28 expanding into new areas in California prior to the investigations and reports concerning the — 45 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 45 of 99 1 Perez surgery, and that he has lost income in excess of 14 million dollars over the seven year 2 period of 2015 until 2021. 3 IV. 4 CONCLUSIONS OF LAW 5 Plaintiffs’ operative complaint brings two causes of action, both for violation of civil 6 rights and due process pursuant to 42 U.S.C. § 1983. The first cause of action proceeds against 7 Defendant Angell in her official capacity as Director of the CDPH, and seeks declaratory and 8 injunctive relief only. Specifically, Plaintiffs seek a mandatory injunction ordering Defendant 9 Angell to withdraw the “previously false report of CDPH and issue a new report clearly 10 indicating that the original report [is] false, and vindicating Dr. Chaudhry and his medical 11 group.” (FAC, ECF No. 6 at 21.) Plaintiffs’ second cause of action proceeds against Defendants 12 Lopez and Campbell in their personal capacities. Following the withdrawal of Plaintiff Dr. 13 Chaudhry’s claim for damages related to emotional distress, Plaintiffs seek monetary damages 14 for economic harm only. (FAC ¶¶ 72-76, ECF No. 6 at 20, 21; ECF No. 103.) 15 The Court will first summarize the relevant statutes and regulations relating to the 16 government agencies involved in this action before proceeding to the discussion of the legal 17 standards applicable to Plaintiffs’ due process claims under 42 U.S.C. 1983, specifically under 18 the stigma-plus standard. 19 A. The Relevant Law Generally Applicable to CDPH, CMS, and Hospital Providers such as CRMC 20 21 “The Centers for Medicare and Medicaid Services (“CMS”), a component of the 22 Department of Health and Human Services, administers the Medicare program.” Fox Ins. Co., 23 715 F.3d at 1214–15. “Under the Medicare statute, 42 U.S.C. §§ 1395–1395kkk–1, the 24 Department reimburses health care providers for services provided to Medicare patients . . . 25 Providers receive Medicare reimbursement for inpatient hospital services through the 26 Prospective Payment System.” PAMC, Ltd. v. Sebelius, 747 F.3d 1214, 1217–18 (9th Cir. 27 2014). 28 State agencies make agreements with the federal government to conduct surveys of — 46 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 46 of 99 1 hospitals participating in the Medicare and Medicaid programs to ensure compliance with 2 minimum health and safety standards. 42 C.F.R. §§ 488.10(a)(1), (c). If there is an allegation of 3 substantial non-compliance, the state agency must conduct a series of escalating investigations. 4 See 42 C.F.R. §§ 488.9(a), (c)(2)-(3). CDPH thus ensures hospital compliance through such 5 validation surveys. When conducting surveys, CDPH surveyors record violations, otherwise 6 known as “deficiencies,” and refer hospitals for various enforcement actions. CDPH’s official 7 findings of the hospital survey are presented on a 2567 report, also known as a statement of 8 deficiencies. The 2567 report must be disclosed no later than 90 calendar days after the survey is 9 completed. 42 C.F.R. § 401.133(a).14 10 CDPH also issues administrative penalties to hospitals via the 2567 report under Cal. 11 Health & Safety Code § 1280, et seq. Cal. Health & Safety Code § 1279.2(a) requires onsite 12 investigations if CDPH receives a written or oral complaint indicating an ongoing threat or 13 imminent danger of death or serious bodily harm. Section 1279.3 provides that CDPH shall 14 make information regarding reports of substantiated adverse events and outcomes of inspections 15 and investigations readily accessible to consumers throughout California. However, information 16 such as names of health care professionals shall not be included in the information released. Cal. 17 Health & Safety Code § 1279.3(c). 18 “The state department shall notify the health facility of all deficiencies in its compliance 19 with this chapter and the rules and regulations adopted hereunder, and the health facility shall 20 14 The regulation provides: 21 (a) Statements of deficiencies and survey reports on providers of services prepared by State 22 agencies. (1) Statements of deficiencies based upon official survey reports prepared after January 31, 1973, by a State agency pursuant to its agreement entered into under section 1864 of the Social 23 Security Act and furnished to CMS, which relate to a State agency’s findings on the compliance of a health care institution or facility with the applicable provisions in section 1861 of the Act and with the regulations, promulgated pursuant to those provisions, dealing with health and safety of 24 patients in those institutions and facilities; and (2) State agency survey reports. The statement of deficiencies or report and any pertinent written statements furnished by the institution or facility 25 on the statement of deficiencies shall be disclosed within 90 days following the completion of the survey by the State agency, but not to exceed 30 days following the receipt of the report by CMS. 26 (See § 401.130(b)(17) for places where statements of deficiencies, reports, and pertinent written statements will be available.) 27 42 C.F.R. § 401.133(a). 28 — 47 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 47 of 99 1 agree with the state department upon a plan of correction that shall give the health facility a 2 reasonable time to correct these deficiencies.” Cal. Health & Safety Code § 1280(b). If a facility 3 and state department fail to agree on a POC, and it is determined the deficiency poses an 4 immediate and substantial hazard to the safety of patients, the agency may order implementation 5 of the POC. Id. at § 1280(c)(1). “If the facility does not agree that the deficiency poses an 6 immediate and substantial hazard to the health or safety of patients or if the facility believes that 7 the plan of correction will not correct the hazard, or if the facility proposes a more efficient or 8 effective means of remedying the deficiency, the facility may, within 10 days of receiving the 9 plan of correction from the department, appeal the order to the director. Id.; see also Cal. Health 10 & Safety Code § 1280.5 (“The state department shall accept, consider, and resolve written 11 appeals by a licensee or health facility administrator of findings made upon the inspection of a 12 health facility.”). Similarly, for federal surveys of deficiencies, a facility may dispute survey 13 findings upon receipt of the official statement of deficiencies. 42 C.F.R. § 488.331(a)(2) (“For 14 Federal surveys, CMS offers a facility an informal opportunity, at the facility’s request, to 15 dispute survey findings upon the facility’s receipt of the official statement of deficiencies.”). 16 Pursuant to the Defendants’ request (ECF No. 171 at 1-2), the Court takes judicial notice 17 of the following statutes and regulations applicable to the State 2567 and CMS/Federal 2567 18 processes that may have relevance to the facts underlying this action: 19 1. California Health & Safety Code § 1279.115; 20 2. California Health & Safety Code § 1279.216; 21 15 The statute provides in part: “(a) A health facility licensed pursuant to subdivision (a), (b), or (f) of Section 1250 22 shall report an adverse event to the department no later than five days after the adverse event has been detected, or, if that event is an ongoing urgent or emergent threat to the welfare, health, or safety of patients, personnel, or 23 visitors, not later than 24 hours after the adverse event has been detected.” Cal. Health & Safety Code § 1279.1. 24 16 The statute provides in part: “(a)(1) In any case in which the department receives a report from a facility pursuant 25 to Section 1279.1, or a written or oral complaint involving a health facility licensed pursuant to subdivision (a), (b), or (f) of Section 1250, that indicates an ongoing threat of imminent danger of death or serious bodily harm, the 26 department shall make an onsite inspection or investigation within 48 hours or two business days, whichever is greater, of the receipt of the report or complaint and shall complete that investigation within 45 days.” Cal. Health 27 & Safety Code § 1279.2. — 28 — — 48 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 48 of 99 1 3. California Health & Safety Code § 1279.317; 2 4. California Health & Safety Code § 1279.618; 3 5. California Health & Safety Code § 128019; 4 17 The statute provides in part: 5 (a) By January 1, 2015, the department shall provide information regarding reports of substantiated adverse events pursuant to Section 1279.1 and the outcomes of inspections and investigations conducted pursuant to 6 Section 1279.1, on the department’s Internet Web site and in written form in a manner that is readily accessible to consumers in all parts of California, and that protects patient confidentiality. 7 (b) By January 1, 2009, and until January 1, 2015, the department shall make information regarding reports of 8 substantiated adverse events pursuant to Section 1279.1, and outcomes of inspections and investigations conducted pursuant to Section 1279.1, readily accessible to consumers throughout California. The department 9 shall also compile and make available, to entities deemed appropriate by the department, data regarding these reports of substantiated adverse events pursuant to Section 1279.1 and outcomes of inspections and 10 investigations conducted pursuant to Section 1279.1, in order that these entities may post this data on their Internet Web sites. Entities deemed appropriate by the department shall enter into a memorandum of 11 understanding with the department that requires the inclusion of all data and all hospital information provided by the department. These entities may include universities, consumer organizations, or health care quality 12 organizations. (c) The information required pursuant to this section shall include, but not be limited to, information regarding 13 each substantiated adverse event, as defined in Section 1279.1, reported to the department, and may include compliance information history. The names of the health care professionals and health care workers shall not be 14 included in the information released by the department to the public. 15 Cal. Health & Safety Code § 1279.3. 16 18 The statute provides in part: “(a) A health facility, as defined in subdivision (a), (b), (c), or (f) of Section 1250, shall develop, implement, and comply with a patient safety plan for the purpose of improving the health and safety 17 of patients and reducing preventable patient safety events. The patient safety plan shall be developed by the facility, in consultation with the facility's various health care professionals.” Cal. Health & Safety Code § 1279.6. 18 19 The statute provides in part: 19 (b) The state department shall notify the health facility of all deficiencies in its compliance with this chapter and 20 the rules and regulations adopted hereunder, and the health facility shall agree with the state department upon a plan of correction that shall give the health facility a reasonable time to correct these deficiencies. If at the end of 21 the allotted time, as revealed by inspection, the health facility has failed to correct the deficiencies, the director may take action to revoke or suspend the license. 22 (c)(1) . . . [I]f the facility fails to implement a plan of correction that has been agreed upon by both the facility 23 and the state department within a reasonable time, the state department may order implementation of the plan of correction previously agreed upon by the facility and the state department. If the facility and the state department fail to agree upon a plan of correction within a reasonable time and if the deficiency poses an immediate and 24 substantial hazard to the health or safety of patients, then the director may take action to order implementation of a plan of correction devised by the state department. The order shall be in writing and shall contain a statement 25 of the reasons for the order. If the facility does not agree that the deficiency poses an immediate and substantial hazard to the health or safety of patients or if the facility believes that the plan of correction will not correct the 26 hazard, or if the facility proposes a more efficient or effective means of remedying the deficiency, the facility may, within 10 days of receiving the plan of correction from the department, appeal the order to the director. The 27 director shall review information provided by the facility, the department, and other affected parties and within a reasonable time render a decision in writing that shall include a statement of reasons for the order. During the 28 period which the director is reviewing the appeal, the order to implement the plan of correction shall be stayed. — 49 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 49 of 99 1 6. California Health & Safety Code § 1280.120; 2 7. California Health & Safety Code § 1280.321; 3 8. California Health & Safety Code § 1280.522; 4 9. California Code of Regulations, Title 22, § 7010123; 5 6 The opportunity for appeal provided pursuant to this subdivision shall not be deemed to be an adjudicative 7 hearing and is not required to comply with Section 100171. 8 . . . (d) Reports on the results of each inspection of a health facility shall be prepared by the inspector or inspector team and shall be kept on file in the state department along with the plan of correction and health facility 9 comments. The inspection report may include a recommendation for reinspection . . . 10 . . . (e) All inspection reports and lists of deficiencies shall be open to public inspection when the state department has received verification that the health facility has received the report from the state department. All 11 plans of correction shall be open to public inspection upon receipt by the state department. 12 Cal. Health & Safety Code § 1280. 13 part:Defendant erroneously cited to “§ 12801.1,” however it appears 1280.1 is the correct citation, which provides in 20 14 (a) Subject to subdivision (d), prior to the effective date of regulations adopted to implement Section 1280.3, if a licensee of a health facility licensed under subdivision (a), (b), or (f) of Section 1250 receives a notice of 15 deficiency constituting an immediate jeopardy to the health or safety of a patient and is required to submit a plan of correction, the department may assess the licensee an administrative penalty in an amount not to exceed 16 twenty-five thousand dollars ($25,000) per violation. 17 (b) If the licensee disputes a determination by the department regarding the alleged deficiency or the alleged failure to correct a deficiency, or regarding the reasonableness of the proposed deadline for correction or the 18 amount of the penalty, the licensee may, within 10 days, request a hearing pursuant to Section 131071. Penalties shall be paid when appeals have been exhausted and the department's position has been upheld . . . 19 . . . (g) In enforcing this section, the department shall take into consideration the special circumstances of small 20 and rural hospitals, as defined in Section 124840, in order to protect access to quality care in those hospitals. 21 Cal. Health & Safety Code § 1280.1. 21 22 It appears Defendants erroneously § 128.3, however it appears § 1280.3 is the correct section and pertains to administrative penalties for immediately jeopardy violations: “(a) Commencing on the effective date of the 23 regulations adopted pursuant to this section, the director may assess an administrative penalty against a licensee of a health facility licensed under subdivision (a), (b), or (f) of Section 1250 for a deficiency constituting an immediate jeopardy violation as determined by the department.” Cal. Health & Safety Code § 1280.3. 24 22 The statute provides: “The state department shall accept, consider, and resolve written appeals by a licensee or 25 health facility administrator of findings made upon the inspection of a health facility.” Cal. Health & Safety Code § 1280.5. 26 23 The regulation provides in part: 27 (a) The Department shall inspect and license hospitals. 28 — 50 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 50 of 99 1 10. California Code of Regulations, Title 22, § 7043324; 2 11. 42 C.F.R. § 48225; 3 12. 42 C.F.R. § 482.2226 4 (b) Any officer, employee or agent of the Department may, upon presentation of proper identification, enter and inspect any building or premises at any reasonable time to secure compliance with, or to prevent a violation of, 5 any provision of these regulations . . . 6 . . .(e) The Department shall notify the hospital of all deficiencies of compliance with these regulations and the hospital shall agree with the Department upon a plan of corrections which shall give the hospital a reasonable 7 time to correct such deficiencies. If at the end of the allotted time, as revealed by repeat inspection, the hospital has failed to correct the deficiencies, the Director may take action to revoke or suspend the license. 8 (f) Reports on the results of each inspection of a hospital shall be prepared by the inspector or inspection team 9 and shall be kept on file in the Department along with the plan of correction and hospital comments. The inspection report may include a recommendation for reinspection. All inspection reports, lists of deficiencies 10 and plans of correction shall be open to public inspection without regard to which body performs the inspection. 11 Cal. Code Regs. tit. 22, § 70101. 12 24 The regulation is entitled “Cardiovascular Surgery Service General Requirements,” and provides in part: (a) Written policies and procedures shall be developed and maintained by the person responsible for the service 13 in consultation with other appropriate health professionals and administration. Policies shall be approved by the governing body. Procedures shall be approved by the administration and medical staff where such is 14 appropriate. These policies and procedures shall include provision for at least: 15 (1) Definitions of qualifications of physicians for privileges to perform cardiovascular laboratory catheterization procedures and/or surgery. 16 (2) Regular review of case management, both preoperatively and postoperatively. 17 (3) Collection, processing and retrieval of data on all patients to include at least: diagnosis, procedure 18 performed, pathophysiologic, angiographic, morbidity and mortality data. 19 (4) Recommendations regarding equipment used, procedures performed and staffing patterns in the catheterization laboratory and cardiovascular surgery units. 20 Cal. Code Regs. tit. 22, § 70433. 21 25 The regulation provides: 22 (a) Statutory basis. 23 (1) Section 1861(e) of the Act provides that— (i) Hospitals participating in Medicare must meet certain specified requirements; and (ii) The Secretary may impose additional requirements if they are found necessary in the interest of the health 24 and safety of the individuals who are furnished services in hospitals. 25 42 C.F.R. § 482.1 26 26 The regulation provides in part: 27 The hospital must have an organized medical staff that operates under bylaws approved by the governing body, and which is responsible for the quality of medical care provided to patients by the hospital . . . 28 — 51 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 51 of 99 1 13. 42 C.F.R. § 482.5127; 2 14. 42 C.F.R. § 488.228; 3 15. 42 C.F.R. § 488.529; 4 16. 42 C.F.R. § 488.730; and 5 17. 42 C.F.R. § 488.931. 6 . . . (b)Standard: Medical staff organization and accountability. The medical staff must be well organized and 7 accountable to the governing body for the quality of the medical care provided to patients . . . 8 . . . (c)Standard: Medical staff bylaws. The medical staff must adopt and enforce bylaws to carry out its responsibilities. 9 42 C.F.R. § 482.22 10 27 The regulation is entitled “Condition of participation: Surgical services,” and provides in part: 11 If the hospital provides surgical services, the services must be well organized and provided in accordance with 12 acceptable standards of practice. If outpatient surgical services are offered the services must be consistent in quality with inpatient care in accordance with the complexity of services offered. 