Delashaw v. Seattle Times Company

 VASE 0°CVUUDOI-LIN, Document LOU *SEALED* Filed 06/11/20 Page 1 of 78 1 2 2 4 a 6 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 JOHNNY DELASHAW, JR., CASE NO. C18-0537JLR 1] Plaintiff, ORDER ON DEFENDANTS’ Vv. MOTIONS FOR SUMMARY 12 JUDGMENT 13 SEATTLE TIMES COMPANY, et (PROVISIONALLY FILED al., UNDER SEAL) Defendants. 15 I. INTRODUCTION 16 Before the court are (1) Defendant Seattle Times Company’s (“Seattle Times” or 17 “the Times”) motion for partial summary judgment (Times MSJ (Dkt. ## 109 (sealed); 18 156 (redacted))); and (2) Defendant Charles Cobbs’ motion for partial summary 19 judgment (Cobbs MSJ (Dkt. # 116)). Plaintiff Johnny Delashaw, Jr. opposes the motions. 20 (See Times MSJ Resp. (Dkt. # 123); Cobbs MSJ Resp. (Dkt. # 140).) The court has 21 considered the motions, the parties’ submissions in support of and in opposition to the 22 ORDER - 1 Cas€ 4.10-CV-UU05/-JLIK Document 160 *SEALED* Filed 06/11/20 Page 2 of 78 1 || motions, and the applicable law. Being fully advised, the court GRANTS in part and 2 || DENIES in part both motions. ! 3 Il. BACKGROUND Dr. Delashaw 5 Dr. Delashaw received his medical degree from the University of Washington. 6 || (Delashaw Decl. (Dkt. # 126) 2.) Dr. Delashaw spent 20 years as a practicing 7 ||neurosurgeon at Oregon Health & Science University (“OHSU”) before leaving to 8 || become a professor and the Chairman of Neurological Surgery at University of 9 || California, Irvine (“UC Irvine”). (/d.) Dr. Delashaw left UCI for a position at Swedish 10 || Medical Center (“Swedish”) in 2013 and remained employed at Swedish’s Cherry Hill 11 |} campus in Seattle, Washington (hereinafter, “Cherry Hill” or “Swedish Cherry Hill”) 12 || until 2017. (/d.) Most recently, he was the Chairman of Neurosurgery and Spine at the 13 || Swedish Neuroscience Institute (“SNI°”’). (/d.) 14 |/B. Internal Strife at SNI 15 Dr. Delashaw’s arrival at Swedish Cherry Hill, promotion to Chairman of 16 || Neurosurgery and Spine at SNI, and management tactics at SNI caused a considerable 17 amount of turmoil at SNI. In January 2014, Dr. Frances Broyles, the Medical Director of 18 || Neuroendocrinology at Swedish, wrote a letter to Swedish’s CEO, Anthony Armada. 19 || (See Ist Baer Decl. (Dkt. # 117) 4 3, Ex. 4 at SWE_005725.) Dr. Broyles voiced his 20 21 ' No party requests oral argument (see Times Not. (Dkt. # 148) (withdrawing the Times’ request for oral argument); Cobbs MSJ at 1; Times MSJ Resp. at 1; Cobbs MSJ Resp. at 1), and the court finds oral argument unnecessary to its disposition of the motions, see Local Rules W.D. Wash. LCR 7(b)(4). ORDER - 2 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 3 of 78 1 || “extreme concern over the nuclear disruption of SNI by Dr. Delashaw” and alleged that 2 Dr. Delashaw “has offended virtually every doctor at SNI, has bad mouthed SNI 3 || physicians, and attempted to steal patients.” (See id.) In July 2014, Dr. Marc Mayberg, 4 || one of the co-founders of SNI, accused Dr. Delashaw of falsely informing other 5 || physicians that Dr. Mayberg was “terminally ill with cancer and stopping practice” when 6 || Dr. Delashaw knew that Dr. Mayberg was practicing without limitation. (See id. § 3, Ex. 7 ||5 at 000047.) Dr. Mayberg also claimed that Dr. Delashaw had made “[n]on-collegial 8 || and derogatory comments” about Dr. Mayberg’s medical recommendations to patients 9 || that Dr. Mayberg had referred to Dr. Delashaw. (See id.) In December 2014, Mary 10 || Fearon, the Director of Perioperative Services at Swedish, informed a Swedish 11 || administrator that Dr. Delashaw “has not helped the [operating room] nursing staff in any 12 || capacity this year” and that she did not believe he should be promoted because: 13 e □ He lies. e He does not practice within the culture of safety—{h]Je is 14 degrading to the nurses in the room. When a nurse asks for him to spell the name of a specimen he sighs heavily and uses a 15 condescending voice to spell out the name of the specimen. The nurses fear him and he uses power to make sure they do not 16 challenge him. e a dictatorial leadership style[.] 17 e [would not put myself at risk as the Director of surgery with his 18 decision making and risk taking behavior. (See id. § 3, Ex. 6 at SWE_005780.) 19 By January 2015, roughly 16 months after SNI hired Dr. Delashaw, SNI had 20 received 32 Quality Variance Reports (“QVR”) and 17 behavior reports about Dr. 21 Delashaw—a number that Swedish’s 30(b)(6) deponent testified seemed “high.” (See Ist 22 ORDER - 3 Case 4:10-CV-U093S/-JLR Document 160 *SEALED* Filed 06/11/20 Page 4 of 78 1 || Baer Decl. § 3, Ex. 1 (“Swedish 30(b)(6) Dep.”) at 124:25-125:8.) At that time, the chair 2 the Surgery Quality Review Committee and vice-chair of the Department of Surgery at 3 || Swedish, Dr. Eric Vallieres, resigned from those positions when Swedish announced Dr. 4 || Delashaw’s promotion to Chairman of Neurosurgery and Spine. (See id. 3, Ex. 2 at 5 || ST_0014197-99.*) Dr. Vallieres pointed to the high volume of complaints against Dr. 6 || Delashaw and stated that he “cannot continue as the [c]hair of a [c]ommittee that is to 7 || oversee the 360 degree quality of care delivery in the Swedish surgical world when my 8 || administration promotes an individual that has shown very little respect for the Culture of 9 || Safety and related processes.” (/d. at ST_0014197.) 10 The complaints and concerns continued to roll in. In July 2015, Dr. Peggy 11 || Hutchison, Swedish’s Chief of Staff, wrote that she had spoken with at least five 12 || physicians who were unhappy with Dr. Delashaw but were “scared of retaliation” and did 13 || not know where to turn for help. (See 1st Baer Decl. 3, Ex. 7.) In August 2015, Dr. 14 || David Newell, another co-founder of SNI, informed Dr. Hutchison that a number of his 15 || colleagues had expressed to him that Dr. Delashaw’s leadership had created “an 16 || atmosphere of fear and intimidation, lack of collegiality, as well as interference with 17 || individual practices resulting in interference with referral patterns, and also quality of 18 || care issues.” (See id. § 3, Ex. 8 at NEWELL _SDT_004053.) Dr. Newell also detailed 19 |} // 20 2 Dr. Vallieres’ letter states that SNI promoted Dr. Delashaw to “Chief of Neurosurgery” » as opposed to “Chairman of Neurosurgery and Spine,” which iS the terminology that Dr. Delashaw uses in his declaration to describe his promotion. (See id.; Delashaw Decl. § 2.) ORDER - 4 Case 2:16-CV-U053/-JLR Document 160 *SEFALED* Filed 06/11/20 Page 5 of 78 1 || several specific examples of Dr. Delashaw’s conduct in support of his accusations. (See 2 at NEWELL SDT_004053-55.) 3 In addition to the internal complaints about Dr. Delashaw circulated at Swedish, at 4 || least two individuals filed anonymous complaints with the Washington Department of 5 || Health (“DOH”) in early 2016. In January 2016, an anonymous whistleblower filed a 6 || complaint with DOH noting that there had been numerous internal complaints filed 7 || within Swedish about “quality issues related to the neurosurgical service” at Swedish’s 8 || Cherry Hill campus, where Dr. Delashaw worked. (See id. § 3, Ex. 12 at 9 || JDEL_026824-26.) The whistleblower claimed that the “[a]llegations include 10 || inappropriate surgeries, increase in complications and infection rates, unsupervised 11 || surgery and critical care by neurosurgical fellows, and abuse of surgical staffing and 12 || scheduling protocols to facilitate surgeons[’] convenience.” (Jd. at JDEL_026826.) The 13 || complaint also listed 15 providers who had either left or were fired from Swedish as a 14 || result of Swedish’s response to these internal complaints. (Jd. at JDEL_026826-27.) 15 In March 2016, another anonymous whistleblower filed a complaint against Dr. 16 || Delashaw with the Washington Medical Quality Assurance Commission (““MQAC”). 17 || (See id. ¥ 3, Ex. 13 at JDEL_000431.) This complaint alleged that Dr. Delashaw threw a 18 || phone at one nurse in the operating room and screamed at another nurse and threatened 19 job. (See id.) The complaint noted that there “have been other instances of such 20 || unprofessional and disruptive behavior involving staff in the [operating room]” and that 21 || the behavior was cause for concern for the welfare of the staff and Swedish’s patients. 22 || (See id.) ORDER - 5 LaAaSE 4.L0-CV-UUSo/-JLIK VDocument 160 *SEALED* Filed 06/11/20 Page 6 of 78 1 In addition to the whistleblower complaints, several more individuals filed internal 2 || complaints against Dr. Delashaw in 2016. In November 2016, Dr. Doug Backous, then 3 || the Director of the Swedish Center for Hearing and Skull Base Surgery, wrote to Swedish 4 || Human Resources that Dr. Delashaw had created a “toxic work environment at Swedish” 5 || and that he felt “pushed in a corner . . . by the current environment of intimidation, fear 6 || and retaliation promoted by Dr. Delashaw.” (See id. § 3, Ex. 10 at SWE_005767.) He 7 complained of Dr. Delashaw “working to redirect referrals, interfering with my referral 8 || network and intimidating my staff,” and he ultimately refused to participate in surgeries 9 || with Dr. Delashaw. (See id.) 10 On November 4, 2016, Dr. Cobbs sent a letter to Mr. Armada regarding Dr. 11 || Delashaw that constitutes one of the focal points of Dr. Delashaw’s lawsuit against Dr. 12 || Cobbs (the “November 2016 Letter”). (See id. 3, Ex. 26; Am. Compl. (Dkt. # 25) 13 || 73-78.) The November 2016 Letter outlined concerns that Dr. Cobbs claimed were 14 || raised by physicians, nurses, and staff about Dr. Delashaw that fell into the following 15 || categories: (i) a pattern of intimidation, harassment, and retaliation; (ii) discouraging the 16 || reporting of errors; (iii) discouraging staff from asking questions; (iv) contributing to the 17 || loss of experienced personnel; (v) jeopardizing patient safety with disruptive behavior; 18 || and (vi) interfering with other physicians’ referrals and practices. (See 1st Baer Decl. q 3, 19 || Ex. 26.) Although Dr. Cobbs was the only signatory to the November 2016 Letter, he 20 || received input from multiple Swedish surgeons on its content. (See id. { 3, Exs. 27-33.) 21 || Dr. Cobbs testified that he omitted the names of the other surgeons from his letter 22 ORDER - 6 CaSE 2:16-CV-UUSS/-JLR Document 160 *SEALED* Filed 06/11/20 Page 7 of 78 1 || because he believed that those surgeons were afraid of retaliation from Dr. Delashaw. 2 || (See id. J 3, Ex. 25 (“Cobbs Dep.”) at 192:19-193:5.4) 3 On December 20, 2016, Mr. Armada informed Dr. Delashaw that Swedish had 4 “documented repeated and numerous complaints about your leadership,” and despite 5 || Swedish’s efforts to counsel and support Dr. Delashaw, Swedish “continue[s] to hear the 6 || concerns and the concerns are growing.” (See Ist Goldman Decl. (Dkt. # 108) § 5, Ex. 3 7 |jat JDEL_027310.) Mr. Armada notified Dr. Delashaw that Swedish could no longer keep 8 him in the role of Chair of Neurosurgery at SNI and would instead move him into an 9 || administrative role as “Chair Emeritus of Neurosurgery at SNI.” (See id.) In this new 10 || position, Dr. Delashaw would continue to focus on his clinical practice, lead SNI’s || philanthropic efforts, and help recruit neurosurgeons to Swedish. (See id.) However, 12 || effective immediately, Swedish planned to transition the management of the 13 neurosurgery practice at SNI to an interim Chair of Neurosurgery. (See id.) 14 MQAC Proceedings 15 Beginning in May 2016, a DOH investigator, Stephen Correa, interviewed Dr. 16 || Hutchison and six nurses about Dr. Delashaw’s behavior as part of a MQAC 17 || investigation into Dr. Delashaw. (See 1st Baer Decl. § 3, Exs. 14-21.) These individuals 18 || consistently reported concerns about: (i) the toxic environment created by Dr. 19 || Delashaw’s behavior and intimidation; (ii) hypothetical and actual patient safety issues 20 3 Portions of Dr. Cobbs’ deposition are also found in the record in Exhibit 38 to the 2 Declaration of Caitlin Pratt. (See Pratt Decl. (Dkt. # 141) §{ 32, Ex. 38.) The court cites to Dr. Cobbs’ deposition as “Cobbs Dep.” wherever it is found in the record. ORDER - 7 Cas€ 2:1o-CV-U0sa/-JLR = Document 160 *SEALED* Filed 06/11/20 Page 8 of 78 1 || caused by SNI staff discomfort when communicating with Dr. Delashaw; (iii) fear of 2 || retaliation; and (iv) nurse and staff departures because of Dr. Delashaw’s misconduct. 3 || (See generally id.) Some of the individuals that Mr. Correa interviewed acknowledged 4 || that they had left Swedish Cherry Hill because of Dr. Delashaw. (See, e.g., id. 3, Exs. 5 || 14 at JDEL_022763, 17 at JDEL_022767.) 6 On May 5, 2017, MQAC summarily suspended Dr. Delashaw’s credential to 7 || practice medicine via ex parte order. (See id. | 3, Ex. 35 at JDEL_013094-95.) At Dr. 8 || Delashaw’s request, MQAC held a show cause hearing on June 13, 2017, and on June 19, 9 2017, MQAC issued an order upholding the summary suspension pending a full 10 || adjudication of the allegations. (/d.) The matter then proceeded to a nine-day evidentiary 11 || hearing before MQAC that was held on April 23-26 and April 30-May 4, 2018. (/d. at 12 || JDEL_013095.) Twenty doctors, nurses, and medical staff testified on behalf of DOH; 13 || Dr. Delashaw testified on his own behalf and presented testimony from 17 doctors and 14 medical staff members. (/d.) The parties admitted 137 exhibits. (See id. at 15 || JDEL_013096-104.) 16 On July 5, 2018, MQAC issued its findings of fact, conclusions of law, and final 17 || order on Dr. Delashaw’s case (the “MQAC Order”). (See id. at JDEL_013121.) The 18 || MQAC’s findings of fact included the following: 19 [Dr. Delashaw] engaged in a pattern of intimidation with staff, discouraged staff from reporting errors, discouraged staff from asking questions, and 20 contributed to the loss of experienced personnel. These actions jeopardized Swedish-Cherry Hill Hospital’s culture of safety and normalized 2] unacceptable and unsafe practices, creating an atmosphere of normalized deviance. As a result, patients were put at an increased risk of harm. (ld. 22 q 1.6.) ORDER - 8 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 9 of 78 l [Dr. Delashaw] engaged in multiple acts of intimidation of hospital staff, forming a disturbing pattern of behavior. As a result of this pattern of 2 intimidation, the Respondent created an environment in which the ability of staff to provide safe patient care was put [in] jeopardy. (/d. J 1.7.) 3 [Dr. Delashaw] contributed to an environment where reporting [disruptive behavior and issues that may put patients at risk]... was discouraged. (/d. q 1.23.) [Dr. Delashaw’s] behavior also discouraged staff from asking questions and, 6 consequently, put patients at risk of medical error. (/d. J 1.25.) 7 As a result of this behavior, . . . hospital staff were discouraged from asking questions. This increased the chances that a mistake could occur; it also 8 diminished staff members’ ability to advocate for patients. As a result, there was a significantly increased risk to patients. (/d. J 1.27.) 9 As aresult of [Dr. Delashaw’s] disruptive behavior, multiple nurses left their 10 positions at Swedish .... As a result, patients and the public were put at increased risk. (/d. J] 1.28-1.30.) 11 [Dr. Delashaw’s] behavior while working for [SNI] constituted disruptive 12 physician behavior ... . [Dr. Delashaw’s] behavior negatively affected the culture of safety, ultimately replacing it with a culture of fear. This led to a 13 compromise of team effectiveness and, as a result, an unreasonable risk of patient harm. (/d. ¥ 1.37.) 14 Any internal disputes that [Dr. Delashaw] may have had with other 15 physicians at SNI regarding salaries or administrative control of SNI, or any workload disputes that the nurses at Swedish-Cherry Hill had with physicians 16 and management staff, are not relevant to the fact that [Dr. Delashaw] committed disruptive physician behavior.’ (/d. ¥ 1.38.) 17 Based on these findings of fact, MQAC concluded that DOH had proven by clear 18 and convincing evidence that Dr. Delashaw had committed unprofessional conduct as 19 defined in RCW 18.130.180(4): 20 Incompetence, negligence, or malpractice which results in injury to a patient 21 or which creates an unreasonable risk that a patient may be harmed. The use of a nontraditional treatment by itself shall not constitute unprofessional 22 ORDER - 9 Case 2:18-cv-0093/-JLR Document 160 *SEALED* Filed 06/11/20 Page 10 of 78 1 conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed. ° (Id. { 2.4.) In determining the appropriate sanction for Dr. Delashaw’s conduct, MQAC ° considered the following “aggravating factors”: the incidents of [Dr. Delashaw’s] disruptive conduct were not isolated; [Dr. 5 Delashaw’s] disruptive conduct formed a pattern of behavior; [Dr. Delashaw’s] behavior contributed to the normalization of deviance at his 6 workplace; and [Dr. Delashaw] did not show remorse for his behavior. 7 || Ud. § 2.6.) MQAC also noted, however, that the “mitigating factors” included the fact g || that Dr. Delashaw had not engaged in prior misconduct and had a “long history of 9 || providing needed services to his community.” (/d.) Based on these factors, MQAC 10 || concluded that Dr. Delashaw’s conduct fell into “Tier B” of the standard of care schedule 11 || found at WAC 246-16-810 (see id.), which defines a Tier B violation as one that 12 || “[c]aused moderate patient harm or risk of moderate to severe patient harm,” WAC 13 || 246-16-810. MQAC reinstated Dr. Delashaw’s license to practice in Washington, but 14 || placed him on oversight for three years, ordered him to submit to an evaluation of his 15 || disruptive behavior, barred him from holding a “medical leadership position,” ordered 16 || him to periodically appear before MQAC to discuss his behavior and progress, and fined 17 || him $10,000.00. (See 1st Baer Decl. § 3, Ex. 35 at 3.1-3.5.) 18 Dr. Delashaw appealed the MQAC Order. (See id. § 3, Ex. 36.) The Thurston 19 || County Superior Court affirmed the MQAC Order on September 29, 2019. (See id. at 3.) 