Chaudhry v. Angell, 1:16-cv-01243-SAB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date29 September 2021
Docket Number1:16-cv-01243-SAB
PartiesPERVAIZ A. CHAUDHRY, M.D., et al., Plaintiffs, v. SONIA ANGELL, et al., Defendants.

PERVAIZ A. CHAUDHRY, M.D., et al., Plaintiffs,

SONIA ANGELL, et al., Defendants.

No. 1:16-cv-01243-SAB

United States District Court, E.D. California

September 29, 2021



(ECF Nos. 160, 170, 173-182)



Pervaiz A. Chaudhry, M.D. (“Dr. Chaudhry”) and Valley Cardiac Surgery Medical Group (“Valley Cardiac”) (collectively “Plaintiffs”), filed this civil rights action that proceeded into trial against Defendants Sonia Angell (“Angell”), in her official capacity as the Director of the California Department of Public Health (“CDPH”), Steven Lopez (“Lopez”), in his personal capacity, and Shirley Campbell (“Campbell”), in her personal capacity, alleging a violation of due process pursuant to 42 U.S.C. § 1983.

Following a waiver by all parties of their right to a jury trial, a bench trial was held before


the undersigned on May 4, 2021, through May 10, 2021. Having considered the testimony of the witnesses and those exhibits that were admitted at trial, the Court, by this memorandum of decision, issues its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court concludes that Plaintiffs have not proven a violation of their due process rights and are not entitled to relief on any of their claims.

A. Jurisdiction and Venue

This Court has original jurisdiction under 28 U.S.C. §§ 1331, 1441(a), in that this action arises under alleged violations of the Constitution of the United States. Venue is proper because the events that underlie this action occurred in the Eastern District of California, and in particular, Fresno County.

B. Relevant Procedural history

On June 17, 2016, Plaintiffs Dr. Chaudhry and Valley Cardiac filed a complaint in Fresno County Superior Court against Defendants Karen Smith (“Smith”), Lopez, Eric Creer (“Creer”), Campbell, and Deidre Kappmeyer (“Kappmeyer”). (ECF No. 1 at 10-30.) On August 19, 2016, Defendants removed the action to the Eastern District of California. (ECF No. 1.) On August 29, 2016, Plaintiffs filed a first amended complaint bringing two causes of action. (ECF No. 6.) Both causes of action allege the violation of civil rights and due process pursuant to 42 U.S.C. § 1983. Plaintiffs' first cause of action was brought against Defendant Smith in her official capacity, seeking declaratory and injunctive relief. (FAC ¶¶ 62-71, ECF No. 6.) Plaintiffs' second cause of action was brought against Defendants Lopez, Campbell, Creer, and Kappmeyer, in their personal capacities, seeking monetary damages for emotional distress to Dr. Chaudhry, as well as economic harm to each of the Plaintiffs. (FAC ¶¶ 72-76, ECF No. 6.)

On December 16, 2016, District Judge Lawrence J. O'Neill denied Defendants' motion to dismiss in its entirety. (ECF No. 12.) On January 26, 2017, Defendants filed an answer to Plaintiffs' first amended complaint. (ECF No. 13.) On January 18, 2019, District Judge O'Neill issued an order granting a motion for summary judgment as to Defendant Eric Creer only, and denying the motion for summary judgment as to Defendants Smith, Lopez, Campbell, and


Kappmeyer. (ECF No. 56.) The order further directed the parties to either dismiss Kappmeyer, who is now deceased, or substitute a proper defendant, and on January 28, 2019, the Court dismissed Kappmeyer pursuant to the parties' stipulation. (ECF No. 60.)

On February 14, 2019, pursuant to the parties' consent to magistrate judge jurisdiction, this action was assigned to Magistrate Judge Stanley A. Boone for all purposes, including trial and entry of final judgment. (ECF No. 64.) On February 21, 2020, the Court issued an order adjudicating the parties' motions in limine. (ECF No. 97.)

On March 18, 2020, pursuant to the parties' stipulation and Federal Rule of Civil Procedure 25(d), the Court ordered Defendant Angell, in her official capacity as the Director of the CDPH, to be substituted in place of Defendant Smith. (ECF No. 101.)