13 (a) Standard: Organization and staffing. The organization of the surgical services must be appropriate to the scope of the services offered . . . 14 (b) Standard: Delivery of service. Surgical services must be consistent with needs and resources. Policies 15 governing surgical care must be designed to assure the achievement and maintenance of high standards of medical practice and patient care. 16 42 C.F.R. § 482.51. 17 28 This regulation simply introduces the statutory basis for this group of regulations: “This part is based on the 18 indicated provisions of the following sections of the Act.” 42 C.F.R. § 488.2. 19 29 This regulation provides “[a]pplication and re-application procedures for national accrediting organizations.” 42 C.F.R. § 488.5. 20 30 This regulation is entitled “[r]elease and use of accreditation surveys,” and provides in part: 21 A Medicare participating provider or supplier deemed to meet program requirements in accordance with § 488.4 22 must authorize its accrediting organization to release to CMS a copy of its most current accreditation survey and any information related to the survey that CMS may require (including, but not limited to, corrective action 23 plans). (a) CMS may determine that a provider or supplier does not meet the applicable Medicare conditions or requirements on the basis of its own investigation of the accreditation survey or any other information related to 24 the survey. (b) With the exception of home health agency surveys, general disclosure of an accrediting organization's 25 survey information is prohibited under section 1865(b) of the Act. CMS may publically disclose an accreditation survey and information related to the survey, upon written request, to the extent that the 26 accreditation survey and survey information are related to an enforcement action taken by CMS. 27 42 C.F.R. § 488.7 28 31 This regulation is entitled “[v]alidation surveys,” and provides in part: — 52 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 52 of 99 1 The Court now turns to the standards for a stigma-plus claim. 2 B. The Legal Standards for 42 U.S.C. § 1983 Stigma-Plus Claims 3 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 4 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 5 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 6 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim under section 1983, a 7 plaintiff is required to show that: (1) each defendant acted under color of state law; and (2) each 8 defendant deprived her of rights secured by the Constitution or federal law. Long, 442 F.3d at 9 1185 (9th Cir. 2006). There is no respondeat superior liability under Section 1983, and 10 therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. 11 To state a claim, Plaintiff must demonstrate that each defendant personally participated in the 12 deprivation of his rights. Jones, 297 F.3d at 934.32 13 14 (a) Basis for survey. CMS may require a survey of an accredited provider or supplier to validate the accrediting organization's CMS–approved accreditation process. These surveys are conducted on a representative sample 15 basis, or in response to substantial allegations of non-compliance. 16 (1) For a representative sample, the survey may be comprehensive and address all Medicare conditions or requirements, or it may be focused on a specific condition(s) as determined by CMS. 17 (2) For a substantial allegation of noncompliance, the 18 SA surveys for any condition(s) or requirement(s) that CMS determines is related to the allegations . . . . . .(c) Consequences of a finding of non-compliance. 19 (1) If a CMS validation survey results in a finding that the provider or supplier is out of compliance with one or 20 more Medicare conditions or requirements, the provider or supplier will no longer be deemed to meet the Medicare conditions or requirements and will be subject to ongoing review by the SA in accordance with § 21 488.10(a) until the provider or supplier demonstrates compliance. 22 (2) CMS may take actions for the deficiencies identified in the state validation survey in accordance with § 488.24, or may first direct the SA to conduct another survey of the provider's or supplier's compliance with 23 specified Medicare conditions or requirements before taking the enforcement actions provided for at § 488.24. (3) If CMS determines that a provider or supplier is not in compliance with applicable Medicare conditions or 24 requirements, the provider or supplier may be subject to termination of the provider or supplier agreement under § 489.53 of this chapter or of the supplier agreement in accordance with the applicable supplier conditions and 25 any other applicable intermediate sanctions and remedies. 26 42 C.F.R. § 488.9. 27 32 As Plaintiffs highlight in the amended joint pretrial statement (ECF No. 87 at 18), the Ninth Circuit has “recognized that ‘[t]he requisite causal connection can be established not only by some kind of direct personal 28 participation in the deprivation but also by setting in motion a series of acts by others which the actor knows or — 53 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 53 of 99 1 “The procedural due process rights of the Fourteenth Amendment apply only when there 2 is a deprivation of a constitutionally protected liberty or property interest.” WMX Techs., Inc. v. 3 Miller (“WMX II”), 197 F.3d 367, 373 (9th Cir. 1999) (citing Bd. of Regents of State Colleges v. 4 Roth, 408 U.S. 564, 569–70 (1972)). “The requirements of procedural due process apply only to 5 the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty 6 and property. When protected interests are implicated, the right to some kind of prior hearing is 7 paramount. But the range of interests protected by procedural due process is not infinite.” Bd. 8 of Regents, 408 U.S. at 569–70. 9 The Supreme Court has made it clear that reputation alone is not an interest protected by 10 reasonably should know would cause others to inflict the constitutional injury.’ ” Gini v. Las Vegas Metro. Police 11 Dep’t, 40 F.3d 1041, 1044 (9th Cir. 1994) (quoting Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir.1987)). 12 The undersigned found the following when adjudicating the motions in limine: Circuits are split and the Ninth Circuit has not directly decided whether the “stigma” and “plus” 13 must be committed by the same government actor. Eberhard v. California Highway Patrol, 73 F.Supp.3d 1122, 1130 (N.D. Cal. 2014). But District Judge O’Neill found that “the Ninth Circuit 14 has recognized that in the context of § 1983 claims, ‘[t]he requisite causal connection can be established not only by some kind of direct personal participation in the deprivation but also by 15 setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.’ ” (Memo. Decision and Order Re Defs.’ 16 Mot. to Dismiss 12, ECF No. 12.) Therefore, Judge O’Neill found that the allegation that Plaintiff was removed from his position at CRMC due to the publication of the State 2567 report was 17 sufficient to state a stigma-plus claim. [footnote omitted and copied below] (Id.) Under the “law of the case” doctrine, “a court is generally precluded from reconsidering an issue that has already 18 been decided by the same court, or a higher court in the identical case.” United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th 19 Cir.) (cert. denied 508 U.S. 951 (1993).) Accordingly, evidence that would tend to prove or disprove that CRMC removed Plaintiff from his position because of the State 2567 report is 20 relevant in this matter. 21 (ECF No. 97 at 11-12.) The undersigned also noted: 22 In dicta in Cooper, the Ninth Circuit stated that the position that the stigma and plus must be committed by the same actor makes better law and is truer to Paul. 924 F.2d at 1534. See also 23 Ebergard, 73 F.Supp.3d at 1131-32 (the court determined “that the ‘stigma’ and ‘plus’ must be committed by the same state actor to state a due process claim with respect to claims against individual government officials. Permitting a ‘stigma-plus’ claim solely where (as the Second 24 Circuit would allow) the ‘stigma’ and the ‘plus’ merely appear to a reasonable observer to be connected to an injury would result in a government actor being liable under Section 1983 solely 25 because of the actions of other government actors, even when she did not herself participate in those actions. That casts too broad a net. Requiring a closer degree of coincidence is also more 26 consistent with Iqbal’s teaching that “’a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution. Iqbal, 556 27 U.S. at 676, 129 S.Ct. 1937.”). 28 (ECF No. 97 at 11-12 n. 6.) — 54 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 54 of 99 1 the Constitution. WMX II, 197 F.3d at 373; see Paul v. Davis, 424 U.S. 693, 706 (1976) (“the 2 Court has never held that the mere defamation of an individual, whether by branding him 3 disloyal or otherwise, was sufficient to invoke the guarantees of procedural due process absent 4 an accompanying loss of government employment”); Siegert v. Gilley, 500 U.S. 226, 233–34, 5 (1991); see also Miller v. California, 355 F.3d 1172, 1178 (9th Cir. 2004) (“[R]eputational harm 6 alone does not suffice for a constitutional claim.”). 7 “[T]here exists a variety of interests which are difficult of definition but are nevertheless 8 comprehended within the meaning of either ‘liberty’ or ‘property’ as meant in the Due Process 9 Clause.” Paul, 424 U.S. at 710. “These interests attain this constitutional status by virtue of the 10 fact that they have been initially recognized and protected by state law . . . [and] the procedural 11 guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or 12 significantly alter that protected status.” Paul, 424 U.S. at 711 (footnote omitted). “It was this 13 alteration, officially removing the interest from the recognition and protection previously 14 afforded by the State, which we found sufficient to invoke the procedural guarantees contained 15 in the Due Process Clause of the Fourteenth Amendment.” Id. Absent a change in status, “any 16 harm or injury to that interest . . . inflicted by an officer of the State, does not result in a 17 deprivation of any ‘liberty’ or ‘property’ recognized by state or federal law.” Id. at 712. 18 However, “[t]he words ‘liberty and property,’ as used in the Fourteenth Amendment do not in 19 terms single-out reputation as a candidate for special protection over and above other interests 20 that may be protected by state law.” WMX II, 197 F.3d at 373 (quoting Paul, 424 U.S. at 701). 21 The Ninth Circuit summarized the Supreme Court’s course of development in this area: 22 In Wisconsin v. Constantineau, the Supreme Court held that a liberty interest may be implicated “where a person’s good name, reputation, honor, or integrity is at 23 stake because of what the government is doing to him.” 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). The following year the Court stated that a 24 government employee’s liberty interest would be implicated if he were dismissed based on charges that “imposed on him a stigma or other disability that foreclosed 25 his freedom to take advantage of other employment opportunities.” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In 26 Paul v. Davis, the Supreme Court clarified that procedural due process protections apply to reputational harm only when a plaintiff suffers stigma from 27 governmental action plus alteration or extinguishment of “a right or status previously recognized by state law.” 424 U.S. 693, 711, 96 S.Ct. 1155, 47 28 L.Ed.2d 405 (1976). This holding has come to be known as the “stigma-plus — 55 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 55 of 99 1 test.” See Hart v. Parks, 450 F.3d 1059, 1070 (9th Cir. 2006). 2 Humphries v. Cty. of Los Angeles, 554 F.3d 1170, 1185 (9th Cir. 2009), as amended (Jan. 30, 3 2009), rev’d and remanded sub nom. on other grounds by Los Angeles Cty., Cal. v. Humphries, 4 562 U.S. 29 (2010). In Hart, the Ninth Circuit noted the “stigma-plus” test could be satisfied in 5 two ways: 6 First, the plaintiff must show that the injury to his reputation was inflicted in 7 connection with the deprivation of a federally protected right. See, e.g., Gobel v. Maricopa County, 867 F.2d 1201, 1205 (9th Cir.1989). Because police had 8 probable cause to arrest him, Hart cannot show an injury to his reputation in connection with the deprivation of a federally protected right. Second, the 9 plaintiff must show that the injury to reputation caused the denial of a federally protected right: “The procedural protections of due process apply if the accuracy 10 of the charge is contested, there is some public disclosure of the charge, and it is made in connection with the termination of employment....” Vanelli v. Reynolds 11 School Dist., 667 F.2d 773, 777–78 (9th Cir.1982). Here, even assuming that the accuracy of the charge is contested, and assuming that the statements were 12 defamatory (which they were not, as the police had a basis to make them), Hart has not proffered any evidence that he lost his job because of the defamatory 13 statements. It appears quite clearly from Roadway's termination letter to Hart, that he was fired for stealing the Oscar statuettes, not because of Parks’s remarks. 14 15 Hart v. Parks, 450 F.3d 1059, 1070 (9th Cir. 2006) (emphasis in original). 16 Under the stigma-plus test, “a plaintiff must show the public disclosure of a stigmatizing 17 statement by the government, the accuracy of which is contested, plus the denial of ‘some more 18 tangible interest[ ] such as employment,’ or the alteration of a right or status recognized by state 19 law.” Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (quoting Paul, 20 424 U.S. at 701, 711) (emphasis and alteration in original); see also Wenger v. Monroe, 282 F.3d 21 1068, 1074 (9th Cir. 2002), as amended on denial of reh’g and reh’g en banc (Apr. 17, 2002) 22 (“due process protections apply only if a plaintiff is subjected to ‘stigma plus’; i.e., if the state 23 makes a charge against [a plaintiff] that might seriously damage his standing and associations in 24 the community,’ and ‘1) the accuracy of the charge is contested, 2) there is some public 25 disclosure of the charge, and 3) it is made in connection with the termination of employment or 26 the alteration of some right or status recognized by state law.’ ”) (quoting Llamas v. Butte 27 Community College Dist., 238 F.3d 1123, 1129 (9th Cir.2001)). 28 “Where these elements exist, the plaintiff is ‘entitled to notice and a hearing to clear his — 56 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 56 of 99 1 name.’ ” Ulrich, 308 F.3d at 982 (quoting Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1100 2 (9th Cir. 1981)). 3 1. Stigma 4 In order to prevail on the stigma-plus claim, a plaintiff must show that the statement was 5 stigmatizing. Plaintiffs must also prove that the defendant’s statements were substantially false. 6 Campanelli v. Bockrath, 100 F.3d 1476, 1484 (9th Cir. 1996) (“In order to state a due process 7 claim, Campanelli also must allege that the defendants’ statements were substantially false.”); 8 Murphy v. Goss, 103 F. Supp. 3d 1234, 1240–41 (D. Or. 2015) (citing Siegert, 500 U.S. at 234, 9 aff’d, 693 F. App’x 636 (9th Cir. 2017).33 10 As elaborated below, in the context of claims involving loss of employment, the caselaw 11 largely involves situations where the government stigmatizes a government employee in the 12 course of or in close temporal proximity to terminating a government employee. The district 13 court in Moody succinctly describes the law regarding the second theory of demonstrating a 14 stigma-plus claim in relation to termination of government employment: 15 In the Ninth Circuit, a plaintiff can satisfy the “stigma plus” test under either of two theories: First, a plaintiff may assert that the injury to their reputation “caused 16 the denial of a federally protected right,” for example, where accusations made in the press by a prosecutor result in the denial of an impartial jury under the Sixth 17 Amendment. Id . Or second, a plaintiff may allege that the injury to their reputation was “inflicted in connection with a federally protected right,” such as 18 “defamation in the course of termination of public employment by the state.” . . . 19 . . .Under the second theory, “[a] defendant’s remarks in connection with discharge from employment must contain egregious accusations such as ‘charges 20 of immorality, or dishonesty that can cripple an individual’s ability to earn a living.’ ” Turner v. City & Cty. of San Francisco, No. C-11-1427 EMC, 2012 WL 21 6631490, at *6 (N.D. Cal. Dec. 19, 2012), aff'd sub nom. Turner v. City & Cty. of San Francisco, 788 F.3d 1206 (9th Cir. 2015), and aff'd sub nom. Turner v. City 22 & Cty. of San Francisco, 617 Fed.Appx. 674 (9th Cir. 2015) (quoting Hyland v. Wonder, 972 F.2d 1129, 1142 (9th Cir. 1992)). 23 To rise to the level of egregiousness required for a stigma plus claim, a 24 defendant’s remarks generally must go beyond mere accusations of incompetence. See Gray v. Union Cnty. Intermediate Educ. Dist., 520 F.2d 803, 806 (9th Cir. 25 1975) (finding that the defendant’s accusations of “insubordination, incompetence, hostility toward authority, and aggressive behavior”—while 26 unflattering—did not “import serious character defects such as dishonesty or 27 33 The Siegert court did not utilize the precise term “substantially false.” Siegert, 500 U.S. at 234. 28 — 57 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 57 of 99 1 immorality,” and thus were not sufficient to state a due process claim); Wheaton v. Webb-Petett, 931 F.2d 613, 617 (9th Cir. 1991) (holding that “charges of 2 incompetence or inability to get along with others do not” implicate a liberty interest); Turner, 2012 WL 6631490, at *6 (concluding that allegations of illegal 3 hiring practices were “not sufficiently damning to create a stigma-plus claim.”); see also Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 366 (9th Cir. 1976) 4 (explaining that the need for constitutional Due Process protections is not particularly strong for general disputes over an employee’s workplace 5 performance). 6 Additionally, to be actionable, an allegedly stigmatizing statement must be “substantially false” and “must occur in conjunction with the termination of 7 employment.” Turner, 2012 WL 6631490, at *6 (citing Campanelli v. Bockrath, 100 F.3d 1476, 1482 (9th Cir. 1996) and Siegert v. Gilley, 500 U.S. 226, 234 8 (1991)); see also Hyland, 972 F.2d at 1142 (“The federal Constitution is not concerned with every insult hurled in the heat of an employment dispute.”). 9 10 Moody v. Cty. of Santa Clara, No. 5:15-CV-04378-EJD, 2018 WL 646686, at *4 (N.D. Cal. Jan. 11 30, 2018); see also Murphy, 103 F. Supp. 3d at 1240–41 (“The Fourteenth Amendment’s 12 protection against deprivation of liberty encompasses the right of persons to engage in any of the 13 common occupations of life . . . when terminating an employee, the government engages in 14 conduct that so severely stigmatize[s] the employee that she cannot avail herself of other 15 employment opportunities, a claim for deprivation of liberty will stand [and the] stigma required 16 must be severe and genuinely debilitating such that it essentially forecloses the employee's 17 freedom to take advantage of other employment opportunities.”) (citations and quotation marks 18 omitted). 