20 ||D. The Times’ Investigation and Articles 21 Although Dr. Delashaw’s claims against Dr. Cobbs relate primarily to the 22 || November 2016 Letter and Dr. Cobbs’ participation in Dr. Delashaw’s eventual ouster ORDER - 10 Case 2:18-cv-0053/-JLR Document 160 *SEALED* Filed O6/11/20 Page il or 7/8 1 || from Swedish (see Am. Compl. □□□ 50-98), Dr. Delashaw’s claims against the Times 2 ||center on a series of articles entitled Quantity of Care that the Times published on 3 || February 12, 2017, about SNI’s practices. (See Farmer Decl. (Dkt. # 130) ¥ 2, Ex. | at 4 ||ST_0041671-75 (“1st Times Art.”); id. at ST_0041676-79 (“2d Times Art.”); see also 5 |; Am. Compl. §§ 99-163.) Notably, these articles were published after MQAC had 6 || launched its investigation into Dr. Delashaw, but before MQAC suspended Dr. 7 || Delashaw’s license and held an evidentiary hearing. 8 1. The First Times Article 9 The first article in the Quantity of Care series, titled A Lost Voice (the “First Times 10 || Article”), describes the surgery, recovery process, and untimely death of one of Dr. 11 || Delashaw’s patients, “T.G.” (See generally \st Times Art.) The First Times Article 12 || weaves her story with reporting on Swedish and SNI’s surgery volume, compensation 13 || practices, and data on SNI’s surgical outcomes. (See id.) 14 According to the article, T.G. was diagnosed with Ehlers-Danlos Syndrome 15 || (“EDS”), a rare disorder “that causes unusual looseness in ligaments and other connective 16 || tissues, leading to unstable joints and persistent pain.” (/d. at ST_041672.) T.G. and her 17 || family met with Dr. Delashaw and discussed the possibility of undergoing a cervical 18 || spinal fusion, a procedure in which Dr. Delashaw “would use metal rods and screws to 19 || better stabilize the vertebrae in [T.G.’s] neck.” (Jd. at ST_041673.) The First Times 20 || Article states that “fusions were a routine part of [Dr. Delashaw’s] care—records show he 21 || did at least 140 of them in 2014.” (d.) 22 ORDER - 11 Vast £.10-CV-UUSS/-JLK Document 160 *SEALED* Filed 06/11/20 Page 12 of 78 1 The First Times Article goes on to state that Dr. Delashaw “had a reputation as a 2 || workhorse whose ability to churn through surgeries could single-handedly alter an 3 |) institution’s financial picture.” (/d.) The Times reported further that Dr. Delashaw “was 4 || delivering on that promise,” and “managed his workload by booking multiple operations 5 || at the same time and by allowing his surgical fellows—essentially doctors getting 6 || specialized training—to handle portions of the surgeries.” (/d.) The First Times Article 7 || states: 8 Delashaw’s methods bothered some of his colleagues, according to medical records. And in the months after Delashaw arrived at Cherry Hill, his new 9 co-workers filed a range of internal complaints questioning his practices and commitment to patient care. 10 (Id.) 1] The First Times Article reports that medical records do not include “when 12 Delashaw arrived in the operating room [for T.G.’s surgery], and it’s unclear who 13 handled certain parts of the surgery.” (/d.) However, the Times reported, “Delashaw 14 wrote that he was ‘present’ during critical portions of the surgery.” (/d.) 15 After reporting on T.G.’s life, upbringing, and hobbies, the First Times Article 16 reports that after her surgery, T.G. had difficulty breathing. (/d. at ST_041674.) 17 According to the First Times Article, T.G.’s father, who has a medical background, “felt 18 the medical staff was too dismissive about his daughter’s breathing,” and was alarmed 19 that “nobody was considering what would happen if [T.G.’s] airway suddenly closed.” 20 (d.) He pointed out to medical staffers that T.G.’s surgically-fused neck would make it 21 difficult to intubate her if she stopped breathing, and that the only way to get her air 22 ORDER - 12 VES EAOTEVUUII EVEN LOCUMENt LOU *SEALED* Filed 06/11/20 Page 13 of 78 1 || would be to use tools in a “crike kit” to perform a cricothyrotomy—a procedure that 2 || involves cutting a hole in the throat to establish an emergency airway. (/d.) Doctors 3 || eventually moved T.G. to the intensive care unit (“ICU”). The First Times Article 4 || reports that T.G. told her parents “that she explained to Delashaw about her trouble 5 || breathing and that her jaw wouldn’t open. She said Delashaw responded that there was 6 || nothing he did that would have put her jaw out of place and that he suggested she see a 7 || specialist after leaving the hospital.” (/d.) Dr. Delashaw signed a note stating that T.G. 8 || had “subjective mild difficulty breathing,” something the surgical team “suspected was 9 |) related to the tracheal tube used during surgery.” (Id.) 10 The First Times Article reports that at 1:26 p.m. on February 11, 2014—the day 11 || after her surgery—according to T.G.’s parents, she “strained to bellow out a message 12 || through her hoarse throat: ‘I can’t breathe! Help me! I can’t breathe!” (Id.) The First 13 || Times Article reports that instead of grabbing a crike kit, ICU staffers tried to force an 14 || airway device into T.G.’s throat. (d.) T.G. went into cardiac arrest about 20 minutes 15 || after she gasped for help. (/d.) She spent the next nine days in a comatose state and 16 || passed away at 10:41 p.m. on February 20, 2014. (/d.) The First Times Article ends as 17 || follows: 18 It’s not publicly known whether [T.G.]’s unexpected death led to changes at Swedish-Cherry Hill, or whether anyone faced internal discipline. Dr. Delashaw has since been promoted. He’s now the chairman of 20 neurosurgery. 21 (d.) 22 ORDER - 13 Case 2:10-cV-U053/-JLR Document 160 *SEALED* Filed 06/11/20 Page 14 of 78 1 2. The Second Times Article 2 The Times published a second article in its Quantity of Care series on February 3 || 12, 2017, entitled “High volume, big dollars, rising tension” (the “Second Times 4 || Article”). (See generally 2d Times Art.) A subheader for the Second Times Article 5 ||reads: “At Swedish’s premier neurosurgery hub, internal records and interviews with 6 || staff reveal an array of warnings about patient safety amid concerns about retribution 7 || from a star surgeon in charge.” (Jd. at ST_041676.) The Second Times Article begins by 8 reporting that Providence Health & Services (“Providence”) acquired Swedish in 2011, 9 || and that a few years later, “Providence and Swedish had overhauled the way Cherry 10 || Hill’s neuroscience program approaches the business of medicine, enriching the nonprofit 11 || institution and its star surgeons.” (/d.) The Second Times Article then juxtaposes 12 || Swedish’s financial success with a suggestion about patient care: 13 A steady churn of high-risk patients undergoing invasive brain and spine procedures allowed Cherry Hill to generate half a billion dollars in net 14 operating revenue in 2015—a 39 percent increase from just three years prior. It also had the highest Medicare reimbursements per inpatient visit of any 15 U.S. hospital with at least 150 beds. 16 By those metrics, Providence’s acquisition of Cherry Hill has been a rousing success story. 17 But the aggressive pursuit of more patients, more surgeries and more dollars 18 has undermined Providence’s values—rooted in the nonprofit’s founding as a humble home where nuns served the poor—and placed patient care in 19 jeopardy, a Seattle Times investigation has found. 20 ||(Ud.) The Second Times Article then reports that the Times spent “a year” examining 21 records, and made the following findings: 22 {{// ORDER - 14 Vase ¢.lo-CV-UUDS/-JL Locument Lo0 *SEALED* Filed 06/11/20 Page 15 of 78 1 ¢ The doctors in the neuroscience unit are incentivized to pursue a high-volume approach with contracts that compensate them for large 2 patient numbers and complicated surgical techniques. Of the six top- producing brain and spine surgeons in Washington state in 2015, five 3 were part of Cherry Hill’s neuroscience team, averaging $67 million in billed charges. 4 e The hospital touts its star surgeons to draw patients from hundreds of 5 miles away, but six current and former staffers said those doctors will sometimes do little in the operating room once the patient is under 6 anesthesia. Instead, the surgeons will leave less-experienced doctors receiving specialized training to handle parts of a surgery. That allows 7 the primary surgeons to be in another operating room—a practice known as “concurrent surgery”—to maintain high volumes. It is not prohibited 8 but can test the limits of Medicare rules. 9 e Hospital leaders recruited one doctor from another institution as he dealt with an internal investigation and allegations that he had high rates of 10 complications and may have performed unnecessary surgeries. At Cherry Hill, more allegations of patient care problems emerged about the doctor, 1 but administrators promoted him to a top leadership position. 12 e Cherry Hill patients have undergone surgeries that are more invasive than available alternatives. That’s particularly the case in the treatment of 13 aneurysm patients, where data show a pronounced spike in a technique that requires opening a patient’s skull and working on the brain instead 14 of utilizing a less-invasive procedure that does not require a craniotomy. 15 e The increased volume of patients has left medical staffers from the operating room to the intensive-care unit with massive caseloads, 16 dividing the attention of ICU nurses who would otherwise provide one- on-one patient care. A loophole in a Washington state law designed to 17 enhance patient safety has forced some nurses at Cherry Hill to be on duty 1 for 20 hours in a day. e There are indications that the high-volume model is taking a toll on 19 patient care. In benchmarks tracked by the federal government, Cherry Hill was flagged for having high rates of blood clots, collapsed lungs and 20 serious surgical complications. State data show a rise in other problem indicators over the last several years, including aneurysm patients with 21 high numbers of strokes. 22 ORDER - 15 Caseé 2:16-Cv-UUSS/-JLR Document 160 *SEALED* Filed 06/11/20 Page 16 of 78 1 ||(d.) The Second Times Article then reports that “the most troubling findings” from the 2 || Times’ investigation “came from the doctors and other medical staff members who have 3 || witnessed the changes” inside SNI, findings that were “largely suppressed by a leadership 4 || team that has been accused of disregarding clear problems.” (/d.) The Second Times 5 || Article states that “one neurosurgeon, Dr. Charles Cobbs, in a memo to Swedish CO 6 || Tony Armada last year” wrote: “This toxic, repressive environment has already 7 negatively impacted the ability of the SNI community to provide the quality care (to) our 8 || patients that they deserve.” (/d.) 9 The Second Times Article reports that as SNI “was shifting toward a high-volume 10 || practice, Providence recruited Dr. Johnny Delashaw, a star surgeon known around the 11 || West Coast as a top producer.” (/d.) at ST_041677.) The Second Times Article goes on: 12 In just the first 16 months after his arrival in Seattle, state data show Delashaw handled 661 inpatient cases totaling more than $86 million in 13 billed charges for the hospital — more than any other brain or spine surgeon in the state. 14 But over that same time, Delashaw faced 49 internal complaints from 15 alarmed staff members concerned about the quality of his patient care and alleging unprofessional behavior, internal records show. 16 2K ok 17 “Some have become disgruntled and some of these health care providers 18 have left,’ Delashaw wrote. ‘When there is a change in culture it is commonplace for individuals to complain through the anonymous 19 complaint system’ at the hospital. 20 || (/d.) 21 After describing Dr. Delashaw’s appointment to lead SNI, the Times reports on a 22 ||number of internal complaints about Dr. Delashaw. (/d.) The Times reports on Dr. ORDER - 16 CaSE 2:160-CV-UU0S/-JLR Document 160 *SEALED* Filed 06/11/20 Page 17 of 78 1 || Vallieres’ memorandum to Swedish administrators and his decision to “step[]down from 2 || his position in protest” of Swedish’s decision to promote “an individual that has shown 3 || very little respect for the Culture of Safety and related processes.” (Jd.) The Second 4 || Times Article also quotes Dr. Vallieres’ belief that the “number of negative reports 5 submitted by so many different individuals is, in my judgment, a serious indicator of 6 || deficiencies that will not make [Dr. Delashaw] a good leader for Neurosurgery.” (Jd.) 7 The Times then reports: “Despite the concerns aired about Dr. Delashaw, the 8 || hospital’s administrators moved ahead with a plan to revamp surgical contracts in a way 9 || that would incentivize the high-volume approach in which [Dr.] Delashaw excelled.” 10 ||(/d.) The Times reports that the revised compensation system ended the practice of 11 || “pooling,” in which surgeons “pooled a portion of their pay and redistributed it among 12 || each other, which encouraged doctors to pass along patients to their peers when they 13 || thought a co-worker might be a better specialist to handle the patient’s procedure.” (Jd.) 14 || The Times goes on: Under the new contracts, “[s]urgeons would be paid almost entirely 15 || on their production, as measured by Relative Value Units, or RVUs,” which “are part of a 16 || Medicare reimbursement formula that assigns a value to each procedure.” (Jd.) The 17 || Second Times Article then reports that volumes among SNI “had been rising” in 2013 18 || and 2014, and “continued rising under Delashaw’s stewardship and the new contracts.” 19 || Ud.) 20 The Second Times Article then traces Dr. Delashaw’s professional career. It 21 || reports that during a grievance process when Dr. Delashaw was at the UC Irvine, Dr. 22 || Delashaw testified: “I wanted all my faculty—as I said to them many times—I want ORDER - 17 □□□ €.10-CV-UUIS/-JLIK Document LOU *SEALED* Filed 06/11/20 Page 18 of 78 1 || them to be rich... . But in order to be rich, you have to work and you have to do clinical 2 || volume or you have to have other kinds of financial support.” (Id. at ST_041678.) The 3 || Second Times Article then reported that in April 2013, “the board of directors of the 4 || American Association of Neurological Surgeons voted to censure Delashaw for 5 || questionable testimony he gave in a malpractice case where he was serving as an expert 6 || witness, according to the association. The organization declined to provide details about 7 || the case, including what Delashaw had said.” (/d.) 8 The Second Times Article then reports on Dr. Delashaw’s treatment of brain 9 || aneurysms in particular. (/d.) The Second Times Article distinguishes between a 10 || “coiling” procedure, a less invasive option, and a “clipping” procedure, which requires 11 || cutting into the scalp and removing a portion of the skull. (/d.) The Second Times 12 || Article states that coiling has grown in popularity because research shows it can be better 13 || for patients. (/d.). “[Dr.] Delashaw, however,” the Second Times Article goes on, 14 || “specializes in the clipping procedure.” (Jd.) The Second Times Article reports that Dr. 15 || Scott Goodwin, chair of the Department of Radiological Sciences at UC Irvine, 16 || “expressed concern that Delashaw had steered the facility into performing the more 17 || invasive clipping procedure at an unusually high rate.” (/d.) The Second Times Article 18 || states: 19 A Seattle Times analysis of patient data shows dramatic shifts in aneurysm treatment as [Dr.] Delashaw moved between jobs. Before his 2012 arrival at 20 UC Irvine, the university’s medical center performed clipping surgery in only about 13 percent of cases. After [Dr.] Delashaw’s arrival, 62 percent of 21 aneurysm patients undergoing treatment at Irvine received a clip—the highest rate among California hospitals who had at least 20 aneurysm cases, 22 according to state data analyzed by The Times. ORDER - 18 MAREE LOSI I-JLIX DOCUMENT LOU “SCALED* Filed 06/11/20 Page 19 of 78 1 When [Dr.] Delashaw moved to the Cherry Hill hospital in Seattle, that 2 campus jumped from 36 percent of cases getting a clip in 2012 to 57 percent in 2014. The statewide average remained under 40 percent during that same 3 time. 4 [Dr.] Delashaw wrote in his statement that he has “a national referral practice and wherever I go, complex vascular patients follow. It was natural and 5 expected to see a rise in vascular surgeries with my arrival in Seattle.” 6 || (d.) The Second Times Article reports that one of Dr. Delashaw’s patients, T.M., 7 || underwent the clipping procedure and “doesn’t recall [Dr.] Delashaw ever mentioning 8 || that there was a less-invasive treatment... . Medical records show her aneurysm was 9 || small and located in the ophthalmic segment of the internal carotid artery, where research 10 || shows coiling is an option.” (/d.) 11 The Second Times Article, under the header “Growing the numbers,” reports on 12 || volume-based surgeon contracts, under which surgeons can increase their revenue by 13 || adding more stages to a surgery. (/d.) “All those RVUs equate to more reimbursements 14 || for the hospital and, under the Swedish contracts, more money for the doctors.” (/d.) 15 ||“And, with the help of spine cases, Cherry Hill has drawn more Medicare spending for 16 || every inpatient visit than any other hospital in the country that has at least 150 beds.” (Id. 17 || at ST_041678-79.) The Second Times Article then discusses the high volume of certain 18 || surgeries at Swedish. (/d. at ST_041679.) It states that Dr. Delashaw “boasted” in his 19 |) testimony in the UC Irvine case “that his RVU prowess dwarfed the output of his 20 || colleagues in the year before he joined the institution.” (/d.) After listing Dr. Delashaw’s 21 2014 compensation, the Second Times Article ends the subsection by reporting that John 22 |/Romley, an economist at the University of Southern California, said that “[t]here is ORDER - 19 Case 2:Lo-CV-UUoo/-JLR Document 160 *SEALED* Filed 06/11/20 Page 20 of 78 1 || evidence that physicians respond to volume incentives by adding more procedures— 2 || perhaps unnecessary ones—to a patient’s visit.” (Id.) 3 The Second Times Article then has a section entitled “Simultaneous surgeries” 4 || that reports on Cherry Hill’s practice of running multiple operating rooms at a time: 5 At Swedish, surgeries are often scheduled to run at the same time, the six current and former staffers said. Four workers expressed concern that [Dr.] 6 Delashaw would only be in the room for less than 15 minutes during a surgery. 