Benaron v. Simic

• Docket Number: 3:19-cv-01653-SB
• Decision Date: 29 September 2021
• Parties: LISA BENARON, an Oregon individual, Plaintiff, v. BRETT SIMIC, a Wyoming individual, Defendant.
• Court: U.S. District Court — District of Oregon

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LISA BENARON, an Oregon individual, Plaintiff, v. BRETT SIMIC, a Wyoming individual, Defendant.

No. 3:19-cv-01653-SB

United States District Court, D. Oregon

September 29, 2021

OPINION AND ORDER

HON STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.

Dr Lisa Benaron (“Plaintiff”) filed this action against Brett Simic (“Defendant”), alleging claims for intentional interference with business relations defamation per se, false light, civil harassment in violation of Or. Rev. Stat. § 30.866(1), and intentional infliction of emotional distress (“IIED”).

Now before the Court are Plaintiff's Motion for Summary Judgment and Injunctive Relief and Defendant's Cross-Motion for Summary Judgment. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, and the parties have consented to the jurisdiction of a U.S Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons explained below, the Court denies Plaintiff's Motion for Summary Judgment and grants in part and denies in part Defendant's Cross-Motion for Summary Judgment.

BACKGROUND^[1]

Before August 2016, Plaintiff and Defendant were close acquaintances. (Joint Stmt. of Agreed Facts (“JSAF”) ¶ 1, ECF No. 38.) In August 2016, Plaintiff worked at Enloe Medical Center (“EMC”) as a physician. (Decl. of Robert Parker in Supp. of Pl.'s Mot. Summ. J. (“Parker Decl.”) Ex. 6 at 74, ^[2] ECF No. 39-2.) On August 11, 2016, Defendant injured his left ring finger. That same day, Defendant sent Plaintiff two photographs of his injured finger via text message and told Plaintiff that Dr. Hall at EMC “put it back together.” (Parker Decl., Ex. 3 at 37.) On August 12, 2016, Defendant texted Plaintiff that a radiologist “just called my fingers [sic] broken.” (Parker Decl., Ex. 3 at 43.) Plaintiff and Defendant engaged in text conversations throughout August 12, 2016 about Defendant's finger and other topics. On August 14, 2016, Plaintiff texted Defendant and noted “I checked your x-ray. Not clear if there is a fracture per Radiologist. If there is, it is a teeny tiny chip of bone.” (Parker Decl., Ex. 3 at 46.) Defendant texted with Plaintiff several times from August 14 through August 16 regarding whether Defendant's finger was fractured.

On August 16, 2016, Defendant filed a complaint with the California Board of Medicine in which he alleged Plaintiff violated the Health Insurance Portability Accountability Act (“HIPAA”) when she examined his medical records without his permission. (JSAF ¶ 2.) On August 18, 2016, Plaintiff texted Defendant and directed him not to contact her or she would file a restraining order. (Parker Decl., Ex. 3 at 53.) In December 2016, Plaintiff moved to Portland, Oregon, in part to be closer to her daughter, Molly Steindorf (“Steindorf”), who was attending the University of Washington. Plaintiff did not tell Defendant that she was moving to Oregon.

On December 19, 2016, Defendant sent University of Washington employee Helen Garrett an email, in which he reported that Steindorf is not a Washington resident:

I was given your name to speak with regarding residency requirements for an existing student that I don't believe is a Washington resident and is trying to get out of the non-residency requirement and higher fees.

I can give you this information anything [sic] and I hope it will help you in your investigation.

(Parker Decl., Ex. 14 at 3, ECF No. 39-4.) Garrett responded to Defendant on January 17, 2017; asked him if he was “a professor, student, or colleague”; advised him that she would forward his email to Chief Residency Officer Tina Miller; and told him that neither she nor Miller would “be able to comment or report back if we investigate the student you will comment on.” (Parker Decl., Ex. 14 at 2.)

On August 9, 2017, at 10:15 a.m., Defendant emailed Garrett stating: “I'm following up with you on the information that was given to you in January. I'm not able to reach you on the number I have written down for you. . . . Can you please update me with your current number so I may ring [you]?” Id. Garrett responded at 10:23 a.m., on August 9, 2017, and advised Defendant that due to the “nature of [his] request and what [he] want[ed] to share, ” it was necessary to conduct the conversation via email rather than on the telephone. (Parker Decl., Ex. 14 at 1.) At 10:25 a.m., on August 9, 2017, ^[3] Defendant called Miller and left the following voicemail:

Hi, Tina. It's Brett Simic, down in California. It's about 10:25, on August 9th. We spoke on January 17th regarding a student that seems to -- wanting to claim residency in the great state of Washington for tuition purposes. Last name was Steindorf, S-T-E-I-N-D-O-R-F; first name is Molly. And I'm wondering if we got a resolution on that.