19 Being falsely named as a suspect on a government website has been found to be 20 “unquestionably stigmatizing.” Humphries, 554 F.3d at 1186; see also Tarhuni v. Holder, 8 F. 21 Supp. 3d 1253, 1274 (D. Or. 2014) (“[T]here is unquestionably a significant stigma attached to 22 placement on the No–Fly List. Indeed, it is difficult to conceive of a more stigmatizing status 23 than being suspected of involvement with terrorist activity.”). The Ninth Circuit has noted that 24 there is “[n]o doubt ... that being falsely named as a suspected child abuser on an official 25 government index is defamatory.” Id. (quoting Miller, 355 F.3d t 1178 and citing Valmonte v. 26 Bane, 18 F.3d 992, 1000 (2d Cir. 1994) (finding no dispute that inclusion on a child abuse 27 registry damages the reputation by “branding” an individual as a child abuser). Imputing 28 criminal behavior to an individual is generally considered “defamatory per se”. Humphries, 554 — 58 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 58 of 99 1 F.3d at 1186 (quoting Constantineau, 400 U.S. at 434–35). In Constanineau, the plaintiff’s name 2 was posted on a list that precluded her from purchasing alcohol pursuant to a state statute 3 forbidding the sale of alcoholic beverages to persons who had become hazardous by reasons of 4 their “excessive drinking,” and in Paul, the plaintiff's picture appeared on a flyer of individuals 5 who were suspected of shoplifting. Humphries, 554 F.3d at 1186 (citing Constantineau, 400 6 U.S. at 434–35; Paul, 424 U.S. at 697, 701). In both instances, the Supreme Court found stigma. 7 Id. 8 2. The Plus 9 To prove a stigma-plus claim under § 1983, the plaintiff “must show that the stigma was 10 accompanied by some additional deprivation of liberty or property.” Miller, 355 F.3d at 1178. 11 Under the “stigma-plus” test, Plaintiffs must demonstrate the loss of a recognizable property or 12 liberty interest in conjunction with the allegation that they suffered injury to reputation. Miller, 13 355 F.3d at 1179; Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991), rev’d on other 14 grounds, 963 F.2d 1220, 1235 n.6 (9th Cir. 1992)). As noted above, a plaintiff can meet this test 15 by showing that “injury to reputation was inflicted in connection with a federally protected right” 16 or that “injury to reputation caused the denial of a federally protected right.” Herb Hallman 17 Chevrolet, Inc. v. Nash–Holmes, 169 F.3d 636, 645 (9th Cir. 1999); Cooper, 924 F.2d at 1532-18 33. As summarized by the Second Circuit, the “[b]urdens that can satisfy this ‘plus’ prong under 19 the doctrine include the deprivation of a plaintiff’s property, [citation] and the termination of a 20 plaintiff’s government employment, [citation] [, or as stated in the Ninth Circuit,] direct 21 interference with a plaintiff’s business . . . WMX Techs., Inc. v. Miller, 197 F.3d 367, 375 (9th 22 Cir. 1999).” Sadallah, 383 F.3d at 38 (emphasis and alteration added). “However, ‘deleterious 23 effects [flowing] directly from a sullied reputation,’ standing alone, do not constitute a ‘plus’ 24 under the ‘stigma plus’ doctrine.” Id. (quoting Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 25 1994). 26 The Ninth Circuit has held in unpublished cases that the stigma-plus test requires that the 27 defamation be accompanied by an injury directly caused by the state, rather than an injury caused 28 by the act of some third party in reaction to the state’s defamatory statements. Douglas v. — 59 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 59 of 99 1 Oregonian Pub. Co., 465 F.App’x 714, 715 (9th Cir. 2012) (unpublished) (holding “[a]lthough 2 the district court overlooked Douglas’s claims against the state defendants, all but one fail 3 because Douglas did not sufficiently allege a cognizable constitutional harm from being falsely 4 labeled an informant,” citing Paul, 424 U.S. at 698, and noting WMX Techs., Inc. v. Miller, 80 5 F.3d 1315, 1320 (9th Cir.1996) (“WMX I”), stood for the principle that “defamation and further 6 constitutional injury must be directly caused by state, not third party reacting to state’s 7 defamatory comment.”); Ooley v. Citrus Heights Police Dep’t, 603 F.App’x 628, 629 (9th Cir. 8 2015) (unpublished) (“Nevertheless, the reactions of third parties to remarks made by the 9 government do not constitute state action.”) (citing WMX I; Cooper, 924 F.2d at 1533–34; see 10 also Mazzeo v. Gibbons, 649 F.Supp.2d 1182, 1197 (D. Nev. 2009) (“Mazzeo fails to state a 11 stigma-plus claim under the Fourteenth Amendment. Mazzeo attempts to state her claim on the 12 basis that she lost her employment and was blacklisted as a result of Defendant’s defamatory 13 statements. In other words, Defendants’ defamatory statements caused the loss of her 14 employment. The problem with Mazzeo’s claim is that Defendants neither fired her nor 15 blacklisted her. Mazzeo makes clear that she worked as a cocktail waitress for a casino and that 16 after the incident, she was blacklisted from working at any Nevada casino, allegedly because 17 Defendants’ defamatory statements had tarnished her reputation. This is fatal to her stigma-plus 18 claim because the casinos are not defendants, are not state actors, and are not alleged to have 19 acted in agreement with the named Defendants.”). 20 “In short, a sine qua non of a ‘stigma-plus’ suit is that the ‘plus’ must be the result of 21 state action directly affecting the plaintiff’s rights or status under the law.” Cooper, 924 F.2d at 22 1533 (quoting Sullivan v. State of New Jersey, 602 F.Supp. 1216, 1222 (D.N.J.1985), aff’d 853 23 F.2d 921 (3d Cir. 1988)).34 24 34 As acknowledged above, the law of the case in this action dictates that evidence that would tend to prove or 25 disprove that CRMC removed Plaintiff from his position because of the State 2567 report is relevant in this matter. See (ECF No. 97 at 11-12); Gini, 40 F.3d at 1044. Also as noted above, in dicta in Cooper, the Ninth Circuit stated 26 that the position that the stigma and plus must be committed by the same actor makes better law and is truer to Paul. 924 F.2d at 1534. By happenstance, the Cooper court relied on a case where the plaintiff also had the last name 27 Chaudhry and who was a physician involved in cardiology, and was claiming he was stigmatized resulting in the loss of patients and referrals. Specifically, the Cooper court noted: 28 — 60 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 60 of 99 1 a. Liberty Interest 2 “The liberty interest protected by the due process clause ‘encompasses an individual’s 3 freedom to work and earn a living.’ ” Portman v. Cty. of Santa Clara, 995 F.2d 898, 907 (9th 4 Thus even under Marrero, Cooper probably has no property interest to be deprived of, and thus 5 fails to meet the stigma-plus test necessary to state a section 1983 claim. See Chaudhry v. Prince 6 George’s County, Md., 626 F.Supp. 448 (D.Md.1985), where plaintiff alleged that because of the defamation, he suffered a decrease in the number of his patients, and that this was sufficient to 7 satisfy the stigma-plus test and allow him to bring a section 1983 action. The court rejected this claim, finding that “[p]laintiff's contention that he has lost income because of a decrease in the 8 number of patient referrals is no more than a claim for consequential damages resulting from an injury to his reputation. Plaintiff has not alleged and cannot allege on this record that any decrease 9 in referrals was caused by the loss or alteration of a legal status recognized and protected by state law.” Id. at 454 . . . 10 . . . in Green v. DeCamp, 612 F.2d 368, 370, 371 (8th Cir.1980) the court ruled that collateral 11 consequences of the defamation, such as loss of business, public scorn, and potential loss of employment, did not create a cause of action for the defamation under Paul since such 12 consequences would not be the result of any affirmative conduct by the parties making the 13 defamation. 14 It seems to us that the result in Sullivan makes better law and is truer to Paul than the result in Marrero. However, regardless of which way we come out on this issue Ronstadt does not lose his 15 qualified immunity because his statement regarding Cooper, even if defamatory, did not violate clearly established federal statutory or constitutional rights. The contradictory conclusions of 16 Green, Chaudhry, and Sullivan, the latter of which acknowledges its conflict with Marrero, destroy any inference that Marrero constitutes clearly established law. 17 Cooper, 924 F.2d at 1533-34 n.24. 18 The Court notes the following facts from the other Chaudhry case out of Maryland: 19 Dr. M. Hafeez Chaudhry, plaintiff herein, is a physician engaged in the private practice of 20 cardiology. Among the hospitals where he practices is Greater Laurel Beltsville Hospital (hereinafter “the Hospital”), which is located in Laurel, Prince George’s County, Maryland. The 21 Hospital is owned by Price George’s County (hereinafter “the County”). In July of 1981, plaintiff Chaudhry became Chairman of the Hospital’s Department of Internal Medicine (hereinafter the 22 “Department”). Later in January of 1982, he became a member of the Hospital’s Board of Directors. While serving in these positions, plaintiff became embroiled in a controversy which 23 touched the Hospital, its Board of Directors, its administrators, its professional staff and the rules under which members of that staff secure privileges to practice at the Hospital. 24 As a result of certain actions, including his testimony before the Prince George’s County Council, plaintiff was censured by the Board of Directors at a meeting held on February 4, 1983. In this 25 suit, plaintiff asserts that this censure was stigmatizing and improper and that he was thereby deprived of his constitutional right to due process of law. In his amended complaint, plaintiff has 26 sued under 42 U.S.C. § 1983 and under the Fifth and Fourteenth Amendments to the Constitution of the United States. 27 Chaudhry v. Prince George’s Cty., Md., 626 F. Supp. 448, 450 (D. Md. 1985). 28 — 61 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 61 of 99 1 Cir. 1993) (quoting Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1100 (9th 2 Cir. 1981), cert. denied, 455 U.S. 948 (1982)). “The Supreme Court has recognized ‘some 3 generalized due process right to choose one’s field of private employment[,]’ [h]owever, a 4 liberty interest in pursuing one’s chosen profession has only been recognized ‘in cases where (1) 5 a plaintiff challenges the rationality of government regulations on entry into a particular 6 profession, or (2) a state seeks permanently to bar an individual from public employment.’ ” 7 Magassa v. Wolf, 487 F. Supp.3d 994, 1016 (W.D. Wash. 2020) (first quoting Conn v. Gabbert, 8 526 U.S. 286 (1999); then quoting Guzman v. Shewry, 552 F.3d 941, 954 (9th Cir. 2009)). 9 The Ninth Circuit has “consistently held that people do not have liberty interests in a 10 specific employer.” Llamas v. Butte Cmty. Coll. Dist., 238 F.3d 1123, 1128 (9th Cir. 2001), as 11 amended (Mar. 14, 2001). The Ninth Circuit elaborated: 12 For example, a federal employee “does not possess a liberty interest in her civil service career.” Clemente v. United States, 766 F.2d 1358, 1365 (9th. Cir. 1985). 13 The Supreme Court has recognized that an employment decision to bar a cook from working at a specific military base did not violate the employee’s due 14 process right because the plaintiff “remained free to obtain employment ... with any other employer.” Cafeteria & Restaurant Workers Union, Local 473 v. 15 McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). 16 Llamas, 238 F.3d at 1128. 17 The general rule is that an employee does not have a liberty interest in continued 18 employment “when his position is ‘held at the will and pleasure of his superiors and when he has 19 not been promised that he will only be terminated for good cause.’ ” Jackson v. Heh, 215 F.3d 20 1326 (6th Cir. 2000). “[T]o achieve a sufficient ‘plus’ in a loss-of-job context, words spoken 21 must be ‘uttered incident to the termination.’ ” Pendleton v. City of Haverhill, 156 F.3d 57, 63 22 (1st Cir. 1998) (quoting Siegert, 500 U.S. at 234). The stigmatizing statements must be made in 23 connection with the termination of the employee. Brady v. Gebbie, 859 F.2d 1543, 1553 (9th 24 Cir. 1988); see also Hyland v. Wonder, 972 F.2d 1129, 1141 (9th Cir. 1992) (“If, in the course of 25 dismissing an employee, the government takes steps or makes charges that so severely stigmatize 26 the employee that she cannot avail herself of other employment opportunities, a claim for 27 deprivation of liberty will stand.”) Further, a “violation of constitutional proportions under a 28 ‘stigma plus’ theory exists only if, and to the extent that, the opportunities lost are government — 62 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 62 of 99 1 benefices denied as a result of governmental action.” Pendleton, 156 F.3d at 63 (finding no 2 claim where the plaintiff “worked for a non-governmental employer and lost a private (not a 3 public) position.”); Mead v. Indep. Ass’n, 684 F.3d 226, 234 (1st Cir. 2012) (“[T]he ‘plus’ in this 4 case cannot be the loss of Mead’s IA job with a private employer [and] [a]lthough it is regulated 5 by, and receives funding from, [the Maine Department of Health and Human Services], IA is a 6 private employer.”). 7 A liberty interest has been found to exist in continuing public employment, and depriving 8 an individual from all other public employment would implicate the Due Process Clause. Roth, 9 408 U.S. at 573. Even where it is the government that has terminated the plaintiff’s public 10 employment, “to implicate constitutional liberty interests, the reasons for dismissal must be 11 sufficiently serious to ‘stigmatize’ or otherwise burden the individual so that he is not able to 12 take advantage of other employment opportunities.” Portman, 995 F.2d at 907 (quoting Bollow, 13 650 F.2d at 1101). “ ‘Charges that carry the stigma of moral turpitude’ such as dishonesty or 14 immorality ‘may implicate a liberty interest, but charges of incompetence or inability to get 15 along with others do not.’ ” Portman, 995 F.2d at 907 (quoting Wheaton v. Webb–Petett, 931 16 F.2d 613, 617 (9th Cir. 1991)). 17 b. Alteration or extinguishment of right 18 To satisfy the “plus” element, the Plaintiffs must show that, as the result of the 19 defamatory statement “a right or status previously recognized by state law was distinctly altered 20 or extinguished.” Humphries, 554 F.3d at 1186 (quoting Paul, 424 U.S. at 711; and citing 21 Siegert, 500 U.S. at 233 (reaffirming that an injury to reputation by itself is not a protected 22 liberty interest under the Fourteenth Amendment). It is the “alteration of legal status which, 23 combined with the injury resulting from the defamation” that justifies “the invocation of 24 procedural safeguards.” Humphries, 554 F.3d at 1186 (quoting Constantineau, 400 U.S. at 708-25 09). 26 In Humphries, parents were included on a list of child abusers. 554 F.3d at 1180. A 27 criminal case was filed against the parents that was dismissed. Id. at 1181. Although the statute 28 provides that an individual who was originally listed in the database pursuant to an “inconclusive — 63 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 63 of 99 1 or unsubstantiated report” will be deleted after ten years, as long as no subsequent report 2 containing his or her name is received within that time period, there is no provision for removing 3 an individual who was originally listed in the pursuant to a “substantiated report”; such a person 4 apparently remains listed in the CACI permanently. Humphries, 554 F.3d at 1179. The Ninth 5 Circuit found that being included on the list altered the parents’ right in two ways. Humphries, 6 554 F.3d at 1187. First, a number of statutes require that the licensing agencies search CACI and 7 conduct an investigation prior to granting a number of licenses such as to care for children in a 8 day care center or home, among others. Id. Second, by being included in CACI, the plaintiffs’ 9 legal rights had been altered in a variety of ways from Californians who were not on the list, 10 such as “applying for custody of a relative’s child, becoming guardians or adoptive parents 11 (inside or outside of California), obtaining a license for child care, becoming licensed or 12 employed in a position dealing with children, obtaining employment as a peace-officer, and 13 involvement in adoption and child placement.” Id. Further, the parents presented evidence that 14 renewal of a teaching credential was being affected. Id. 15 Stigma-plus applies when a right or status is “altered or extinguished,” and the Ninth 16 Circuit found a tangible burden existed in this context because the state law effectively requires 17 agencies to check the stigmatizing list and investigate any adverse information prior to 18 conferring a legal right or benefit, and explicitly requires agencies to consult CACI and perform 19 an independent investigation before granting a number of licenses and benefits. Id. The 20 Humphries had identified a sufficient liberty interest under the stigma-plus test that could not be 21 denied without due process of law. Id. at 1189. However, the Ninth Circuit emphasized that “an 22 injury that results merely from simple defamation is not a constitutional liberty interest under the 23 ‘stigma-plus’ test. Id. at 1190 (quoting Siegert, 500 U.S. at 233–34). “Employment, licensing, 24 custody, or other legal rights under California law are not refused merely because of the 25 deleterious effect of a bad reputation.” Humphries, 554 F.3d at 1190. Rather, by operation of 26 law, California agencies were required to consult CACI and conduct an investigation to 27 determine if the Humphries were eligible for the benefit and those agencies would be more 28 hesitant to issue the benefit because the plaintiffs were listed in CACI. Id. at 1190-91. — 64 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 64 of 99 1 The Ninth Circuit considered a case somewhat analogous to this action in Castaneda v. 2 U.S. Dep’t of Agric., 807 F.2d 1478, 1479 (9th Cir. 1987). Castaneda was a manager at a liquor 3 store, and an agent of the United States Department of Agriculture (“USDA”) investigated his 4 participation in the federal food stamp program. Castaneda, 807 F.2d at 1749. The investigator 5 used food stamps to purchase ineligible items from Castaneda and the USDA instituted 6 proceedings to terminate the store’s participation in the federal food stamp program. Id. The 7 store terminated Castaneda’s employment allegedly due to his unlawful redemption of food 8 stamps. Id. Castaneda brought suit against various officials and the USDA arguing that he was 9 required to be provided with advance notice and a hearing and his due process rights had been 10 violated. (Id.) 11 The Ninth Circuit held that Castaneda had no direct relationship with the government. 12 Rather, the government dealt directly with the Circle K store, and Castaneda complained only of 13 the indirect adverse consequences he suffered as a result of the government-store interaction. 14 Castaneda, 807 F.2d at 1479. The Ninth Circuit found the action similar to O’Bannon v. Town 15 Court Nursing Center, 447 U.S. 773 (1980), summarizing: 16 In O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S.Ct. 2467, 65 17 L.Ed.2d 506 (1980), the Supreme Court faced a similar situation where government action adversely affected the plaintiff only indirectly, and the Court 18 found a “simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is 19 directed against a third party and affects the citizen only indirectly or incidentally....” Id. at 788, 100 S.Ct. at 2476–77. In O’Bannon, patients of a 20 nursing home asserted a due process right to notice and a hearing before the government could decide to disqualify the nursing home from continuing to 21 receive Medicaid and Medicare payments to cover its patients’ bills. The Court held that the patients had no statutory right to receive public funding for residing 22 in nursing homes which were determined to be unqualified; instead, the patients simply enjoyed indirect benefits from the government’s regulatory relationship 23 with their nursing home. Termination of those benefits granted directly to the nursing home thus did not deprive the patients of any “enforceable expectation of 24 continued benefits.” Id. at 786, 100 S.Ct. at 2476. While the government had to provide the nursing home with the opportunity to be heard concerning its 25 disqualification from the program, it was not constitutionally required to provide the same opportunity to the patients. 