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Ndulue v. Fremont-Rideout Health Group

June 24, 2010



Plaintiff Chukwuemeka Ndulue brought this action alleging that Fremont-Rideout Health Group ("FRHG") and doctors Leonard Marks, Pushpa Raman, Cherry Ann Wy, Arum Kumar, Harry Wander, and Max Lins (the "doctor defendants") unlawfully interfered with his ability to enter into contracts because of his race. Defendants now each move for summary judgment pursuant to Federal Rule of Civil Procedure 56.

I. Standard

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial.


Once the moving party meets its initial burden, the non-moving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324; Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). In its inquiry, the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party, but may not engage in credibility determinations or weigh the evidence.

Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. Evidentiary Objections

"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). After receiving defendants' objections to plaintiff's evidence supplied in opposition to the motions for summary judgment, the court granted plaintiff an opportunity to resubmit his briefs and evidence to take defendants' evidentiary objections into account. (Docket No. 211.) In response to plaintiff's amended evidence, defendants filed the twenty-nine evidentiary objections now before the court. (Docket No. 220.)

"[T]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56." Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)). While much of plaintiff's evidence is presented in a form that is currently inadmissible, such evidence may be evaluated on a motion for summary judgment so long as defendants' objections could be cured at trial. See Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119-20 (E.D. Cal. 2006).

Many of defendants' objections are well-taken. Despite being afforded an opportunity by the court to amend his exhibits and declarations to avoid defendants' objections, plaintiff by and made only minimal changes to his evidence and failed to account for most, if not all, of defendants' objections. It would be obvious to any lawyer that many statements in the Amended Ndulue Declaration are objectionable. For example, the Ndulue Declaration contains several conclusory and argumentative statements that completely lack foundation, such as plaintiff's statement that one defendant's conduct "was just the beginning of [defendant's] campaign to drive [plaintiff] out of town" (Am. Ndulue Decl. at 2:24-25), or that plaintiff was "maliciously given false instructions" by a defendant. (Id. at 4:10.) Several statements in the Ndulue Declaration are also blatantly hearsay, such as plaintiff's contention that "Dr. Joseph Coulter told [plaintiff] that . . . Dr. Wander . . . requested [plaintiff] not be given privileges at the hospital." (Id. at 9:4-10.) See Fed. R. Evid. 802, 805.

Additionally, plaintiff supplied a number of exhibits that are clearly not properly authenticated and are therefore inadmissible. Exhibits EE, GG and HH to the Amended Nguyen Declaration all are statements from women who claim that they were steered away from choosing plaintiff as their child's physician. These statements are not properly authenticated because they are handwritten, unsworn, and are not accompanied by an affidavit from any of the women in question attesting to their authenticity. See Orr v. Bank of Am. NT & SA, 285 F.3d 764, 777 (9th Cir. 2002); Fed. R. Evid. 901.

In the interest of brevity, as defendants are aware of the substance of their objections and the grounds asserted in support of each objection, the court will not review the substance or grounds of all the objections here. For the purposes of this motion, defendants' objections 2, 4, 7, 15-16, and 25-26 and are overruled. Objections 1, 3, 5-6, 8-14, 17-24, and 27-29 are sustained.

III. Relevant Facts

Defendant FRHG is a non-profit health care organization that operates two hospitals, Fremont Medical Center in Yuba City, California and Rideout Memorial Hospital in Marysville, California. (White Decl. (Docket No. 168) ¶ 3.) FRHG's medical staff is comprised of physicians who have privileges to admit and care for patients at both hospitals. (Id.) The medical staff is a separate entity from FRHG and none of the doctors on the staff are employees of FRHG. (Id. ¶ 11.) Each physician with staff privileges must reapply for privileges every two years. (Id. ¶ 9.)

In 2001, plaintiff applied for privileges to admit and care for patients as a pediatrician at FRHG. (FRHG Zimmerman Decl. Ex. B ("Ndulue Depo. Vol. II") at 212:14-18; Am. Ndulue Decl. (Docket No. 215) ¶ 3; Am. Nguyen Decl. Ex. II.) Plaintiff is a black man who was born in Nigeria. (Am. Ndulue Decl. ¶ 1.) During the process of applying for privileges at FRHG, plaintiff made a call to defendant Marks, who was the Chairman of Pediatrics at FRHG at the time. (Id. ¶ 4.) Marks purportedly told plaintiff that his services were not needed in Yuba City/Marysville area because current pediatricians were having trouble filling their practices and plaintiff would cause more problems by locating to the area. (Id.) When plaintiff told Marks that he still intended to move to the area, Marks allegedly stated that he would ensure that nobody shared calls with plaintiff. (Id.)

Plaintiff was granted privileges by FRHG later in 2001. (Id. ¶ 3.) Once a doctor is given privileges, he or she must undergo "proctoring" by other physicians in his or her field of specialty to demonstrate that he or she is competent to perform the functions and procedures he or she has sought privileges to perform. (White Decl. ¶ 4.) During the proctoring period, several different doctors in a new member's specialty field are assigned as proctors. (Id.) The proctors may question the doctor's diagnosis, treatment plan, or any other issue involving care, and the doctor must explain his or her decisions. (Id. ¶ 5.) Proctoring is stopped when the doctor has demonstrated his or her competency to the satisfaction of the proctors. (Id. ¶ 6.)

With one exception,*fn1 plaintiff was the only black pediatrician who worked in Fremont Medical Center and Rideout Memorial Hospital. (Am. Nguyen Decl. Ex. S ("Wy Depo.") at 21:21-22:2.) On plaintiff's first day at FRGH in 2002, Marks gave plaintiff a tour of the hospital. (Am. Ndulue Decl. ¶ 5.) During the tour, Marks told plaintiff that his "ass was on the line" during proctoring. (Id.; Am. Nguyen Decl. Ex. A ("Marks Depo.") at 129:7-14, Ex. C.) Marks was also plaintiff's proctor when plaintiff admitted his first patient to the hospital; a child with neonatal jaundice who had lost thirteen percent of her body weight since birth. (Am. Ndulue Decl. ¶ 6.; Am. Nguyen Decl. Ex. C. at 2.) Marks disagreed with plaintiff's choice of treatment for the patient, contending that plaintiff should have been more concerned about the child's potential dehydration and given her more fluids. (Ndulue Depo. Vol. II at 236:12-15; Am. Ndulue Decl. ¶ 6; Marks's Zimmerman Decl. Ex. D. ("Marks Depo.") 157:15-158:1.) Plaintiff argued that his treatment plan complied with the American Academy of Pediatrics' standards and was appropriate. (Am. Ndulue Decl. ¶ 6.) Marks subsequently told plaintiff that if Marks were plaintiff's chief resident Marks would have thrown him out of the program for poor management. (Id.; Am. Nguyen Decl. Ex. C at 2.)

After this disagreement, Marks spoke with two other doctors about the case to see what method of treatment they believed was appropriate: Dr. Andrew Wurtz, the Chief of Neonatology at Sutter Memorial Hospital, and Dr. Michael Sherman, the Chief of Neonatology at the University of California, Davis Medical Center. (Marks Depo. at 158:8-17.) Plaintiff also spoke with Sherman about the case. (Ndulue Depo. Vol. II at 245:10-247:15.) During this conversation, plaintiff claims that Sherman told him that his ...

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