Mosley v. Titus
| Decision Date | 28 October 2010 |
| Docket Number | No. CIV 09–0794 JB/WDS.,CIV 09–0794 JB/WDS. |
| Citation | 762 F.Supp.2d 1298 |
| Court | U.S. District Court — District of New Mexico |
| Parties | Fred MOSLEY, M.D., Plaintiff,v.Victor TITUS, Stephen Murphy, and Titus & Murphy, LLC, Defendants. |
OPINION TEXT STARTS HERE
Sam Bregman, Eric Loman, Bregman & Loman, P.C., Albuquerque, NM, for Plaintiff.Richard L. Gerding, Gerding & O'Loughlin, Farmington, NM, and Alfred L. Green, Jr., Robert T. Booms, Emily A. Franke, Butt Thornton & Baehr, P.C., Albuquerque, NM, for Defendants.
THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment, filed July 21, 2010 (Doc. 50). The Court held a hearing on October 15, 2010. The primary issues are: (i) whether Plaintiff Fred Mosley, M.D., has established a genuine issue of material fact whether Defendant Victor Titus, a lawyer, engaged in malicious abuse of process when he filed claims against Mosley without probable cause, when there is evidence that Titus believed that Mosley was engaging in improper ex parte contacts with employers and insurers as well as evidence that Titus wanted to run Mosley out of town; (ii) whether Titus owed Mosley, the defendant in the underlying cases, a duty to exercise reasonable care and negligently breached that duty; (iii) whether Titus filed the lawsuits against Mosley without sufficient justification and with intent to injure, and is liable for prima-facie tort; (iv) whether Titus intentionally inflicted emotional distress on Mosley; and (v) whether the undisputed facts establish damages claims. The Court grants the Defendants' Motion for Summary Judgment, because it finds that Mosley has failed to establish a genuine issues of material fact and that Mosley's claims for malicious abuse of process, negligence, prima-facie tort, intentional infliction of emotional distress, and damages fail as a matter of law.
Titus is an attorney in Farmington, New Mexico. See Curriculum Vitae of Victor A. Titus, filed July 21, 2010 (Doc. 51–10).1 In his law practice, Titus primarily represents workers in proceedings under the New Mexico Workers' Compensation Act, NMSA 1978, §§ 52–1–1 to –70. See Curriculum Vitae of Titus at 1. In 1997, Mosley began practicing medicine in Farmington. See Complaint for Malicious Abuse of Process, Negligence, Interference with Contractual Relations, Violation of NMSA § 57–1–1 et seq., Intentional Infliction of Emotional Distress and Prima Facie Tort ¶¶ 7–9, at 2, filed August 13, 2009 (Doc. 1) (“Complaint”). Mosley opened his own practice, known as Mesa Occupational and Sports Medicine. See Complaint ¶ 9, at 1. A substantial part of Mosley's practice was treating workers who were injured on the job and receiving workers' compensation benefits. See id. ¶¶ 7–9, at 2. Over the years, as Mosley practiced medicine in Farmington, several of his patients were also Titus' clients. See id. ¶ 13, at 2.2 Titus knew that his client's employers directed his clients to Mosley for care and treatment following accidental on-the-job injuries. See Deposition of Fred Mosley at 107:13–24 (taken June 10, 2010), filed July 21, 2010 (Doc. 51–5). 3 Mosley considered both objective evidence and subjective evidence—such as a worker's allegations of continuing pain—when making his return-to-work recommendations to avoid abuse of the workers' compensation system. See Mosley Depo. at 37:3–38:4.4
When patients would arrive at Mesa Occupational and Sports Medicine, the receptionist would give them a packet of paperwork to fill out, which included a release, which, when signed, purported to permit Mosley to contact his patients' employers, see Authority to Release Medical Reports and Information, filed July 21, 2010 (Doc. 51–5).5 If a patient had a question about one of the forms, Mosley or a member of his staff would discuss the form with the patient. See Mosley Depo. at 67:9–69:17.6 In 1998, and at present, New Mexico law prohibited ex parte contact between a worker's treating physician and the worker's employer or insurer absent the worker's knowing and informed consent to the ex parte contact. See Deposition of Helen Stirling at 57:22–60:22 (taken June 28, 2010), filed July 21, 2010 (Doc. 51–8). 7
In approximately 1998, Titus learned that Mosley was engaging in ex parte contacts with the employers of Titus' clients. See Letter to Dr. Fred Mosley from Victor A. Titus (dated March 26, 1998), filed July 21, 2010 (Doc. 51–10). Also in 1998, Titus sent Mosley two letters, in which he advised Mosley that his ex parte contacts with his patient's employers was improper and, on behalf of Titus' clients, demanded that Mosley cease any further ex parte contacts. See Letter to Dr. Fred Mosley from Victor A. Titus (dated January 9, 1998), filed July 21, 2010 (Doc. 51–10) (“Jan. 9 Letter”). 8 From 1998 to 2008, Mosley continued to engage in ex parte contacts with the employers of injured workers whom Titus represented. See Deposition of Guillermo Rivera at 6:22–7:8 (taken June 22, 2010), filed July 21, 2010 (Doc. 51–6).9 Several of Titus' clients were unhappy with Mosley; many did not want Mosley speaking to their employers or insurers and, in some cases, told Mosley they did not want him to speak to their employers or insurers. See Deposition of Laurie Lynn Bible at 24:25–26:5 (taken July 16, 2010), filed August 3, 2010 (Doc. 57–1).10 Mosley's ex parte contacts with employers and insurers resulted in adverse employment consequences for Titus' clients, including loss of worker's compensation benefits, and, for some, even loss of their jobs. See Deposition of Terry D. Black at 28:1–31:17 (taken June 30, 2010), filed July 21, 2010 (Doc. 51–1).11
