Lew v. Kona Hosp.

Decision Date13 May 1985
Docket NumberNo. 83-2671,83-2671
Citation754 F.2d 1420
PartiesBarry G. LEW, M.D., Plaintiff-Appellant, v. KONA HOSPITAL, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Gerald J. Garner, Garner, Kreinces, Lichtenstein, Schindel & Ginsburg, Fullerton, Cal., Craig S. Cornell, Kailua, Hawaii, for plaintiff-appellant.

Gary N. Hagerman, Kailua, Hawaii, for Kona Hosp. & Dept. of Health, Charles Clark, Jennie Wung & Abelina Shaw.

Dennis E.W. O'Connor, Dean T. Nagamine, Honolulu, Hawaii, for Gramlich, Grant, Peebles & Spielman.

On Appeal from the United States District Court District of Hawaii.

Before WRIGHT, PREGERSON, and POOLE, Circuit Judges.

PREGERSON, Circuit Judge.

Appellant Barry G. Lew, M.D., appeals a decision of the district court granting summary judgment to defendants on his claim of civil rights violations, unfair trade practices, and defamation. In addition, Dr. Lew challenges the district court's order that he pay costs and attorneys' fees incurred by defendants in connection with his deposition at which he failed to appear. We affirm the district court's grant of summary judgment and its award of costs and attorneys' fees.


Dr. Lew was granted probationary staff privileges in obstetrics and gynecology at Kona State Hospital on April 20, 1982. On November 24, 1982, the hospital's Executive Committee reviewed Dr. Lew's performance and recommended that his staff privileges be terminated. The hospital administrator told Dr. Lew of the charges against him and advised him of his right to a hearing before an Ad Hoc Committee before his privileges would be terminated. Dr. Lew was also advised of his right to call witnesses at the hearing.

In February 1983, Dr. Lew filed a complaint in United States district court against the hospital and various doctors and administrators. The complaint alleged violations of federal due process and state law claims of unfair and deceptive trade practices and defamation. On February 23, 1983, two days before the day set for the hearing, Dr. Lew filed an ex parte motion for a restraining order and order to show cause why a preliminary injunction should not issue restraining the Ad Hoc Committee from denying him the right to counsel, the right to pre-hearing discovery and time to present witnesses, and the right to an impartial hearing committee. The district court granted a temporary restraining order and postponed the hearing for a period of ten days. On March 10, 1983, after the filing of Dr. Lew's amended complaint, the parties entered into a Consent Order. The order contained several agreements regarding the hearing, including: the composition of the hearing panel, the length of time (1 1/2 days) each side was to have to present its case, the right to be represented by counsel, 1 the right to call and cross-examine witnesses, and the presence of a court reporter. The order also stipulated that Dr. Lew was to receive notice of the charges against him and of the facts supporting the charges by March 18, 1983.

The hearing took place on March 31, April 1, and April 2, 1983. On June 2, the panel unanimously decided that there was substantial evidence to support the Executive Committee's recommendation that Dr. Lew's hospital privileges be revoked. The panel found that Dr. Lew's application for privileges contained false statements, that Dr. Lew failed to demonstrate professional competence, that his behavior was disruptive, and that he was unable to work with others.

Dr. Lew requested and was granted appellate review of the Committee's decision. The hearing was held on July 19, 1983, before a panel of three members appointed by the state Director of Health, but neither Dr. Lew nor his attorney was present. The three member appellate panel voted unanimously to uphold the decision of the Ad Hoc Committee. And on July 29, 1983, the hospital revoked Dr. Lew's privileges. Following this final action by the hospital, defendants filed a motion for summary judgment. The district court granted the motion on November 7, 1983.

Defendants also filed a Motion to Dismiss for Dr. Lew's failure to appear for his deposition on October 7, 1983. Dr. Lew filed an opposition, claiming that he was unable to attend his deposition because of economic difficulties and because of the withdrawal of local counsel. At a hearing on October 31, 1983, the district judge denied the motion to dismiss, but ordered that Dr. Lew pay the attorneys' fees and costs that defendants incurred in connection with the scheduled deposition. Dr. Lew filed timely appeals from both actions of the district court.

