Gashgai v. Leibowitz, 82-1790

• Decision Date: 24 March 1983
• Docket Number: No. 82-1790,82-1790
• Citation: 703 F.2d 10
• Parties: Abdollah GASHGAI, M.D., Plaintiff, Appellant, v. Rayna LEIBOWITZ, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 10

703 F.2d 10

Abdollah GASHGAI, M.D., Plaintiff, Appellant, v. Rayna LEIBOWITZ, et al., Defendants, Appellees.

No. 82-1790.

United States Court of Appeals, First Circuit.

Argued Feb. 4, 1983.

Decided March 24, 1983.

Terry Michael Banks, with whom Julian Tepper, Gerald P. McCartin, and Tepper & Edmundson, Washington, D.C., were on brief, for plaintiff, appellant.

John P. Doyle, Jr., with whom John J. Flaherty, Christopher D. Nyhan, and Preti, Flaherty & Beliveau, Portland, Me., were on brief, for defendants, appellees VanPelt and Williams.

William C. Nugent, Asst. Atty. Gen., with whom James E. Tierney, Atty. Gen., Augusta, Me., was on brief, for Rayna Leibowitz, et al.

M. Roberts Hunt, James M. Bowie, and Hunt, Thompson & Bowie, Portland, Me., on brief, for defendant, appellee Trembly.

Peter DeTroy, and Norman & Hanson, Portland, Me., on brief, for defendant, appellee McGuire.

Charles L. Cragin, and Verrill & Dana, Portland, Me., on brief, for appellee Maine Medical Association.

Michael J. LaTorre, Jon R. Doyle, and Doyle, Fuller & Nelson, Augusta, Me., on brief, for defendant, appellee Henry J. Wheelwright, M.D.

Michael D. Seitzinger, and Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., on brief, for defendant, appellee Jean Paul Nadeau, M.D.

Before ALDRICH and BREYER, Circuit Judges, and ZOBEL, ^* District Judge.

ZOBEL, District Judge.

Appellant, a physician who was practicing in Maine during the relevant period, was the subject of professional disciplinary proceedings in which appellees participated to varying degrees. He appeals from a ruling of the District Court dismissing his 42 U.S.C. Sec. 1983 action on statute of limitations grounds. We concur with the District Court and affirm its decision.

The facts, as stated in appellant's amended complaint, are as follows. In 1974, the Ethics and Discipline Committee ("the Committee") of the Maine Medical Association ("the Association") investigated appellant's practices. The investigation, which centered around plaintiff's billing and diagnostic procedures, was commenced upon a referral made by appellees Leibowitz and Fickett, who were then employed by the Maine Department of Health and Welfare ("the Department"). This referral deviated from the Department's normal procedure, which was to refer questions of billing propriety to a peer review panel.

On March 27, 1974, the Committee summoned appellant to a meeting but did not inform him that an investigation was underway. Appellant was not represented by counsel at the meeting and was unaware that serious charges had been referred against him. The Committee, "knowing that [appellant had] been ... deprived of an opportunity to defend himself," later recommended that he be disciplined and circulated a report "highly and detrimentally critical of [appellant's] character and conduct." The report was sent to the Association, the Department, and the Maine Board of Registration in Medicine ("the Board").

Appellant secured an injunction against circulation of the Committee's report. The Supreme Judicial Court of Maine affirmed a lower court ruling in 1976 that the Association had not followed its own internal rules. Gashgai v. Maine Medical Associations, 350 A.2d 571 (Me.1976). Before the decision of the Supreme Judicial Court, but after the issuance by a lower court of a temporary restraining order, the Board, allegedly acting in bad faith and in violation of its procedural rules, placed appellant on probation. In 1978, the Board's sanction was reversed by the Supreme Judicial Court because it was not supported by sufficient findings of fact. Gashgai v. Board of Registration in Medicine, 390 A.2d 1080 (Me.1978).

The instant case was commenced on March 26, 1980.