7 One of [Dr.] Delashaw’s former fellows, Dr. Peter Bouz, said [Dr.] Delashaw 8 was Clear about which parts of the cases were critical portions that the fellow could not handle alone. For an aneurysm clipping, the fellow could open the 9 scalp and remove part of the skull, but [Dr.] Delashaw would need to be there for putting the clip on the aneurysm, Bouz said. 10 For other cases, such as the removal of portions of a patient’s vertebrae in a 11 laminectomy, Bouz said the procedure was simple enough that there was no critical portion. He said [Dr.] Delashaw would come to check to make sure 2 it had been done correctly. Bouz noted that the fellows had completed their residency and were now qualified to work on their own but had come to 13 Swedish for specialized training. 14 Four current and former staffers who asked to remain anonymous expressed concern that the OR would have to pause to wait for [Dr.] Delashaw in the 15 middle of the surgery, with the patient’s body opened up and under anesthesia. Bouz said there were times when there was a pause but that it 16 would typically last no more than 15 minutes. Another former fellow, Dr. Prashant Kelkar, said [Dr.] Delashaw always came in a timely fashion. 17 Three of the workers who asked to remain anonymous expressed concern 18 that [Dr.] Delashaw would be off in a clinic while simultaneously having multiple cases in the OR. Bouz said that would occur only when one case 19 was beginning and another was ending. 20 || 7d.) 21 The final section of the Second Times Article is titled “Strain on Staff.” (/d.) In 22 relevant part, it reports: ORDER - 20 Vase £.10-CV-UUSa/-JL Locument 160 *SEALED* Filed 06/11/20 Page 21 of 78 1 Cobbs, the neurosurgeon, included in his memo that staff members believed [Dr.] Delashaw had decimated the ICU infrastructure and failed ‘to 2 adequately staff the unit with trained providers.’ 3 Other internal memos obtained by the Times say [Dr.] Delashaw exacerbated the situation with a caustic demeanor that created a toxic and hostile 4 environment. 5 ‘Fundamental issues including respect for others, patient safety, appropriate surgery, and quality of care have been rebuffed by the leadership, in 6 particularly Dr. Delashaw,’ Cobbs wrote. He declined to comment. 7 || Ud.) 8 The Second Times article then reports on a memo from Dr. Ralph Pascualy, 9 || then the chief executive of physicians at Swedish, to Dr. Rod Hochman, the CEO 10 || of Providence, “about [Dr.] Delashaw’s issues” in November 2016: 11 Pascualy wrote that the Cherry Hill neurosurgeons felt intimidated to bring up what they considered to be [Dr.] Delashaw’s unsafe practices and errors 12 during the usual morbidity and mortality conference, a common gathering at hospitals around the country designed to be an open discussion for peers to 13 give feedback on cases to improve future quality. 14 He told Hochman that he heard stories of [Dr.] Delashaw making decisions that led to significant patient harm and death. 15 “You are perceived as giving him special privilege and honor when he is held 16 in extremely low regard by every other physician on the medical staff,’ Pascualy wrote. ‘It has created a perception that what really matters at Swedish is vast RVU production without concern for the means by which it is achieved.’ Pascualy declined to comment. 18 (Id.) The Article ends as follows: 19 Ten surgeons and staff members joined together for a meeting with hospital 20 leadership in October, with some making desperate pleas, according to minutes from the meeting obtained by The Times. The surgeons reiterated 21 concerns to Armada, the Swedish CEO, and two other administrators. 22 ORDER - 21 VASE €.40-CV-UUS9/-JLIK DOCument 160 *SEALED* Filed 06/11/20 Page 22 of 78 ] The minutes show the group warned that a Seattle Times reporter had been calling staff members. They feared that a news article could damage the Zz institution’s reputation. 3 They were clear in their message: All the problems that had been ignored were poised to burst into the open. Swedish’s proud culture of safety was at 4 risk. Delashaw needed to go. 5 To this day, [Dr.] Delashaw remains in charge. 6 || 7d.) 7 3. Fallout From the Articles 8 After publication of the First and Second Times Articles (together, the “Articles”, 9 || Dr. Delashaw resigned from SNI in exchange for eae an 10 agreement that he would never again be employed by Swedish. (See 1st Goldman Decl. 11 ||§ 7, Ex. 5 (sealed).) 12 |/E. Dr. Delashaw’s Compensation 13 The potential impact that Swedish’s compensation model had on Dr. Delashaw’s 14 || practice is one of the focal points of the Articles and this lawsuit. Dr. Delashaw’s 15 || compensation at Swedish was governed by successive contracts. (Delashaw Decl. q 13.) 16 || Dr. Delashaw’s first contract with Swedish was for a two-year term beginning October 1, 17 2013 (the “First Contract”). (See 1st Goldman Decl. § 11, Ex. 9 (sealed) (“1st Contract”) 18 || at JDEL_036186.) Under the First Contract, Dr. Delashaw’s compensation was tied to 19 || his work Relative Value Units (“wRVU”), a dollar amount assigned to each encounter, 20 || procedure, or surgery: 21 eee ORDER - 22 SIRE EA AOIMN MIO I VILIX DOCUMENT LOU SEALED Filed 06/11/20 Page 23 of 78 1 2 3 4 (See id, at JDEL_036207.) The First Contract was amended effective March 1, 2014 (the 5 6 (Ist Goldman Decl. { 13, Ex. 11 (sealed) (“2d Contract”) at 7 JDEL_036240, JDEL_036246-47.) The Providence President for Operations, SNI 8 surgeon Dr. Mayberg, and Dr. Delashaw testified at their depositions that the 9 wRVU-based compensation system used to compensate Dr. Delashaw is a volume-based 10 model. (See 1st Goldman Decl. ¥ 8, Ex. 6 (“Butler Dep.”) at 7:5, 19:12; id. { 9, Ex..7 11 (“Mayberg Dep.”) at 54:23-55:2; id. 4 14, Ex. 12 (“Delashaw Dep.”) at 415:15-19 12 (describing Dr. Delashaw’s compensation plan as one “that was about how much work 13 you did. The more you did the more you got paid.”).*) 14 Dr. Delashaw signed a third physician employment agreement effective on April 15 4, 2015, that included a three-year term (the “Third Contract”). (See 1st Goldman Decl. 16 (Dkt. # 108) 4 15, Ex. 13 (sealed) (“3d Contract”) at JDEL_007321, JDEL_007332.) 17 19 20 * Portions of Dr. Delashaw’s deposition are also found in the record in Exhibit 36 to the First Declaration of Jennifer Goldman, Exhibits 3 and 23 to the First Declaration of Jehiel I. 1 Baer, and Exhibits 49 and 50 to the Second Declaration of Jehiel I. Baer. (See Ist Goldman Decl. { 38, Ex. 36; Ist Baer Decl. 3, Exs. 3, 23; 2d Baer Decl. (Dkt. # 144) § 2, Exs. 49-50.) The court cites to Dr. Delashaw’s deposition as “Delashaw Dep.” wherever it appears in the 22 record. ORDER - 23 MIME Ee OMNI ALIX, DOCUMENT LOU SCALED" Filed 06/11/20 Page 24 of 78 1 |] (/d. at JDEL_007341.) The Third 3 aS (/d.) Dr. Delashaw signed a fourth 4 || physician employment agreement effective May 1, 2016 (the “Fourth Contract”). (1st 5 Goldman Decl. § 24, Ex. 22 (sealed) (“4th Contract”) at JDEL_007348, JDEL_007359.) 6 || The Fourth Contract provided Dr. Delashaw pee os Saag ace acetan a 9 || JDEL_007368.) 10 Although the Third Contract and Fourth Contract moved to a salary-based 11 || compensation model, Dr. Delashaw’s production volume continued to impact the way in 12 || which Swedish set his salary. To justify Dr. Delashaw’s high level of compensation for 13 || the Third Contract, Swedish commissioned a fair market valuation eee 14 15 (1st Goldman Decl. § 16, Ex. 14 at 16 |} SWE_005593-94.) His proposed compensation was 1) □ a ee 17 || (dd.) According to Swedish, “his historic productivity was used to estimate the projected 18 || work RVUs that he would generate, and that in turn supported the compensation package 19 || that was being proposed.” (See Swedish 30(b)(6) Dep. at 21:20-22:1.) 20 According to the fair market valuation analysis, oa 21 ORDER - 24 | ||Goldman Decl. § 16, Ex. 14 at SWE_005593.) ii ed. 3 2 5 ||SWE_005593-94.) Swedish testified, however, that if Dr. Delashaw did not attain the 6 || projected level of production, such that “production no longer supported the 7 || compensation package,” the contract would not meet Swedish’s standards “and, 8 || therefore, would need to be adjusted” upon renewal. (/d. at 22:2-14.) In fact, the Third GES □□ ee eee nen ie SS eens (pense emcee 12 Dr. Delashaw’s productivity had the same impact on the Fourth Contract as it did 13 |}on the Third Contract. Swedish commissioned another fair market valuation 14 Se Ist Goldman Decl. §] 23, Ex. 21 at [rE [ee a ea ae ecet 19 (a. at SWE_005566.) In other words, AA a aa ar ote maracas rt 21 (See id.) Based in large part ee eer male ORDER - 25 Vase ¢2.10-CV-UUSS/-JLR Document Lo0 *SEALED* Filed 06/11/20 Page 26 of 78 2a: 2 || SWE_005564-71.) However, like the Third Co eee a Tia 5 Although Dr. Delashaw’s Third and Fourth Contracts moved away from a strictly 6 || productivity-based compensation model toward a fixed salary that was set based on 7 || historical productivity, other SNI physicians continued to receive compensation on a 8 || per-wRVU basis. For example, Dr. Cobbs signed a contract amendment in October 2015 9 || that set his compensation at ee ee 11 || offered a contract to another physician in April 2016 that stated that ne Ae rear eeacieaates 13 a (See id. § 28, Ex. 26 at SWE-E_005896.) Swedish 17 at JDEL_015355-61.) 18 || F. Concurrent Surgeries 19 Another focal point of both the Times’ Articles and Dr. Delashaw’s lawsuit 20 || against the Times is the practice of concurrent surgeries at SNI. Dr. Delashaw and the 21 || Times appear to disagree on the definition of “concurrent surgeries.” Dr. Delashaw’s 22 || complaint alleges that “[c]oncurrent surgeries are surgeries in which the critical portions ORDER - 26 CaS€ 2:10-CV-UU0S/-JLK Document 160 *SEALED* Filed 06/11/20 Page 27 of 78 1 || of each operation occur simultaneously despite being led by the same doctor.” (See Am. 2 ||Compl. { 104.) The Times argues, however, that the Articles did not define “concurrent 3 || surgeries” as narrowly as Dr. Delashaw does. (See Times MSJ at 11-12.) Instead, the 4 || Times cites Swedish’s internal policy on concurrent surgeries and notes that concurrent 5 || surgeries are surgeries where an attending surgeon is allowed to “‘simultaneously work[] 6 more than one operating room’ and ‘oversee the care provided by teams in two 7 || operating rooms simultaneously [which is] defined as concurrent staffing,’ so long as that 8 || surgeon was present for the critical portion of the case.” (See id. at 11 (quoting Ist 9 |; Goldman Decl. ¥ 30, Ex. 28 at SWE_000735-37).) 10 Although the parties disagree on the message conveyed by the Articles about 11 concurrent surgeries, the parties do not dispute that Dr. Delashaw participated in 12 concurrent surgeries at SNI—as that term is defined by Swedish’s policy. Swedish cools io. ile ae 2: a eed | RSet ae iain aeee ren iiat: 17 || (See 1st Goldman Decl. { 36, Ex. 34 at JDEL_042124.) Dr. Delashaw acknowledged at 18 || his deposition that attending surgeons were not always present for the entirety of every 19 || surgery. (See Delashaw Dep. at 213:17-215:11; 217:1-8.) He testified, for example, that 20 || while a junior surgeon was making the incision or stitching up the patient, he “might be 21 another operating room, or [] might be seeing a clinic patient, or [] might be sitting in 22 || the operating room watching.” (See id. at 298:3-9.) Moreover, when the Times offered ORDER - 27 Case 2:18-cv-0033/7-JLR Document 160 *SEALED* Filed 06/11/20 Page 28 of 78 1 || Dr. Delashaw an opportunity to comment on the Times’ claim that “[t]o maintain 2 || volumes, concurrent surgeries at SNI have become commonplace, and staffers have 3 || expressed concern about how they are being handled and how much time surgeons are 4 || spending in the operating room” before the Articles were first published, Dr. Delashaw 5 || responded that: 6 Surgeries at many institutions such as ours occur in concurrent rooms by a team of surgeons. These surgeries are staggered so that the attending of 7 record is present for at least the key portions of each procedure. Other attending surgeons are available if needed. (See 1st Goldman Decl. § 40, Ex. 38 at ST_0030713.) ° G. Procedural History On April 11, 2018, Dr. Delashaw filed suit against the Times and Dr. Cobbs. (See Compl. (Dkt. # 1).) Against the Times, Dr. Delashaw brings claims of defamation, defamation by implication, and tortious interference with a business expectancy.> (Am. Compl. ff 164-185.) Against Dr. Cobbs, Dr. Delashaw brings claims of defamation, tortious interference with a business expectancy, and civil conspiracy. (/d. Fj 190-208.) » Dr. Delashaw seeks an injunction preventing the Times and Dr. Cobbs from making false statements about him, requiring the Times to remove the allegedly false statements from its website, and requiring the Times to publish a retraction. (See id. § VI (prayer for relief).) Dr. Delashaw also seeks monetary damages, attorneys’ fees and costs, and prejudgment interest. (See id.) 20 = > Dr. Delashaw also pleaded a claim against the Times for violation of Washington’s 2 Consumer Protection Act CPA”), RCW ch. 19.86 et seq. (see Am. Compl. §] 186-89), but the court has already dismissed that claim. (See 8/23/18 Order (Dkt. # 39) at 32-34.) ORDER - 28 Case 2:18-cv-0053/7-JLR Document 160 *SEALED* Filed 06/11/20 Page 29 of /8 1 The Times moved for summary judgment on February 6, 2020 (see Times MSJ at 2 20), and Dr. Cobbs moved for summary judgment on February 27, 2020 (see Cobbs MSJ 3 || at 25)). The court now addresses Defendants’ motions. 4 il. ANALYSIS 5 || A. Legal Standard 6 Summary judgment is appropriate if the evidence viewed in the light most 7 || favorable to the non-moving party shows “that there is no genuine dispute as to any 8 || material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 9 || 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Beaver v. Tarsadia Hotels, 10 □□□ F.3d 1170, 1177 (9th Cir. 2016). A fact is “material” if it might affect the outcome 11 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute 12 “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the 13 ||non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) 14 || (citing Anderson, 477 U.S. at 248-49). 15 The moving party bears the initial burden of showing there is no genuine dispute 16 || of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 17 ||323. If the moving party does not bear the ultimate burden of persuasion at trial, it can 18 || show the absence of such a dispute in two ways: (1) by producing evidence negating an 19 || essential element of the nonmoving party’s case, or (2) by showing that the nonmoving 20 || party lacks evidence of an essential element of its claim or defense. Nissan Fire & 21 || Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party 22 || meets its burden of production, the burden then shifts to the nonmoving party to identify ORDER - 29 CasS€ 2:10-CV-O005/-JLR ~Document 160 *SEALED* Filed 06/11/20 Page 30 of 78 1 || specific facts from which a factfinder could reasonably find in the nonmoving party’s 2 favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. 3 Dr. Delashaw’s Motion to Strike 4 In response to Dr. Cobbs’ motion for partial summary judgment, Dr. Delashaw 5 || moves to strike (1) certain of Dr. Cobbs’ exhibits that include complaints about Dr. 6 || Delashaw as inadmissible hearsay; and (2) what Dr. Delashaw characterizes as an 7 |{inadmissible offer of compromise under Federal Rule of Evidence 804. (See Cobbs MSJ 8 || Resp. at 6-10.) 9 The court DENIES Dr. Delashaw’s motion to strike. First, the complaints to 10 || Swedish and DOH that Dr. Delashaw seeks to exclude are not hearsay because they are 11 || not offered for their truth. The Federal Rules of Evidence define hearsay as “a statement 12 that ...a party offers in evidence to prove the truth of the matter asserted in the 13 || statement.” Fed. R. Evid. 801(c). The “truth of the matter asserted” in the various 14 || complaints against Dr. Delashaw that Dr. Delashaw aims to suppress is that Dr. Delashaw 15 || did, in fact, engage in the misconduct alleged in those complaints. (See, e.g., 1st Baer 16 || Decl. § 3, Exs. 2, 4-10, 14-22, 27-31, 42.) Dr. Cobbs does not offer the complaints to 17 || prove that Dr. Delashaw engaged in misconduct. Instead, he offers the complaints to (1) 18 || show that various individuals filed complaints about Dr. Delashaw’s behavior both with 19 || Swedish and DOH (see, e.g., id. 4 3, Exs. 2, 4-10, 14, 22, 42); or (2) to show that his 20 || November 2016 letter to Swedish was based on complaints from other Swedish 21 || physicians (see, e.g., id. § 3, Exs. 27-31). Additionally, to the extent that Dr. Delashaw 22 || expects to argue that Dr. Cobbs’ November 2016 letter and his statements to MQAC ORDER - 30 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 31 of 78 1 || caused Dr. Delashaw’s damages (see Cobbs MSJ Resp. at 18 (“[T]he jury will be asked 2 ||to determine whether Dr. Cobbs’ actions were a factual cause of Dr. Delashaw’s 3 || damages.”)), Dr. Cobbs is entitled to rebut that argument with evidence that other parties 4 || were filing complaints against Dr. Delashaw that could have caused his damages. 5 Ultimately, Dr. Delashaw alleges that Dr. Cobbs engaged in a nefarious 6 || conspiracy to oust Dr. Delashaw from Swedish and maliciously defame his character 7 based on Dr. Cobbs’ greed and jealousy. (See, e.g., Am. Compl. JJ 50-98.) Even if the 8 || complaints against Dr. Delashaw were not true, the fact that other individuals at Swedish 9 || were lodging complaints against Dr. Delashaw in droves is directly relevant to the 10 || legitimacy of Dr. Cobbs’ motivations and actions in this case and to Dr. Delashaw’s 11 ||} causal arguments.