Lurie v. Mid-Atl. Permanente Med. Group

• Decision Date: 09 August 2010
• Docket Number: Civil Action No. 06-01386 (RCL)
• Citation: 729 F.Supp.2d 304
• Parties: Dean Kevin LURIE, M.D. Plaintiff, v. MID-ATLANTIC PERMANENTE MEDICAL GROUP, P.C., Defendant.
• Court: U.S. District Court — District of Columbia

729 F.Supp.2d 304

Dean Kevin LURIE, M.D. Plaintiff,

v.MID-ATLANTIC PERMANENTE MEDICAL GROUP, P.C., Defendant.

Civil Action No. 06-01386 (RCL).

United States District Court,

District of Columbia.

Aug. 9, 2010.

James S. Bubar, Washington, DC, for Plaintiff.

R. Michael Smith, Charles Robert Bacharach, Gordon Feinblatt Rothman Hoffberger & Hollander LLC, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I. Introduction

The case concerns an employment dispute between plaintiff Dr. Dean Kevin Lurie, a surgeon, and his former employer defendant Mid-Atlantic Permanente Medical Group. After many years of working for defendant, plaintiff was terminated for allegedly falsifying his time sheets and his history of disciplinary problems, reasons plaintiff claims are a mere pretext for disposing of an old employee who challenged unprofessional conduct at his workplace. In addition to a number of common law claims for breach of contract, tortious interference, and wrongful discharge, plaintiff alleges violations of the Age Discrimination in Employment Act (ADEA) and the Employee Retirement Income Security Act (ERISA). Defendant filed a counterclaim seeking recovery for breach of contract, fraud, negligent misrepresentation, and unjust enrichment. Currently, before the Court are defendant's motion [78] to strike plaintiff's statement of material fact, defendant's motion [68] for summary judgment and plaintiff's motion [69] for summary judgment on the counterclaim. Based on the following considerations, the Court will DENY defendant's motion to strike and GRANT defendant's motion for summary judgment. The Court does not reach plaintiff's motion for summary judgment, because the Court lacks jurisdiction over defendant's counterclaim. Therefore, the Court will DISMISS defendant's counterclaim on jurisdictional grounds.

II. Factual Background

Plaintiff is a vascular surgeon residing in the District of Columbia. (Pl.'s Verified Compl. [72-3] ¶ 5.) Defendant is a professional corporation with its principal place of business in Maryland that employs physicians who provide medical services to members of the Kaiser Foundation Health Plan of the Mid-Atlantic States. ( Id. ¶ 6; Cahill Aff. [68-3] ¶ 3.) Plaintiff's employment with defendant began in 1998. In addition to substantive terms of employment, plaintiff's job offer letter included a provision mandating that plaintiff abide by defendant's "policies, rules and regulations." (Pl.'s Ex. 2 [69-4] at 2.) Plaintiff signed the letter and commenced working for defendant as a surgeon in the District of Columbia and its Maryland suburbs. ( Id. at 3; Cahill Aff. [68-3] ¶ 5.)

As part of his duties with defendant, plaintiff was assigned to treat patients at various local hospitals.¹ (Lurie Dep. [68-4] at 67:13.) While working at the Washington Hospital Center (WHC), plaintiff came into conflict with his colleagues over concerns about safety and quality of care. ( Id. at 107:18-108:13, 115:13-116:21.) When he raised his concerns with his superiors, he received some hostile responses. (Def.'s Ex. 3 [68-5] at 2-3; Def.'s Ex. 5 [68-7] at 2.)

Citing plaintiff's troubled relations with the surgical residents, the head of surgery requested and obtained plaintiff's reassignment in 2001. (Def.'s Ex. 4 [68-6] at 2; Lurie Dep. [68-4] at 83:7-11.) Official admonitions from defendant followed, and when plaintiff was reassigned to WHC two years later, the head of surgery complained about his behavior once again. (Def.'s Ex. 5 [68-7] at 2; Lurie Dep. [68-4] at 102:1-13; Def.'s Ex. 6 [68-8] at 3.) In late 2003, plaintiff was suspended with pay and an investigation was conducted of his conduct. (Lurie Dep. [68-4] 152:11-153:12.)

Not long after this last round of disciplinary action, plaintiff was transferred to defendant's Largo, Maryland medical center. (Lurie Dep. [68-4] at 118:15-120:10.) When plaintiff first arrived, he felt pressured to see many double-booked patients. ( Id. at 300:7-10.) Plaintiff's colleagues told him that, at the Largo Center, these extra patients were handled by establishing evening clinics or ghost clinics. ( Id. at 300:10-15.) The phrase "ghost clinic" is defendant's terminology for a billing method utilized by certain physicians employed by defendant. (Mem. in Supp. of Def.'s Mot. for Summ. J. [68-2] at 5.) Physicians who had many sessions double booked during the day would include hand-written addendums with their time sheets that specified hours worked during the evening. (Lurie Dep. [68-4] at 284:16-286:12, 300:4-18, 301:15-302:6.) Physicians could thereby be compensated for the extra patients seen during regular hours. ( Id. at 302:4-12.) In reality, no patients were actually treated in the evening, thus the expression, ghost clinic. ( Id. at 289:5-290:8.)

