Daniel v. American Bd. of Emergency Medicine

Decision Date19 November 1997
Docket NumberNo. 90-CV-1086A.,90-CV-1086A.
Citation988 F.Supp. 112
PartiesGregory DANIEL, M.D., et al., Plaintiffs, v. AMERICAN BOARD OF EMERGENCY MEDICINE, et al., Defendants.
CourtU.S. District Court — Western District of New York

Jaeckle, Fleischmann & Mugel (Ralph L. Halpern, of counsel), Buffalo, NY, Shearman & Sterling (James T. Halverson, Kathleen M. Comfrey, of Counsel), New York City, for plaintiffs.

Phillips, Lytle, Hitchcock, Blaine & Huber (Robert E. Glanville, of Counsel), Buffalo, NY, for Defendants American Board of Emergency Medicine, Henry A. Thiede, Frank A. Disney, and Council of Emergency Medicine Residency Directors.

Petree Stockton, LLP (Denise M. Jennings, George L. Little, of Counsel), Winston-Salem, NC, for Defendant Forsyth Memorial Hospital.

Magner, Love & Morris (William J. Love, Jr., of Counsel), Buffalo, NY, for Defendant Johns Hopkins Hospital, Part of the Johns Hopkins Health System.

Collidge, Wall, Womsley & Lombard (Terence L. Fague, of Counsel), Dayton, OH, for Defendant Kettering Medical Center.

Schnader, Harrison, Segal & Lewis (Sam Silver, of Counsel), Philadelphia, PA, for Defendant Mercy Catholic Medical Center, Misericordia Div.

Kohrman, Jackson & Kranz (Donald S. Scherzer, of Counsel), Cleveland, OH, for Defendant Ohio State University Hospitals.

Keck, Mahin & Cate (Philip O'Neil, of Counsel), Washington, DC, for Defendant Riverside Methodist Hospitals.

Hinshaw & Culbertson (Robert E. Nord, of Counsel), Chicago, IL, for Defendant St. Francis Medical Center.

Rushfeldt, Shelley & Drake (Doreen Wener Shefeld, Gail A. Reisman, Jerry R. Sparks, of Counsel), Sherman Oaks, CA, for Defendant Tri-City Medical Center.

Dennis C. Vacco, Atty. Gen., State of N.Y. (Douglas S. Cream, Asst. Atty. Gen., of Counsel), Buffalo, NY, for Defendant State University of New York at Stony Brook Medical Center.

LeBeouf, Lamb, Greene & Macrae (Molly S. Boast, Sara C. Kay, of Counsel), New York City, for Defendants Children's Hospital of Michigan, Children's Hospital and Health Center (San Diego), Detroit Receiving and University Health Center, Loma Linda University Medical Center, Lutheran General Hospital, Medical College of Pennsylvania and Medical College Hospitals, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Inc., Oregon Health Sciences University Medical Center, St. Anthony Hospital, University of California (Irvine) Medical Center, University of California (Los Angeles) Medical Center, University of California (San Diego) Medical Center, University of Massachusetts Medical Center, University Medical Center, (Tucson), and University of New Mexico, University Medical Center.

Paul A. Crotty, Corporation Counsel, City of New York, Bob Bailey, Assistant Corporation Counsel, City of New York Law Department, New York City, for Defendant Lincoln Medical and Mental Health Center.

Kelley, Drye & Warren (Richard E. Donovan, Lynne M. Glass, of Counsel), New York City, for Defendant Our Lady of Mercy Medical Center.

ORDER

ARCARA, District Judge.

This case was referred to Magistrate Judge Leslie G. Foschio on April 24, 1991. Defendants moved to dismiss the Second Amended Complaint on statute of limitation grounds and for failure to state a claim. On July 15, 1996, Magistrate Judge Foschio filed a Report and Recommendation, recommending that the Court deny defendants' motions to dismiss.

The following defendants filed objections to Magistrate Judge Foschio's July 15, 1996 Report and Recommendation: Forsythe Memorial Hospital; Lutheran General Hospital; Mercy Hospital and Medical Center; Our Lady of Mercy Medical Center; Riverside Methodist Hospitals; Ohio State University Hospitals; Council of Emergency Medicine Residency Directors; Mercy Catholic Medical Center-Misericordia Division; and Tri-City Hospital District d/b/a/Tri-City Medical Center.1 Oral argument on defendants' objections was held on October 17, 1996.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendations to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions of the parties and hearing argument from counsel, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons stated by Magistrate Judge Foschio in his Report and Recommendation, defendants' motions to dismiss the Second Amended Complaint on statute of limitation grounds and for failure to state a claim are denied. The Court will not consider or grant any motion for reconsideration of this Order. The case is hereby referred back to Magistrate Judge Foschio for further proceedings.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned on April 24, 1991 by the Honorable Richard J. Arcara for report and recommendation. The matter is presently before the court on the American Board of Emergency Medicine, the Council of Emergency Medicine Residency Directors, and the "hospital Defendants'"1 motions to dismiss the Second Amended Complaint on statute of limitations grounds and for failure to state a claim.2

BACKGROUND

Plaintiff, an emergency medicine physician, filed this action on September 25, 1990, following the American Board of Emergency Medicine's ("ABEM") refusal to permit Plaintiff to take its examination as a prerequisite to certification as an ABEM Diplomate. Following removal of this action to federal court on October 23, 1990, Defendants moved for dismissal of the original complaint which asserted causes of action for violations of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution, and for a violation of the New York State Human Rights Law. In response, Plaintiff filed an amended complaint ("the First Amended Complaint") on February 7, 1991, withdrawing the claims for constitutional violations and asserting causes of action under Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1 et seq., and seeking relief pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. § 12 et seq. The First Amended Complaint also added the individual board members of ABEM as defendants.