We have a lot of business interests in the great state of Washington. I'm also an alumni of your school.^[4] And that's just not cool. And then Is an impossible situation, because the parents live -- one lives in California. One moved to Oregon in November. And she's not -- she's not a full-time resident based upon the university registrar residency requirements.

So I -- you know, we've had plenty of time to look into this. You and I spoke about it. And then I'm just waiting to -- I want to kind of hear an update, which I'm legally entitled to. . . .

And that was when you were -- first came on at the university. I think you said you were there three months. And there's lots of procedures and all this on checking into this stuff. I'm familiar with them, not as familiar as you.

And I'm just -- and if you need additional information, I'll be happy to provide that with you. . . . Okay. But I do hope to hear back from you when you're caught up, you know, in the next week or a few days.

(Parker Decl., Ex. 5 at 67-68, ECF No. 39-2.) At 11:58 a.m., on August 9, 2017, Defendant emailed Garrett:

[When] [w]e last talked I provided you with you information on a student that was planning on claiming resident status as work around for higher out of state fees. This would laughable [sic] at best.

Father claims student on taxes, gives student money for fees, and listed on health insurance-lives in California. Student visit [sic] often.

Mother-lived in California, then moved to Oregon in December ‘16, and supports student.

Student uses an address on Mercer Island and has part time job. I can't wrap my head around how this person is a Washington Resident. Either can our tax lawyers.

Student's name is Molly Steindorf - should be a rising junior.

Hope this will help. If additional information is needed just let me know. (Parker Decl., Ex. 14 at 1.) Defendant did not have any further communication with the University of Washington.

In December 2017, Plaintiff began working in Portland, Oregon at Landmark Health as a physician. On November 20, 2018, the California Attorney General filed an Accusation against Plaintiff with the Medical Board of California related to Defendant's HIPAA complaint, in which the Attorney General alleged five causes for discipline including gross negligence/unprofessional conduct, willful and unauthorized violation of professional confidence, repeated negligent acts, and failure to maintain adequate and accurate medical records. (Parker Decl., Ex. 10 at 121-23, ECF No. 39-2.) The facts underlying the Accusation included “Respondent [Plaintiff] . . . looked at Patient A's [Defendant's] x-ray. Patient A did not authorize Respondent to look at his x-ray. Patient A was not Respondent's patient.” (Parker Decl., Ex. 10 at 122.) The Attorney General requested that the Medical Board issue a decision revoking or suspending Plaintiff's Physician's and Surgeon's Certificate; to revoke, suspend, or deny approval of Plaintiff's authority to supervise physician assistants and advanced practice nurses; and to order Plaintiff to pay the cost of probation, if relevant. (Parker Decl., Ex. 10 at 124.) Plaintiff disclosed the Accusation to the Medical Director at Landmark Health.

On March 21, 2019, Defendant called Landmark Health and asked if Plaintiff was employed in their Portland office. Care Coordinator Andrea Marrocco informed Defendant that Plaintiff was employed by Landmark Health. Marrocco and Defendant then engaged in the following exchange:

[DEFENDANT]: So do you have access to the internet?

[MARROCCO]: Yes.

[DEFENDANT]: Can -- I'm not sure -- so there's a pretty serious allegation against Dr. Benaron in the state of California, and I don't know if you guys are aware of that, as her employer.

[MARROCCO]: I am not.

[DEFENDANT]: Do you want me to send it over to you, or do you want to look it up now? Because it's pretty serious. The attorney general's involved. And I think it's impacting the care of your patients in the great State of Oregon.

[MARROCCO]: What can I do for you?

[DEFENDANT]: Well, do you want me to send that over to you or do you want to take a minute and look it up?

[MARROCCO]: For what purpose exactly?

[DEFENDANT]: Well, I think you guys need to disclose that, when there's a crim- -- when there's pending action against the doctor that has a license --potential for a license revocation and some jail time potentially. Very serious stuff. And it's my belief that that action, when you actually read the attorney general's filing, that she knew about that and she didn't disclose that to you guys. So who would I -- do you want me to call your Newport Beach office? I mean, who -- who actually hires these doctors?

[MARROCCO]: Do you have a name?

[DEFENDANT]: Well, I'm a consumer in the great state of Oregon, ^[5] and I'm making you aware of something that I don't think was dis- -- so who -- who handles that for you? Or should I take to (indiscernible) relations?

[MARROCCO]: I'm sorry; can I have your name?

[DEFENDANT]: Well, I'm

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