We consider both of these issues in turn.

I. Summary Judgment
A. Standard of Review

A district court's grant of a motion for summary judgment is reviewed by this court de novo. Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984). We apply the same standard as applied by the district court under Federal Rule of Civil Procedure 56(c) and will affirm only if the record, read in the light most favorable to the non-moving party, establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1328-29 (9th Cir.1983).

B. Merits

The parties devote much of their argument to the sufficiency of the papers submitted by Dr. Lew in opposition to defendants' motion for summary judgment. The defendants attached affidavits and extensive exhibits to their motion. Appellant merely relied upon the allegations in his verified complaint and attached excerpts of the transcript of the proceedings before the Ad Hoc Committee. Fed.R.Civ.P. 56(e) sets out the burden on the party opposing a summary judgment motion:

(e) Form of Affidavits; Further Testimony; Defense Required. ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

See Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1254 (9th Cir.1982); Securities & Exch. Comm'n v. Murphy, 626 F.2d 633, 640 (9th Cir.1980).

A verified complaint may be treated as an affidavit to the extent that the complaint is based on personal knowledge and sets forth facts admissible in evidence and to which the affiant is competent to testify. Runnels v. Rosendale, 499 F.2d 733, 734 n. 1 (9th Cir.1974). In addition, a party opposing summary judgment need not file any countervailing affidavits or other materials where the movant's papers are insufficient on their face to demonstrate the lack of any material issue of fact. Sheet Metal Workers' Int'l Ass'n Local No. 355 v. N.L.R.B., 716 F.2d 1249, 1254 (9th Cir.1983); Hoover v. Switlik Parachute Co., 663 F.2d 964, 967 (9th Cir.1981). Finally, as a general principle we treat the opposing party's papers more indulgently than the moving party's papers. Doff v. Brunswick Corp., 372 F.2d 801, 804 (9th Cir.1966) (referring to the "rule of liberal construction of a counter affiant's papers"), cert. denied, 389 U.S. 820, 88 S.Ct. 39, 19 L.Ed.2d 71 (1967). See generally 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2738 at 484 (1983).

Applying those standards to the facts here, Dr. Lew failed to meet his burden of establishing the existence of a genuine issue of fact. In opposing summary judgment Dr. Lew relied on: his verified complaint and first amended complaint (unverified), excerpts from the record of the Ad Hoc Committee's hearing, his answer to the defendants' first motion for summary judgment, 2 and his opening and closing arguments before the Ad Hoc Committee. There are various problems with each of these documents. The first amended complaint was unverified and is thus insufficient to counter a summary judgment motion supported by affidavits. See Fed.R.Civ.P. 56(e). The original complaint, although verified, was drafted before the Ad Hoc Committee hearing had taken place. Therefore, as to the counts in the original complaint that allege a denial of due process at the hearing, the complaint cannot be considered because it does not deal with the hearing that actually took place. In addition, the allegations of plaintiff's original complaint are primarily statements of legal conclusions rather than of facts relevant to the summary judgment motion. The same deficiencies exist as to plaintiff's declaration in opposition to defendants' earlier motion for summary judgment.

1. Federal Issues

Apart from the deficiencies in Dr. Lew's opposition papers, however, the record as a whole supports the conclusion that the defendants were entitled to summary judgment. Count II of Dr. Lew's amended complaint, relating to the right to counsel, was dismissed by the court because the Consent Order afforded Dr. Lew the right to counsel. The remaining due process claims, Counts III and IV, have in effect been disposed of since the hearing. Count III alleges the right to an impartial hearing committee, but in the Consent Order plaintiff and defendants agreed to the composition of an impartial hearing panel. Absent fraud, duress or overreaching, Dr. Lew cannot now complain that the makeup of the panel was unfair. Similarly, Count IV alleges the right to adequate time to present a case before the hearing panel. Plaintiff and defendants agreed to one and one-half days for each party, and plaintiff used the time given to him. 3

The only remaining due process claims are Counts V and VI, in which plaintiff alleged discriminatory treatment and violations of due process in the decision to terminate his staff privileges. To...

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