Defendants filed a motion to dismiss the First Amended Complaint on April 5, 1991. This motion was granted as against all of the individual ABEM board members, except Henry A. Thiede, M.D., for lack of personal jurisdiction. Daniel v. American Board of Emergency Medicine, 802 F.Supp. 912 (W.D.N.Y.1992). Thereafter, on July 16, 1993, Plaintiff filed a motion to amend the complaint to add parties. This request was granted, and, as to the additional Plaintiffs, the Second Amended Complaint was deemed to relate back to the date of the filing of the First Amended Complaint on February 7, 1991. However, Defendants' rights to move against the second Amended Complaint were fully preserved. Decision and Order, dated January 12, 1994, at p. 13 n. 1.

On January 13, 1994, the Second Amended Complaint was filed, adding one hundred and seventy-five additional Plaintiffs, all individual physicians who allege to have similar claims, and thirty Defendants, including the Council of Emergency Medicine Residency Directors ("CORD") and twenty-eight teaching hospitals whom Plaintiffs allege are co-conspirators with Defendant ABEM. Specifically, in the Second Amended Complaint, Plaintiffs allege that ABEM conspired with CORD and the hospital Defendants to unreasonably restrict competition between ABEM certified and non-certified emergency physicians, including Plaintiffs, by eliminating ABEM's prior alternative qualification for eligibility to sit for ABEM's certification examination on the basis of years of practice in the field of emergency medicine (referred to as the "practice-track"), under which Plaintiffs may have been eligible to sit for and successfully pass the examination thereby requiring ABEM's certification. Plaintiffs allege that ABEM and the hospital Defendants perpetuated this restraint through a conspiracy involving various professional organizations in the field of emergency medicine, including CORD, as a result of the activities of various physicians whom had achieved ABEM certification under the "practice-track" and were either employed or affiliated with the hospital Defendants' residency programs in emergency medicine. Familiarity with the prior proceedings and orders of this court is presumed.

Defendants subsequently, in March, April, and May of 1994, moved to dismiss or for summary judgment on statute of limitations grounds3 or for failure to state a claim. Plaintiffs' response to the Defendants' motions to dismiss for failure to state a claim and on statute of limitations grounds were filed on April 8, 1996. Defendants' replies were filed on April 25 through April 29, 1996. A sur-reply was filed by the Plaintiffs, with the court's permission, on May 13, 1996. No oral argument was held on this matter.

Based upon the discussion which follows, the Defendants' motions to dismiss on statute of limitations grounds should be DENIED; Defendants motions to dismiss for failure to state a claim upon which relief can be granted should also be DENIED.4

DISCUSSION

On a motion to dismiss, the court looks to the four corners of the complaint and is required to accept a plaintiff's allegations as true and to construe those allegations in the light most favorable to plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Dacey v. New York Lawyers' Association, 423 F.2d 188, 191 (2d Cir.1969), cert. denied, 398 U.S. 929, 90 S.Ct. 1819, 26 L.Ed.2d 92 (1970). The complaint will be dismissed only if "it appears beyond doubt" that the plaintiffs can prove no set of facts which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (19...

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11 cases
  • Daniel v. American Bd. of Emergency Medicine
    • United States
    • U.S. District Court — Western District of New York
    • June 20, 2003
  • Daniel v. American Bd. of Emergency Medicine
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 7, 2005
    ...Judge Foschio recommending against dismissal, the district court so ruled on November 19, 1997. See Daniel v. American Bd. of Emergency Med., 988 F.Supp. 112, 117 (W.D.N.Y.1997) (adopting recommendation to deny defendants' motion to dismiss on grounds of statute of limitations and failure t......
  • Hamilton v. Accu-Tek
    • United States
    • U.S. District Court — Eastern District of New York
    • December 10, 1998
    ...of defendant's gross revenue), aff'd, 50 N.Y.2d 935, 409 N.E.2d 998, 431 N.Y.S.2d 526 (1980). See generally Daniel v. American Bd. of Emergency Med., 988 F.Supp. 112, 254 n. 156 (finding out-of-state revenues ranging from $73,417 to $44,540,966 to be Other cases have found substantial inter......
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    ...claims or independent, overt injuries within the limitations period; otherwise, they are time-barred. See Daniel v. American Bd. of Emergency Med., 988 F.Supp. 112, 120 (W.D.N.Y.1997) (“[W]here all damages complained of necessarily result from a pre-limitations act by the defendants, the ca......
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