Duhon v. Board of Supervisors for Louisiana State University and Agricultural and Mechanical College

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

GREGORY DUHON, M.D. CIVIL ACTION

VERSUS NO: 20-2022

THE BOARD OF SUPERVISORS SECTION “H”

OF LOUISIANA STATE UNIVERSITY

& AGRICULTURAL & MECHANICAL

COLLEGE, ET AL.

ORDER AND REASONS

Before the Court is Defendants James David Hammond, M.D., and

Healthcare Professionals of Louisiana’s Motion to Dismiss for Failure to State

a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 70). The

Court heard oral argument on this Motion on February 18, 2021 and took the

matter under advisement. For the following reasons, the Motion is GRANTED

IN PART and DENIED IN PART.

BACKGROUND

Plaintiff Gregory Duhon, M.D. (“Duhon”), brings this action against

multiple defendants for damages and injunctive relief arising from his

suspension and termination from the cardiology fellowship program at

Louisiana State University (“LSU”) and the subsequent loss of his Louisiana

medical license. Below are the facts relevant only to the instant Motion.

Plaintiff was enrolled in the 2018–2019 cardiology fellowship program at

Louisiana State University. On May 23, 2019, Plaintiff was advised by its

Program Director, Neeraj Jain, M.D., that he was being suspended effective

immediately on suspicion of being mentally impaired and that he must obtain

a fit-for-duty clearance from LSU’s Campus Assistance Program (“CAP”). After

conducting an occupationally mandated psychological evaluation (“OMPE”),

CAP directed Plaintiff to register with the Health Care Professionals

Foundation of Louisiana (“HPFLA”), a “private not-for-profit corporation that

offers assistance to health care professionals who may be suffering from mental

health issues” by referring the professionals for evaluations and monitoring

their treatment plans where appropriate.1 Plaintiff registered with HPFLA as

instructed and HPFLA, in turn, directed Plaintiff to submit to a three-day

comprehensive psychological exam at one of three HPFLA-approved facilities.

Plaintiff chose to undergo the required evaluation at Professional

Renewal Center (“PRC”) in Lawrence, Kansas, which ultimately concluded

that Plaintiff required 60–90 days of inpatient treatment. To counter PRC’s

findings, Plaintiff obtained evaluations from two independent psychiatrists

who found that the PRC report was flawed and that Plaintiff was indeed fit for

duty. Plaintiff alleges that HPFLA acknowledged that the PRC report was

inaccurate but nevertheless required that Plaintiff comply with PRC’s

recommendation and seek additional, costly inpatient treatment. When

Plaintiff refused, the HPFLA reported Plaintiff to the Louisiana State Board

of Medical Examiners (“LSBME”) as noncompliant and otherwise impaired in

his ability to practice medicine.

1 Doc. 70-1 at 3.

On October 4, 2019, Plaintiff received a notice from the LSBME

informing him that his license was under investigation and directing him to

cooperate with HPFLA and PRC’s recommendations. Plaintiff, through his

attorneys, petitioned HPFLA and the LSBME to allow him to forego the

additional inpatient treatment but to no avail. Plaintiff ultimately allowed his

license to lapse in July of 2020.

In this action, Plaintiff brings claims against a long list of defendants—

including LSU, the LSBME, and the organizations and providers to which and

to whom he was referred—for violations of procedural and substantive due

process, § 504 of the Rehabilitation Act,2 and Title II of the Americans with

Disabilities Act.3 Plaintiff also brings state tort claims for intentional infliction

of emotional distress and defamation under Louisiana Civil Code article 2315.

Plaintiff contends that, at each step of the way, he was discriminated against

“on the basis of a perceived disability and denied any notice or hearing on the

actions taken against him and their supposed justification.”4 Specifically,

Plaintiff alleges that the named defendants perceived him as having substance

abuse disorder.5 Plaintiff contends that the alleged discrimination cost him his

fellowship position, his chance to transfer or become board-certified in

cardiology, his reputation, the good standing of his Louisiana physicians

license, and more than $50,000 in unnecessary treatment.

Now before the Court is a Motion to Dismiss filed by HPFLA and

HPFLA’s Medical Director, James David Hammond, M.D. (“Dr. Hammond”)

(collectively, “Defendants”), wherein they ask the Court to dismiss Plaintiff’s

2 29 U.S.C. § 794.

3 42 U.S.C. § 12131, et seq.

4 Doc. 89 at 2.

5 Plaintiff alleges that he received treatment for substance abuse disorder in 2011 and

has since been in remission.

claims against them under Federal Rule of Civil Procedure 12(b)(6). Plaintiff

opposes.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts “to state a claim for relief that is plausible on its face.”6 A claim is

“plausible on its face” when the pleaded facts allow the court to “draw the

reasonable inference that the defendant is liable for the misconduct alleged.”7

A court must accept the complaint’s factual allegations as true and must “draw

all reasonable inferences in the plaintiff’s favor.”8 The court need not, however,

accept as true legal conclusions couched as factual allegations.9 To be legally

sufficient, a complaint must establish more than a “sheer possibility” that the

plaintiff’s claims are true.10 If it is apparent from the face of the complaint that

an insurmountable bar to relief exists and the plaintiff is not entitled to relief,

the court must dismiss the claim.11 The court’s review is limited to the

complaint and any documents attached to the motion to dismiss that are

central to the claim and referenced by the complaint.12

LAW AND ANALYSIS

Plaintiff brings four causes of action against Defendants: (1) deprivation

of procedural and substantive due process under § 1983; (2) discrimination in

6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 547 (2007)).