26 Similarly, Castaneda was only an indirect beneficiary of the government’s 27 statutory relationship with The Circle K Corporation allowing it to participate in the food stamp program. We agree with the USDA that its order prohibits the 28 “retail food store” and its owner/operator, not employee Castaneda individually, — 65 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 65 of 99 1 from accepting food stamps, see United States v. Smith, 572 F.2d 1089, 1095 (5th Cir. 1978), and hence Castaneda is not a direct target of the government’s 2 disqualification decision. 3 Moreover, he as an individual enjoys no legally cognizable interest in working for a store which can accept food stamps, nor does he claim that he has a property 4 interest enforceable against the government in maintaining his private employment with The Circle K Corporation. He thus cannot satisfy the “stigma- 5 plus” standard for direct injury established in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (defamation alone is insufficient to work a due 6 process violation absent accompanying loss of government employment or change in legal status under state law). Instead, he is simply the indirect “victim” 7 of the government’s decision to terminate Circle K’s statutory benefits and hence is in the same position as the nursing home patients in O’Bannon; unlike the store 8 for which he worked, he has no due process right to be heard before the store is temporarily disqualified from program participation. He thus fails to state a claim 9 upon which relief could be granted. 10 Castaneda, 807 F.2d at 1479–80. 11 In a footnote, the Court recognized that O’Bannon left open the possibility that a third 12 party could assert a claim if the Government acted with the purpose of punishing or restraining 13 another. 14 O’Bannon explicitly left open the possibility that where the government indirectly yet intentionally injures or affects the legal status of a person by action taken 15 directly against a private third party, the injured person can maintain a due process challenge against the government. See 447 U.S. at 789–90 n. 22, 100 16 S.Ct. at 2477 n. 22 (“[I]f the Government were acting against one person for the purpose of punishing or restraining another, the indirectly affected individual 17 might have a constitutional right to some sort of hearing.”). Here, however, Castaneda has not alleged that in issuing its order the USDA intended to injure 18 him personally by getting him fired. He alleges only that he lost his job as a result of the order. 19 20 Castaneda, 807 F.2d at 1480 n.4. 21 c. Adequacy of Procedural Safeguards 22 Plaintiffs must prove that they did not receive due process. Ulrich, 308 F.3d at 982; 23 Constantineau, 400 U.S. at 436. Plaintiffs must also “show that the procedural safeguards of 24 their liberty interest established by the state are constitutionally insufficient to protect their 25 rights.” Humphries, 554 F.3d at 1192. 26 C. Plaintiffs’ Stigma-Plus Claims Fail 27 In consideration of the findings of fact and the above outlined legal standards pertaining 28 to stigma-plus claims, the Court concludes that Plaintiffs have failed to establish any Defendants — 66 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 66 of 99 1 are liable for a violation of Plaintiffs’ due process rights, and Plaintiffs’ claims fail for all of the 2 below explained reasons. 3 1. Plaintiffs have Failed to Demonstrate any Alleged Stigmatizing Statements were Substantially Untrue 4 5 The Court finds that Plaintiffs have not demonstrated that the statements and findings that 6 were ultimately material to the conclusions of violations by Dr. Chaudhry of the CRMC bylaws, 7 and rules and regulations, contained in any of the reports, CMS or State, amended or original, 8 were substantially false. See Campanelli, 100 F.3d at 1484; Murphy, 103 F. Supp. 3d at 1240-9 41. 10 The Court finds Dr. Chaudhry’s testimony at trial that the surgery was completed and that 11 the skin was closed when he left the operating room not credible in the face of the totality of 12 testimony and evidence in this matter. The Court also finds Dr. Chaudhry’s testimony 13 concerning his actions after leaving the operating room, including regarding his concern 14 expressed with the phone calls he had with Albakova about Perez’s condition before he returned 15 to the operating room, and testimony that he was back to the hospital within nineteen (19) 16 minutes and thus within the required thirty (30) minutes under the applicable rules and 17 regulations, to be not credible in the face of other evidence and testimony. 18 The Court finds the contemporaneous notes, subsequent written dictation, and testimony 19 of the perfusionist Schreur to be highly credible. (Ex. 511 at 1-2; Ex. 512 at 1.) Specifically, the 20 Court is persuaded by Schreur’s testimony regarding his notation that the chest was “still open,” 21 meant the sternal wires had not been closed putting the sternum back together; and notation that 22 “as he frequently does,” meant that Dr. Chaudhry’s custom to allow his assistant surgeon and 23 physician assistant Albakova to close in that manner, and that such custom would entail Dr. 24 Chaudhry physically leaving the operating room during the closing of the chest. The Court 25 further relies on Schreur’s written account stating that Dr. Chaudhry was called in at 12:58 p.m., 26 and didn’t return until 1:29 p.m., and finds such to be reliable particularly given the details 27 concerning Albakova being hysterical when speaking to Dr. Chaudhry after 1:12 p.m., the 28 notation that the anesthesiologist put on gloves to assist with cannulation at 1:15 p.m., and the — 67 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 67 of 99 1 notation that Schreur commenced cardiopulmonary bypass at 1:24 p.m. (Ex. 511 at 1; Ex. 512 at 2 1.) The Court finds Plaintiffs aversion to a potential ulterior motive of Robillard and Schreur, or 3 alleged animosity toward Dr. Chaudhry as a motivating factor to dishonestly report this incident, 4 to not be credible, in consideration of the totality of the evidence and testimony. 5 The Court finds the totality of the testimony of Albakova,35 in conjunction with the 6 testimony from Schreur, to be most persuasive. However, the Court has reviewed designated 7 testimony from other people present in the operating room that did not testify in this trial, and 8 notes there are differing accounts of what precisely happened.36 9 35 The Court finds the designated testimony of Albakova, who was not a witness in this trial, to be compelling. 10 Specifically, Albakova testified that she began working with Dr. Chaudhry on a limited basis in Santa Cruz, California, before working with him in Fresno, but never wired the sternum in Santa Cruz. (Albakova Dep. Vol. I at 11 18:9-19:17.) Albakova began wiring the sternum about two to three months after her arrival in Fresno, under the training of Dr. Chaudhry at Valley Cardiac, and Albakova understood it was allowed because of Dr. Chaudhry’s 12 supervision. (Id. at 31:14-34:17.) About five (5) months after he began teaching her, Dr. Chaudhry began leaving the operating room before or during the wiring of the sternum, and Albakova would express concern. (Id.) This practice of leaving before or during the wiring of the sternum continued at CRMC. (Id. at 36:32-37:1.) Toward the 13 end of 2011, for the first time Dr. Chaudhry left Albakova and did not return to check on her. (Bella Albakova, Trial Tr. Perez Malpractice Case, Jan. 17, 2018, Vol. 11 (“Albakova Trial Vol. 11”), at 133:5-136:6.) By the time of 14 the Perez surgery, Dr. Chaudhry would stay in the operating room during the closing about sixty to sixty-five percent (60-65%) of the time, and would leave and not return to the operating room the other times. (Id.) At that 15 time, Albakova was participating in approximately 250 to 270 surgeries per year, sometimes twice in one day. (Id.) On occasion, Dr. Chaudhry would leave the operating room on the first surgery and go start the second surgery 16 before the chest of the first patient was closed. (Id.) 17 Albakova testified she did in fact complete the wiring of the sternum in the Perez surgery, and that she was second assist, and Dhillon was first assist. (Albakova Dep. Vol. I at 51:9-10.) Specifically, when Dr. Chaudhry was about 18 to leave the operating room, Albakova asked him something like “you are not leaving right?,” and was concerned about oozing blood and the fact that Perez had difficulty separating from bypass. (Id. at 71:24-74:3.) Albakova 19 specifically testified that she saw him exit the operating room, that she then placed the chest tubes, then wired the sternum, then closed the skin layers. (Id.) Albakova stated that generally chest tubes take approximately five (5) 20 minutes to place, that it takes about ten (10) minutes to wire the sternum, about seven (7) minutes to close the layers of skin, and thus a total of about twenty (20) to twenty-five (25) minutes to complete these steps. (Id.; Id. at 236:20- 21 238:8.) Albakova stated she did not observe Dr. Chaudhry dictating at the dictation table during this time, that Dr. Chaudhry said he was leaving and told her to close the chest, and that while it was unlikely she would not have 22 noticed him at the dictation table, it is possible he was there and that she did not notice him, as anything is possible. (Id. at 178:13-181:20.) 23 36 Allen testified that she did not recall whether Dr. Chaudhry or Albakova placed the chest tubes, but recalled Albakova did wire the sternum, and Dhillon and Albakova closed the rest of the skin layers. (Allen Dep. Vol I at 24 23:14-26:7.) Allen recalled Dr. Chaudhry was sitting at the dictation desk when the wiring was being done, and although Allen was on the same side as Albakova, she knew Dr. Chaudhry was there because she heard him at the 25 dictation table, however, did not recall how long he was there or when he actually left the operating room. (Id.) Allen testified she did not recall telling investigators that Dhillon and Albakova were closing the chest when Dr. 26 Chaudhry left the room, and did not recall telling investigators a different version where Dr. Chaudhry closed the sternum. (Martha Allen Trial Tr. Perez Malpractice Case Vol. 13 Jan. 29, 2018 (“Allen Trial Vol. 13”), at 556:16- 27 557:21.) Allen again confirmed at trial in the Perez Malpractice Case that she had no memory of when Dr. Chaudhry left the operating room. (Id. at 558:20-24.) The Court notes that Allen’s testimony of hearing Dr. 28 Chaudhry dictating is consistent with Dr. Chaudhry’s testimony that he can be heard on the dictation recording — 68 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 68 of 99 1 By applying the credibility findings to Schreur, and to a lesser extent Albakova due to her 2 not directly testifying at this trial, to the requirement that Plaintiffs must establish stigmatizing 3 statements as substantially untrue, and viewing the totality of the other evidence, including but 4 not limited to other trial testimony, the MEC independent investigation, the designated testimony 5 of other witnesses that were present in the operating room but did not testify at this trial, and the 6 notes reflecting the substance of the various interviews completed by the surveyor investigators, 7 the Court finds that the material conclusions reached by investigators, including Defendant 8 Campbell, and placed in the CMS Report, and State Reports reviewed by Defendant Lopez, were 9 not substantially false. 10 Plaintiffs submit there is no evidence to support a finding that Dr. Chaudhry left 11 Albakova to wire the sternum shut without a qualified physician present. The Court disagrees, 12 finds Plaintiffs have failed to establish otherwise, and the Court is not convinced by testimony or 13 arguments that it may have been sufficient to leave Dr. Dhillon or Dr. Bhatt with Albakova 14 rather than Dr. Chaudhry. Plaintiffs failed to present by a preponderance of the evidence that 15 such was sufficient under any construction of the hospital bylaws, or other policies and 16 procedures. 17 The findings and conclusions that were most material to the State 2567 and the CMS 18 2567, were supported by the MEC’s own investigation based on an outside reviewer’s 19 20 21 asking Schreur for data to input while dictating. (See Id. at 581:2-582:23.) Allen also testified that she recalled Dr. Chaudhry coming over to the operating table during the skin closing after dictating. (Id. at 581:2-582:23.) 22 Breaux testified that Dr. Chaudhry put the wires in the sternum. (Dep. Geri Breaux Dec. 8, 2014 (“Breaux Dep.”), 23 at 27:6-10.) Breaux testified that prior to Perez, Dr. Chaudhry never left Albakova to close the sternum with wire, and would leave the operating room after the wires were put in. (Id. at 28:13-29:16.) Breaux recalled that with Perez, Dr. Chaudhry completed the wiring with the assistance of Albakova and Dhillon, and then Albakova and 24 Dhillon completed the closing of the subcutaneous and skin layers. (Id.) Breaux did not recall Dr. Chaudhry dictating on the day of the Perez surgery. (Id. at 34:18-35:19.) Breaux testified that Albakova was closing the 25 second skin layer when Dr. Chaudhry left the operating room. (Id. at 37:5-39:2.) 26 Bhatt testified that he did not recall who completed the chest tubes; did not recall Dr. Chaudhry wiring but it was standard practice for Dr. Chaudhry to do the wiring; that he could not recall who completed the suturing of the skin 27 layers, and did not recall if Dr. Chaudhry asked how things were going before leaving the operating room. (Dep. Ashwin Bhatt Vol I July 14, 2014 (“Bhatt Dep. Vol I”), at 31:14-23; 33:9-34:13, 35:5-36:7, 37:9-37:17.) 28 — 69 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 69 of 99 1 investigation and report.37 Again, as of August 21, 2012, the Medical Executive Committee’s 2 investigation, supported by the outside reviewer’s findings, concluded the following as to the 3 April 2, 2012 surgery of Perez: (1) “There is evidence that the patient was unstable following the 4 conclusion of surgery;” (2) “As a result, the patient was not ready to leave the OR;” (3) “The 5 responsibility for the patient’s care under these circumstances rested with [Dr. Chaudhry];” (4) 6 “In leaving the OR and the hospital, [Dr. Chaudhry] failed to designate another physician 7 qualified to provide the necessary coverage or care for this patient;” (5) “As a result of [Dr. 8 Chaudhry’s] failure, there was an untimely response to the patient’s deteriorating condition;” (6) 9 “[Dr. Chaudhry] ha[d] already been directed to either be present or to provide suitable coverage 10 (presence of a privileged cardiothoracic surgeon) following cardiac surgery cases until the 11 patient is stable in the intensive care unit (“ICU”) [and] [t]his requirement shall remain in place;” 12 (7) “[Dr. Chaudhry] ha[d] already been directed to remain in the OR until the patient’s chest is 13 closed;” and (8) “Therefore, a fourteen-day (14) day medical staff membership and clinical 14 privileges suspension is imposed and shall be served within three (3) months of August 5, 2012.” 15 (Ex. 123.) 16 The preponderance of the evidence shows that it is substantially true that Dr. Chaudhry 17 left the operating room before the chest was fully closed leaving Albakova and Dhillon to close 18 the chest, and doing so was the material violation of the bylaws and rules and regulations of the 19 hospital, and that was what was material to the ultimate conclusions and findings in the CMS 20 Report and State Report, given CDPH’s duty to investigate and conduct surveys concerning the 21 violation of the hospital’s bylaws, rules and regulations, as well as the Conditions of 22 Participation for CMS. 23 While Dr. Chaudhry averred in testimony that physician assistants did not have general 24 privilege cards, but did have privileges to close the chest when working in the emergency room, 25 the Court finds the testimony of McComb and Campbell and other evidence clearly supports the 26 37 The outside reviewer’s underlying report is not in evidence, but that is not necessary for the Court to utilize the MEC letter and fact of investigation as additional support for the finding the material conclusions were not 27 substantially false, and more directly for the fact that the CRMC’s decisions to take adverse actions against Dr. Chaudhry were not caused by CDPH’s investigation or reports but because of Dr. Chaudhry’s violations of the 28 hospital’s bylaws and rules and regulations, as the Court elaborates when discussing causation below. — 70 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 70 of 99 1 findings that Campbell received and viewed the privilege cards, and that Albakova did not have 2 the privilege to close the chest without the supervision of Dr. Chaudhry. McComb’s testimony 3 described above concerning her contacts with the Physician Assistant Board for the State of 4 California, and subsequent action within CRMC concerning such privilege cards, is particularly 5 illustrative. Further, the relevant bylaws for CRMC provided that that: “A practitioner shall be 6 entitled to exercise only those clinical privileges or practice prerogatives specifically granted.” 7 (Ex. 521 at 48 (emphasis added).)38 8 Campbell also utilized CRMC’s rules of regulations which provide in relevant part, 9 within Section D entitled “COVERAGE ARRANGEMENT,” that: “Each attending physician 10 shall personally provide or otherwise arrange for continuous care and coverage for each of his or 11 her patients who present to the hospital for clinical care or who are currently hospital inpatients 12 or who have been seen on consultative basis. If a physician is unable to provide care for his or 13 her patients, then the physician must provide coverage through another appropriately 14 credentialed physician.” (Ex. 520 at 12.) Campbell appropriately used this provision to 15 conclude that Dr. Chaudhry did not appoint a qualified medical professional in Dr. Chaudhry’s 16 absence. 17 Campbell based her finding that Albakova was not qualified to close the chest without the 18 presence of Dr. Chaudhry on the peer review file of Albakova, the bylaws, and by reviewing 19 Albakova’s privilege card. The Court finds the conclusion is not substantially false, and that 20 38 Additionally, in designated deposition testimony, Albakova stated that before she was allowed to work at CRMC, 21 she was required to go through a credentialing process and was specifically given privileges for things such as seeing patients, being present in the operating room, being a first or second assist in surgery, and for post-operative 22 care, among others. (Albakova Dep. Vol. I at 45:14-47:24.) Albakova stated she did not expressly ask Dr. Chaudhry if it was okay to wire the sternum under the privileges, but would ask generally if it was “alright,” and Dr. 23 Chaudhry said it was okay because she was training and under supervision. (Id.) When Albakova would ask when he left the operating room if it was okay, Dr. Chaudhry would state he was “here.” (Id.) Albakova testified that she was thinking of taking a cardiovascular board test that may require a certain number of sternal closures, and that 24 while she discussed such with Dr. Chaudhry, she had not actually official registered for the test by that time. (Albakova Vol I at 101:3-102:14.) 