°® 12 The court also rejects Dr. Delashaw’s attempt to strike portions of his deposition 13 || testimony on the grounds that the testimony is an inadmissible offer of compromise. It is 14 ||not. Federal Rule of Evidence 408 states that a party may not offer evidence of another 15 || party “furnishing, promising, or offering—or accepting, promising to accept, or offering 16 || to accept—a valuable consideration in compromising or attempting to compromise the 17 || claim” for purposes of proving or disproving the “validity or amount of a disputed 18 claim.” Fed. R. Evid. 408(a)(1). In the testimony at issue, Dr. Cobbs asked Dr. 19 || Delashaw whether there was “anything else [he] remember[ed] . . . [a]bout a request for a 20 || retraction” from Dr. Cobbs, and Dr. Delashaw responded with “Retraction—I wanted an 21 Although the court denies the motion to strike at this time, the court will entertain a renewed objection to these exhibits at trial if Dr. Cobbs attempts to offer these complaints for their truth. ORDER - 31 VASE 2-1Lo-CV-UU9a/-JLK Document 160 *SEALED* Filed 06/11/20 Page 32 of 78 1 || apology.” (See Delashaw Dep. at 800:20-24.) That testimony is not an offer of 2 compromise under Rule 408.7 3 ||C. The Times’ Summary Judgment Motion A The Times moves for summary judgment on Dr. Delashaw’s defamation and 5 || tortious interference claims. The Times’ primary arguments against Dr. Delashaw’s 6 || defamation claims are that (1) Dr. Delashaw cannot carry his burden to establish falsity 7 || and (2) certain statements that Dr. Delashaw claims are defamatory are non-actionable 8 || opinion statements. (See Times MSJ at 1-3.) The Times also argues that if Dr. 9 || Delashaw’s defamation claims fail, then his tortious interference claims must also fail. 10 || (See id. at 5.) The court first addresses the standard for defamation claims before 11 || addressing the merits of the Times’ arguments. 12 l. Defamation Standard 13 defamation action consists of four elements: (1) a false statement, (2) 14 || publication, (3) fault, and (4) damages.” Duc Tan v. Le, 300 P.3d 356, 363 (Wash. 2013). 15 plaintiff can allege the false statement prong by alleging facts showing that the 16 ||statement is provably false or “leaves a false impression due to omitted facts.” See 17 || Yeakey v. Hearst Commc’ns, Inc., 234 P.3d 332, 335 (Wash. Ct. App. 2010) (citing Mohr 18 || v. Grant, 108 P.3d 768, 773 (Wash. 2005)). “Defamation by implication occurs when 19 || ‘the defendant juxtaposes a series of facts so as to imply a defamatory connection 20 1 ’ Even if Dr. Delashaw’s testimony could be construed as offer of compromise under Rule 408(a)(1), the court would admit the testimony for purposes of its bearing, if any, on whether Dr. Delashaw ever requested a retraction from Dr. Cobbs. See Fed. R. Evid. 408(b) (noting that the court may admit evidence of offers of compromise for other purposes). ORDER - 32 Case 2:16-CV-UUSS/-JLIK Document 160 *SEALED* Filed 06/11/20 Page 33 of 78 1 || between them.’” Corey v. Pierce Cty., 225 P.3d 367, 373 (Wash. Ct. App. 2010) 2 || (quoting Mohr, 108 P.3d at 774). 3 To establish the first element of defamation, falsity, “the plaintiff must show the 4 || statement is provably false, either in a false statement or because it leaves a false 5 || impression.” Mohr, 108 P.3d at 775. Washington courts do “not require a defamation 6 || defendant to prove the literal truth of every claimed defamatory statement.” Jd. at 775. 7 || Rather, “[a] defendant need only show that the statement is substantially true or that the 8 || gist of the story, the portion that carries the ‘sting,’ is true.” Jd. (quoting Mark v. Seattle 9 || Times, 635 P.2d 1081, 1092 (Wash. 1981)). The court, not the jury, determines the 10 || “sting” of a report. See id. 11 □□ Statements at Issue [2 a. Financial Incentives 13 The first grouping of statements that Dr. Delashaw alleges defamed him relate to 14 || alleged financial incentives at SNI to increase patient volume. (See Times MSJ at 6-10; 15 || Times MSJ Resp. at 6-9.) A number of statements in the Second Times Article relate to 16 || SNI physicians’ financial incentives to pursue high volumes: 17 The doctors in the neuroscience unit are incentivized to pursue a high-volume approach with contracts that compensate them for large patient numbers and 18 complicated surgical techniques. (2d Times Art. at ST_041676.) 19 The revised contracts at Cherry Hill’s SNI program ended the pooling system, according to records and interviews. Surgeons would be paid almost 20 entirely on their production, as measured by Relative Value Units, or RVUs.” (Id. at ST_041677.) 21 // 22 ORDER - 33 VASE 2.10-CV-UUSo/-JLIK Document 160 *SEALED* Filed 06/11/20 Page 34 of 78 1 Surgeons with production-based contracts can increase their revenue by adding more stages to a surgery. That’s particularly true when it comes to 2 spine cases. (/d. at ST_041678.) 3 All those RVUs equate to more reimbursements for the hospital and, under the Swedish contracts, more money for the doctors. (/d.) The Times argues that Dr. Delashaw cannot establish that these claims are false because ° SNI surgeons, including Dr. Delashaw, were incentivized to produce a high-volume ° approach. (See Times MSJ at 6-10.) Thus, Dr. Delashaw carries the burden to show that the facts viewed in the light most favorable to his case identify a genuine dispute of material fact on the question of whether that the Times’ claims about financial incentives are “provably false, either in a false statement or because [they] leave[] a false impression.” Mohr, 108 P.3d at 775; see also Fed. R. Civ. P. 56(a). The court concludes that there is a genuine dispute of material fact on the falsity of the Times’ allegations on financial incentives that precludes summary judgment on those particular statements. On one hand, the parties appear to agree that the First Contract and Second Contract compensated Dr. Delashaw on a volume basis. (See 1st Contract at JDEL_036207-08; 2d Contract at JDEL036246-49; Delashaw Dep. at 415:15-19 (“So as ° of March Ist, 2014, I began to be compensated similar to the other surgeons and was not on a salary. I was on a compensation plan that was about how much work you did. The more work you did the more you got paid.”); Times MSJ at 7.) The First Contract began on October 1, 2013 and the Third Contract did not begin until April 4, 2015. (See Ist Contract at JDEL_036180; 3d Contract at JDEL_007321.) This evidence shows that Dr. Delashaw was, in fact, under contracts that incentivized him to pursue a high-volume 22 ORDER - 34 Vase 4.10°-CV-UUSS/-JLIK Vocument 160 *SEALED* Filed 06/11/20 Page 35 of 78 1 || patient load from October 2013 to April 2015, which is consistent with the claims in the 2 || Second Times Article. 3 Although Dr. Delashaw was compensated based on productivity for a period of 4 || time, Dr. Delashaw moved to a salary-based compensation model in the Third Contract 5 and Fourth Contract. (See 3d Contract at JDEL_007341-42; 4th Contract at 6 || JDEL_007368-69.) The compensation terms in Dr. Delashaw’s Third Contract and 7 || Fourth Contract arguably suggest that he was not financially incentivized to pursue a 8 || high-volume patient load after April 2015. The court recognizes that (1) both the Third 9 || Contract and the Fourth Contract explicitly state that Dr. Delashaw’s compensation will 10 || be adjusted if he does not meet certain production thresholds (See 3d Contract at 11 || JDEL_007342; 4th Contract at JDEL_007369); and (2) the Times submitted evidence 12 || showing that Swedish relied heavily on Dr. Delashaw’s historical productivity in setting 13 || Dr. Delashaw’s salary (see, e.g., 1st Goldman Decl. 16, 23, Exs. 14, 21). Although 14 || this evidence supports the Times’ argument that Dr. Delashaw continued to have a 15 || financial incentive to pursue a high-volume patient load under the Third and Fourth 16 || Contracts, the court cannot weigh the parties’ conflicting evidence on summary 17 ||judgment. Instead, the court concludes that a reasonable factfinder could credit the 18 || language in the Third and Fourth Contracts and conclude that Dr. Delashaw was not 19 || financially incentivized to pursue a high-volume patient load after April 2015. 20 The Times briefly argues that the court need not consider any factual disputes 21 |/related to Dr. Delashaw’s compensation under the Third and Fourth Contracts because 22 || the fact that Dr. Delashaw was paid on a volume basis under the First and Second ORDER - 35 VEE OTEVUUIOI-VJLIK LOCUMeENt LOU *SEALED* Filed 06/11/20 Page 36 of 78 1 || Contracts is sufficient to “establish[] the truth of the reporting.” (See Times Reply at 4). 2 || The court rejects this argument because the Times fails to adequately support it. The 3 |) Times briefly argues—without support from caselaw—that the financial incentive 4 || statements are true because the period in which Swedish paid Dr. Delashaw on a volume 5 || basis was “during the period about which the Articles reported.” (See id.) However, the 6 || statements in the Second Times Article regarding physician financial incentives are not 7 || qualified by any particular period of time (see 2d Times Art. at ST_041676-78), and 8 || when Times published the Articles in February 2017, Dr. Delashaw was operating under 9 || the salary-based compensation model in the Fourth Contract (see 4th Contract at 10 || JDEL_007368-69). The Times fails to address the potential impact of these 11 || chronological distinctions with any amount of analysis or support from caselaw. 12 || Accordingly, the court concludes that the factual dispute over whether Dr. Delashaw was 13 || incentivized to pursue a high-volume patient load after April 2015 is sufficient to 14 || preclude summary judgment on Dr. Delashaw’s defamation claims insofar as those 15 || claims are based on statements regarding physician financial incentives in the Second 16 || Times Article.® 17 FE a * Although the court denies the Times’ motion based on this factual dispute, the court 18 || notes that the Times’ failure to address the chronological distinctions in Dr. Delashaw’s compensation is not the only loose end left by the parties’ briefing. The parties also fail to 19 || address the fact that the Second Times Article never explicitly states that Dr. Delashaw had a contract that incentivized him to pursue a high-volume patient load. (See generally Second 20 || Times Article.) Instead, the explicit language in the Second Times Article states vaguely that “[t]he doctors in the neuroscience unit” are incentivized to pursue a high-volume patient load. 1 (See id. at ST_041676.) Although the Times dances around this distinction in its motion and reply (see Times MSJ at 10 (“‘As for the other surgeons at SNI, the more they performed, the more they too got paid.”); Times Reply (Dkt. ## 137 (sealed); 157 (redacted)) at 5 (“As the paper accurately reported, the SNI surgeons were ‘incentivized to pursue a high-volume approach ORDER - 36 Case 2:18-cv-0053/-JLR Document 160 *SEALED* Filed 06/11/20 Page 37 of 78 1 b. Unnecessary Surgeries 2 The second group of statements from the Quantity of Care series that Dr. 3 || Delashaw alleges defamed him relate to SNI’s alleged practice of engaging in what Dr. 4 || Delashaw refers to as “unnecessary surgeries.”? (See Times MSJ Resp. at 9-12; Times 5 || Reply at 5-6.) Dr. Delashaw argues that the Times “falsely[] conveyed that he performed 6 || unnecessary surgeries at SNI.” (See Times MSJ Resp. at 9.) In support of that claim, he 7 || quotes snippets of the following passages from the Second Times Article: 8 The records show that Dr. Scott Goodwin, the chair of the Department of Radiological Sciences at UC Irvine, testified that doctors in his department 9 had flagged more than 40 [Dr.] Delashaw cases that concerned them. The flagged cases included surgeries that were potentially unnecessary and others 10 that involved significant complications for the patient. 11 shine 12 A Seattle Times analysis of patient data shows dramatic shifts in aneurysm treatment as [Dr.] Delashaw moved between jobs. Before his 2012 arrival at 13 UC Irvine, the university’s medical center performed clipping surgery in only about 13 percent of cases. After [Dr.] Delashaw’s arrival, 62 percent of 14 15 with contracts that compensate them for large patient numbers and complicated surgical techniques.””)), the Times fails to explicitly argue that the financial incentive claims in the 16 Second Times Article are true because SNI surgeons other than Dr. Delashaw operated under volume-based contracts. Thus, the court cannot determine what impact, if any, this potential distinction between Dr. Delashaw’s contract and the contracts of the other SNI surgeons might 17 || have on Dr. Delashaw’s defamation claim. 18 ° The court rejects the Times’ argument that Dr. Delashaw is precluded from arguing that the claims in the Second Times Article about “unnecessary surgeries” defamed him because that 19 || topic is “not among the subjects” that the court limited Dr. Delashaw to in the court’s order on the Times’ motion to dismiss. (See Times Reply at 5.) The Times reads the court’s order too 20 || broadly. The court ordered that Dr. Delashaw’s defamation claims are limited to statements in the Quantity of Care series and listed examples of the defamatory statements Dr. Delashaw 1 identified in his complaint. (See 8/23/18 Order at 16-17.) However, the court made clear that its list of subjects were examples, and specifically cited the Times’ claims about unnecessary » surgeries as an example of potentially actionable statements in Dr. Delashaw’s complaint. (See id.) ORDER - 37 Case £:16-CvV-U003/-JLR Document 160 *SEALED* Filed 06/11/20 Page 38 of 78 1 aneurysm patients undergoing treatment at Irvine received a clip—the highest rate among California hospitals who had at least 20 aneurysm cases, 2 according to state data analyzed by The Times. 3 When [Dr.] Delashaw moved to the Cherry Hill hospital in Seattle, that campus jumped from 36 percent of cases getting a clip in 2012 to 57 percent in 2014. The statewide average remained under 40 percent during that same time. 5 whew 5 6 Dr. Joe Eskridge, an interventional neuroradiologist who specialized in coiling procedures during his 11 years at the Cherry Hill campus, said before [Dr.] Delashaw arrived he worked with Dr. David Newell, who had handled many of the aneurysm clippings. 8 Eskridge said he and Newell often discussed aneurysms to assess whether 9 the patient would have better results with a clip or coil procedure. Newell would come over to Eskridge’s office or lab, bringing images to discuss with 10 him. At times, Newell and Eskridge would both discuss the options with the patient. 11 ‘[Dr.] Delashaw never did that,’ said Eskridge, who said he was forced out 12 of Swedish after complaining about a different surgeon’s level of care. 13 whee 14 A growing body of research suggests that, though lucrative, spinal-fusion surgery is not the best option for lumbar stenosis, a common condition of 15 degenerative spinal changes, when the patient doesn’t also have a displaced vertebra said Dr. Richard Deyo, who researches spine surgeries at OHSU. 16 Swedish saw an increase in the number of lumbar-fusion surgeries in 2014 17 when the patient had a primary diagnosis of lumbar stenosis and did not also have a displaced vertebra. [Dr.] Delashaw and [Dr.] Oskouian ranked tops 18 in the state that year among brain and spine specialists, with 24 cases each. 19 ate 20 There is evidence that physicians respond to volume incentives by adding more procedures—perhaps unnecessary ones—to a patient’s visit, 21 [University of Southern California economist John] Romley said. 22 ||// ORDER - 38 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 39 of 78 1 || (See id. at 9-12 (quoting 2d Times Art. at ST_041678-79).) Dr. Delashaw argues that 2 || these passages left a clear implication that was false: “Dr. Delashaw chose to perform 3 || procedures (including tumor removal, clipping, and fusions) because of greed.” (See id. 4 at 10.) 5 The fatal flaw with Dr. Delashaw’s argument is that he fails to argue that any of 6 || the statements that the Times wrote are false or that the various declarants did not make 7 || the statements that the Times claimed they made. (See id. at 9-12.) Instead, Dr. 8 || Delashaw takes issue with the negative impression created by the portions of the story 9 || that the Times “chose to print” and argues that other facts about his surgical methods 10 || would have painted him in a more accurate light. (See id.) The general rule under 11 || Washington law is that “[a] defamation claim may not be based on the negative 12 || implication of true statements. This is because defamatory meaning may not be imputed 13 || to true statements.” U.S. Mission Corp. v. KIRO TV, Inc., 292 P.3d 137, 141 (Wash. Ct. 14 || App. 2013) (citations omitted). Although Washington law recognizes a limited 15 || “defamation by omission” exception to that rule, that exception requires a showing that 16 || “the communication left a false impression that would be contradicted by the inclusion of 17 || omitted facts.” See Mohr, 108 P.3d at 776. But even the defamation by omission 18 || doctrine recognizes that “[m]erely omitting facts favorable to the plaintiff or facts that the 19 || plaintiff thinks should have been included does not make a publication false and subject 20 || to defamation liability.” Jd. 21 Here, Dr. Delashaw identifies a number of counterpoints about the science behind 22 || clipping and coiling procedures and about his tenure at SNI, UC Irvine, and OHSU that ORDER - 39 Case 2:18-cv-0053/7-JLR Document 160 *SEALED* Filed 06/11/20 Page 40 of 78 1 || he believes the Times should have included in the Second Times Article. (See Times 2 ||MSJ Resp. at 9-12.) But Dr. Delashaw fails to show how any of the alleged omitted facts 3 || identified in his response brief would contradict the claims in the Second Times Article 4 || and prove that those claims are untrue.'° (See id.) Even when viewed in the light most 5 || favorable to Dr. Delashaw, the counterpoints he offers could have “led to a more 6 || balanced report” or “portrayed [Dr. Delashaw] in a more favorable light” if the Times 7 || had chosen to include them in the Second Times Article, but Dr. Delashaw failed to show 8 || that the Times’ omission of those counterpoints made “what was published untrue.” See 9 || Mohr, 108 P.3d at 776 (citing Green v. CBS Inc., 286 F.3d 281 (Sth Cir. 2002), Peter 10 || Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 563 (Sth Cir. 1997), & Janklow v. 11 || Newsweek, Inc., 759 F.2d 644, 648 (8th Cir. 1985)). 