7 Id.

8 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

9 Iqbal, 556 U.S. at 678.

10 Id.

11 Lormand, 565 F.3d at 255–57.

12 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).

violation of Title II of the Americans with Disabilities Act (“ADA”) pursuant to

§ 1983; (3) intentional infliction of emotional distress, and (4) defamation.

Plaintiff brings the first two claims against both HPFLA and Dr. Hammond

and brings the third and fourth claims against HPFLA alone. In their Motion

to Dismiss, Defendants ask the Court to dismiss all four causes of action for

failure to state a claim. The Court will thus address the sufficiency of each

claim in turn.

I. Louisiana Revised Statutes § 37:1287

As a preliminary matter, Defendants argue that, because of HPFLA’s

relationship with the LSBME, HPFLA and Dr. Hammond are immune from

suit under Louisiana Revised Statutes § 37:1287, which provides:

D. There shall be no liability on the part of and no action for

damages against any nonprofit corporation, foundation, or

organization that enters into any agreement with the [LSBME]

related to the operation of any committee or program to identify,

investigate, counsel, monitor, or assist any licensed physician who

suffers or may suffer from alcohol or substance abuse or a physical

or mental condition which could compromise such physician’s

fitness and ability to practice medicine with reasonable skill and

safety to patients, for any investigation, action, report,

recommendation, decision, or opinion undertaken, performed, or

made in connection with or on behalf of such committee or

program, without malice and in the reasonable belief that such

investigation, action, report, recommendation, decision, or opinion

was warranted.13

Louisiana Revised Statutes § 37:1287(E) also provides immunity from liability

for “any person who serves as a director, trustee, officer, employee, consultant,

or attorney” who works for or is affiliated with an organization described in

Subsection (D).

13 LA. REV. STAT. § 37:1287(D).

Although the Court acknowledges the potential applicability of this

statute, Defendants argued the statute’s applicability for the first time in their

Reply. “Reply briefs cannot be used to raise new arguments.”14 The Court

therefore declines to address the statute’s applicability at this time.

II. Claims Against Dr. Hammond

Additionally, Defendants argue that all claims against Dr. Hammond

should be summarily dismissed as Plaintiff has not sufficiently alleged facts

supporting any claims against him. Indeed, the only factual reference to Dr.

Hammond in Plaintiff’s Amended Complaint is found in paragraph 83(d),

which states:

HPFL[A] and Hammond attempted to conceal Plaintiff’s coerced

activities as “voluntary,” knowingly published false statements to

LSU, PRC, and LSBME, knowingly disregarded Plaintiff’s

legitimate fit-for-duty reports, knowingly accepted and endorsed

the false and fraudulent PRC report, and in other respects did not

comply with applicable legal or professional standards[.]15

Defendants argue that the allegations in this paragraph are “self-serving,

conclusory, and devoid of any factual support.”16 At oral argument, Plaintiff’s

counsel argued that the allegations in paragraph 83(d) are sufficient to state a

claim against Dr. Hammond individually and that the alleged facts pertaining

to HPFLA also pertain to Dr. Hammond as the person through whom HPFLA

acts.

Plaintiff brings claims against Dr. Hammond individually.17 Plaintiff’s

factual allegations regarding HPFLA are not, therefore, imputed to

14 Hollis v. Lynch, 827 F.3d 436, 451 (5th Cir. 2016).

15 Doc. 55 at 21.

16 Doc. 70-1 at 6.

17 The Court notes that, as to other defendants, Plaintiff has asserted claims against

alleged state representatives in their official capacities; however, Plaintiff has not done so

with respect to Dr. Hammond. See Doc. 55 at 19, 31.

Dr. Hammond individually. The Court finds that the allegations in paragraph

83(d) of Plaintiff’s Amended Complaint are too conclusory and speculative to

independently support a claim against him. Accordingly, as Plaintiff has not

alleged any facts pertaining specifically to Dr. Hammond, Plaintiff’s claims

against Dr. Hammond are dismissed.

III. Deprivation of Procedural and Substantive Due Process Under

28 U.S.C. § 1983

“To state a claim under § 1983, plaintiffs must allege two elements: first

that they were deprived of a right or interest secured by the Constitution and

laws of the United States, and second that the deprivation occurred under color

of state law.”18 Here, Plaintiff alleges that he was deprived of his constitutional

right to procedural and substantive due process under the Fourteenth

Amendment.