25 At trial, Dr. Chaudhry testified that he was not training Albakova at the time of the Perez surgery, as he had been 26 training her since 2005, and training for heart surgery is only two (2) years. While Dr. Chaudhry testified he did not recall Albakova’s previous testimony during the Perez Malpractice Case regarding Dr. Chaudhry leaving the 27 operating room while Albakova was still wiring the chest, Dr. Chaudhry did confirm that he allowed Albakova to wire the sternum for his patients and complete surgeries for at least four (4) years. Dr. Chaudhry claimed he trusted 28 her and still trusts her to do such work as she has impeccable work ethics and impeccable hands. — 71 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 71 of 99 1 there was sufficient evidence to conclude Albakova was not privileged to close the chest, and 2 that Dr. Chaudhry left the operating room before the chest was closed, whether during the wiring 3 as Schreur’s testimony and reports reflect (as well as Albakova’s testimony), or whether the 4 Court relies on other testimony that reflects Dr. Chaudhry left at some other point before the 5 final skin layers were closed, such as McComb’s trial testimony that it was her belief that 6 regardless of whether the term “stapling of the bones” was used, the conclusion that Dr. 7 Chaudhry left before the skin was closed was true, and that was a violation of the applicable 8 bylaws, and rules and regulations. 9 Campbell also relied on the portion of the rules and regulations that provides: “The 10 operative report shall include . . . [t]he specific procedures performed and a description of 11 significant surgical tasks that were conducted by practitioners other than the primary LIP 12 (significant surgical procedures include: opening and closing . . . “[c]omplication, if any . . . 13 [and] [p]ostoperative diagnosis.” (Ex. 520 at 30-31.) Campbell’s conclusion that the operative 14 report did not show Albakova’s involvement nor indicated the critical condition of the patient 15 after the surgery, is supported by the evidence and is not substantially untrue, and Campbell’s 16 reliance on this portion of the rules and regulations was proper. 17 The Court will accept, and Defense counsel appears to concede, that Campbell used 18 incorrect information regarding the time Dr. Chaudhry left the operating room, despite 19 Campbell’s testimony that this is what Dr. Chaudhry had stated to her in the interview. It is now 20 an undisputed fact that Dr. Chaudhry did not leave the operating room before 12:15 p.m. The 21 Defense also concedes that the use of the term stapling in some portions of the reports, is 22 inaccurate, but argue the use of the term is not in of itself the stigmatizing aspect of the material 23 conclusions of the reports. The Court agrees and finds that whether the reports incorrectly used 24 or incorporated the term stapling is not material in a determinative aspect as to the totality of the 25 facts and applicable legal standards here, and the material violations established through the 26 investigations and reflected in the reports.39 The incorrect reporting of a precise time does not 27 39 However, the Court will note that McComb’s testimony regarding the conversations with Campbell regarding the inaccuracy of quoting McComb and Utecht in this regard seemed more credible and plausible, however, it did not 28 appear to the Court that Campbell was being intentionally dishonest. — 72 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 72 of 99 1 have any stigmatizing effect – it is the fact that Dr. Chaudhry left before the chest was sutured 2 and violated the bylaws and rules and regulations. The time is inconsequential to such violation 3 if there is adequate support to show the violations occurred and the reporting of such violations 4 were not substantially untrue. Thus the reporting of an incorrect time was not material and was 5 thus not stigmatizing. It is the fact Dr. Chaudhry left Perez with Albakova and the general 6 surgeon Dhillon to complete the surgery that is the potentially stigmatizing aspect. 7 The Court finds additional support in the notes of interviews conducted by Yussif. 8 Specifically, Yussif’s notes reflect that during interviews with Yussif: (1) Breaux stated Dr. 9 Chaudhry’s usual practice was to leave the physician assistant and general surgeon to close the 10 chest, and that when Dr. Chaudhry left the operating room, the chest was not closed; (2) Kroes 11 stated that once the chest tubes were out, Dr. Chaudhry left the room; (3) Schreur stated the 12 patient was assessed and Dr. Chaudhry stepped away and Albakova and Dhillon closed up the 13 chest, and that was normal; and (4) Allen stated Dr. Chaudhry was sitting in the room doing 14 orders, then left the room and Dhillon and Albakova were closing the chest.40 Additionally, 15 Kappmeyer’s notes of her July 13, 2012 interview with Breaux reflect that Breaux stated the 16 operation went well; “Dr. Chaudhry left. Both Dr. Dhillon and Bella performed closure. (They 17 start @ separate ends) Dr. Dhillon is a general surgeon. [Dr. Chaudhry [d]id not sit at desk to do 18 orders . . . or operative report. This was his practice. He rarely stayed in OR to orders/operative 19 report.” (Ex. 509 at 6.)41 20 It is true that the CDPH subsequently amended the State 2567 based on information 21 provided to it by CRMC. The conclusion that Perez was not stable and that the closure of the 22 chest was not completed when Dr. Chaudhry left the operating room never changed between the 23 original State 2567 and amended State 2567. Specifically, the Amended State 2567 still 24 25 40 As noted above, Campbell’s notes seem to indicate Allen later told Campbell that Dr. Chaudhry was still there to the end of skin closing. (Ex. 104 at 16.) While this is in line with Allen’s designated testimony, Allen’s testimony 26 and the notes of this later interview do not sway the Court’s conclusions given the totality of the evidence and testimony. Further, the notes in regards to Breaux are consistent with her designated testimony that Albakova was 27 closing the second layer of skin when Dr. Chaudhry left the operating room. (Breaux Dep. at 37:5-39:2.) 28 41 This is consistent with Breaux’s designated testimony noted above. (Breaux Dep. at 34:18-35:19.) — 73 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 73 of 99 1 concludes that Dr. Chaudhry left “prior to complete closure of the chest and before [Perez] fully 2 stabilized”; and that Dr. Chaudhry “violated the hospital medical staff rules and regulations when 3 [he] failed to arrange appropriate coverage for [Perez] by leaving in-charge individuals not 4 qualified to assume responsibility for [Perez].” (Ex. 504 at 9.) Again, the August 21, 2012 letter 5 from the MEC reflects that Dr. Chaudhry was aware that CRMC’s investigation with an outside 6 reviewer reached a similar if not identical conclusion regarding the Perez’s stability, and 7 Plaintiffs have not established by a preponderance of the evidence that the conclusion that Perez 8 was not stable is not substantially untrue, based on the Court’s review of the testimony and 9 evidence. 10 Further, the evidence and testimony does not demonstrate that Campbell or Lopez had a 11 direct role in the specific changes between the original and amended 2567, aside from Lopez’s 12 general review before being sent up the chain of command for final review and posting of the 13 amended state report. There is no evidence showing Defendants Campbell or Lopez issued these 14 changes because they thought these were mistakes, and the Court agrees that it cannot attribute 15 these changes to these Defendants sued in their individual capacity. The Court outlined the 16 relevant changes made between the original and amended State 2567 above in the factual 17 findings. That the State subsequently amended based on information provided by hospital, does 18 not change the fact the amended report still states Dr. Chaudhry left the operating room before 19 the surgery was completed, before the chest was closed, and while the patient was not stabilized. 20 Finally, even if the conceded inaccurate statement regarding the time Dr. Chaudhry left 21 the operating room, or the incorrect statement that staples were used instead of wiring or other 22 method of closing the chest, or the dispute regarding the precise use of the word “stable” at a 23 certain point of time,42 were material in making the ultimate findings and conclusions regarding 24 42 The Court finds there is sufficient evidence to support the finding the patient was unstable, despite, for example, the testimony concerning contemporaneous observations of stability while the operation was ongoing, including 25 Schreur noting Perez was stable prior to Dr. Chaudhry leaving the operating room; Albakova’s testimony that after Perez came off of bypass, he was “hemodynamically stable,” and while there was oozing, there was not a concern 26 about excessive bleeding (Albakova Vol I at 66:5-23, 69:1-70:2, 182:16-183:19; Albakova Vol. 11 at 191:26- 192:13); Bhatt’s testimony that Perez was stable in a “broad sense” at certain times such as 12:00 p.m., and 27 hemodynamically stable at 12:51 p.m. because of Bhatt transfusing him and by supporting him with resuscitation (Bhatt Vol I at 49:7-50:15, 52:25-53:3, 59:10-62:3). Further, as noted above, this conclusion never changed 28 between original and amended State 2567. — 74 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 74 of 99 1 violations of CRMC’s bylaws, and rules and regulations, the Court would find these statements 2 to not rise to the level of a stigma under the test for defamation in relation to termination of 3 employment. See Moody, 2018 WL 646686, at *4 (“remarks in connection with discharge from 4 employment must contain egregious accusations such as ‘charges of immorality, or dishonesty 5 that can cripple an individual's ability to earn a living.’ ”) (quoting Turner, 2012 WL 6631490, at 6 *6); Wheaton, 931 F.2d at 617 (“Charges that carry the stigma of moral turpitude may implicate 7 a liberty interest, but charges of incompetence or inability to get along with others do not . . . We 8 must also distinguish charges that simply reduce economic rewards and diminish prestige from 9 those with more serious consequences, such as a protracted hiatus in employment or a permanent 10 exclusion from a profession or trade.”); Gray v. Union Cty. Intermediate Educ. Dist., 520 F.2d 11 803, 806 (9th Cir. 1975) (“A letter from a former director of special education charging the 12 appellant with insubordination, incompetence, hostility toward authority, and aggressive 13 behavior was also presented at the hearing. These allegations certainly are not complimentary 14 and suggest that Mrs. Gray may have problems in relating to some people, but they do not import 15 serious character defects such as dishonesty or immorality.”). 16 The Court concedes charges of leaving a patient on the operating table before an 17 operation is completed may rise above those of simply being incompetent and to the point of 18 being untrustworthy, but not the fact that the wiring was done with staples as opposed to wires, 19 or that the time was 12:15 rather than 11:30 or 11:45 a.m. These specific inaccuracies were not 20 sufficiently egregious to be considered stigmatizing. 21 The other and ultimate material conclusions and findings about Dr. Chaudhry may have 22 been stigmatizing, but they have not been shown to be substantially untrue. However, on the 23 other hand, the Court considers the fact that Dr. Chaudhry testified he thought Albakova was 24 impeccably skilled at the work they did together while performing surgery, and thus based on Dr. 25 Chaudhry’s testimony, he may not have had an immoral motive in leaving Perez in the hands of 26 Albakova to perform the closing. Thus, the fact that Dr. Chaudhry violated the bylaws, and rules 27 and regulations, by leaving Albakova to do the closing may very well simply amount to an 28 oversight of the rules or a lack of judgment, rather than an act of moral turpitude. See Murphy, — 75 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 75 of 99 1 103 F. Supp. 3d at 1240–41. These findings and conclusions certainly do not rise to the level of 2 being placed on a government list equating a person to suspicion of terrorist activity or branding 3 the person as a child abuser, or other criminal activity. See Humphrey, 554 F.3d at 1186; 4 Tarhuni, 8 F. Supp. 3d at 1274. The inaccurate reporting on the operative report may be 5 considered an act of dishonesty, or it could very well amount to incompetence or lack of 6 judgment as well. However, that aspect the Court also finds to not have been shown to be 7 substantially untrue. 8 The Court acknowledges that the difference between skin closure and an open chest does 9 seem potentially a degree more potentially stigmatizing than the other, for example, if this 10 information was publicly disseminated, a reasonable person in the general population would 11 likely view a surgeon that left while the bones were being “stapled” differently than a surgeon 12 leaving when the last stitches are placed on the skin; however, here the preponderance of the 13 evidence shows that at least the investigators were reasonable in concluding that Dr. Chaudhry 14 left while the chest was open and left the physician assistant and general surgeon to close the 15 chest in violation of hospital policies. 16 In sum, for all of the above reasons, Plaintiffs’ claims fail because they have failed to 17 establish any material statements made by Defendants were stigmatizing and substantially 18 untrue. As explained below, and perhaps more significantly, Plaintiffs have also failed to 19 establish publication or causation. 20 2. Plaintiffs Have Failed to Establish the Element of Causation 21 The Court utilizes the following summary of the causation standards applicable to a 22 Section 1983 action: 23 “In a § 1983 action, the plaintiff must ... demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.” Harper v. City of Los Angeles, 24 533 F.3d 1010, 1026 (9th Cir.2008) (citing Arnold v. IBM Corp., 637 F.2d 1350, 1355 (9th Cir.1981)). To meet this causation requirement, the plaintiff must 25 establish both causation-in-fact (which is sometimes also known as actual causation), and proximate causation (which is sometimes also known as legal 26 causation). Id. (citing Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir.1996); Arnold, 637 F.2d at 1355). 27 A defendant’s conduct is a cause-in-fact or actual cause of a plaintiff's injury if it 28 is a “but-for” cause of the injury. See White v. Roper, 901 F.2d 1501, 1505–06 — 76 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 76 of 99 1 (9th Cir.1990) (“Sergeant Roper s conduct is an actual cause of White’s injury only if the injury would not have occurred ‘but for’ that conduct.”) (citing W. 2 Prosser & W. Keeton, The Law of Torts § 41, at 266 (5th ed.1984)); Estate of Macias v. Lopez, 42 F.Supp.2d 957, 963 (N.D.Cal.1999), overruled on other 3 grounds, 219 F.3d 1018 (9th Cir.2000) (“In order to establish actual causation, a plaintiff must first show that defendant was a ‘but for’ cause of her injury.”) 4 (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989); Van Ort, 92 F.3d at 837). And a defendant’s conduct is a proximate or legal cause of a 5 plaintiff’s injury if there is “a sufficient causal link between the act or omission of a defendant and any injury suffered by the plaintiff to justify the imposition of 6 liability.” Estate of Macias, 42 F.Supp.2d at 964. 7 Proximate or legal causation “frequently is equated with the concept of ‘foreseeability,’ ” and “[u]nder most circumstances, legal causation does not 8 extend beyond the scope of ‘foreseeable risks.’ ” Id. (citing Van Ort, 92 F.3d at 837 (applying foreseeability test to question of proximate cause in section 1983 9 action); Hines v. United States, 60 F.3d 1442, 1450 (9th Cir.1995) (“The question of proximate cause is usually defined with reference to the scope of the 10 foreseeable risks of the actor’s conduct”); Sundance Land v. Community First Fed. Sav. & Loan, 840 F.2d 653, 663 (9th Cir.1988) (“The scope of liability 11 should ordinarily extend to but not beyond the scope of the “ ‘forseeable risks.’ ”)). 12 Foreseeability, however, is not the only aspect of proximate or legal causation. 13 “Whether or not legal causation exists may also be determined by the existence of intervening or superseding actual causes.” Id. “The doctrine of intervening or 14 superseding cause has been applied to 42 U.S.C. § 1983 actions,” and “[t]he presence of such causes have been held to prevent the direct causal connection 15 required for liability” in such actions. Id. at 965 (citing Van Ort, 92 F.3d at 837 (in section 1983 actions, the Ninth Circuit has looked to “[t]raditional tort law” to 16 determine whether “intervening causes ... break the chain of proximate causation”); White, 901 F.2d at 1506 (defendant's “conduct is not the proximate 17 cause of [plaintiff's] alleged injuries if another cause supersedes his liability for the subsequent events”); Gutierrez–Rodriguez v. Cartagena, 882 F.2d 553, 561 18 (1st Cir.1989) (“An unforeseen and abnormal intervention breaks the chain of causality, thus shielding the defendant from section 1983 liability”)). 19 20 Smith v. Harrington, No. C 12-03533 LB, 2015 WL 1407292, at *24–25 (N.D. Cal. Mar. 27, 21 2015), aff’d sub nom. Smith v. Liddell, 682 F. App’x 630 (9th Cir. 2017). 22 The Court finds that Plaintiffs have not demonstrated by a preponderance of the evidence 23 that any of the Defendants have caused any constitutional injury, nor have they demonstrated any 24 Defendants set in “motion a series of acts by others which the actor knows or reasonably should 25 know would cause others to inflict the constitutional injury.” Gini,40 F.3d at 1044 (quoting 26 Merritt, 827 F.2d at 1371.) First, there can be no constitutional injury flowing directly or 27 indirectly when the basis of the State’s investigation and material conclusions, and the CMS 28 investigation completed by Campbell and its material conclusions, were not shown to be — 77 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 77 of 99 1 substantially untrue. 2 However, even assuming the conceded time inaccuracy, and disputed alleged 3 inaccuracies discussed above were material in a manner even in the face of and despite the other 4 conclusions regarding violations of the hospital’s policies, patient stability, and leaving the 5 operating room before the closure of the chest, Plaintiffs have failed to demonstrate that Dr. 6 Chaudhry’s reputation, or standing in the hospital, or positions with the hospital or the medical 7 community at large would not have been effected but for the State and CMS investigations and 8 reports. Would Perez’s family and/or estate not have pursued legal action but for the 9 investigation and report?43 Would Schreur and Robillard not have reported the facts underlying 10 the surgery to the hospital? Would CRMC not have conducted its own investigation following 11 the events of the surgery, or if the Perez lawsuit moved forward without the fact of the CDPH 12 investigation? 13 Perhaps most significantly, even if the reports contained material inaccuracies, it appears 14 CRMC’s own internal investigation conducted by the MEC and aided by an outside reviewer 15 reached the same material conclusions concerning stability and violation of the bylaws and rules 16 and regulations. CDPH had a duty to investigate based upon the filing of the complaint. By the 17 time the reports were published, CRMC had already determined by that time through the MEC 18 that Dr. Chaudhry was to be disciplined – it is certainly plausible that these same findings and 19 conclusions would have led to further discipline, including removal of the directorship, and 20 declining to renew contracts, particularly if the Perez litigation got underway subsequently. 21 Certainly the substantial verdict reached in the Perez medical malpractice action would have had 22 a detrimental impact on Dr. Chaudhry’s career and relationship with CRMC. And certainly it 23 appears that the stream of other malpractice cases would have had the same impact, and 24 Plaintiffs have not demonstrated that these cases only stemmed from the reports, or even that the 25 Perez lawsuit only stemmed from the issuance of the reports. 