12 The problem with Dr. Delashaw’s defamation by omission theory is underscored 13 || by the exemplar case that Dr. Delashaw cites in his opposition to the Times’ motion for 14 ||summary judgment, Memphis Publishing Company v. Nichols, 569 S.W.2d 412, 419 15 ||(Tenn. 1978), which the Mohr Court stated was a “prime example of defamation by 16 || implication caused by certain material omissions.” Mohr, 108 P.3d at 776. The Mohr 17 || Court noted that, in Memphis Publishing, a newspaper reported that “a woman shot her 18 || husband and another woman after finding them together in the second woman’s living 19 20 The court also notes that many of Dr. Delashaw’s “omitted facts” are not “facts” at all. For example, Dr. Delashaw disputes Dr. Goodwin’s claims about UC Irvine’s “concerns” about Dr. 21 Delashaw’s “potentially unnecessary” surgeries on the grounds that Dr. Goodwin is a radiologist, not a neurosurgeon, and that Dr. Goodwin appears to have misunderstood the purpose of some of 2 Dr. Delashaw’s procedures. (See id. at 9.) Dr. Delashaw’s opinions about Dr. Goodwin’s opinions are not “omitted facts” but rather Dr. Delashaw’s counter-opinions. ORDER - 40 Case 2:18-cv-0053/-JLR Document 160 *SEALED* Filed 06/11/20 Page 41 of 78 1 ||room” without mentioning “the fact that the two were not alone and that several others 2 || were in the same room during the wife’s attack.” See id. (citing Memphis Pub’g Co., 569 3 ||S.W.2d at 419). That report was defamatory because it left a “clear implication” that the 4 || husband and the second woman were having an affair. See id. 5 Unlike Memphis Publishing, however, where “omitted information would have 6 || negated the defamatory implication in its entirety,” see id., Dr. Delashaw cannot identify 7 || any omitted facts that would directly negate any of the statements or impressions about 8 || potentially unnecessary surgeries in the Second Times Article. (See Times MSJ Resp. at 9 ||9-12.) Even if the court assumes Dr. Delashaw has a point that the Times could have 10 || reported on the issue of unnecessary surgeries in a more neutral fashion, that does not 11 make any of the Times’ statements false by implication. See Mohr, 108 P.3d at 776-77. 12 || Thus, the statements in the Second Times Article about unnecessary surgeries cannot 13 || support Dr. Delashaw’s defamation claim. 14 c. Concurrent Surgeries 15 The third group of statements from the First and Second Times Articles that Dr. 16 || Delashaw alleges defamed him relate to SNI’s alleged practice of engaging in concurrent 17 || surgeries. Dr. Delashaw claims that the Times falsely reported that “Dr. Delashaw 18 || abandoned his patients to maximize volume.” (See Times MSJ Resp. at 12-13.) In 19 || support of that claim, he quotes snippets of the following passages from the Second 20 || Times Article: 21 The hospital touts its star surgeons to draw patients from hundreds of miles away, but six current and former staffers said those doctors will sometimes 22 do little in the operating room once the patient is under anesthesia. Instead, ORDER - 41 Case 2:18-cv-0053/7-JLR Document 160 *SEALED* Filed 06/11/20 Page 42 of 78 1 the surgeons will leave less-experienced doctors receiving specialized training to handle parts of a surgery. That allows the primary surgeons to be 2 in another operating room—a practice known as “concurrent surgery”—to maintain high volumes. It is not prohibited but can test the limits of Medicare 3 rules. 4 edes 5 To manage their caseloads, Cherry Hill’s top doctors will run multiple operating rooms at a time, according to six current and former staffers. 6 Concurrent surgeries aren’t prohibited by law. Medicare allows 7 simultaneous surgeries if the attending physician is present during “critical” portions of each procedure. 8 It’s acommon practice to have residents and fellows perform basic tasks, like 9 stitching up a patient, when the surgery is largely complete. Fellows may also take on larger tasks while the attending doctor supervises. 10 (See id. (citing 2d Times Art. at ST_041676, 79).) Dr. Delashaw argues that these 11 passages imply that he “abandoned his patients to maximize volume” and that he was 12 “not present during the ‘critical’ portion [of procedures] because he had raced to another 13 operation.” (See Times MSJ at 12-13.) 14 Dr. Delashaw also argues that portions of the following passage about T.G. in the 15 First Times Article included “weasel words” that conveyed the message that Dr. 16 Delashaw “neglected patients by leaving operating rooms the minute they were 17 unconscious, endangering them and creating risk of the kind of injury suffered by 18 [T.G.]”: 19 The available medical records don’t show how much time [Dr.] Delashaw 20 spent in the operating room while [T.G.] was under anesthesia. [Dr.] Delashaw and a spokeswoman for Swedish declined to comment for this 21 story, citing patient privacy. 22 ORDER - 42 Case 4:1o-CV-O0oS/-JLR Document 160 *SEALED* Filed 06/11/20 Page 43 of 78 1 [Dr.] Delashaw’s surgical fellow filed the initial surgery note after [T.G.]’s procedure, and then records indicate [Dr.] Delashaw filed a more detailed 2 one a few days later. The note does not include when [Dr.] Delashaw arrived in the operating room, and it’s unclear who handled certain parts of the 3 surgery. 4 [Dr.] Delashaw wrote that he was “present” during critical portions of the surgery. 5 (See id. at 14 (citing 1st Times Art. at ST_041673).) 6 The problem with Dr. Delashaw’s argument is that he accuses the Times of 7 making statements it did not make. The Second Times Article’s bulleted summary states 8 that “six current and former staffers” informed the Times that certain surgeons “will 9 sometimes do little in the operating room once the patient is under anesthesia” and will 10 “leave less-experienced doctors receiving specialized training to handle parts of a 11 surgery.” (2d Times Art. at 041676.) The Second Times Article further claims that 12 this practice “allows the primary surgeons to be in another operating room.” The Times 13 specifically expounded on these claims in the body of the article, noting that Medicare 14 requires that an attending physician be present for the “critical” portions of a procedure 15 and stating that it is “common practice to have residents and fellows perform basic 16 tasks .. . when a surgery is largely complete.” (See id. at ST_041679.) 17 Dr. Delashaw does not argue that any of these statements are false. (See generally 18 Times MSJ Resp.) He does not, for example, provide any evidence showing that the 19 Times fabricated the accounts of the “six current and former staffers” who allegedly told 20 the Times that some surgeons “do little in the operating room once the patient is under 21 anesthesia.” (See Times MSJ Resp. at 12-14; 2d Times Art. at ST_041676.) Dr. 22 ORDER - 43 Case 2:10-CV-O05S/-JLR Document 160 *SEALED* Filed 06/11/20 Page 44 of 78 1 || Delashaw also does not argue that the statement that SNI surgeons left “less experienced 2 doctors receiving specialized training to handle parts of a surgery” was false, or that there 3 || were not circumstances in which an SNI surgeon would be scheduled for simultaneous 4 || procedures, such that the surgeon had to be “in another operating room” at some point 5 || during the procedure. (See Times MSJ Resp. at 12-14; 2d Times Art. at ST_041676.) 6 In fact, the only available evidence shows that Dr. Delashaw participated in the 7 || kinds of simultaneous procedures about which the Second Times Article reported and 8 || was not present for the entirety of every surgical procedure. Swedish commissioned a | he ae | | eeeniel presi rnin 1 || iE See 1st Goldman Decl. 7 36, Ex. 34 at 12 || JDEL_042124.) Dr. Delashaw further acknowledged at his deposition that attending 13 || surgeons were not always present for the entirety of every surgery. (See Delashaw Dep. 14 |} at 213:17-215:11; 217:1-8.) He testified, for example, that while a junior surgeon was 15 || making the incision or stitching up the patient, he “might be in another operating room, 16 [] might be seeing a clinic patient, or [] might be sitting in the operating room 17 || watching.” (See id. at 298:3-9.) Moreover, before the Times published the Articles, Dr. 18 || Delashaw conceded to the Times that “[s]urgeries at many institutions such as ours occur 19 || in concurrent rooms by a team of surgeons. These surgeries are staggered so that the 20 || attending of record is present for at least the key portions of each procedure. Other 21 || attending surgeons are available if needed.” (See 1st Goldman Decl. § 40, Ex. 38 at 22 ||ST_0030713.) One of Dr. Delashaw’s former physician’s assistants also declared that ORDER - 44 Case 2:18-cv-0053/7-JLR Document 160 *SEALED* Filed 06/11/20 Page 45 of 78 1 || “[p]atients always were informed that Dr. Delashaw would not be present for the entire 2 || surgical procedure[] but would be there for the critical portions.” (See Dancan Decl. 3 || (Dkt. # 125) 11.) Instead of attempting to refute the claims that the Times made in the Second 5 || Times Article, Dr. Delashaw erects straw men in hopes of surviving summary judgment. 6 || He argues that the Times alleged that he “abandoned his patients to maximize volume” 7 || and that he was “not present during the ‘critical’ portion [of procedures] because he had 8 raced to another operation.” (See Times MSJ at 12-13.) Not so. The Second Times 9 || Article never accuses Dr. Delashaw—or any SNI surgeon, for that matter—of being 10 || absent during “critical” portions of a procedure. (See generally 2d Times Art.) To the 11 contrary, the Times noted that Medicare required an attending physician’s presence 12 || during the critical portion of procedures, and also quoted one of Dr. Delashaw’s former 13 || fellows who stated that Dr. Delashaw was always clear about what portions of the 14 || surgery were “critical” and that even on surgeries that did not have “critical” portions, Dr. 15 || Delashaw would continue to supervise and check on the fellow’s work. (See id. at 16 ||ST_041679.) Dr. Delashaw cannot succeed on defamation claims against the Times 17 || based on allegedly defamatory statements that the Times never made. 18 Dr. Delashaw’s arguments about the First Times Article fare no better. In the First 19 || Times Article, the Times stated that “[t]he available medical records” and a note from a 20 || surgical fellow about T.G.’s treatment did not “show how much time Delashaw spent in 21 operating room while [T.G.] was under anesthesia,” “when Delashaw arrived in the 22 || operating room,” or “who handled certain parts of the surgery.” (See Ist Times Art. at ORDER - 45 Cas€ 4.1o-CV-UUoS/-JLR Document 160 *SEALED* Filed 06/11/20 Page 46 of 78 1 || ST_041673.) Dr. Delashaw does not dispute the veracity of any of these statements. 2 ||(See Times MSJ Resp. at 14-15.) Instead, he accuses the Times of using “weasel words” 3 convey that Dr. Delashaw was “driven by greed” and neglected his patients. (See id. at 4 As noted above, however, “[a] defamation claim may not be based on the negative 5 implication of true statements. This is because defamatory meaning may not be imputed 6 || to true statements.” U.S. Mission Corp., 292 P.3d at 141. 7 In sum, the court concludes that the Times is entitled to summary judgment with 8 || respect to Dr. Delashaw’s defamation claims to the extent they are based on statements in 9 || the First and Second Times Articles about concurrent surgeries. 10 d. Misleading Data 11 The fourth category of statements from the Quantity of Care series that Dr. 12 || Delashaw alleges defamed him relates to the Times’ use of medical data from Swedish 13 || Cherry Hill. Dr. Delashaw argues that the Second Times Article misleads readers by 14 || “referring interchangeably to SNI and Cherry Hill, conflating the two so that, as the 15 || article progressed, SNI went from a unit of Cherry Hill to the equivalent of Cherry Hill.” 16 Times MSJ Resp. at 15.) According to Dr. Delashaw, this sleight of hand allowed 17 || the Times to use data relating to Cherry Hill as a whole to imply that SNI had high 18 || complication rates that were below “the neurosurgical norm,” when in reality SNI’s 19 || outcomes were “better than comparable institutions.” (See id. at 15-16.) Dr. Delashaw 20 || also avers that the Times used data from Cherry Hill to “falsely impl[y] a causal 21 || connection between Dr. Delashaw and purported increased stroke rates at SNI.” (See id. 22 16-17.) ORDER - 46 Case 2:18-cv-0093/-JLR Document 160 *SEALED* Filed 06/11/20 Page 4/7 of 78 1 The court rejects Dr. Delashaw’s arguments. The Second Times Article quite 2 || clearly refers to “Cherry Hill” in reference to the Swedish campus as a whole and reports 3 || on what the data about “Cherry Hill” showed at the time. (See, e.g., 2d Times Art. at 4 || ST_041676 (“In benchmarks tracked by the federal government, Cherry Hill was flagged 5 || for having high rates of blood clots, collapsed lungs and serious surgical 6 || complications.”), ST_041679 (“Among 10 patient safety indicators published by the 7 || federal government, Cherry Hill ranked below national levels in three areas in the data 8 || through the middle of 2015: blood clots after surgery, collapsed lungs and serious 9 || complications.”).) Dr. Delashaw does not dispute the veracity of any of this data. (See 10 || Times MSJ Resp. at 15-17.) Instead, he argues that the Times should have done more to 11 || clarify that this data included the “ICU, the cardiac institute, and a vascular service” at 12 || Cherry Hill in addition to data from SNI. (See id. at 16.) He also complains that the 13 || Times failed to include SNI-specific data that “showed that SNI’s outcomes were better 14 || than comparable institutions.” (See id.) But even if the Times could have included other 15 || data or framed the data it did include in a way that Dr. Delashaw would have preferred, 16 || that does not mean that the statements the Times made about data at Cherry Hill are false 17 || or false by implication. See Mohr, 108 P.3d at 776. Absent a genuine dispute of material 18 || fact that the data the Times reported was false or false by implication, Dr. Delashaw’s 19 || defamation claims cannot stand on the Times’ reporting of that data. 20 Dr. Delashaw’s claim that the times “falsely implied a causal connection” between 21 || him and “purported increased stroke rates at SNI” fails for similar reasons. (See Times 22 ||MSJ Resp. at 17.) First, the Times never reported on “increased stroke rates at SNI.” ORDER - 47 Case 2:16-Cv-Q003/-JLR Document 160 *SEALED* Filed 06/11/20 Page 48 of 78 1 || Instead, the Times noted that the stroke rate at Cherry Hill was high compared to other 2 || hospitals during Dr. Delashaw’s tenure: “From the time Delashaw arrived at Cherry Hill 3 ||in October 2013 through the end of 2015, 9 percent of the aneurysm patients treated at 4 || Cherry Hill developed an ischemic stroke during their stay, compared with 4 percent at 5 || all other hospitals in the state. When looking at just clipping procedures, Cherry Hill’s 6 || stroke rate was twice that of other hospitals—14 percent to 7 percent.” (See 2d Times 7 || Art. at ST_041679.) But Dr. Delashaw fails to dispute that stroke rates were, in fact, high 8 || at Cherry Hill compared to other hospitals during Dr. Delashaw’s tenure. (See Times 9 ||MSJ Resp. at 16-17.) Instead, he argues that the Times should have analyzed and 10 || reported on the data in ways that would have painted SNI in a more favorable light. (See 11 ||id.) Again, however, the critical failure of Dr. Delashaw’s argument is that “[m]erely 12 || omitting facts favorable to the plaintiff or facts that the plaintiff thinks should have been 13 || included does not make a publication false and subject to defamation liability.” Mohr, 14 || 108 P.3d at 776. Thus, the court concludes that the Times is entitled to summary 15 || judgment with respect to Dr. Delashaw’s defamations claims to the extent they are based 16 || on statements about misleading data in the Second Times Article. 17 e. Patient Harm 18 The final group of statements from the Quantity of Care series that Dr. Delashaw 19 || alleges defamed him are about patient harm at SNI. The parties do not agree on the 20 || statements at issue in this category. The Times argues that Dr. Delashaw bases his claim 21 the following statement from the Second Times Article: “[T]he aggressive pursuit of 22 more patients, more surgeries and more dollars has undermined Providence’s values— ORDER - 48 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 49 of 7/8 1 || rooted in the nonprofit’s founding as a humble home where nuns served the poor—and 2 || placed patient care in jeopardy, a Seattle Times investigation has found.” (2d Times Art. 3 ST_041676; Times MSJ at 15.) Dr. Delashaw does not point out any specific 4 || statement from either the First or Second Times Article that he claims is demonstrably 5 || false. (See Times MSJ Resp. at 17-21.) Instead, he contends that the First and Second 6 || Times Articles, taken as a whole, falsely imply that Dr. Delashaw and SNI caused 7 || patients harm. (See id. at 17 (“The Times falsely implied that Dr. Delashaw and SNI in 8 || fact harmed patients.”’).) 9 The court agrees with Dr. Delashaw that the First and Second Times Articles 10 |/imply that Dr. Delashaw and SNI placed patients at risk. In fact, the sentence that the 11 || Times quotes specifically states that Swedish Cherry Hill’s practices have “placed patient 12 || care in jeopardy.” (2d Times Art. at ST_041676.) Similarly, the point of the First Times 13 || Article was to report on the actual harm caused to T.G. while she was in Swedish’s care 14 || (see generally 1st Times Art.), and the Times does not dispute Dr. Delashaw’s claim that 15 || the First Times Article implied that Dr. Delashaw and Swedish bore some measure of 16 || responsibility for that harm (see, e.g., Times Reply 10-12). Indeed, the Times argues that 17 || the “gist” of the Articles is “that SNI faced substantial challenges under the disruptive 18 || and abusive leadership of Dr. Delashaw which caused many surgeons, nurses and 19 || administrators to quit, incentivized astronomically high production among surgeons, and, 20 || according to Swedish surgeons, nurses, administrators, and patients, put patients at risk.” 21 ||(Ud. at 2.) Thus, there is no dispute that the Times directly stated and indirectly implied 22 || that Swedish Cherry Hill, SNI, and Dr. Delashaw “put patients at risk.” ORDER - 49 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 50 of 78 1 The question, however, is whether Dr. Delashaw can show that any of the 2 || statements the Times made about patient harm are “‘provably false, either in a false 3 || statement or because [they] leave[] a false impression.” Mohr, 108 P.3d at 775. Dr. 4 || Delashaw’s opposition makes plain that his defamation argument rests on a defamation 5 || by implication or defamation by omission theory. (See, e.g., Times MSJ Resp. at 17-22.) 