Beginning in March 2001, on behalf of several of his clients, Titus filed complaints against Mosley in the State District Court in Farmington, New Mexico, seeking to prevent Mosley from engaging in further ex parte contacts and to recover damages for the harm caused to Titus' clients by the ex parte contacts. See Rightmire v. Mosley Case Detail,12 D–1116–CV–200100215, filed August 5, 2010 (Doc. 59–4).13 In his deposition, Titus testified:
I [told my clients] that the law in New Mexico went to a certain point on privilege—physician/patient privilege and what you could and couldn't do. But it was unclear as to what the remedy was for a violation and whether or not the causes of action that I had brought or proposed would be acceptable to the court in all or in part; and if any one of those was acceptable to the court, what damages would be awardable if any. See Deposition of Victor A. Titus at 71:25–72:8 (taken June 30, 2010), filed August 5, 2010 (Doc. 59–3).14 Titus' clients were aware of and consented to the filing of verified complaints on their behalf. See McPherson Depo. at 11:1–13:24.15 Titus' clients understood Titus filed the lawsuits to stop Mosley's ex parte contacts, to get medical treatment, and to obtain compensation for their losses. See Thomason Depo. at 18:15–21:10. 16 After the lawsuits were filed, some additional workers that Titus represented sought to intervene in the lawsuits. See Rivera Depo. at 7:2–9:23.17
Titus stated that he wanted to run Mosley out of town. See Stirling Depo. at 97:17–25.18 Black executed a signed statement under oath at Mosley's request which stated that he had not consented to the filing of the Complaint and that the purpose of the complaints was to run Mosley out of town. See Statement of Terry D. Black (dated December 4, 2008), filed July 21, 2010 (Doc. 51–1). In his subsequent deposition, Black testified that Mosley bribed him to make the Statement, and that the Statement is false. See Black Depo. at 32:2–34:19, 39:12–47:20.
On June 14, 2001, Titus proposed a compromise settlement to Mosley's counsel, in which Titus sought an agreement to: (i) a permanent injunction preventing Mosley's office from engaging in ex parte contact with worker's employers, insurers and case managers, and preventing Mosley's office from using the release form; (ii) a provision that violation of the injunction could be sanctioned as contempt of court; (iii) the plaintiffs' waiver of all compensatory and punitive damages; and (iv) Mosley's payment of the plaintiffs' filing fees and service fees, with each side to pay its own attorney fees. See Letter from Victor A. Titus to Seth V. Bingham, Esq. and Terri L. Sauer, Esq. (dated June 14, 2001), filed July 21, 2010 (Doc. 51–10). 19 On approximately November 6, 2002, Titus sent a letter to Mosley's attorney stating that he was generally agreeable to dismissing the lawsuits against Mosley if Mosley would sell his medical practice and leave Farmington. See Letter from Victor A. Titus to Terry Beach, Esq. (dated November 6, 2002), filed August 5, 2010 (Doc. 59–3). In the approximately seven years that the lawsuits against Mosley were pending, Titus did not request a trial setting or take any depositions; the only written discovery he served was a single set of interrogatories and requests for production on behalf of one of the thirteen plaintiffs. See Rightmire v. Mosley Case Detail.20
On February 1, 2007, the sale of Mosley's medical practice of Mesa Occupational and Sports Medicine to Reliance Medical Group, which was owned by Ken Stradling, M.D., closed. See First Amendment to Agreement of Purchase and Sale of Assets, filed August 5, 2010 (Doc. 59–3).21 Mosley's and Stradling's accountants arrived at the valuation of Mosley's practice. See Deposition of Ken Stradling at 20:17–23:13 (taken June 22, 2010), filed July 21, 2010 (Doc. 51–9). The valuation by Mosley's accountant was based on assumptions that Mosley gave the accountant and did not meet the standards under the Uniform Standards for Professional Appraisers. See Deposition of Kenneth W. Shields, CPA at 55:1–59:11 (taken June 7, 2010), filed July 21, 2010 (Doc. 51–7).22 The lawsuits were not a factor in the negotiations for the sale of Mosley's practice or in the purchase price that Reliance...
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