26 The Court notes that the order on summary judgment in this action stated the following: 27 43 In fact, the parties stipulated that it is undisputed that the family of Perez learned of what happened in the 28 operating room from Robillard, and not from the State Report or CMS Report. — 78 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 78 of 99 1 First, as further described below, there are genuine disputes as to whether CDPH 2 published a report with false statements including that Dr. Chaudhry left the operating room during surgery, which would constitute a “stigmatizing statement” 3 given, as described immediately below, it is undisputed the investigation and report led to Dr. Chaudhry’s removal from his position at CRMC and substantial 4 damage to his reputation. 5 (ECF No. 56 at 13.) 6 The Court does not proceed on the assumption that the statement made on summary 7 judgment rules the more intricate facts developed at trial, as applied to the applicable legal 8 standards. See Dennison v. James, 356 F. App’x 68, 69–70 (9th Cir. 2009) (“Dennison contends 9 that during summary judgment proceedings, former defense counsel made certain oral 10 stipulations that should have been admitted as undisputed facts at trial. The district court 11 refused, reasoning the alleged stipulations were not reduced to writing as required by a local rule 12 and that facts ‘presumed for purposes of the summary judgment are not binding as stipulated 13 facts for purposes of the trial even if they were assumed true for purposes of the summary 14 judgment.’ We agree and conclude the trial court did not abuse its discretion.”) (unpublished). 15 Whether it may have been undisputed for purposes of summary judgment, the Court does not 16 accept that it is undisputed that the investigation and report led to Dr. Chaudhry’s removal from 17 his position at CRMC, at least not as far as being the but for cause of such removal and damage 18 to his reputation. 19 While under the law of the case, evidence that would tend to prove or disprove that 20 CRMC removed Dr. Chaudhry from his position because of the State 2567 report is relevant in 21 this matter (ECF No. 97 at 11-12), Plaintiffs have not demonstrated by a preponderance of the 22 evidence that Dr. Chaudhry was removed from his position or that either of the Plaintiffs lost 23 contracts or business but for the publication of the State or CMS 2567, nor but for alleged 24 communications between Campbell and/or CDPH and CRMC pressuring the hospital to punish 25 Dr. Chaudhry in the POC, nor even but for the fact of the underlying investigation. Rather, the 26 preponderance of the evidence shows that while there were indeed investigatory surveys, and 27 2567s issued relating to the events of the surgery, and CRMC may have taken actions to remain 28 — 79 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 79 of 99 1 in compliance, the fact remains that the tragic events surrounding Perez’s surgery occurred, that 2 Dr. Chaudhry violated the hospital’s policies that were in place to protect patients such as Perez, 3 and that was the cause of the subsequent events, at least in as much as to eliminate “but for” 4 causation. 5 As a result of the investigations, CDPH prepared the State 2567 dated February 14, 2013, 6 and the CMS 2567 dated August 23, 2012. It is an undisputed fact that “[o]n or about October 7 10, 2013, the CDPH published on its website the State 2567 regarding the events of April 2, 8 2012,” and that “CDPH did not publish the CMS 2567.” (UF 19, 20.) 9 On or around July 27, 2012, Dr. Chaudhry received a letter removing him as Director of 10 Cardiovascular Surgery. (Ex. 122; 5/7 8) The letter stated: 11 As you should be aware, a full validation survey will be conducted at [CRMC] within the next several weeks . . . [as a] result of preliminary findings shared by 12 [CMS] resulting from a recent review of an incident which occurred in the operating room with one of your patients. In light of the findings and impeding 13 survey, we are compelled to take action that demonstrates our commitment to meeting the CMS Conditions of Participation and to the care of our patients . . .It 14 is hereby requested that you immediately step down as Medical Director of Cardiac Surgery and Thoracic Services at both CRMC and Fresno Heart & 15 Surgical Hospital. 16 (Ex. 122.) The Court finds this is evidence relevant to the allegation that the investigation led to 17 Dr. Chaudhry’s removal from his position as Medical Director. However, most significant is the 18 fact that CRMC decided to take this action simply based on the shared preliminary findings. 19 Additionally, this is more than one year before the stipulated publication date of the State 2567. 20 It is undisputed CDPH did not publish the CMS 2567, and Plaintiffs have not proven by a 21 preponderance of the evidence that Defendants Campbell nor Lopez were sufficiently acting on 22 behalf of the federal entity CMS to be said to have published the CMS 2567. Further, as noted 23 multiple times above, as of August 21, 2012, the MEC and outside reviewer already made 24 conclusions from their own investigation that they used to support further disciplinary action 25 against Dr. Chaudhry. (Ex. 123.) Notably, the communication contains no mention of the 26 investigation or forthcoming SOD and POC relating to CDPH or CMS. Rather, the letter 27 indicates the MEC reached its conclusions and decision to discipline Dr. Chaudhry based only on 28 — 80 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 80 of 99 1 the expressed basis of the MEC’s “ongoing investigation,” and the “outside reviewer’s findings.” 2 (Ex. 123 at 1.) The findings and conclusions that were most material to the hospital’s decision, 3 and specifically, the main basis for CRMC’s initial decision to impose a disciplinary action as of 4 August 21, 2012, were supported by the MEC’s own investigation based on an outside 5 reviewer’s investigation and report. (Ex. 123.)44 6 Even if the material conclusions were substantially false, and were considered published 7 to the hospital under some interpretation of the law prior to the stipulated date of publication of 8 the State 2567 of October 10, 2013, and despite the stipulated fact that CDPH did not publish the 9 CMS 2567, the defamation must be accompanied by an injury directly caused by the 10 government, not injury caused by a third party that is reacting to the government’s defamatory 11 statement. As for Plaintiff’s arguments that CRMC was pressured by Campbell and/or CDPH to 12 punish Dr. Chaudhry in the POC, Plaintiffs have failed to show by a preponderance of the 13 evidence that this occurred.45 Even if there were discussions about strengthening the POC to 14 address Dr. Chaudhry as one of the main subjects of the POC, it appears this would have been a 15 valid exercise of the duties by the involved parties, both on the CRMC side, and on the CDPH 16 side.46 Plaintiffs have not demonstrated that this would have been the cause of any constitutional 17 44 The Court further highlights that Jack Chubb (“Chubb”), CEO of CRMC, in testimony designated in this action 18 from a different malpractice action, stated that he was ultimately responsible for contracts at CRMC being executed; that it was his understanding that Valley Cardiac could pick a director as replacement for Dr. Chaudhry; and that 19 when deciding to remove Dr. Chaudhry as director, Chubb was told by Tim Joslin that it was simply time for a change in leadership as a the reason to terminate Dr. Chaudhry as director. (Dep. Jack Chubb, February 3, 2017, at 20 18:3-16, 79:2-7, 79:19-22, 86:7-87:4.) Chubb also testified that while there may have been concerns about signing off on the POC due to concern of retaliation at CRMC, Chubb did not have such concern. 21 45 McComb testified she believes there were three (3) other drafts that were prepared; does not remember anyone 22 who told her the earlier drafts were not acceptable; does not remember Campbell telling her she wanted it clearly laid out that the suspension would apply to Dr. Chaudhry in the POC; and specifically does not remember CDPH 23 telling her to discipline Dr. Chaudhry. Campbell testified she was not aware there were earlier versions of the POC other than the one ultimately accepted by CDPH; and that she doesn’t recall or believe she had a conversation with McComb regarding the acceptability of the POC. Campbell affirmed she does not recall rejecting any POC, federal 24 or State, pertaining to these surveys or subject of Dr. Chaudhry, and like McComb, does not recall any conversation with McComb where she told McComb that any form of the POC did not discipline sufficiently or was not specific 25 enough to Dr. Chaudhry. Further, Lopez absolutely disputes the allegation that the State or his office was pressuring the hospital to deal with Dr. Chaudhry’s conduct by way of the investigation, and the Court find all of this testimony 26 to be credible. 27 46 Campbell testified that she would have had the authority to tell the facility the POC would not be acceptable, but the final decision to accept POC is left to CMS, and Campbell does not recall doing so. 28 — 81 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 81 of 99 1 injury caused by the Defendants. 2 Again, it is undisputed that “[o]n or about October 10, 2013, the CDPH published on its 3 website the State 2567 regarding the events of April 2, 2012,” and that “CDPH did not publish 4 the CMS 2567.” (UF 19, 20.) The Court notes Dr. Chaudhry claims contracts, including a Call 5 Coverage Agreement that ended on November 30, 2013, was not renewed because of the CDPH 6 investigation. This contract was with Plaintiff Valley Cardiac, however, Valley Cardiac 7 continued to provide services under the contract, and there is no evidence that Valley Cardiac 8 could not fulfill its contract with the removal of Dr. Chaudhry. Dr. Chaudhry testified that he 9 lost income that previously flowed from a Consultant Services Agreement. (Ex. 127.) Dr. 10 Chaudhry was the direct signatory to this contract which provided compensation in the amount 11 of $300 per hour, for total compensation not to exceed $200,000 per year. However, the term of 12 this contract expired in June of 2013, before the stipulated date of publication of the State 2567. 13 In addition to all of the above reasons why “but for” causation has not been established, there is 14 no direct evidence to connect Campbell to the State 2567, as Campbell testified she did not do 15 anything in an individual capacity to publish the CMS Report or to put her statements or notes 16 into the State 2567 prepared by Yussif. Further, Lopez reviewed the 2567s but his review was 17 merely for completeness and general accuracy, but his role was not, and practically cannot be, to 18 check each interview and record to ensure each minute detail and reported fact is 100% accurate. 19 Plaintiffs argue “[t]here is no genuine dispute that Plaintiff Chaudhry lost his 20 employment and business and cannot obtain affordable malpractice insurance as a result of 21 Defendants Lopez and Campbell’s investigation and report.” (Pretrial Order, ECF No. 88 at 18.) 22 However, Dr. Chaudhry testified that the insurer NORCAL dropped his insurance because it was 23 costing the insurance company too much, referring to the at least five (5) malpractice lawsuits 24 pending against him by the year 2018. Additionally, on March 19 and 20, 2018, the jury in the 25 Perez Case awarded damages against the defendants in that matter, Dr. Chaudhry and CRMC, in 26 excess of 60 million dollars. The verdict amount was ultimately reduced by settlement, to be 27 paid by CRMC and Dr. Chaudhry’s insurance carrier. 28 Like Hart, the Court finds Plaintiffs have failed to show by a preponderance of the — 82 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 82 of 99 1 evidence that, even assuming the statements were defamatory (which the Court finds they are not 2 because the investigators had ample evidence and basis under CRMC’s policies to find 3 violations, and had a regulatory and statutory duty to make such findings), Plaintiffs have not 4 demonstrated that Dr. Chaudhry lost these positions or contracts because or but for the 5 statements in the reports, CMS or State, amended or original. Hart, 450 F.3d at 1070 (“Here, 6 even assuming that the accuracy of the charge is contested, and assuming that the statements 7 were defamatory (which they were not, as the police had a basis to make them), Hart has not 8 proffered any evidence that he lost his job because of the defamatory statements [and] [i]t 9 appears quite clearly from Roadway’s termination letter to Hart, that he was fired for stealing the 10 Oscar statuettes, not because of Parks’s remarks.”). 11 For all of the above reasons, Plaintiffs have failed to demonstrate that Defendants caused 12 any constitutional injuries under the applicable legal standards, and under all of the facts and 13 evidence presented at the trial of this action. As related to causation and discussed in the 14 following section, Plaintiffs failed to demonstrate any publication of stigmatizing statements 15 prior to the stipulated dates of publication, under any legal theory. 16 3. Publication 17 Plaintiffs have not proven publication of the State Report prior to any stipulated date, nor 18 shown the CMS report was published by any Defendant, under any applicable legal theory. 19 As the undersigned found in light of the District Judge’s decision on the motion to 20 dismiss in this matter, evidence that tends to prove or disprove CRMC removed Dr. Chaudhry 21 from his positions due to the publication of the State 2567 may be relevant in this matter. See 22 n.33, supra. 23 As stated throughout this order, “[o]n or about October 10, 2013, the CDPH published on 24 its website the State 2567 regarding the events of April 2, 2012,” and that “CDPH did not 25 publish the CMS 2567.” (UF 19, 20.) As explained in the previous section relating to causation, 26 one of the many reasons Plaintiffs claims fail is due to the date of publication of the State 2567, 27 and due to the fact that CDPH did not publish the CMS 2567. Out of an abundance of caution — 28 — — 83 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 83 of 99 1 and despite the parties’ stipulations regarding publication,47 the Court explores the question of 2 alternate theories, or other issues surrounding potential of publication to the hospital outside of 3 the stipulated date of the State 2567, or publication of the CMS 2567, as discussed below. As 4 averred to above, there is also insufficient evidence to connect Defendants Lopez or Campbell to 5 the publication of the CMS 2567 as further discussed below. 6 Plaintiffs must show publication of the stigmatizing statements caused a loss of liberty 7 interest. They have failed to do so by a preponderance of the evidence. The Court finds 8 Plaintiffs have failed to show publication in the sense that it caused Dr. Chaudhry to be directly 9 stigmatized and lose a liberty interest, because the communications or actions discussed in the 10 previous section pertaining to actions that CRMC may have taken due to their awareness or 11 knowledge of the preliminary findings of CMS’s or CDPH’s investigation are not publication, 12 and thus the removal of Dr. Chaudhry’s directorship in July of 201248, was before any 13 publication under the relevant legal standards. See Reyes v. City of Pico Rivera, 370 F. App’x 14 844 (9th Cir. 2010) (“Grayson’s dissemination of an allegedly stigmatizing report to two City 15 decision-makers did not, on its own, constitute publication, because there was no public 16 disclosure.”) (emphasis in original) (unpublished). As the district court in Reyes found: 17 In this lawsuit, which centers on Defendant City of Pico Rivera’s (“City” or “Pico Rivera”) termination of Plaintiff Daniel Reyes’s employment in 2003, Plaintiff 18 19 47 As the Court reminded Plaintiffs during trial concerning stepping outside the bounds of their stipulated facts concerning publication, the Court treats stipulations seriously and the thought and consideration that counsel puts 20 into arriving at stipulated facts. Nonetheless, publication issues may be worth exploring given, for example, the fact that CDPH published on its website on a certain date, does not necessarily mean there is a complete foreclosure to 21 argue there was also a publication to the hospital on another date. Similarly, the stipulation that CDPH did not publish the CMS report, does not mean there is a potential argument that Defendant Campbell or Lopez published 22 the report in some sense under some legal theory. However, it appears Defense counsel would argue any stepping outside the bounds of this stipulated fact goes beyond the intent and meaning of the parties in coming to these 23 agreements, and the Court would tend to agree with Defense given the tenor of the discussion at trial and the statements made by each side. Further, aside from incorrectly challenging whether it was present counsel that stipulated to such facts concerning publication at the time of the joint pretrial statement, Plaintiffs failed to move to 24 amend the stipulated facts or seek other relief. See Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988) (“Thus with the exercise of appropriate diligence, the City could have challenged the findings in a more 25 timely fashion by refusing to agree to the contested fact, or by proceeding through available and more appropriate means to be relieved of the order’s binding effect.”). 26 48 As noted above, the July 27, 2012 letter stated that: “In light of the findings and impeding survey, we are 27 compelled to take action that demonstrates our commitment to meeting the CMS Conditions of Participation and to the care of our patients . . .It is hereby requested that you immediately step down as Medical Director of Cardiac 28 Surgery and Thoracic Services at both CRMC and Fresno Heart & Surgical Hospital.” (Ex. 122.) — 84 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 84 of 99 1 asserts a “stigma-plus” due process claim based on the disclosure of an investigative report to Pico Rivera’s city manager and city attorney in connection 2 with Plaintiff’s termination. Plaintiff does not, and indeed, cannot complain that members of the general public learned of the report or its contents, because the 3 document was so deeply buried in City’s records that even Plaintiff claims to have been unaware of its existence for three years following his termination . . . 4 . . . These facts do not establish public disclosure for a number of reasons. 5 Although none of the cases expressly addresses and defines the meaning of the word “public” in requiring evidence of public disclosure as an element of the 6 claim, the absence of such discussion suggests that the word is being used in its commonly understood sense. “Public” in ordinary sense means “open to the 7 judgment or knowledge of all.” Webster’s II New Riverside University Dictionary 1984. “Publication” means “communication of information to the public.” Id. 8 Thus, “public disclosure” ordinarily would not encompass disclosure to a small number of private individuals, but rather community-wide dissemination of the 9 disclosed information. 10 This conclusion finds support in the case law, which precludes a claim based on the internal disclosure of Grayson’s report to Courtemarche and Adams, and the 11 later disclosure to Plaintiff and Acevedo in discovery. E.g., Bishop v. Wood, 426 U.S. 341 (1976). In Bishop, the police chief of Marion, North Carolina, 12 recommended to the city manager that the plaintiff, a probationary officer, be terminated due to his alleged failure to follow orders, poor attendance at training 13 classes, and contributions to the low morale among other police officers. The city manager accepted the recommendation and terminated the plaintiff without a 14 hearing, and the plaintiff brought suit in district court alleging a violation of his due process right to a hearing on the allegations made against him. The district 15 court granted summary judgment for the defendants; the Fourth Circuit and the Supreme Court affirmed. The Supreme Court assumed that the termination was 16 based on erroneous information, but noted that neither the private communications within the department nor the disclosure of the information in 17 response to a discovery request were not “public disclosures” and therefore did not put at risk plaintiff’s good name, reputation, or integrity. Id. at 348. The Court 18 observed that a communication made in the course of a judicial proceeding that commences after an employee’s termination “surely cannot provide retroactive 19 support” for a due process liberty claim. Id. “A contrary evaluation of either explanation would penalize forthright and truthful communication between 20 employer and employee in the former instance, and between litigants in the latter.” Id. at 348–49. Thus, Bishop indicates that neither private communications 21 within the employing agency (police chief to city manager; city manager to plaintiff) nor truthful communications during litigation will support a due process 22 stigma-plus claim. 