On March 18, 2020, the parties filed a stipulation for the withdrawal of Dr Chaudhry's request for damages relating to emotional distress or physical manifestations of emotional distress. (ECF No. 102.) On March 19, 2020, pursuant to the parties' stipulation, the Court entered an order withdrawing Dr. Chaudhry's requests for damages which were “claim[ed] to have been proximately caused by Defendants' conduct, including but not limited to depression, anxiety, sleeplessness, and cluster headaches, ” and further ordered that “Plaintiffs shall not introduce any evidence whatsoever in support of the general damages claims or to request damages for such claims.” (ECF No. 103.) In relation to the withdrawal of Dr. Chaudhry's claims for emotional distress, on March 30, 2020, Plaintiffs submitted supplemental briefing, which the Court construed as a motion for reconsideration of the Court's February 21, 2020 order on the parties' motions in limine. (ECF No. 104.) On April 27, 2020, the Court granted in part and denied in part the construed motion for reconsideration of the motions in limine. (ECF No. 110.)

On March 12, 2021, Defendants filed, and on March 18, 2021, Plaintiffs filed, notices withdrawing their demand for a jury trial, waiving their right to a jury trial, and consenting to a bench trial before the undersigned. (ECF Nos. 136, 141.)

On May 4, 2021, a bench trial commenced in this action on Plaintiffs' claims against Defendant Angell in her official capacity, and Defendants Lopez and Campbell in their


individual capacities. (ECF No. 173.) Plaintiffs were represented at trial by counsel Hadi Ty Kharazi and Thornton Davidson. Defendants were represented at trial by counsel Diana Esquivel. On May 10, 2021, the evidence was closed and the trial concluded. (ECF No. 182.)



The Court addresses three remaining evidentiary issues: (A) Plaintiffs' request to admit the testimony of Laura McComb (“McComb”) from a different preceding trial; (B) Plaintiffs' late-filed designations of the deposition testimony of Adams Yussif (“Yussif”), from the same preceding litigation; and (C) Defendants' objections and request to strike Plaintiffs' counter deposition designations of Berj Apkarian (“Apkarian”) and Kalwant Dhillon (“Dhillon”), also from the same preceding litigation.

A. Testimony of Laura McComb

Prior to the close of evidence in the bench trial held in this action, Plaintiffs filed a brief in support of the admission of testimony given by third party witness McComb in the prior separate action of Alvarez v. Fresno Community Hospital, et al., Fresno Superior Court Case No. 13CECG03906 (“Alvarez” or the “Perez Malpractice Case”). (Pls.' Limited Brief Supp. Admission Trial Testimony Laura McComb (“Br.”), ECF No. 177.)

1. Plaintiffs' Arguments

Plaintiffs seek to admit the testimony from Alvarez wherein McComb testified concerning the drafts of the “Plans of Correction, ”[1] and specifically previous testimony from McComb stating the initial proposed Plan of Correction was “rejected because the hospital had not been specific enough in its discipline of Dr. Chaudhry.” (Br. 2.) Plaintiffs proffer the testimony is about “Campbell pressuring the hospital to more harshly[]discipline Dr. Chaudhry.” (Br. 3.) Plaintiffs submit the testimony is highly relevant because it tends to show the Defendants' investigations and reports specifically sought to injure Dr. Chaudhry's reputation,


by forcing the hospital, under threat of losing Medicare funding, to remove him from his position, and further impeaches Campbell. (Br. 3.)

Plaintiffs first argue that the introduction of McComb's prior testimony should be permitted under Federal Rule of Evidence 804(b)(1) as she is an unavailable witness due to the inability to recollect the subject matter. (Br. 3-5.) Second, Plaintiffs argue McComb's prior testimony should be admitted as a statement against interest under Federal Rule of Evidence 804(b)(3), because as an employee of the hospital, she was risking her employment and the hospital's funding for Medicare and Medicaid by exposing the actions of the CDPH investigators. (Br. 5.) Alternatively, Plaintiffs argue McComb's testimony may also be introduced because she is “feigning forgetfulness, ” and given the prior sworn statements, the Court may admit those statements under the exception for prior sworn inconsistent statements “despite the fact that present forgetfulness is not technically inconsistent with the prior statements.” (Br. 5.)

2. Legal Standard

“A deposition lawfully taken . . . may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action.” Fed.R.Civ.P. 32(a)(8). The Rules of Evidence provide a parallel exception. “A declarant is considered to be unavailable as a witness if the declarant: . . . testifies to not remembering the subject matter, ” Fed.R.Evid. 804(a)(3), and the following types of former testimony are not by excluded by the rule against hearsay if the declarant is unavailable: (A) testimony that “was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had--an opportunity and similar motive to develop it by direct, cross-, or redirect examination, ” Fed.R.Evid. 804(b)(1).

A statement against interest is not excluded as hearsay if the statement is one that: “(A) a reasonable person in the...

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