Defendant was not alone in making use of ghost clinics. Dr. Cohen, an orthopedist, and Dr. McCanty, a urologist, billed for double-books in the same manner as plaintiff. (Cohen Dep. [72-9] at 18:12-19:14; McCanty Dep. [72-14] at 25:5-21.) Additionally, Dr. Krolik, a surgeon who worked with plaintiff, established ghost clinics on three occasions in 2004. (Cahill Aff. [68-3] ¶ 14.) None of these physicians were subject to disciplinary action as a result of their billing practices. (Pl.'s Opp'n [72] at 16.) Although plaintiff followedthe example and advice of his fellow doctors in creating ghost clinics, (Lurie Dep. [68-4] at 300:4-301:8, 302:19-303:11), his manager gave a negative response when he asked about receiving extra compensation for days when doctors were overbooked. (Manning Dep. [68-27] at 99:2-102:10.)

Eventually, plaintiff's use of ghost clinics came to the attention of a compliance officer named Ann Cahill. (Cahill Aff. [68-3] ¶¶ 2, 12.) She launched an investigation of plaintiff's time sheets and discovered that he was reporting more hours than the other doctors on defendant's payroll. ( Id. ¶ 12.) Indeed, Cahill found that plaintiff was the only physician in the medical group to have created ghost clinics in the preceding six month period. ( See id. at 15.) Based on Cahill's finding as well as plaintiff's poor discipline history, defendant terminated plaintiff during an October 2005 meeting at its Maryland headquarters. ( Id.) At that time, plaintiff was forty-eight years old. (Compl. [1] ¶ 24.)

While at the Largo facility, defendant had arranged to conduct a clinical trial of a new surgical device. ( See Lurie Dep. [74-1] at 240:2-12.) To govern the clinical trial, plaintiff, defendant, and the device company (Graftcath) signed a document outlining the terms of their relationship and naming plaintiff principal investigator. (Def.'s Ex. 18.[70] at 2.) When plaintiff was terminated, he was unable to continue serving as principal investigator. (Pl.'s Verified Compl. [72-3] ¶ 38.)

After his removal, plaintiff opened a private medical practice. (Pl.'s Verified Compl. [72-3] ¶ 19.) Though he applied for membership in defendant's network of outside providers, he was rejected. ( Id.) Efforts to develop his new practice have been hindered by his reduced access to Kaiser Health Group patients, ( See Lurie Dep. [68-4] at 354:19-355:11), some of whom may have been dissuaded by defendant from seeking treatment with plaintiff despite his status as their preferred surgeon. ( See Pl.'s Ex. 3 [72-5] ¶ 5; Pl.'s Ex. 4 [72-6] ¶ 5.)

III. Defendant's Motion to Strike

Local rule 7(h) requires that a party opposing summary judgment include a "separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue to be litigated, which shall include references to the parts of the record relied on to support the statement." LCvR 7(h). The purpose of the rule is to aid courts in deciding motions for summary judgment by refining the record to focus on disputed factual issues. Burke v. Gould, 286 F.3d 513, 517 (D.C.Cir.2002). In interpreting the rule, the Circuit Court has prescribed caution, warning of the drastic consequences of striking a party's statement of fact. Id. at 517. The remedy should be reserved for those cases involving "egregious conduct." Id.

Defendant contends that plaintiff's statement of material fact violates local rule 7(h) and should be stricken. In support of its motion, defendant argues that plaintiff's statement is overlong at 117 pages, is suffused with argument, and fails to squarely address defendant's statements of fact. (Def.'s Mem. in Supp. of Mot. to Strike [78-1] at 2, 4, 11.)

Although plaintiff's statement needlessly extends to 117 pages, it cites to the record and rightfully does not contain legal argument. ( See, e.g., id. ¶¶ 14, 21, 22, 87, 123.) For example, defendant's statement of material fact affirms, "The letter was sharply critical of WHC's surgery department chairman, John Kirkpatrick in particular." (Def.'s Local Rule 7(h) Statement [68-28] ¶ 14.) In his own statement, plaintiff denies this assertion then launches into a four page description of hospital policy on official complaints and the Code of Ethicsof the American Medical Association. (Pl.'s Statement [72-1] ¶ 14.)

While the plaintiff's statement is inappropriately long and evasive, the Court cannot say that a statement of fact which otherwise comports with local rule 7(h) by citing to the record, separately responding to each of defendant's statements, and refraining from legal argument is egregious and ought to be stricken. Compare Chambliss v. Nat'l R.R. Passenger Corp., No. 05-2490, 2007 WL 581900, at *2 (D.D.C.2007) (granting a motion to strike where plaintiff's statement did not properly cite the record, interspersed legal argument, and did not correspond to paragraphs in defendant's statement). Accordingly, defendant's motion [78] to strike plaintiff's statement [72-1] is denied.

IV. Defendant's Motion for Summary Judgment

A. Summary Judgment Standard

Generally, summary judgment should be granted only if the moving party has shown that...