23 Reyes v. City of Pico Rivera, No. CV0703767GAFJWJX, 2008 WL 11336166, at *1, 9 (C.D. 24 Cal. Oct. 24, 2008), aff'd, 370 F. App’x 844 (9th Cir. 2010). Although Reyes involved intra-25 governmental communications, and while CRMC is not a government employer, they are 26 essentially the decision-making employer here and the preliminary communications were 27 between CRMC and the agency responsible for regulating CRMC as a hospital provider. 28 Further, as noted in the opinion, public disclosure “ordinarily would not encompass disclosure to — 85 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 85 of 99 1 a small number of private individuals, but rather community-wide dissemination of the disclosed 2 information.” Id. 3 Any involvement of Defendants Lopez or Campbell in sending the CMS Report from 4 CDPH to CMS, or between various offices within CDPH, would not amount to a publication 5 given it is an intra-governmental transfer, and both the CMS Report and State Report were not 6 issued in conjunction with Dr. Chaudhry’s termination of employment or alteration of a right 7 recognized by state law. See Id.; Wenger v. Monroe, 282 F.3d 1068, 1075 (9th Cir. 2002) 8 (“First, there was no ‘charge’ made against him. Second, there was no ‘public disclosure’—as 9 the district court recognized, both of these disclosures were made to other branches of the 10 military, not to the public. And third, neither was made in connection with termination of 11 Wenger’s employment, or the alteration of some right recognized by state law, by the Guard. 12 Indeed, although Wenger was not asked to continue teaching at the Army War College, there is 13 no evidence that the College published reasons for his nonrenewal—and even if it did, no one 14 from the College has been made a party to this lawsuit.”); see also Millman v. Inglish, 461 F. 15 App’x 627, 628 (9th Cir. 2011) (“Appellants’ stigma-plus claim fails because notification of the 16 alleged fraud to other public agencies is not a public disclosure.”) (citing Wenger, 282 F.3d at 17 1075 n.5) (unpublished opinion). The district court in Denning recently explained and applied 18 the holding of Wenger: 19 Sheriff Rodriguez’s report to POST presents a more difficult issue. The Ninth Circuit has not addressed the “publication” element of a stigma-plus claim in the 20 context of a county sheriff’s office reporting alleged ethical violations to a state standards and training council. But it has more generally held that intra- 21 governmental dissemination does not satisfy the “public disclosure” element of a stigma-plus claim. In Wenger v. Monroe, 282 F.3d 1068, 1074 n.5 (9th Cir. 2002), 22 for example, the court held that there was no public disclosure when the California Army National Guard informed other branches of the military (the 23 Army War College and the Department of the Army Inspector General's office) of a pending investigation into plaintiff’s alleged misconduct. And in Millman v. 24 Inglish, 461 F. App’x 627, 628 (9th Cir. 2011) (unpublished disposition), the court held that California state department employees did not “publicly disclose” 25 stigmatizing information when they informed other public agencies of plaintiff’s alleged fraud. Id. (citing Wenger, 282 F.3d at 1074 n.5); see also Palka v. Shelton, 26 623 F.3d 447, 454 (7th Cir. 2010) (public disclosure requires that the defendant “actually disseminate the stigmatizing comments in a way that would reach 27 potential future employers or the community at large”); Reyes v. City of Pico Rivera, 370 F. App’x 844, 844 (9th Cir. 2010) (unpublished disposition) 28 (dissemination of an allegedly stigmatizing report to “two City decision-makers” — 86 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 86 of 99 1 did not, on its own, constitute publication, because there was no public disclosure). Given this authority, the Court concludes that a county sheriff's report 2 to a state-created training and standards council does not, on its own, satisfy the “publication” element of a stigma-plus claim. 3 Denning v. Lincoln Cty. Sheriff's Off., No. 1:18-CV-00473-BLW, 2020 WL 355209, at *10 (D. 4 Idaho Jan. 21, 2020). 5 In addition to the investigation and SOD being generally known in the hospital, testimony 6 and applicable law confirm that the SOD and POC should have been posted at the hospital 7 through placement in a hospital binder or some other form. However, Plaintiffs never presented 8 testimony or evidence clearly establishing the date or how it was made available specifically at 9 CRMC. If Plaintiffs had presented such evidence, the Court notes a potential argument could be 10 presented that such posting or making available by request, as required by law, constitutes 11 publication sufficient for a stigma-plus claim. See Cox v. Roskelley, 359 F.3d 1105, 1111–12 12 (9th Cir. 2004) (“We now hold explicitly that placement of the stigmatizing information in Cox’s 13 personnel file, in the face of a state statute mandating release upon request, constituted 14 publication sufficient to trigger Cox’s liberty interest under the Fourteenth Amendment.”). Even 15 if the Court were to consider such argument, Plaintiffs would still be unable to demonstrate 16 publication under the facts of this case. In Cox, the plaintiffs were public county employees, and 17 the action involved the government employer’s publication of the stigmatizing statement by 18 placement in a personnel file, in the course of termination by such government employer, with 19 such personnel file being subject to a public records request. Here, Dr. Chaudhry did not hold 20 government employment and the alleged stigmatizing statements were not made by the 21 government as an employer of Dr. Chaudhry in the course of termination. Additionally, the 22 direct subject of the investigations was CRMC, not Dr. Chaudhry. Further, even without a clear 23 establishment of when the documents may have been made available at the hospital facility, 24 CRMC took adverse actions against Dr. Chaudhry based on their receipt of preliminary findings 25 following the investigations, as early as July 27, 2012. Even outside the publication dates, and 26 absent evidence of a potential “posting date” by Plaintiffs, the CMS Report was not issued until 27 August 23, 2012, and the State Report wasn’t issued until February 14, 2013. 28 — 87 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 87 of 99 1 Further, Yussif, the primary investigator and author of the State Report, is not a party to 2 this lawsuit. The evidence shows McComb and other actors in the hospital knew they were 3 dealing with Yussif conducting the initial investigation on behalf of the State, and knew in July 4 that Campbell was conducting the CMS survey investigation. The CMS Report was issued by 5 CMS, not directly by Campbell or CDPH, and the Plaintiffs were required to show public 6 disclosure of a substantially untrue stigmatizing statement by one of the Defendants as acting on 7 behalf of the government. 8 While evidence tending to prove or disprove CRMC removed Dr. Chaudhry from his 9 directorship because of the State Report is relevant, it is an undisputed stipulated fact that CDPH 10 did not publish the State Report until October 10, 2013, and that CDPH did not publish the CMS 11 Report. The Ninth Circuit’s holding in Tibbets, is instructive as to the requirement of temporal 12 proximity between the publication of the stigmatizing statement and the adverse employment 13 action: 14 The 2006 Release was issued sixteen months after the Plaintiffs were terminated, and after this lawsuit was initiated. Campanelli held “that there must be some 15 temporal nexus between the employer’s statement and the termination” and that the stigmatizing statements cannot be too remote to be considered “in the course” 16 of the plaintiff's termination. Id. We also note the holdings of Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 32 (2d Cir.1994) (holding that 17 a statement published five months after the plaintiff’s termination was not made in the course of dismissal); Hadley v. Du Page County, 715 F.2d 1238, 1247 (7th 18 Cir.1983) (holding that a statement to the press six days after the plaintiff’s termination was “at the time of” termination, but that a statement published two 19 years later “was too remote in time to meet the stigma plus test”); and Ray v. Tennessee Valley Auth., 677 F.2d 818, 824 (11th Cir.1982) (holding that a six 20 year lapse is long enough to sever the temporal nexus of statements to termination of the plaintiff’s employment). We are persuaded by the reasoning of these out- 21 of-circuit cases, and hold that sixteen months is far too remote from the terminations to meet Campanelli’s “temporal nexus” test. 22 The 2005 Release presents a more difficult question. The 2005 Release was 23 issued nineteen days after Plaintiffs’ terminations. This time frame falls between the week that Campanelli found to satisfy the required “temporal nexus” and the 24 months and years that Martz, Hadley, and Ray found temporally insufficient. Governor Kulongoski argues that the “time interval of several weeks—which is 25 over twice as long as the period in Campanelli—eliminated any nexus between the statements and the discharges.” Plaintiffs argue that the terminations, the 26 media coverage afterwards, and the Governor’s press release afterwards can be seen as “so closely related” that “the discharge itself may become stigmatizing in 27 the public eye.” 28 — 88 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 88 of 99 1 Tibbetts v. Kulongoski, 567 F.3d 529, 538 (9th Cir. 2009). Further, here, the statements were 2 not published by the entity that was the employer that executed the termination of employment. 3 Thus, for these reasons, Plaintiffs have not established the act of publication of 4 stigmatizing statements by any of the Defendants that satisfies the applicable legal standards for 5 publication in a stigma-plus action to establish a constitutional violation. 6 4. Liberty Interest 7 While trying to not outstep the contours of the law of the case, the Court would find 8 Plaintiffs have not presented sufficient evidence to satisfy the “plus” requirement of their stigma-9 plus claim. 10 “[A] liberty interest in pursuing one’s chosen profession has only been recognized ‘in 11 cases where (1) a plaintiff challenges the rationality of government regulations on entry into a 12 particular profession, or (2) a state seeks permanently to bar an individual from public 13 employment.’ ” Magassa v. Wolf, 487 F. Supp.3d 994, 1016 (W.D. Wash. 2020) (quoting 14 Guzman v. Shewry, 552 F.3d 941, 954 (9th Cir. 2009)). 15 Plaintiffs have not demonstrated either here. Plaintiffs are not challenging the laws and 16 regulations pertaining to the CDPH’s required oversight of the hospital provider, but rather only 17 argue stigmatizing mistakes were made when exercising its regulatory duties. Additionally, the 18 State did not seek to permanently bar Chaudhry from public employment here. Nor did the State 19 or any Defendants directly terminate Dr. Chaudhry’s employment, nor did Plaintiffs prove by a 20 preponderance of the evidence that any of the Defendants required the hospital to terminate Dr. 21 Chaudhry’s employment through the issued SODs or different versions of the POCs. 22 Defendants’ involvement was limited to participation in CDPH’s requirement, as demonstrated 23 in the statutes and regulations outlined above, to investigate the hospital provider and ensure the 24 hospital was in compliance with the applicable laws and regulations. 25 “Although the precise contours of that liberty interest remain largely undefined, the 26 Supreme Court observed recently that the line of authorities establishing the liberty interest ‘all 27 deal[t] with a complete prohibition of the right to engage in a calling,’ and not merely a ‘brief 28 interruption’ in one’s ability to pursue an occupation or profession.” Dittman v. California, 191 — 89 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 89 of 99 1 F.3d 1020, 1029 (9th Cir. 1999). “Thus, a liberty interest deprivation occurs only when there is 2 stigmatizing governmental action that so negatively affects a person’s professional reputation 3 that it effectively forecloses his or her opportunity to practice a chosen profession.” Guzman v. 4 Shewry, No. CV0800769MMMRZX, 2008 WL 11441901, at *9 (C.D. Cal. Mar. 4, 2008) 5 (“Guzman has neither alleged nor proffered evidence that he has been barred forever from the 6 practice of medicine . . . . DHS seeks only to bar him temporarily from seeking reimbursement 7 for services provided to a single group of patients – Medi-Cal beneficiaries. This type of 8 temporary bar from reimbursement does not give rise to a liberty interest.”) (comparing to 9 Schware v. Bd. of Bar Exam. of State of N.M., 353 U.S. 232, 246 (1957) (refusing an applicant 10 the right to qualify for the practice of law implicates a liberty interest)). 11 In contrast to Schware, Dr. Chaudhry was not barred from practicing medicine in 12 California, and indeed, the California Medical Board declined to revoke his license. The adverse 13 reaction was only that of a third party, not the governmental entity that made the alleged 14 stigmatizing statement. Further, while Dr. Chaudhry argues a more permanent stigma attached 15 to him in pursuing the practice of medicine, the evidence has not demonstrated that he will be 16 forever barred from the practice of medicine, despite an argument of irreparable harm. Indeed, 17 Dr. Chaudhry is still performing surgery in another country, and while Dr. Chaudhry testified no 18 one will take him on as a surgeon, he has presented no direct evidence of attempts or rejections 19 in trying to work for another medical practice, or establish another practice of his own in 20 California; and the Court has already addressed the claims relating to the inability to obtain 21 medical malpractice insurance. See Guzman, 2008 WL 11441901, at *11 (“Guzman attempts to 22 overcome this fact by asserting that he will have to disclose his temporary suspension to, inter 23 alia, patients, hospitals, private third-party insurance companies, and malpractice carriers 24 [asserting that], if he is unable to affiliate or contract with hospitals, insurers and other payor 25 organizations, his ability to practice medicine will be “implicated.” [however,] [w]hile this 26 assertion may support Guzman’s argument that he will be irreparably harmed by the suspension, 27 it does not demonstrate that he will be forever barred from practicing medicine as a result of 28 DHS’s temporary suspension.”); see also Cooper, 924 F.2d at 1533-34 n.24 (The “contention — 90 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 90 of 99 1 that he has lost income because of a decrease in the number of patient referrals is no more than a 2 claim for consequential damages resulting from an injury to his reputation. Plaintiff has not 3 alleged and cannot allege on this record that any decrease in referrals was caused by the loss or 4 alteration of a legal status recognized and protected by state law.”) (quoting Chaudhry, 626 F. 5 Supp. At 454). 6 The decision in Guzman appears rightfully applicable here, and the Court finds further 7 affirmance in utilizing the decision given the discussion by the Ninth Circuit in affirming the 8 denial of the preliminary injunction in Guzman: 9 Guzman next argues that his temporary suspension denies him his liberty interest in pursuing the occupation of his choice. The Supreme Court has not defined the 10 boundaries of an individual’s right to pursue his chosen profession, but it has stated that there is “some generalized due process right to choose one’s field of 11 private employment.” Conn v. Gabbert, 526 U.S. 286, 291–92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). The Court has emphasized, however, that all cases 12 recognizing such a right have “deal[t] with a complete prohibition on the right to engage in a calling, and not [a] sort of brief interruption.” Id. at 292, 119 S.Ct. 13 1292 (emphasis added). Indeed, the liberty interest in pursuing one’s chosen profession has been recognized only in cases where (1) a plaintiff challenges the 14 rationality of government regulations on entry into a particular profession, see, e.g., Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 15 (1957), or (2) a state seeks permanently to bar an individual from public employment, see, e.g., Roth, 408 U.S. at 573, 92 S.Ct. 2701. 16 Guzman’s claim does not fall into either of these two recognized categories. With 17 respect to the first, DHCS has temporarily suspended Guzman from Medi–Cal, thereby preventing him from receiving reimbursement for treating MediCal 18 patients. DHCS has not, however, revoked or suspended his license to practice medicine. Thus, Guzman’s case is distinguishable from those in which plaintiffs 19 have challenged the rationality of a state-imposed barrier to entering a particular profession, such as a testing or licensing requirement. See, e.g., Schware, 353 20 U.S. at 247, 77 S.Ct. 752 (recognizing the liberty interest of an individual denied the right to sit for a state bar exam). 21 As to the second category, Guzman is not a public employee, nor has DHCS’s 22 decision to suspend him deprived him of future public employment. Consequently, the suspension did not impose a complete bar on his ability to 23 become a public employee. See Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895–96, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) 24 (concluding that an employment decision to bar a cook from working at a particular military base did not violate the cook’s due process rights because she 25 “remained entirely free to obtain employment ... with any other employer”); Llamas v. Butte Cmty. Coll. Dist., 238 F.3d 1123, 1126, 1128 (9th Cir.2001) 26 (concluding that a janitor fired from his job and “barred from all future employment with the District” was not deprived of his liberty interest in pursuing 27 the occupation of his choice because he had “not been banned from pursuing a janitorial position [or other public employment] elsewhere”). 28 — 91 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 91 of 99 1 In sum, Guzman’s temporary suspension from the Medi–Cal program does not exclude him from the medical profession, nor does it deprive him of, or prevent 2 him from applying for, public employment. Accordingly, Guzman has not been deprived of a protected liberty interest in pursuing the occupation of his choice. 3 4 Guzman v. Shewry, 552 F.3d 941, 954–55 (9th Cir. 2009). Again, CDPH nor any of the 5 Defendants have “revoked or suspended his license to practice medicine.” Id. Further, Dr. 6 Chaudhry was “not a public employee, nor ha[ve],” the actions of Defendants here “deprived 7 him of future public employment,” and thus, Defendants have not “impose[d] a complete bar on 8 his ability to become a public employee.” “Accordingly, [Dr. Chaudhry] has not been deprived 9 of a protected liberty interest in pursuing the occupation of his choice.” Id. at 955. 