Nilavar v. Mercy Health System-Western Ohio, No. 3:99CV612.

Decision Date05 July 2005
Docket NumberNo. 3:99CV612.
Citation494 F.Supp.2d 604
PartiesSundar V. NILAVAR, Plaintiff, v. MERCY HEALTH SYSTEM-WESTERN OHIO, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Kenneth A. Lazarus, Maggi Ann Lazarus, Kenneth A. Lazarus & Assoc, Washington, DC, Lee Charles Falke, Lee C. Falke & Associates, Dayton, OH, for Plaintiff.

Scott D. Phillips, Frost Brown Todd LLC, Cincinnati, OH, for Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 117) AND OVERRULING PLAINTIFF'S ALTERNATIVE CROSS-MOTION PURSUANT TO RULE 56(f) IN RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 125); PLAINTIFF TO ADVISE COURT AS TO STATUS OF STATE CLAIMS SET FORTH IN NINTH CAUSE OF ACTION; FINAL JUDGMENT IS NOT TO ENTER

RICE, District Judge.

Plaintiff Sundar V. Nilavar, M.D., is a radiologist who for years was employed by Springfield Radiology, Inc. ("SRI"). Up until 1995, SRI physicians provided diagnostic radiology services to three hospitals in the Springfield and Urbana areas, in Ohio, two of which are owned by Defendant Mercy Health Systems-Western Ohio ("MHS-WO" or "Mercy"). As of 1991, SRI was comprised of eleven principals.1 In 1993, SRI engaged in extensive negotiations with MHS-WO toward an exclusive contract for the provision of radiological services at the Mercy Hospitals and several other Mercy long-term care facilities. Several years of negotiations yielded no agreement.

In March of 1995, MHS-WO concluded negotiations with SRI and prepared a Request for Proposal ("RFP"), wherein it invited different radiologists and radiology groups to tender proposals to be its exclusive provider of such services. Accordingly, the physician-shareholders of SRI (including Plaintiff) decided that in December of 1995, the Mercy group would present a proposal to MHS-WO in response to the RFP. Without informing Plaintiff, Dr. Robin E. Osborn, a physician-shareholder of SRI, formed his own radiology group, Diagnostic Imaging Associates of Ohio, Inc. ("DIA"), and submitted a proposal to MHS-WO on its behalf. DIA included only three physicians from SRI's Mercy group; Dr. Nilavar was not included in this new entity. In August of 1995, MHS-WO accepted DIA's proposal. An exclusive Radiology Services Agreement was signed on December 4, 1995; effective January 1, 1996. On December 20, 1995, MHS-WO notified Plaintiff that his clinical privileges would be terminated, effective January 1, 1996. Dr. Nilavar requested that Mercy grant him a hearing, which was denied.

In 1996, Plaintiff filed suit in the Clark County Court of Common Pleas against Dr. Osborn and DIA, alleging breach of contract, estoppel, breach of fiduciary duty and fraud arising out of Dr. Osborn's failure to negotiate the exclusive contract on his behalf. Plaintiff states that the case was tried to a jury in June of 1999, and that he received a judgment in the amount of $100,000. On April 7, 2000, the Second District Court of Appeals issued its ruling on the cross-appeals. That court upheld the jury's verdict in favor of Nilavar on the breach of contract claim and, due to the trial court's error in overruling Nilavar's motion to compel production of financial records from Dr. Osborn and DIA, it ordered a new trial on the issue of damages. Nilavar v. Osborn, 137 Ohio App.3d 469, 738 N.E.2d 1271 (2000).2

On November 19, 1999, Plaintiff initiated the present litigation against MHS-WO; Catholic Healthcare Partners ("CHP"), MHS-WO's parent company; Michael J. Peterson ("Peterson"), the former Regional President and Chief Executive Officer of MHS-WO; and Jerrold A. Maki ("Maki"), Mr. Peterson's successor as Regional President and CEO of MHS-WO.3 In his Verified Complaint (Doc. # 1), Plaintiff asserted eight causes of action, to wit: (1) contract in restraint of trade, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1; (2) tying arrangement in restraint of trade, in violation of § 1 of the Sherman Act; (3) contract and tying arrangement in restraint of trade, in violation of Ohio's Valentine Act, Chapter 1331 of the Ohio Revised Code; (4) a state law claim of tortious interference with a business relationship; (5) a state law claim of breach of implied covenant of good faith and fair dealing; (6) a state law claim of civil conspiracy; (7) a state law claim of denial of right to due process; and (8) a state law claim of breach of contract. In his Amendment to his Complaint' (Doc. # 178), Plaintiff has set forth a ninth cause of action, a state law claim for intentional infliction of emotional distress.

In a decision entered on December 19, 2000, the Court dismissed the following claims: 1) Plaintiff's federal and state antitrust claims of an illegal tying agreement (Count Two and a portion of Count Three); 2) state law claim for breach of implied covenant of good faith and fair dealing (Count Five); 3) state law conspiracy claims (Count Six) as brought against Maki and Peterson, in their entirety; and 4) state law conspiracy claim (Count Six) against MHS-WO and CHP, as based on the breach of implied covenant of good faith and fair dealing, federal and state antitrust claims, and violation of 26 U.S.C. § 501(c)(3). Nilavar v. Mercy Health System-Western Ohio, 142 F.Supp.2d 859 (S.D.Ohio 2000). Further, on December 13, 2001, the Court entered a stipulated dismissal of all remaining claims against Dr. Osborn and DIA (Doc. # 71).

Currently before the Court is Defendants MHS-WO, CHP, Peterson and Maki's ("Defendants") Motion for Summary Judgment (Doc. # 117). Therein, Defendants assert that summary, judgment is proper with respect to all remaining claims set forth in Plaintiff's Complaint (Doc. # 1). However, they have not requested summary judgment on Plaintiff's ninth claim, a claim of intentional infliction of emotional distress, since that claim was added after the Defendants had filed their motion seeking summary judgment. For the reasons explained below, the Court agrees, and Defendants' motion for summary judgment is sustained.

I. Standards Governing Motions for Summary Judgment

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law, Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations...

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