6 || Thus, as discussed above, Dr. Delashaw bears the burden to show that the First and 7 Second Times Articles left readers with “a false impression that would be contradicted by 8 || the inclusion of omitted facts.” Mohr, 108 P.3d at 776. 9 Dr. Delashaw cannot meet this burden because he fails to identify any omitted 10 || facts that would contradict the impression left by the First and Second Times Articles. 11 || Regarding the Second Times Article, Dr. Delashaw claims that the Times should have: 12 included SNI-specific data showing that “complications were lower [at SNI] than at 13 || comparable facilities and stable”; (2) reported on the “independent studies [that] find that 14 || surgeons performing high volumes of surgeries have better outcomes”; (3) stated that 15 || there is “no evidence that overlapping surgeries . . . lead to worse outcomes”; and (4) 16 || reported that “there is no evidence that Dr. Delashaw’s choice of surgical procedures 17 caused harm.” (See Times MSJ Resp. at 17-18.) Even if the court assumed that Dr. 18 || Delashaw could prove at trial that each of these proposed additions were “omitted facts,” 19 ||none of these additions “contradict” the impression that Dr. Delashaw takes issue with— 20 || that Swedish Cherry Hill, SNI, and Dr. Delashaw engaged in practices that placed 21 || patients at risk or caused patients harm. 22 ORDER - 50 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 51 of 78 1 At most, the addition of these points may have created a more balanced report on 2 || the goings-on at Swedish Cherry Hill and SNI that would have painted Dr. Delashaw in a 3 more favorable light. But, as discussed in detail above, see supra § III.C.2.b, absent 4 || evidence of “omitted facts” that would “negate the asserted defamatory implication in its 5 || entirety,” Dr. Delashaw’s argument that the Second Times Article could have approached 6 || the issue of potential patient harm in a more neutral fashion is not sufficient to support his 7 defamation claim. See Mohr, 108 P.3d at 776 (citing cases in which courts found that the 8 || omission of facts that could have “led to a more balanced report” or “portrayed the 9 || subject in a more favorable light” were inadequate absent a showing of falsity); Sisley v. 10 || Seattle Pub. Sch., 321 P.3d 276, 279-80 (Wash. Ct. App. 2014) (“The mere omission of 11 || facts favorable to the plaintiff or facts the plaintiff thinks should have been included in a 12 || publication does not make that publication false.”). Unlike Memphis Publishing, where 13 “omitted information would have negated the defamatory implication in its entirety,” see 14 || Mohr, 108 P.3d at 776, Dr. Delashaw does not identify any omitted facts that would 15 || directly negate the Times’ implication that Swedish, SNI, and Dr. Delashaw placed 16 || patients at risk. Instead, he relies on a series of counterarguments that he believes the 17 || Times should have included to report on the issues in a more balanced manner. (See 18 || Times MSJ Resp. at 17-18.) But even if Dr. Delashaw has a reasonable argument that the 19 || Times could have approached the question of patient harm at Swedish Cherry Hill with a 20 || more balanced mindset, that does not make any of the Times’ statements false by 21 implication. See Mohr, 108 P.3d at 776-77. 22 ORDER - 51 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 52 of 78 1 Dr. Delashaw’s argument about the First Times Article suffers from the same 2 || deficiencies. Dr. Delashaw does not argue that the Times falsely reported any of his 3 || actions in treating T.G. (See Times MSJ Resp. at 17-21.) Instead, he argues that the 4 || “inescapable implication” of the First Times Article “is that Dr. Delashaw’s practices 5 || caused [T.G.’s] death.” (See id. at 19.) The court disagrees with Dr. Delashaw that the 6 || Times reported that Dr. Delashaw directly “caused” T.G.’s death. The First Times 7 || Article specifically stated that “Swedish’s doctors performed an autopsy but reported that 8 || they were unable to pinpoint the cause of [T.G.]’s sudden inability to breathe. Her 9 || parents still don’t know exactly what happened.” (1st Times Art. at ST_041675.) 10 || However, the court concludes that a reasonable fact-finder could conclude that the First 11 || Times Article implies that Swedish and Dr. Delashaw contributed to her death. That 12 || conclusion does not resolve the issue, however. Dr. Delashaw still bears the burden to 13 || establish that the Times’ implication that he caused T.G.’s death is provably false. See 14 || Mohr, 108 P.3d at 776-77. Dr. Delashaw fails to carry that burden because he does not 15 || identify omitted facts that would contradict the Times’ reporting that Dr. Delashaw’s 16 || treatment played a part in T.G.’s death and render it a false implication under Washington 17 ||law. Dr. Delashaw argues that the Times (1) failed to include sufficient detail about 18 || T.G.’s post-surgical care by non-surgical medical staff, (2) insinuated that Dr. Delashaw 19 || caused T.G.’s death even though the Times had “‘drawn no conclusion about what caused 20 death”; (3) failed to mention that T.G.’s wrongful death complaint did not name Dr. 21 || Delashaw; and (4) had “no information suggesting that Dr. Delashaw was responsible for 22 || her death or for any patient death.” (See Times MSJ Resp. at 19.) Again, the issue with ORDER - 52 Case 2:16-CV-U095/-JLR VDoCUMeNT LOU *SEALED* Filed Vo/LiizU Frage 29 OT /o 1 || each of these proposed additions is that none of them “negate the asserted defamatory 2 || implication in its entirety.”!! See Mohr, 108 P.3d at 776-77. Thus, Dr. Delashaw has not 3 || carried his burden to show that the implications in the First Times Article are false. 4 At bottom, the gravamen of Dr. Delashaw’s complaints about this category of 5 || statements from the Quantity of Care series is that the Times’ reporting about patient 6 || harm was unfair and unbalanced. Even if he could establish at trial that the Times’ 7 ||reporting about patient harm unfairly cast him in a bad light, however, that does not 8 || establish that the Times made false or impliedly false statements. '* 9 f Summary 10 In sum, the court GRANTS in part and DENIES in part the Times’ motion for 11 ||}summary judgment on Dr. Delashaw’s defamation claims against the Times. Dr. 12 || Delashaw provides evidence sufficient to establish a genuine dispute of material fact on 13 14 'l There are a myriad of other problems with these alleged omissions in addition to the fact that they do not contradict the allegedly false implication in the First Times Article. For 15 example, Dr. Delashaw’s argument that the Times did not have adequate information to imply that Dr. Delashaw caused T.G.’s death incorrectly assumes that the Times bears the burden to 16 || Prove that its implication was true. See Sisley v. Seattle Sch. Dist. No. 1,286 P.3d 974, 978 (Wash. Ct. App. 2012). Dr. Delashaw bears the burden to show that the Times made false implications, see id., and he cannot carry that burden by suggesting that the Times had 17 inadequate information to make implications about T.G.’s cause of death. Dr. Delashaw also ignores important language in the First Times Article that does not suit his arguments. As an 18 || example, although Dr. Delashaw argues that the Times should have stated that Dr. Delashaw was not sued by T.G.’s parents, he fails to mention that the First Times Article specifically states that 19 || T.G.’s parents “filed a lawsuit against the hospital,” without ever mentioning Dr. Delashaw or any specific providers who were or were not included in the lawsuit. (See 1st Times Art. at 20 || ST_041675.) 1 '2 Because the court finds that Dr. Delashaw cannot establish a genuine dispute of material fact on the falsity element of the Times’ statements about patient harm, the court declines to address the Times’ argument that its statement about placing patient care in “jeopardy” is a non-actionable statement of opinion. (See Times MSJ at 15-19.) ORDER - 53 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 34 of /8 1 || the falsity of the Times’ claims about Dr. Delashaw’s financial incentives to pursue a 2 high patient volume. Thus, the court DENIES the Times’ motion for summary judgment 3 || insofar as Dr. Delashaw’s defamation claims rely on those statements. For the remainder 4 || of the statements that Dr. Delashaw relies on, however, Dr. Delashaw has failed to 5 || establish a genuine dispute of material fact on the falsity element of his defamation claim. 6 || Thus, the court GRANTS the Times’ motion for summary judgment on the remainder of 7 Delashaw’s defamation claims against the Times. 8 3. Tortious Interference 9 The Times offers a short argument in support of its motion for summary judgment 10 || on Dr. Delashaw’s tortious interference claim: “Dr. Delashaw . .. may not avoid the free 11 || speech protections of defamation law by pleading [tortious interference] based on the 12 || [same] allegedly defamatory statements.” (See Times MSJ at 19.) The Times also cites a 13 || handful of Washington and Ninth Circuit cases that hold that tortious interference claims 14 || based on protected speech are “subject to the same First Amendment requirements that 15 || govern actions for defamation.” Gardner v. Martino, 563 F.3d 981, 992 (9th Cir. 2009); 16 || Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806, 821 (9th Cir. 17 || 2002); Elec. Recycling Ass’n of Alta. v. Basel Action Network, No. C18-1601MJP, 2019 18 || WL 1453575, at *4 (W.D. Wash. Apr. 2, 2019) (“A tortious interference claim brought as 19 ||a result of constitutionally protected speech is subject to the same requirements that 20 || govern actions for defamation.”); Stidham v. State, Dep’t of Licensing, 637 P.2d 970, 973 21 || (Wash. Ct. App. 1981). Dr. Delashaw did not respond to the Times’ argument. (See 22 || generally Times MSJ Resp.) ORDER - 54 Case 42:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 55 of 78 1 Although the court expresses its frustration with the limited effort that the Times’ 2 || expended raising this argument, the court agrees with the Times that Dr. Delashaw’s 3 || tortious interference claim rises and falls with his defamation claims. Dr. Delashaw 4 || bases his tortious interference claim entirely on the Times’ allegedly defamatory 5 || publications. (See Am. Compl. § 183 (“The Times intentionally induced or caused the 6 || termination of these business relationships and expectancies through its repeated 7 || publication of false and defamatory statements about Dr. Delashaw.”).) Thus, his tortious 8 || interference claim is “subject to the same requirements that govern actions for 9 || defamation.” Elec. Recycling Ass’n of Alberta, 2019 WL 1453575, at *4. Accordingly, 10 || the court GRANTS in part and DENIES in part the Times’ motion for summary judgment 11 Dr. Delashaw’s tortious interference claim to the same extent as Dr. Delashaw’s 12 defamation claims. See supra § III.C.2.f. 13 Dr. Cobbs’ Summary Judgment Motion 14 Dr. Cobbs moves for summary judgment on Dr. Delashaw’s defamation, civil 15 || conspiracy, and tortious interference claims. (See generally Cobbs MSJ.) He raises four 16 || arguments in support of his motion: (1) Dr. Delashaw’s claims are barred by collateral 17 || estoppel (see id. at 13-17); (2) Dr. Delashaw’s claims fail to the extent that they are based 18 Dr. Cobbs’ intracorporate statements because those statements are privileged (see id. 19 || at 17-20); (3) Dr. Delashaw’s claims fail to the extent that they are based on Dr. Cobbs’ 20 || statements to MQAC because those statements are privileged under Washington’s Anti 21 || Strategic Litigation Against Public Participation (“Anti-SLAPP”) statute, RCW 4.24.510 22 || (see id. at 20-23); and (4) Dr. Delashaw is barred from seeking damages for reputational ORDER - 55 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 36 of /8 1 || harm under the Uniform Correction or Clarification of Defamation Act (“UCCDA”), 2 || RCW 7.96.050 (see id. at 23-24). The court addresses each argument in turn. 3 L Issue Preclusion 4 Dr. Cobbs argues that the MQAC Order includes a number of determinative 5 || factual findings that Dr. Delashaw is barred from relitigating in this case under the 6 || doctrine of collateral estoppel, or issue preclusion.'? (See Cobbs MSJ at 10-13.) Federal 7 || courts must give the same preclusive effect to state court judgments as would the courts 8 || of that state. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). This 9 can apply to state agency fact finding. Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 10 || (1986) (“[W]hen a state agency ‘acting in a judicial capacity . . . resolves disputed issues 11 || of fact properly before it which the parties have had an adequate opportunity to litigate,’ 12 || federal courts must give the agency’s factfinding the same preclusive effect to which it 13 || would be entitled in the State’s courts.”) (quoting United States v. Utah Constr. & Mining 14 || Co., 384 U.S. 394, 422 (1966)). Thus, the key question is whether the MQAC Order is 15 || entitled to preclusive effect under Washington law. 16 In Washington, seven factors must be met in order to give preclusive effect to 17 || agency fact finding—four generally applicable issue preclusion factors and three that are 18 19 '3 Washington courts often use the terms “issue preclusion” and “collateral estoppel” interchangeably. See, e.g., Christensen v. Grant Cty. Hosp. Dist. No. 1,96 P.3d 957, 960 (Wash. 20 || 2004). For purposes of this order, however, the court follows the United States Supreme Court’s guidance and uses the term “issue preclusion.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) 1 (“Issue preclusion . . . bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim.”) (quoting New Hampshire v. Maine, 532 U.S. 742, 748-49 22 (2001)). ORDER - 56 Case AeeeneD Oa Pa Document 160 *SEALED* Filed 06/11/20 Page 5/ of 78 1 || specific to agency fact finding. First, for issue preclusion to apply to any Washington 2 || findings—from an agency or otherwise—the party seeking to apply preclusion must 3 establish that: 4 (1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding, (2) the earlier proceeding ended in a 5 judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding, 6 and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. Christensen, 96 P.3d at 961 (citations omitted). Three additional factors must be considered before granting preclusive effect to agency findings: “(1) whether the agency ° acted within its competence, (2) the differences between procedures in the administrative ° proceeding and court procedures, and (3) public policy considerations.” Jd. at 961-62 (citations omitted). Dr. Cobbs’ preclusion argument fails on the first element—identity of issues. For issue preclusion to apply here, Dr. Cobbs bears the burden to show that the issues decided in the MQAC Order are identical “in all respects” to the issues in this case that he seeks to preclude Dr. Delashaw from relitigating, such that “the controlling facts and applicable ° legal rules remain unchanged” in both proceedings. See Lemond v. State, Dep't of Licensing, 180 P.3d 829, 833 (Wash. Ct. App. 2008) (quoting Standlee v. Smith, 518 P.2d 721, 722-23 (Wash 1974)). He fails to carry that burden. The MQAC Order states that the issues before MQAC in Dr. Delashaw’s disciplinary hearing were: (1) “Did [Dr. Delashaw] commit unprofessional conduct as defined by RCW 18.130.180(4)?”; and (2) “If [DOH] proves unprofessional conduct, what are the appropriate sanctions under RCW ORDER - 57 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 33d of /3 1 || 118.130.1602” (See 1st Baer Decl. J 3, Ex. 35 at JDEL_013094.) RCW 18.130.180(4) 2 || defines “unprofessional conduct” as: 3 Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed. The use 4 of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an 5 unreasonable risk that a patient may be harmed[.] 6 || RCW 18.130.180(4). 7 In this case, in contrast, the issues before the court turn on whether Dr. Cobbs 8 || defamed and conspired against Dr. Delashaw by making false statements to Swedish and 9 || MQAC about Dr. Delashaw. (See, e.g., Am. Compl. §§ 50-98.) The MQAC Order did 10 || not make specific factual findings on the veracity of Dr. Cobbs’ statements or determine 11 Dr. Cobbs did not conspire against Dr. Delashaw because those issues were not in 12 || front of MQAC. (See generally 1st Baer Decl. § 3, Ex. 35.) Instead, MQAC was tasked 13 || with determining whether Dr. Delashaw engaged in unprofessional conduct under a 14 || specific Washington statute. (See id. at JDEL_013094.) Although the court recognizes 15 || that MQAC’s inquiry into Dr. Delashaw’s alleged unprofessional conduct bears some 16 || relation to the question of whether Dr. Cobbs’ accounts of Dr. Delashaw’s unprofessional 17 || conduct were false, issue preclusion requires issues that are identical “in all respects.” 18 || See Lemond, 180 P.3d at 833 (quoting Standlee, 518 P.2d at 722-23). Because Dr. Cobbs 19 || fails to make that showing of identity, issue preclusion is inapplicable.'* Thus, the court 20 || DENIES Dr. Cobbs’ motion for summary judgment on issue preclusion. 21 2 '4 Because the court rejects Dr. Cobbs’ preclusion argument on the identity of issues requirement, the court will not address the other requirements of issue preclusion. ORDER - 58 Case 4:18-cv-0053/7-JLR Document 160 *SEALED* Filed 06/11/20 Page 59 of /8 1 2, Intracorporate Privilege 2 Dr. Cobbs next argues that Dr. Delashaw cannot base his claims for defamation on 3 || Dr. Cobbs’ internal statements at Swedish because those statements are subject to an 4 || intracorporate communications privilege.'