Congress has not enacted a statute of limitations for actions brought under 42 U.S.C. Sec. 1983. Instead, federal courts are to "look to the state statute or remedy 'most analogous' to the particular civil rights cause of action to determine the time limitation under the Civil Rights Acts." Burns v. Sullivan, 619 F.2d 99, 105 (1st Cir.1980), cert. denied 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980) (quoting Runyon v. McCrary, 427 U.S. 160, 180, 96 S.Ct. 2586, 2599, 49 L.Ed.2d 415 (1976)); Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Determination of the applicable statute of limitations requires a careful examination of the complaint in the federal cause of action and of state law. Four questions are relevant (1) the nature of the federal cause of action, ...; (2) the analogous state causes of action; (3) the state statutes of limitations for those causes of action; and (4) which of the state statutes of limitations is the most appropriate under federal law....

Burns v. Sullivan, 619 F.2d at 105.

The gravamen of appellant's complaint is that his reputation, sensibilities and ability to practice medicine have been impaired by the acts of appellees. The complaint is replete with allegations that the appellees acted with "malice ... or ... reckless disregard for the facts and the law." The Committee's report is alleged to have been false and appellees are alleged to have known it was false. Appellant asserts that he "has been forced to expend substantial sums of money (in the past and in the future) to clear his name of the stigma which [appellees'] actions caused to be attached to it." As part of the desired relief, appellant seeks an injunction requiring appellees to issue written apologies which would be "distributed and published in a manner which will fairly parallel all prior dissemination of harmful information about plaintiff, including that which has appeared in newspaper articles." The remedy sought and the description of plaintiff's injury in many respects closely parallel those which would normally be found in a defamation action. Since Maine has a two-year statute of limitations for defamation actions, Me.Rev.Stat.Ann. tit. 14, Sec. 753, a determination that defamation was the "most analogous" state cause of action to appellant's claim would require us to affirm the dismissal of his action. Such a determination was the basis for the decision of the District Court.

Appellant, however, urges that there are three common law torts--invasion of privacy, abuse of process, and malicious prosecution--more analogous to his claim than defamation. Although the analogies between plaintiff's claim and abuse of process or malicious prosecution are farfetched, his complaint does resemble one which a court might expect to find in an action for invasion of privacy. The Supreme Judicial Court of Maine has recognized that cause of action to encompass four different types of tortious conduct, one of which is placing a person "in a false light in the public eye." Estate of Berthiaume v. Pratt, M.D., 365 A.2d 792, 795 (Me.1976); Restatement of Torts (Second) Sec. 652. How far that may go beyond ordinary concepts of defamation is problematical. See, e.g., Louka v. Park Entertainments, Inc., 294 Mass. 268, 1 N.E.2d 41 (1936), but certainly as applied to the substance of plaintiff's asserted injury here, we see little difference.

Appellant's complaint does allege that appellees' actions stigmatized him and injured his professional standing. In addition, it states that appellees invaded appellant's privacy and caused him mental anguish. Appellant alleges that he has been placed "in a position of professional fear and uncertainty" and that "these circumstances, caused by defendants, have and will continue adversely to affect plaintiff's ability to withstand the rigors and pressures peculiar to surgery...." On the face of appellant's complaint, defamation and invasion of privacy appear equally analogous to appellant's federal cause of action. ¹

In Estate of Berthiaume v. Pratt, M.D., 365 A.2d 792 (Me.1976), while recognizing the existence of a cause of action for "false light" invasion of privacy, the Supreme Judicial Court did not address statute of limitations problems. Me.Rev.Stat.Ann. tit. 14 Sec. 752 requires that "[a]ll civil actions shall be commenced within 6 years after the cause of action accrues ... except as otherwise specially provided." Me.Rev.Stat.Ann. tit. 14 Sec. 753 provides that "Actions for slander [and] libel ... shall be commenced within 2 years after the cause of action accrues." The Maine statutes of limitation were enacted before the Supreme Judicial Court recognized that a cause of action for "false light" invasion of privacy existed. ² The decisive question, therefore, is whether the Maine courts would hold that Me.Rev.Stat.Ann. tit. 14 Sec. 753 applies to "false light" actions.

Although some jurisdictions have imposed different statutes of limitations for...