10 Dr. Chaudhry was removed from his directorship, and argues certain contracts either 11 between himself and CRMC or between Valley Cardiac and CRMC (a source of “medical 12 income” as argued by Dr. Chaudhry) were not renewed, but the Ninth Circuit has “consistently 13 held that people do not have liberty interests in a specific employer.” Llamas, 238 F.3d at 1128 14 (9th Cir. 2001); Clemente, 766 F.2d at 1365 (A person “does not possess a liberty interest [in] 15 her Civil Service career . . . [t]he mere fact of dismissal does not cause a deprivation of liberty . . 16 . [and] the reasons for dismissal must be sufficiently serious to stigmatize or otherwise burden 17 the individual so that he is not able to take advantage of other employment opportunities . . . 18 (quotation and citations omitted) (alteration in original); Cafeteria & Rest. Workers, 367 U.S. 19 886, 895–96 (“[T]he private interest affected . . . in the present case . . . most assuredly was not 20 the right to follow a chosen trade or profession. . . [as plaintiff] remained entirely free to obtain 21 employment as a short-order cook or to get any other job, either with M & M or with any other 22 employer [and] [a]ll that was denied her was the opportunity to work at one isolated and specific 23 military installation.”) (comparing to, e.g., Dent v. State of W.Va., 129 U.S. 114 (1889); 24 Schware, 353 U.S. at 233.) 25 The Court recognizes the Supreme Court’s noting of the unique facts of federal power in 26 the context of a military position, and the distinction here. Cafeteria, 367 U.S. at 896 27 (“Moreover, the governmental function operating here was not the power to regulate or license, 28 as lawmaker, an entire trade or profession, or to control an entire branch of private business, but, — 92 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 92 of 99 1 rather, as proprietor, to manage the internal operation of an important federal military 2 establishment . . . [and] [i]n that proprietary military capacity, the Federal Government, as has 3 been pointed out, has traditionally exercised unfettered control.”). The Court notes that Dent 4 “involve[d] the validity of the statute of that state which requires every practitioner of medicine 5 in it to obtain a certificate from the state board of health that he is a graduate of a reputable 6 medical college in the school of medicine to which he belongs,” or otherwise meet certain 7 requirements. Dent, 129 U.S. 114. In Schware, the question presented was whether the plaintiff 8 had “been denied a license to practice law in New Mexico in violation of the Due Process Clause 9 of the Fourteenth Amendment to the United States Constitution.” Schware, 353 U.S. at 233. 10 Again here, Plaintiffs were not the direct subject of the applicable regulations governing the 11 Defendants and their exercise of regulatory oversight over the hospital provider, and nor are 12 Plaintiffs challenging a decision from the state to directly foreclose Dr. Chaudhry’s right to 13 practice a chosen trade or profession. When Dr. Chaudhry in fact was the direct subject of an 14 investigation and oversight by the state of California, he indeed did receive the process he was 15 due under the regulatory and licensing scheme overseeing his medical license and ability to 16 follow his trade in the state, as undisputed here: “Following the publication of the State 2567, the 17 Medical Board of California began investigating Plaintiff Chaudhry . . . [i]n early December 18 2014, the Medical Board of California determined that it would take no action against Plaintiff 19 Chaudhry, and it closed the case.” (UF 28, 29.) 20 Further, as noted above, the Ninth Circuit has held in unpublished cases that the “stigma- 21 plus” test requires that the defamation be accompanied by an injury directly caused by the state, 22 rather than an injury caused by the act of some third party in reaction to the State’s defamatory 23 statements. Douglas, 465 F.App’x at 715; Ooley, 603 F.App’x at 629; see also Mazzeo, 649 24 F.Supp.2d at 1197 (“Defendants neither fired her nor blacklisted her . . . she worked as a cocktail 25 waitress for a casino and that after the incident, she was blacklisted from working at any Nevada 26 casino, allegedly because Defendants’ defamatory statements had tarnished her reputation. This 27 is fatal to her stigma-plus claim because the casinos are not defendants, are not state actors, and 28 are not alleged to have acted in agreement with the named Defendants.”). — 93 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 93 of 99 1 To satisfy the “plus” element, the Plaintiffs must show that, as the result of the 2 defamatory statement “a right or status previously recognized by state law was distinctly altered 3 or extinguished.” Humphries, 554 F.3d at 1186 (quoting Paul, 424 U.S. at 711.) This is not like 4 Humphries, where The Ninth Circuit found that being included on a government list of child 5 abusers altered the parents’ right due to statutes requiring licensing agencies search the database 6 and conduct an investigation prior to granting a number of licenses, and also affected the ability 7 of plaintiffs to apply for custody of a relative’s child, become guardians or adoptive parents 8 (inside or outside of California), obtain employment as a peace-officer, among other things. 9 Humphries, 554 F.3d at 1187. Here Dr. Chaudhry was cleared by the California Medical Board; 10 Dr. Chaudhry was not the direct subject of the investigation and was not placed on any 11 government list; there is no evidence of a requirement to cross-check these reports or that he was 12 put into a database of the state that impacts credentialing or licensing; or that the reports affected 13 an ability to obtain state approval for a job with a private or public employer. 14 Given Dr. Chaudhry was not the direct subject of the investigation and his medical 15 license was not targeted by CDPH, the circumstances here are more like Castaneda, supra, than 16 Humphries, where Castaneda was a manager at a liquor store, and an agent of the USDA 17 investigated his participation in the federal food stamp program. Castaneda, 807 F.2d at 1749. 18 Thus, there the target of the government investigation was the store, not the employee, like here 19 the direct target of the investigational survey was CRMC. The Ninth Circuit held that Castaneda 20 had no direct relationship with the government but rather the government dealt directly with the 21 Circle K store, and Castaneda complained of the indirect adverse consequences he suffered as a 22 result of the government-store interaction. Castaneda, 807 F.2d at 1479 (“Castaneda was only an 23 indirect beneficiary of the government’s statutory relationship with The Circle K Corporation 24 allowing it to participate in the food stamp program . . . hence Castaneda is not a direct target of 25 the government’s disqualification decision.”). The Ninth Circuit further held that because 26 Castaneda as an individual “enjoy[ed] no legally cognizable interest in working for a store which 27 can accept food stamps, nor does he claim that he has a property interest enforceable against the 28 government in maintaining his private employment with The Circle K Corporation,” he could not — 94 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 94 of 99 1 “satisfy the “stigma-plus” standard for direct injury established in Paul.” Id. at 1480. 2 As noted above, the Ninth Circuit recognized that O’Bannon left open the possibility that 3 a third party could assert a claim if the Government acted with the purpose of punishing or 4 restraining another. Castaneda, 807 F.2d at 1480 n.4 (“O’Bannon explicitly left open the 5 possibility that where the government indirectly yet intentionally injures or affects the legal 6 status of a person by action taken directly against a private third party, the injured person can 7 maintain a due process challenge against the government.”). However, given the testimony from 8 Campbell, McComb, and Lopez, concerning no direct intention by Defendants to punish Dr. 9 Chaudhry, the Court does not find Plaintiffs have established such circumstances here by a 10 preponderance of the evidence. 11 Plaintiffs cite Ulrich, arguing: 12 It is undisputed that investigator Yussif did not interview Plaintiff Chaudhry during CDPH’s initial investigation. Similarly, Defendant Campbell did not 13 interview at least three percipient witnesses that were in the surgery room during the entire surgical procedure, and Plaintiffs will show that Defendant Campbell’s 14 interview with Plaintiff Chaudhry was inaccurately incorporated into the final report, and specifically the stigmatizing statement where Defendant Campbell 15 stated that Plaintiff Chaudhry admitted to her that he left before the surgery was complete, when her own personal notes showed that he never said that. 16 Especially where Plaintiff Chaudhry stated the exact opposite, that he did not leave the surgery until it was completed and the patient was stable, and Defendant 17 Campbell’s hand-written notes showed that Plaintiff Chaudhry was correct. 18 (Pretrial Order, ECF No. 88 at 18-19.) 19 In Ulrich, the Ninth Circuit stated the following: 20 Although physicians are included in the category of San Francisco city and county employees who “serve at the pleasure of the appointing authority,” the hospital's 21 bylaws forbid the discharge of physicians without extensive due process. The California Supreme Court has held that similar due process requirements 22 applicable to private hospitals by statute render “the essential nature of a qualified physician’s right to use the facilities of a hospital ... a property interest which 23 directly relates to the pursuit of his livelihood.” Anton v. San Antonio Cmty. Hosp., 19 Cal.3d 802, 140 Cal.Rptr. 442, 567 P.2d 1162, 1174 (1977) (quoting 24 Edwards v. Fresno Cmty. Hosp., 38 Cal.App.3d 702, 113 Cal.Rptr. 579, 580 (1974)); see also Clements v. Airport Auth. of Washoe County, 69 F.3d 321, 331 25 n.12 (9th Cir.1995) (explaining that at-will employment does not exist where an employee can “only be fired for cause or in accordance with specified policies or 26 procedures”). 27 Ulrich, 308 F.3d at 975 n.4. The Court notes that the Ninth Circuit therein analyzed the fact that 28 — 95 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 95 of 99 1 this was a city hospital, and “assume[d] for purposes of analysis that Dr. Ulrich had a property 2 interest in continued employment,” given the hospital bylaws also forbid termination without due 3 process. Id. Even if Ulrich changed the analysis, here, the entity that removed Dr. Chaudhry 4 from the Directorship was CRMC, a private hospital, and Plaintiffs have not submitted evidence 5 or argued at trial that the hospital itself did not afford Dr. Chaudhry appropriate due process 6 under the hospital’s bylaws and procedures. In fact, the evidence at trial appeared to 7 demonstrate that Dr. Chaudhry was afforded process by the hospital, was allowed to make 8 presentations, by PowerPoint or otherwise, attended meetings with the MEC, the MEC supported 9 its findings by an independent investigation with an outside reviewer, and Dr. Chaudhry was 10 otherwise allowed to and did present his case to CRMC. The Ninth Circuit’s decision in Mustafa 11 is helpful, though it involved public employment. As summarized by Moody: 12 There, a high school teacher was accused of sexual misconduct and recommended for dismissal. Id. at 1172. After the accusation was reported, he was notified of 13 the charges in a January 19th meeting with the school’s princip[al] and school district’s legal counsel, where he was handed a “Notice of Intended Disciplinary 14 Action: Immediate Suspension and Dismissal.” Id. Five days later, on January 24th, he participated in a pre-termination hearing where he gave his version on the 15 events. Id. at 1172-73. Roughly two months after that, he participated in a binding arbitration, where an arbitrator evaluated the charges against him. Id. at 1173. In 16 evaluating his “stigma-plus” due process claim, the Ninth Circuit determined that he was afforded adequate process “by virtue of his arbitration hearing if not the 17 January 19th and 24th hearings, was afforded the opportunity to clear his name.” 18 Moody, 2018 WL 646686, at *7 (citing Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1172– 19 73 (9th Cir. 1998)). Thus, if there is an argument that Dr. Chaudhry had a liberty interest in his 20 position at CRMC and to not be fired without due process by CRMC (not the State), he was 21 afforded process by CRMC. Further, CRMC, as the entity that was the subject of the 22 investigation, had certain processes available to it to appeal. See, e.g., Cal. Health & Safety 23 Code § 1280.5 (“The state department shall accept, consider, and resolve written appeals by a 24 licensee or health facility administrator of findings made upon the inspection of a health 25 facility.”); Cal. Health & Safety Code § 1280.1 (“If the licensee disputes a determination by the 26 department regarding the alleged deficiency or the alleged failure to correct a deficiency, or 27 regarding the reasonableness of the proposed deadline for correction or the amount of the 28 — 96 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 96 of 99 1 penalty, the licensee may, within 10 days, request a hearing pursuant to Section 131071.”); 42 2 C.F..R § 488.331(a)(1)-(2) (“For non-Federal surveys, the State must offer a facility an informal 3 opportunity, at the facility’s request, to dispute survey findings upon the facility’s receipt of the 4 official statement of deficiencies . . . [f]or Federal surveys, CMS offers a facility an informal 5 opportunity, at the facility’s request, to dispute survey findings upon the facility’s receipt of the 6 official statement of deficiencies.”). 7 D. Plaintiffs’ Request for Declaratory and Injunctive Relief 8 Plaintiffs’ first cause of action is for declaratory and injunctive relief against Defendant 9 Angell in her official capacity as Director of the CDPH, for the same underlying claim of a 10 violation of civil rights pursuant to 42 U.S.C. § 1983 and violation of due process. (FAC ¶¶ 62-11 71, ECF No. 18-20.) 12 “The decision whether to grant declaratory relief is within the sound discretion of the 13 district court.” Olagues v. Russoniello, 770 F.2d 791, 803 (9th Cir. 1985). “The central purpose 14 of the Declaratory Judgment Act . . . is to provide parties with a declaration of their rights prior 15 to incurring actual injury.” Id. Pursuant to the Declaratory Judgment Act: “In a case of actual 16 controversy,” the Court “may declare the rights and other legal relations of any interested party 17 seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 18 2201(a). “This statute does not create new substantive rights, but merely expands the remedies 19 available in federal courts.” Shell Gulf of Mexico Inc. v. Ctr. for Biological Diversity, Inc., 771 20 F.3d 632, 635 (9th Cir. 2014). “While the Declaratory Judgment Act therefore created a new 21 procedural mechanism for removing the threat of impending litigation, it did not expand the 22 jurisdiction of federal courts.” Id. 23 “The Declaratory Judgment Act does not grant litigants an absolute right to a legal 24 determination.” United States v. State of Wash., 759 F.2d 1353, 1356 (9th Cir. 1985). “The 25 decision to grant declaratory relief is a matter of discretion [citations], even when the court is 26 presented with a justiciable controversy . . . [and] [i]n fact, the court may, after a full 27 consideration of the merits, exercise its discretion to refuse to grant declaratory relief because the 28 state of the record is inadequate to support the extent of relief sought.” Id. (citations omitted). — 97 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 97 of 99 1 In comparing declaratory and injunctive relief, the Ninth Circuit observed “[t]here is a 2 considerable difference between ordering a government official to conduct his activities in a 3 certain manner, and simply pronouncing that his conduct is unlawful and should be corrected.” 4 Olagues, 770 F.2d at 803. A plaintiff seeking a permanent injunction must satisfy a four-factor 5 test before a court may grant such relief. Thus, Plaintiffs must demonstrate: “(1) that it has 6 suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for 7 that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a 8 remedy in equity is warranted; and (4) that the public interest would not be disserved by a 9 permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 388 (2006). 10 For all of the same reasons discussed above pertaining to why Plaintiffs second cause of 11 action has failed, and further because CDPH has already amended the State 2567 to correct the 12 conceded inaccuracy regarding the precise time that Dr. Chaudhry left the operating room,49 13 Plaintiffs have not demonstrated that they have suffered a constitutional injury, and have not 14 demonstrated by a preponderance of the evidence that any remedy in equity is warranted. 15 Accordingly, Plaintiffs’ request for declaratory and injunctive relief shall be denied. 16 E. Plaintiffs’ Claimed Damages 17 Although Plaintiffs have not proven any of their claims and are not entitled to any 18 monetary damages, the Court shall make a brief statement concerning the alleged damages. 19 The Court’s order on the motions in limine held that “[b]ased upon his partnership in the 20 surgical practice, Plaintiff Chaudhry [could] testify to the value of his business, losses and 21 projected losses that are within his personal knowledge,” but limited the testimony in that it 22 could “not stray into an area that would require scientific, technical, or other specialized 23 knowledge that would fall within the scope of Rule 702.” (ECF No. 97 at 30-32.) 24 The Court finds the testimony provided by Dr. Chaudhry, was in large parts speculative 25 and vague, as elucidated by the testimony of Defense expert Kristoffer Hall, and is entitled to 26 very limited weight based on a lack of evidentiary basis and conflicting evidence, including the 27 28 49 Which the Court found immaterial to the claim of a constitutional violation. — 98 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 98 of 99 1 testimony concerning the terms of the contracts introduced into evidence. Plaintiffs initially 2 sought to introduce evidence of medical income through Dr. Chaudhry’s tax returns, as discussed 3 by Plaintiffs’ expert witness John Englebert, who prepared certain tax returns, however, those 4 exhibits were subsequently withdrawn and are not considered by the Court. Accordingly, Dr. 5 Chaudhry’s testimony regarding loss of medical income, and inability to maintain a certain level 6 of income currently, whether through work in Pakistan or by the inability to obtain medical 7 work, consulting work, teaching work, or otherwise, that would potentially offset the speculative 8 estimates of damages presented, is entitled to limited weight, if any. 9 /// 10 / / / 11 / / / 12 / / / 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / — 99 — Case 1:16-cv-01243-SAB Document 183 Filed 09/29/21 Page 99 of 99 1 V. 2 CONCLUSION 3 For the foregoing reasons, the Court finds Plaintiffs have failed to show by a 4 preponderance of the evidence under the applicable legal standards that Defendants are liable 5 under any cause of action. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiffs’ motion to admit the testimony of Laura McComb (ECF No. 177) is 8 DENIED; 9 2. Plaintiffs’ motion to amend the pretrial order and designate the deposition 10 testimony of Adams Yussif (ECF No. 176) is DENIED; 11 3. Defendants’ objections to Plaintiffs’ deposition designations of Berj Apkarian and 12 Kalwant Dhillon (ECF No. 170) are SUSTAINED and the designations (ECF No. 13 160) are STRICKEN; 14 4. Plaintiffs shall recover no form of relief on any of their causes of action; 15 5. The action shall be dismissed, in its entirety, on the merits, with prejudice; 16 6. Judgment shall be entered in favor of Defendants and against Plaintiffs; and 17 7. The Clerk of the Court is directed to enter judgment for Defendants and against 18 Plaintiffs and close this action. 19 IT IS SO ORDERED. 20 21 Dated: September 29, 2021 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 — 28 —