° (See Cobbs MSJ at 17-20.) “Liability for 5 || defamation requires that the defamation be communicated to someone other than the 6 || person defamed; in other words, there must be a ‘publication’ of the defamation.” Doe v. 7 || Gonzaga Univ., 24 P.3d 390, 397 (Wash. 2001), rev'd on other grounds, 536 U.S. 273 8 ||(2002). Intracorporate communications between co-employees are subject to a qualified 9 || privilege. See id. at 398 (stating that intracorporate communications are not “absolutely 10 || privileged’). A defendant may forfeit the privilege in five ways: (1) by acting with 11 || actual malice; (2) by not acting for the purpose of protecting the interest; (3) by 12 || knowingly publishing the matter to a person to whom the publication is not otherwise 13 || privileged; (4) by not reasonably believing that the matter is necessary to accomplish the 14 || purpose for which the privilege is given; and (5) by publishing unprivileged and 15 || privileged matter. See Moe v. Wise, 989 P.2d 1148, 1157 (Wash. Ct. App. 1999) (internal 16 || citations omitted). 17 a. Actual Malice 18 The first issue with regard to privilege is whether Dr. Cobbs forfeited the 19 || intracorporate communications privilege by making statements to Swedish with actual 20 She. Gobbualze elaine that it Dr. Delashaw’s defamation claims fail, his civil 2 conspiracy and tortious interference claims based on those statements also fail. (See Cobbs MSJ at 19-20.) ORDER - 59 Case eer QosaT ILA Document 160 *SEALED* Filed 06/11/20 Page 60 of /8 1 ||malice. (See Cobbs MSJ Resp. at 8, 10-11.) Actual malice exists when a false statement 2 || is made “with knowledge of its falsity or with reckless disregard of its truth or falsity.” 3 || Gonzaga Univ., 24 P.3d at 398 (quoting Herron v. KING Broad. Co., 746 P.2d 295, 301 4 || (Wash. 1987)). “To prove actual malice a party must establish that the speaker knew the 5 || statement was false, or acted with a high degree of awareness of its probable falsity, or in 6 || fact entertained serious doubts as to the statement’s truth.” /d. (citations omitted). “The 7 || standard for determining ‘actual malice’ is subjective, focusing on the defendant’s belief 8 || in or attitude toward the truth of the statement, not the defendant’s personal hostility 9 || toward the plaintiff.” Herron, 746 P.2d at 302 (citations omitted). Dr. Delashaw bears 10 || the burden of proving actual malice by clear and convincing evidence. See Gonzaga 11 || Univ., 24 P.3d at 398 (approving the portion of a defamation jury instruction that stated 12 || that “[t]he plaintiff has the burden of proving ‘actual malice’ . . . by clear and convincing 13 || evidence’). 14 Dr. Delashaw alleges that Dr. Cobbs made statements on the following topics with 15 || actual malice: (1) “that there had been a mass exodus of surgeons from SNI”; (2) that 16 || departures from SNI were due to “concerns about quality and an abusive work 17 || environment related to Dr. Delashaw”; (3) “that Dr. Delashaw had forced all referrals to 18 || go to him”; (4) “that there had been a vote of no confidence in Dr. Delashaw”; (5) “that 19 || Dr. Cobbs’[] purported concerns were shared by 14 neurosurgeons”; and (6) “that a 20 || document constituted ‘minutes’ of a meeting”; and (7) “falsely claiming that SNI 21 || surgeons were unanimous in opposing Dr. Delashaw.” (See Cobbs MSJ Resp. at 8, 22 10-11.) The court concludes that Dr. Delashaw establishes a genuine dispute of material ORDER - 60 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 61 of 78 1 || fact on two of these seven categories of statements—Dr. Cobbs’ claims that (1) SNI 2 surgeons unanimously opposed Dr. Delashaw and (2) Dr. Delashaw caused the mass 3 || personnel departures from SNI. 4 In Dr. Cobbs’ November 2016 letter to Mr. Armada, Dr. Cobbs attaches what he 5 || refers to as “meeting minutes” from an October 31, 2016 meeting held between Swedish 6 || administration and a number of Swedish physicians. (See 1st Baer Decl. 3, Ex. 26 at 7 || COBBS00002371-73.) In those minutes, Dr. Cobbs states that the “surgeons group 8 || unanimously identified serious concerns in three domains” and also that “[t]he group 9 || stated that at the current time, there is unanimous lack of confidence and trust in the 10 || leadership of Dr. Delashaw, and that we essentially feel zero confidence in his ability to 11 || self-correct and return to a position of trust amongst the group.” (See id. at 12 || COBBS00002371-72.) During his deposition, Dr. Cobbs stated that even though he 13 || referred to the “unanimous” opinion of the “surgeons group” in his meeting minutes, he 14 || did not intend to imply that the surgeons who attended the meeting in question but had 15 || been at SNI for less than six months shared Dr. Cobbs’ opinion on Dr. Delashaw. (See 16 || Cobbs Dep. at 91:15-94:3.) According to Dr. Cobbs, he “maybe should have specified” 17 || that the “brand new” surgeons at the meeting were not included in his “surgeons group” 18 || because those new surgeons “didn’t understand sort of where it had been and where it 19 || was going.” (See id. at 92:2-93:5.) Viewed in the light most favorable to Dr. Delashaw, 20 || this testimony suggests that Dr. Cobbs was aware that he overstated the “unanimous” 21 ||nature of the agreement amongst the so called “surgeons group” in his letter. 22 ORDER - 61 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 62 of /8 1 Dr. Delashaw has also provided evidence showing that Dr. Cobbs may have 2 || overstated the causal impact that Dr. Delashaw had on personnel departures at Swedish 3 || Cherry Hill. Dr. Cobbs’ letter to Mr. Armada and the meeting minutes repeatedly 4 || reference the significant number of personnel departures from Swedish Cherry Hill as 5 || grounds for concern. (See Ist Baer Decl. 3, Ex. 26 at COBBS00002369-73.) As one 6 example, Dr. Cobbs wrote: 7 In the last two years, we have lost 62 team members from this campus. Our current functionality as a surgical institute is severely limited by decreased 8 ability to staff and support our operating rooms, provide effective and safe care in our ICU/floor, and demonstrate excellence to our patients in the 9 clinical setting. This in turn, has led to a financial downturn for the institute and system. The common thread linking these events is the leadership and 10 management style of Dr. Johnny Delashaw. 11 (See id. at COBBS00002369.) The meeting minutes also include an enclosure that lists 12 || 16 physicians, five members of “O.R. Nursing Leadership,” and seven Swedish “Program 13 || Managers” that had been dismissed by Swedish, had resigned, or had been reassigned or 14 a position eliminated by Swedish. (See id. at COBBS00002375-56.) 15 During his deposition, Dr. Cobbs testified that he did not mean to convey that each 16 || of these individuals left solely because of Dr. Delashaw. (See Cobbs Dep. at 98:15-99:8.) 17 || Rather, his intent was to state that Dr. Delashaw and the “whole change” that was 18 || occurring at Swedish Cherry Hill caused personnel to leave. (See id.) He also testified 19 || that he does not believe that the letter states anywhere that “everybody here was booted 20 || because of [Dr.] Delashaw.” (See id. at 102:4-16.) However, viewed in the light most 21 || favorable to Dr. Delashaw, the language of the letter contradicts Dr. Cobbs’ claims about 22 || what he intended to say. The letter specifically states that “the leadership and ORDER - 62 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 009 OF /o 1 || management style of Dr. Johnny Delashaw” is the “common thread” linking together 2 || Swedish’s recent problems— including the loss of 62 personnel from Swedish Cherry 3 || Hill. (See 1st Baer Decl. § 3, Ex. 26 at COBBS00002369-73.) Moreover, there is also 4 || evidence suggesting that Dr. Cobbs knew or had reason to know that the statement that 5 || Dr. Delashaw was the “common thread” may have been an exaggeration for certain 6 || physicians. Despite identifying Dr. Delashaw as the “common thread” for Swedish’s 7 || problems, Dr. Cobbs testified that he could not offer any opinion on the reasons that at 8 || least two individuals on the enclosed list of departed physicians left Swedish Cherry Hill. 9 || (See Cobbs Dep. at 101:8-16, 102:1-3.) 10 Additionally, although the standard for actual malice focuses on “the defendant’s 11 || belief in or attitude toward the truth of the statement, not the defendant’s personal 12 ||hostility toward the plaintiff... . actual malice can be inferred from circumstantial 13 || evidence, including [the] defendant’s hostility or spite.” Herron, 746 P.2d at 302 14 || (citations omitted). Thus, while “hostility alone will not constitute actual malice,” 15 evidence of the defendants’ hostility toward the plaintiff coupled with other sources of 16 || evidence of actual malice “may be taken into account cumulatively as probative evidence 17 || of actual malice.” See id. (citations omitted). Here, Dr. Delashaw persuasively argues 18 ||that Dr. Cobbs harbored hostility toward him that could be viewed as circumstantial 19 || evidence of actual malice against Dr. Delashaw. (See Cobbs MSJ Resp. at 12-15 20 (compiling statements made by Dr. Cobbs evincing Dr. Cobbs’ animosity toward Dr. 21 ||Delashaw).) Viewed in the light most favorable to Dr. Delashaw, that circumstantial 92 || evidence combined with Dr. Cobbs’ deposition testimony creates a genuine dispute of ORDER - 63 Case 4:18-cv-0053/7-JLR Document 160 *SEALED* Filed 06/11/20 Page 64 of 78 1 || material fact on the questions of whether Dr. Cobbs acted with actual malice in making 2 || statements about surgeon unanimity and the cause of Swedish Cherry Hill’s personnel 3 departure. Thus, the court DENIES Dr. Cobbs’ motion for summary judgment as it 4 || applies to those categories of statements. 5 The court also concludes, however, that Dr. Delashaw has failed to identify a 6 || genuine dispute of material fact on whether Dr. Cobbs acted with actual malice in making 7 || any of the other categories of statements identified in Dr. Cobbs’ letter to Swedish. (See 8 || Cobbs MSJ Resp. at 8, 10-11.) First, Dr. Delashaw takes issue with two statements that 9 || Dr. Cobbs did not actually make in his letter to Swedish: (1) “that there had been a vote 10 || of no confidence in Dr. Delashaw”; and (2) “that Dr. Cobbs’ purported concerns were 11 || shared by 14 neurosurgeons.” (See id.) Dr. Cobbs’ letter says nothing about a supposed 12 confidence” vote. (See generally 1st Baer Decl. § 3, Ex. 26.) Additionally, although 13 || the court concludes that there is a dispute of fact regarding whether Dr. Cobbs’ unanimity 14 claims were made with actual malice, the letter does not state that Dr. Cobbs’ concerns 15 || were “shared by 14 neurosurgeons.” (See generally id.) Indeed, Dr. Cobbs is the only 16 || signatory to the letter. (See id. at COBBS00002370.) Dr. Delashaw cannot accuse Dr. 17 || Cobbs of making statements with actual malice without evidence that he made the 18 || statements at issue in the first place. 19 Second, Dr. Delashaw offers no argument in support of his contention that Dr. 20 || Cobbs’ statements “that Dr. Delashaw had forced all referrals to go to him” were made 21 || with actual malice. (See Cobbs MSJ Resp. at 10-15.) Moreover, Dr. Cobbs’ testimony 22 || on the topic of referrals states that he believed that one of the “general issue[s]” and ORDER - 64 Case See □□□ PLA Document 160 *SEALED* Filed 06/11/20 Page 65 of /8 1 ‘‘major concern[s]” amongst physicians he spoke to about Dr. Delashaw was that Dr. 2 || Delashaw was interfering with the referral process at SNI. (See Cobbs Dep. at 3 ||90:1-91:14.) Given that Dr. Delashaw fails to identify any contrary evidence, the court 4 || concludes that Dr. Delashaw has failed to carry his burden to identify a genuine dispute 5 || of material fact on this category of statements. 6 Third, Dr. Delashaw failed to identify sufficient evidence to create a genuine 7 || dispute of material fact on the final two categories of statements he identifies: (1) “that 8 || there had been a mass exodus of surgeons from SNI”; and (2) “that a document 9 || constituted ‘minutes’ of a meeting.” (See Cobbs MSJ Resp. at 8, 10-11.) The only 10 || evidence Dr. Delashaw points to in support of his claim that Dr. Cobbs acted with actual 11 || malice in stating that there had been significant personnel departures from Swedish is Dr. 12 || Cobbs’ deposition testimony. (See id. at 11.) However, Dr. Cobbs testified that another 13 || physician wrote the sentence in his November 2016 letter about Swedish losing “62 team 14 ||members” and that he was told that the number was accurate. (See Cobbs Dep. at 15 || 80:18-81:10.) Similarly, he testified that Dr. Mayberg had provided the list of specific 16 || individuals that had left Swedish. (See id. at 98:15-23.) Dr. Delashaw fails to explain 17 || why Dr. Cobbs’ apparent decision to trust his colleagues on this issue constitutes clear 18 || and convincing evidence of actual malice. (See Cobbs MSJ Resp. at 10-11.) 19 Dr. Delashaw also mischaracterizes Dr. Cobbs’ testimony about “meeting 20 || minutes.” Dr. Delashaw argues that Dr. Cobbs acted with actual malice by labeling the 21 || attachment to his email as “meeting minutes” because he “‘admits that he knew the 22 || ‘minutes’ were not minutes at all.” (See id. at 11.) However, Dr. Cobbs’ testimony ORDER - 65 Case ped ee UO Bre Document 160 *SEALED* Filed 06/11/20 Page 66 of 78 1 || shows that any error he made in labeling the attachments to his letter was inadvertent. He 2 || testified that he did not “know what a minute is supposed to be” and that his intention 3 || was to “put together what the meeting was about.” (See Cobbs Dep. at 64:5-65:1.) Dr. 4 || Delashaw does not point to any evidence to contradict Dr. Cobbs’ assertion that his error 5 labeling the document as “meeting minutes,” if any, was unintentional and, as such, 6 ||not made with actual malice. (See Cobbs MSJ Resp. at 10-11.) 7 b. Acting for the Purpose of Protecting the Interest 8 In addition to his argument that Dr. Cobbs forfeited the intracorporate 9 || communications privilege by acting with actual malice, Dr. Delashaw also argues that Dr. 10 || Cobbs forfeited the privilege because he did not “act for the purpose of protecting the 11 || interest that is the reason for the existence of the privilege.” (See Cobbs MSJ Resp. at 12 || 11-12); see also Moe, 989 P.2d at 1157. The intracorporate privilege exists because a 13 || corporation acts only through its employees and cannot defame itself. Doe, 24 P.3d at 14 ||397. Thus, the privilege is held only insofar as the employee is “acting in the ordinary 15 course” of his work. Jd. Consequently, “[w]hen a corporate employee, not acting in the 16 || ordinary course of his or her work, publishes a defamatory statement, either to another 17 || employee or to a nonemployee, there can be liability in tort for resulting damages.” Jd. at 18 Further, if an otherwise privileged statement is “made solely from spite or ill will,” 19 || the statement is “an abuse and not a use of the privilege.” Restatement (Second) of Torts 20 || § 603, cmt. a. (1977).!© “However, if the publication is made for the purpose of '° Washington courts have cited Section 603 of the Restatement (Second) of Torts with approval in defamation cases. See, e.g., Moe, 989 P.2d at 1157. ORDER - 66 Case eden COSs TLR Document 160 *SEALED* Filed 06/11/20 Page 67 of 78 1 || protecting the interest in question, the fact that the publication is inspired in part by 2 || resentment or indignation at the supposed misconduct of the person defamed does not 3 || constitute an abuse of the privilege.” Id. 4 Dr. Delashaw argues that Dr. Cobbs did not send his letter to Mr. Armada in the 5 || ordinary course of his work and that he instead wrote the letter out of “spite or ill will” 6 || toward Dr. Delashaw and in the interest of furthering his personal career at the cost of Dr. 7 ||Delashaw. (See Cobbs MSJ Resp. at 11-12.) Dr. Cobbs does not respond substantively 8 || to this argument. (See Cobbs Reply (Dkt. # 143) at 12.) Instead, Dr. Cobbs argues that 9 || Dr. Delashaw only pleaded actual malice in his complaint and, as such, must be limited to 10 || actual malice because it would be “unfair for Dr. Delashaw to assert four new bases for 11 || abuse of privilege nearly two years after suing.” (See id.) The court disagrees. Dr. 12 || Delashaw specifically pleaded that Dr. Cobbs’ statements were not privileged (see Am. 13 || Compl. 192) and argued throughout the complaint that Dr. Cobbs authored the letter 14 || only to advance his own personal agenda and not for Swedish’s benefit (see id. at [{ 61, 15 || 67, 73, 75, 90-93). Moreover, the court finds Dr. Cobbs’ apparent surprise at Dr. 16 || Delashaw’s attempt to raise this argument to be disingenuous given that Dr. Delashaw 17 || raised this same argument in his opposition to Dr. Cobbs’ motion to dismiss on the 18 || intracorporate privilege. (See Cobbs MTD Resp. (Dkt. # 34) at 10.) The court’s order on 19 || the motion to dismiss also recognized that Dr. Delashaw argued that Dr. Cobbs did not 20 // 21 22 ORDER - 67 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 68 of 78 1 make the statements within the course of his employment.!'’ (See 8/23/18 Order at 24 2 |{n.12.) Thus, the court concludes that Dr. Delashaw sufficiently pleaded this theory and 3 || that Dr. Cobbs had adequate notice that this theory was at issue in this case. + Because Dr. Cobbs fails to respond substantively to Dr. Delashaw’s argument, the 5 || court concludes that Dr. Delashaw adequately identifies a genuine dispute of material fact 6 to whether Dr. Cobbs forfeited the intracorporate communications privilege by failing 7 “act for the purpose of protecting the interest that is the reason for the existence of the 8 || privilege.” See Moe, 989 P.2d at 1157. 9 c. Remaining Forfeiture Arguments 10 Dr. Delashaw also argues that Dr. Cobbs forfeited the intracorporate privilege by 11 || (1) sending copies of the false statements in his letter to persons outside of Swedish (see 12 || Cobbs MSJ Resp. at 15); and (2) making statements that he did “not reasonably believe” 13 || were “necessary to accomplish the purpose for which the privilege is given.” (See Cobbs 14 || MSJ Resp. at 12-15); see also Moe, 989 P.2d at 1157. Because Dr. Cobbs fails to 15 respond substantively to these arguments (see Cobbs Reply at 12), the court concludes 16 || that they survive summary judgment. 