Van v. Anderson ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
April 14, 2003
UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_______________________
Nos. 02-10421, 02-10956
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TUONG B. VAN, M.D.,
Plaintiff-Appellant,
versus
ALLAN ANDERSON, M.D., JACK SCHWADE, M.D.,
MEDICAL CITY DALLAS HOSPITAL,
Defendants-Appellees,
TUONG B. VAN, M.D.,
Plaintiff-Appellant-Cross-Appellee,
versus
ALLAN ANDERSON, M.D., JACK SCHWADE, M.D.,
MEDICAL CITY DALLAS HOSPITAL
Defendants-Appellees-Cross-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas, Dallas Division
3:99-CV-311-P
_________________________________________________________________
Before REAVLEY, JOLLY, and JONES, Circuit Judges.
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PER CURIAM:*
Appellant Tuong B. Van appeals the district court’s
grant of summary judgment in favor of appellees Allan Anderson,
M.D., Jack Schwade, M.D., and Medical City Dallas Hospital
(collectively “Appellees”). Van also appeals the district
court’s award of costs to Appellees pursuant to 28 U.S.C. § 1920(2000). Appellees cross-appeal the district court’s denial of
their motion for attorneys’ fees. Finding no error in the
district court’s judgment, except as to one element of costs, we
affirm the judgment as amended.
On February 12, 1999, Van filed suit against Medical
City, Anderson, and Schwade under 42 U.S.C. § 1981 (2000). He
also brought claims for breach of contract against the hospital
and defamation and tortious interference claims against Anderson
and Schwade. Pertinent to section 1981, Van alleges that
Appellees interfered with his ability to make and enforce certain
contracts based upon his race and national origin as well as the
race and national origin of his patients. Specifically, Van
alleges that appellees interfered with his contracts with Medical
City for hospital privileges, his contracts with his current and
prospective patients and their insurance carriers, his license
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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with the Texas Board of Medical Examiners, and a contract between
himself and Medical City consisting of the medical staff’s
bylaws. Van’s breach of contract and tortious interference
claims arise from these same alleged contracts. Van’s defamation
claims against Anderson and Schwade stem from alleged comments
made to third parties that Van provided inappropriate care to one
or more of his patients.
We agree with the district court that Van’s section
1981 claims, breach of contract claims, and tortious interference
claims all fail as a matter of law. The district court correctly
found that neither the medical staff bylaws nor his business
relationship with his patients could constitute a contractual
relationship upon which liability could be predicated.
Furthermore, Van’s claims for loss of his hospital privileges
cannot survive summary judgment because Van’s privileges with the
hospital were not involuntarily terminated; instead, his term
expired and he failed to reapply for privileges with the
hospital. And on appeal, Van no longer suggests that appellees
interfered with his medical license. Finally, we agree with the
district court that Van’s defamation claims against Anderson and
Schwade must fail because they are both immune from civil
liability under the Health Care Quality Improvement Act, 42
U.S.C. § 11111(a) (2000) (“HCQIA”).
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The district court also correctly declined to adopt
Van’s constitutional challenges to HCQIA and the Texas Peer
Review Statute. Van argues that the HCQIA is unconstitutional
because it is outside of Congress’s authority under the Commerce
Clause and violates Van’s rights to equal protection and due
process under the Fifth Amendment. The Fourth Circuit has
addressed this very argument and held that the HCQIA was well
within Congress’s Commerce Clause power. Freilich v. Upper
Chesapeake Health, Inc., 313 F.3d 205, 213 (4th Cir. 2002). The
court in Freilich also held that the statute did not violate the
Fifth Amendment’s equal protection and due process guarantees.
Id. at 211-12. Since the district court’s judgment with respect
to the defamation claims can be affirmed without addressing the
constitutionality of the Texas Peer Review Statute, we need not
address the issue, nor was it error for the district court to
decline to do so.
Van next challenges the district court’s refusal to
reopen discovery for the purpose of obtaining and authenticating
a letter from the Texas Board of Medical Examiners dated December
7, 2001, which stated that the Board had examined Van’s medical
practice at the hospital and found no evidence that Van had
engaged in practices violating the Texas Medical Practice Act.
Van believes this evidence is relevant to his claims. While this
letter may be relevant to establishing discrimination or that the
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peer review procedure was a sham and a pretext, the district
court did not abuse its discretion in failing to reopen
discovery. This evidence does not save Van’s claims from the
failure to establish the necessary contractual relationships or
to overcome the immunity provided by the HCQIA.
Finally, Van appeals the district court’s award of
Appellees’ costs pursuant to 28 U.S.C. § 1920 (2000) related to
copying documents, document retrieval, record searches, obtaining
certified documents, obtaining deposition transcripts, and
videotapes of depositions. We affirm the district court’s award
of costs in all respects except as to the award of $937.50 for
videotapes of depositions. This court has previously held that
section 1920 does not authorize recovery of costs for the
videotapes of depositions. Migis v. Pearl Vision, Inc., 135 F.3d
1041, 1049 (5th Cir. 1998). Thus, we amend the order of the
district court to allow the recovery of $66,313.05 of taxable
costs.
With respect to Appellees’ cross-appeal regarding the
denial of attorneys’ fees, we hold that the district court did
not abuse its discretion in denying an award of fees. Appellees
moved for attorneys’ fees under 42 U.S.C. § 1988 (2000), 42
U.S.C. § 11113 (2000), and Tex. Occ. Code Ann. § 160.008 (West
2000). Appellees requested the district court to award $568,857
in attorneys’ fees. Appellees concede that to recover attorneys’
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fees under any of these three statutes, they must show that Van’s
claims were unreasonable, frivolous, or brought in bad faith.
The district court noted that Van’s claims were lacking in merit
and that the factors this court enunciated in United States v.
Mississippi, 921 F.2d 604, 609 (5th Cir. 1991) for determining
whether a case is frivolous weighed in favor of awarding fees.
The district court held, nevertheless, that fee-shifting was not
appropriate because Van “raised serious issues of discrimination”
at the Hospital, even though he lost his case on other grounds.
Having reviewed the record, we hold that the district court did
not abuse its discretion so concluding.
Appellees also seek to recover fees pursuant to Tex.
Civ. Prac. & Rem. Code § 37.009 (West 1997), which provides that
courts equitably may shift fees in declaratory judgment actions.
This argument is without merit. A party may not rely on Section
37.009 to authorize attorneys' fees in a diversity case because
this Texas statute articulates procedural rather than substantive
law. Utica Lloyd's v. Mitchell, 138 F.3d 208, 210 (5th Cir.
1998).
Having found no error as to the grant of summary
judgment, the denial of the motion to reopen evidence, the denial
of attorneys’ fees, or in the award of taxable costs, except as
to that portion of the award related to deposition videotapes, we
affirm as amended the judgment of the district court.
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AFFIRMED AS AMENDED.
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