17 d. Summary 18 In sum, the court GRANTS in part and DENIES in part Dr. Cobbs’ motion for 19 ||summary judgment on application of the intracorporate communications privilege. The 20 71 7 The court concluded that it did not need to address that argument at the time because it 2 had already denied Dr. Cobbs’ motion to dismiss based on Dr. Delashaw’s allegations of actual malice. (See 8/23/18 Order at 24 n.12.) ORDER - 68 Case SC LNaa others Document 160 *SEALED* Filed 06/11/20 Page 69 of 78 1 || court concludes that Dr. Delashaw has failed to establish that Dr. Cobbs acted with actual 2 malice when he made statements related to the following topics: (1) “that there had been 3 ||a mass exodus of surgeons from SNI”; (2) “that Dr. Delashaw had forced all referrals to 4 || go to him”; (3) “that there had been a vote of no confidence in Dr. Delashaw”; (4) “that 5 || Dr. Cobbs’[] purported concerns were shared by 14 neurosurgeons”; and (5) “that a 6 || document constituted ‘minutes’ of a meeting.” (See Cobbs MSJ Resp. at 8, 10-11.) 7 || However, Dr. Delashaw has established a genuine dispute of material fact on actual 8 || malice in regards to the following categories of statements: (1) “that SNI surgeons were 9 || unanimous in opposing Dr. Delashaw” and (2) that departures from SNI were due to 10 || “concerns about quality and an abusive work environment related to Dr. Delashaw.” (See 11 Further, the court concludes that Dr. Delashaw may also establish that Dr. Cobbs 12 || forfeited the intracorporate communications privilege in whole or in part if he is able to 13 || establish that (1) Dr. Cobbs failed to “act for the purpose of protecting the interest that is 14 || the reason for the existence of the privilege;” (2) “knowingly publishe[d] the matter to a 15 || person to whom the publication is not otherwise privileged”; or (3) made statements 16 || without “reasonably believing” that the statements were “necessary to accomplish the 17 || purpose for which the privilege is given.”'® See Moe, 989 P.2d at 1157. 18 |} // 19 '8 Because summary judgment is granted in part and denied in part on the application of 1 the intracorporate communications privilege, the court also grants in part and denies in part Dr. Cobbs motion on Dr. Delashaw’s tortious interference and civil conspiracy claims to the same 7 : Dr. Delashaw’s defamation claims. See supra § IlI.C.3; (see also Cobbs MSJ at ORDER - 69 Case 2:18-cv-0053/7-JLR Document 160 *SEALED* Fiied 06/11/20 Page /0 of 78 1 3. Anti-SLAPP Immunity 2 Dr. Cobbs also takes aim at Dr. Delashaw’s attempts to hold Dr. Cobbs liable for 3 || statements Dr. Cobbs made to MQAC or actions Dr. Cobbs took to “conspire” with 4 || others to make false statements to MQAC. Dr. Delashaw fails to clearly define the 5 || relationship between his claims in this case and Dr. Cobbs’ participation in MQAC 6 || proceedings against Dr. Delashaw. As best the court can tell, it appears that Dr. 7 || Delashaw expects to prove that Dr. Cobbs conspired with the anonymous whistleblowers 8 || to make false statements against Dr. Delashaw with MQAC. (See Cobbs MSJ Resp. at 8 9 (“Dr. Delashaw has alleged and will prove that Dr. Cobbs conspired against and defamed 10 || him by (1) falsely reporting to MQAC the Flett incident, [and] (2) falsely reporting to 11 || MQAC the allegations in the Mayberg complaint.”), 15 (“Washington’s Anti-SLAPP 12 || Statute Does Not Immunize the Two False Statements Dr. Cobbs’[] Co-Conspirators 13 || Made to MQAC in Early 2016”).) 14 Dr. Cobbs argues that he is immune from civil liability for any communications 15 ||made to MQAC based on the following provision of Washington’s Anti-SLAPP Statute: 16 A person who communicates a complaint or information to any branch or agency of federal, state, or local government... is immune from civil 17 liability for claims based upon the communication to the agency... regarding any matter reasonably of concern to that agency... RCW 4.24.510.'9 The communicator need not have acted in good faith in order to be entitled to immunity under this statute. Bailey v. State, 191 P.3d 1285, 1291 (Wash. Ct. 20 2 '? The Washington Supreme Court declared unconstitutional a separate section of Washington’s Anti-SLAPP statute. Davis v. Cox, 351 P.3d 862, 874 (W ash. 2015) (invalidating “RCW 4.24.525 as a whole”). That decision acknowledged and left intact the narrower, ORDER - 70 Case 2:18-cv-0053/7-JLR Document 160 *SEALED* Filed 06/11/20 Page /1 of /8 1 || App. 2008). Rather, Dr. Cobbs is immune so long as the information that Dr. Cobbs or 2 || his alleged co-conspirators provided “regard[s] any matter reasonably of concern to” 3 || MQAC. RCW 4.24.510. 4 Dr. Cobbs is immune from civil liability for statements made to MQAC or any 5 || actions taken with regard to the MQAC proceedings against Dr. Delashaw. MQAC is 6 || unquestionably a state agency. See RCW 18.71.015 (enabling statute for MQAC). 7 1|MQAC’s express mission is to promote patient safety through the discipline of 8 physicians. (See Ist Baer Decl. § 3, Ex. 41); see also RCW 18.71.002 (“It is the purpose 9 || of the commission to regulate the competency and quality of professional health care 10 || providers under its jurisdiction by establishing, monitoring, and enforcing qualifications 11 || for licensing, consistent standards of practice, continuing competency mechanisms, and 12 || discipline.”). Thus, the court concludes that complaints about physician conduct are 13 || “matter[s] reasonably of concern to” MQAC under RCW 4.24.510. Therefore, Dr. Cobbs 14 immune from liability “based on” any of his or his co-conspirators’ communications to 15 || MQAC about Dr. Delashaw. See RCW 4.24.510. Moreover, because the statements and 16 || conduct at issue relate to a matter of concern to MQAC, immunity applies even if Dr. 17 || Cobbs or his co-conspirators made statements to MQAC or otherwise participated in 18 || MQAC proceedings in bad faith, as Dr. Delashaw claims. See Bailey, 191 P.3d at 1291. 19 20 71 longerandine provisions of ROW ASA 10, under which Dr. Cobbs proceeds here. Jd. at 865; see also Phoenix Trading, Inc. v. Loops LLC, 732 F.3d 936, 942 (9th Cir. 2013) (differentiating between RCW 4.24.510 and RCW 4.24.525). ORDER - 71 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page /2 or /3 1 Dr. Delashaw argues that Anti-SLAPP immunity is inapplicable to false 2 statements. (See Cobbs MSJ Resp. at 16-17.) The court rejects that argument. Although 3 || Dr. Delashaw attempts to contorts caselaw to support his position, he does not cite a 4 || single case that holds that Anti-SLAPP immunity only applies to true statements. (See 5 ||id.) He also ignores cases that quite plainly hold that communications to government 6 || agencies are immune “regardless of content or motive.” See, e.g., Bailey, 191 P.3d at 7 ||1291; Peltier v. Sacks, C17-5209RBL, 2017 WL 3188414, at *3 (W.D. Wash. July 25, 8 2017) (“Even if his speech was defamatory, he is immune if his communication regarded 9 || ‘any matter reasonably of concern’ to the governmental agency to which he reported.”) 10 || Moreover, the court agrees with Dr. Cobbs that a statute that provided immunity only for 11 || true statements would be superfluous given that true statements are inherently immunized 12 || from liability. See Lundin v. Discovery Commc’ns, Inc., 18-17300, 2020 WL 1131231, at 13 || *1 (9th Cir. Mar. 9, 2020) (“{B]ecause of First Amendment protections, truth is an 14 || absolute defense to defamation even if statements were made with actual malice.”) (citing 15 || Garrison v. Louisiana, 379 U.S. 64, 77-78 (1964)). 16 The court further agrees with Dr. Cobbs that Anti-SLAPP immunity extends to 17 || any damages that Dr. Delashaw alleges were caused by Dr. Cobbs or his co-conspirators’ 18 || complaints to MQAC. (See Cobbs MSJ at 22-23.) Anti-SLAPP immunity extends to 19 “[a]ll of the actions” in Dr. Delashaw’s complaint, as well as “all of the damages,” that 20 stem from Dr. Cobbs or his co-conspirators’ communications with MQAC. See Dang v. 21 || Ehredt, 977 P.2d 29, 37-38 (Wash. Ct. App. 1999). Thus, Dr. Delashaw cannot recover 22 ORDER - 72 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page /3 of /8 1 || damages that were caused by Dr. Cobbs or his co-conspirators’ statements to MQAC or 2 participation in MQAC proceedings.”° 3 In conclusion, the court GRANTS Dr. Cobbs’ motion for summary judgment on 4 application of Anti-SLAPP immunity. Dr. Cobbs is immune from Dr. Delashaw’s 5 || defamation, civil conspiracy, and tortious interference claims to the extent that those 6 || claims are based on Dr. Cobbs or his alleged co-conspirators’ statements to MQAC or 7 || participation in MQAC proceedings. 8 4, Reputational and Presumed Damages 9 Finally, Dr. Cobbs argues that Dr. Delashaw is barred from recovering 10 || reputational or presumed damages under UCCDA because Dr. Delashaw failed to 11 ||respond to a request for additional information about the alleged falsity of the statements 12 || he made in the November 2016 letter. (See Cobbs MSJ at 23-24; Cobbs Reply at 13 || 12-13.2!) The UCCDA states that “[a] person may maintain an action for defamation 14 ||... only if... the person has made a timely and adequate request for correction or 15 16 20 The court acknowledges that Dr. Delashaw believes he can prove that actions Dr. Cobbs took outside of his statements to MQAC caused Dr. Delashaw’s damages. (See Cobbs MSI Resp. at 18.) Because those causal arguments are not currently at issue, the court declines 17 |! to comment or rule on them. 18 21 The court notes that Dr. Cobbs’ reply brief exceeds the 12-page limit for reply briefs provided by Local Civil Rule 7(e)(3). See Local Rules W.D. Wash. LCR 7(e)(3). As the court 19 || has previously warned Dr. Delashaw, the court expects all parties to strictly adhere to the Federal Rules of Civil Procedure and the Local Civil Rules. (See 5/28/2020 Order (Dkt. # 155) at 11-12 20 || (‘The court warns Dr. Delashaw and his counsel that it expects all parties to diligently adhere to this district’s local rules and that additional attempts to flout the local rules may result in 21 sanctions.”).) Thus, the court refuses to consider the portion of Dr. Cobbs’ UCCDA argument that extends beyond the twelfth page of Dr. Cobbs’ reply brief, as it is entitled to do under the 2 Local Civil Rules. Local Rules W.D. Wash. LCR 7(e)(6) (“The court may refuse to consider any text, including footnotes, which is not included within the page limits.”). ORDER - 73 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page /4 of /38 1 || clarification from the defendant.” RCW 7.96.040(1)(a). The UCCDA defines an 2 || “adequate” request for correction or clarification as one that: 3 (a) Is made in writing and reasonably identifies the person making the request; 4 (b) Specifies with particularity the statement alleged to be false and defamatory or otherwise actionable and, to the extent known, the time and 5 place of publication; (c) Alleges the defamatory meaning of the statement; 6 (d) Specifies the circumstances giving rise to any defamatory meaning of the statement which arises from other than the express language of the 7 publication; and (e) States that the alleged defamatory meaning of the statement is false. 8 RCW 7.96.040(3)(a)-(e). Service of a complaint may constitute an adequate request for 9 correction or clarification if the complaint satisfies the requirements of RCW7.96.040(3). 10 RCW 7.96.040(4). After a request to make a correction or clarification under UCCDA, 11 the recipient may “ask the requester to disclose reasonably available information material 12 to the falsity of the allegedly defamatory or otherwise actionable statement.” RCW 13 7.96.050(1). If a person receives such a request and “unreasonably fails to disclose the 14 information,” the person “may not recover damages for injury to reputation or presumed 15 damages.” RCW 7.96.050(2). 16 Dr. Cobbs argues that an email he sent Dr. Delashaw in February 2017—over a 17 year before Dr. Delashaw filed this lawsuit—serves as a request to disclose available 18 information as to falsity that cuts Dr. Delashaw off from recovering reputational or 19 presumed damages. (See 1st Baer Decl. § 3, Ex. 38.) In that email, Dr. Cobbs informed 20 Dr. Delashaw that he received a call from a third party who claimed to be sending a 21 message from Dr. Delashaw to Dr. Cobbs. (See id. at COBBS00001722.) According to 22 ORDER - 74 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page 75 of 78 1 || Dr. Cobbs, the individual informed Dr. Cobbs that Dr. Delashaw was considering suing 2 || Dr. Cobbs, and if Dr. Cobbs wanted to avoid a lawsuit, he needed to write a new letter to 3 Armada that stated that (1) Dr. Cobbs was angry when he wrote the November 2016 4 || letter, (2) the November 2016 letter contained inaccuracies, and (3) Dr. Delashaw was a 5 || very high quality neurosurgeon. (See id.) Dr. Cobbs asked Dr. Delashaw to confirm that 6 || the third party spoke on Dr. Delashaw’s behalf, and also asked Dr. Delashaw to go over 7 November 2016 letter and identify or make comments on the portions that he believed 8 || were inaccurate. (See id.) According to Dr. Cobbs, Dr. Delashaw never responded to 9 ||this email. (See Cobbs MSJ at 24.) 10 The issue with Dr. Cobbs’ argument is one of timing. RCW 7.96.050(1) states 11 || that “[a] person who has been requested to make a correction or clarification” may ask 12 || the requesting person for reasonable disclosure of material information about falsity. By 13 || February 2017, when Dr. Cobbs sent the email to Dr. Delashaw asking for additional 14 || information, Dr. Delashaw had not requested that Dr. Cobbs make a correction or 15 || clarification under UCCDA. The third-party call Dr. Cobbs received was not in writing 16 || and, as such, does not meet the requirements of an “adequate” request for correction or 17 || clarification. See RCW 7.96.040(3)(a). Thus, at the time Dr. Cobbs emailed Dr. 18 || Delashaw, Dr. Cobbs was not “a person who has been requested to make a correction or 19 || clarification” under RCW 7.96.050(1), meaning that he was not yet entitled to make a 20 || request for disclosure of material information that would have triggered Dr. Delashaw’s 21 || obligation to reasonably disclose information or risk being barred from recovering 22 || reputational and presumed damages. ORDER - 75 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page /6 of /8 1 In its order on Dr. Cobbs’ motion to dismiss, the court concluded that Dr. 2 || Delashaw’s operative complaint constituted an adequate request for correction or 3 || clarification under RCW 7.96.040(4). (See 8/23/18 Order at 20-21.) However, Dr. 4 || Cobbs does not point to any evidence showing that he requested that Dr. Delashaw 5 || provide additional evidence of falsity after Dr. Delashaw served the complaint or that Dr. 6 || Delashaw failed to respond to such a request. (See Cobbs MSJ at 23-24.) Instead, Dr. 7 || Cobbs argues that Dr. Delashaw “admits he is not seeking a retraction from Dr. Cobbs at 8 all.” (See id. at 24.) Dr. Cobbs reads too much into Dr. Delashaw’s testimony. In the 9 || portion of Dr. Delashaw’s testimony that Dr. Cobbs cites, Dr. Delashaw states that he 10 || wants a retraction from the Times and he “just want[s] an apology [from] Dr. Cobbs so 11 || we could move forward.” (See Delashaw Dep. at 801:1-4.) The fact that Dr. Delashaw 12 || stated that he “just wants an apology” from Dr. Cobbs does not take away from the fact 13 Dr. Delashaw filed a complaint that constitutes an adequate request for clarification 14 || or correction under UCCDA, which is all that UCCDA requires. See RCW 15 7.96.040(1)(a). Thus, the court DENIES Dr. Cobbs’ motion for summary judgment on 16 || the issues pertaining to his UCCDA arguments. 17 || E. Sealing 18 Because this order relies on materials filed under seal, the court DIRECTS the 19 || Clerk to provisionally file this order under seal. The court ORDERS counsel for all 20 || parties—including counsel for interested party Swedish Health Services—to meet and 21 || confer regarding which, if any, portions of this order they seek to redact. Counsel must 22 || then submit one joint statement or, if they cannot agree on a joint statement, competing ORDER - 76 Case 2:18-cv-00537-JLR Document 160 *SEALED* Filed 06/11/20 Page // of /3 1 || statements indicating the portions of the order they seek to have redacted and on what 2 || basis.22 See Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 3 ||2006). The statement or statements must attach a proposed redacted order that 4 || incorporates the redactions requested in the corresponding statement. The parties must 5 || file any such statement within 14 days of the date of the filing date of this order. The 6 || court will consider the parties’ redaction requests, if any, and then file the order on the 7 || docket with any necessary redactions. 8 IV. CONCLUSION 9 For the reasons set forth above, the court GRANTS in part and DENIES in part the 10 || Times’ motion for summary judgment (Dkt. ## 109 (sealed); 156 (redacted)), and 11 ||GRANTS in part and DENIES in part Dr. Cobbs’ motion for summary judgment (Dkt. 12 ||#116). Regarding the Times’ motion, the court DENIES the motion insofar as Dr. 13 || Delashaw’s defamation and tortious interference claims rely on statements about Dr. 14 || Delashaw’s financial incentives to pursue a high patient volume, but otherwise GRANTS 15 || the Times’ motion. Regarding Dr. Cobbs’ motion, the court DENIES Dr. Cobbs’ issue 16 || preclusion argument, GRANTS in part and DENIES in part Dr. Cobbs’ intracorporate 17 18 19 20 21 . 22 Tn preparing their joint or competing statements, the court advises the parties to hew to the guidance provided by the court’s recent sealing order. (See 5/28/20 Order.) ORDER - 77 CaS€ 4.10-CV-UUDS/-JLR VoCument 160 *SEALED* Filed 06/11/20 Page 78 of 78 1 || privilege argument, GRANTS Dr. Cobbs’ Anti-SLAPP argument, and DENIES Dr. 2 Cobbs’ UCCDA argument. The court DIRECTS the Clerk to provisionally file this order 3 || under seal. 4 Dated this 11th day of June, 2020. 5 ( 2 VO 7 JAMES L. ROBART United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 78