The Due Process Clause of the Fourteenth Amendment declares that no

state shall “deprive any person of life, liberty, or property, without due process

of law.”19 “In procedural due process claims, the deprivation by state action of

a constitutionally protected interest in ‘life, liberty, or property’ is not in itself

unconstitutional; what is unconstitutional is the deprivation of such an

interest without due process of law.”20 “To prevail on a [procedural] due process

claim, plaintiffs must [therefore] show that: (1) they possess a property interest

that is protected by the due process clause, and (2) [the defendant’s] procedures

are constitutionally inadequate.”21

Substantive due process, on the other hand “ensures that, regardless of

the fairness of the procedures used, the government does not use its power for

18 Doe v. Rains County Ind. School Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).

19 U.S. Const. amend. XIV.

20 Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original).

21 Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008).

oppressive purposes.”22 Thus, “substantive due process requires only that

public officials exercise professional judgment, in a nonarbitrary and

noncapricious manner, when depriving an individual of a protected property

interest.”23 In substantive due process cases concerning a plaintiff’s alleged

constitutional right to continued enrollment, the Supreme Court has held that,

assuming such a right exists, there is only a “narrow avenue for judicial

review” and that the plaintiff must show a “substantial departure from

accepted academic norms as to demonstrate that the person or committee

responsible did not actually exercise professional judgment.”24

As a result, a plaintiff alleging procedural or substantive due process

violations must first demonstrate the existence of a protectable property

interest. Here, Plaintiff contends that he was deprived of his protectable

property or liberty interest in: (1) continuing his training in the LSU cardiology

fellowship program; (2) not being subjected to unjustified and coerced

psychological examinations; (3) his Louisiana physician’s license and its good

standing; and (4) his professional reputation. Defendants now argue that

Plaintiff’s due process claims must fail because he has not alleged sufficiently

alleged: (1) facts indicating that HPFLA violated a constitutional right; or (2)

that HPFLA “acted under color of state law.”

1. Violation of a Constitutional Right

Plaintiff first alleges that HPFLA deprived him of his protectable

property interest in continuing his training in the LSU cardiology fellowship

22 Patterson v. Def. POW/MIA Acct. Agency, 343 F. Supp. 3d 637, 646 (W.D. Tex. 2018)

(citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).

23 Lewis v. Univ. of Texas Med. Branch at Galveston, 665 F.3d 625, 631 (5th Cir. 2011)

(citing Texas v. Walker, 142 F.3d 813, 819 (5th Cir. 1998)).

24 Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225 (1985).

program. He alleges that it did so by:

Attempt[ing] to conceal Plaintiff’s coerced activities ‘voluntary,’

knowingly publish[ing] false statements to LSU, PRC and LSBME,

knowingly disregard[ing] Plaintiff’s legitimate fit-for-duty reports,

knowingly accept[ing] and endors[ing] the false and fraudulent

PRC report, and in other respects did not comply with applicable

legal or professional standards[.]25

Defendants contend that, even taking Plaintiff’s allegations as true, HPFLA

cannot be found to have deprived Plaintiff of his alleged right in his fellowship

program as there is no allegation that it had any authority to make suspension

or termination decisions.

The Court agrees. At the time that Plaintiff was allegedly “forced to

resign” from LSU, the only alleged action by HPFLA was its referral of Plaintiff

to PRC. Plaintiff does not allege that this action affected his enrollment.

Further, Plaintiff does not allege that HPFLA was involved in the decision to

suspend or terminate him or otherwise had such authority over LSU.

Accordingly, since it was LSU that allegedly deprived Plaintiff of his right to

his fellowship, it is LSU’s procedures and actions that are the subject of

Plaintiff’s related due process claims—not HPFLA’s. Plaintiff’s substantive

and procedural due process claims against HPFLA for deprivation of his

interest in his fellowship are therefore dismissed.

Defendants do not address Plaintiff’s claims for deprivation of his

interest in his license, reputation, or freedom from coerced psychological

examinations. Rather, in a footnote, Defendants explain that, because

“Plaintiff does not identify HPFLA or Dr. Hammond in connection with these

allegations[,]” they have omitted related arguments from their Motion.26 The

25 Id. at 21.

26 Doc. 70 at 7 n.4.

Court acknowledges that Plaintiff’s Amended Complaint does not specifically

identify HPFLA in the paragraphs in which he identifies these three additional

property interests. Nevertheless, the Court finds that Plaintiff’s due process

allegations, which are generally asserted against all the defendants, are

sufficient to place HPFLA on notice that Plaintiff’s claims against it include

claims for the deprivation of these three interests without due process.

Plaintiff’s due process claims against HPFLA related to the interests in his

license, reputation, and freedom from coerced psychological examinations

therefore survive HPFLA’s Motion to Dismiss so long as this Court finds that

HPFLA acted “under color of state law” pursuant to § 1983.

2. Under Color of State Law

For a defendant to act “under color of state law” for the purposes

of § 1983, his conduct must be fairly attributable to the state.27 To determine

whether the actions of a private entity are fairly attributable to the state, the

“inquiry must be whether there is a sufficiently close nexus between the State

and the challenged action of the regulated entity so that the action of the latter

may be fairly treated as that of the State itself.”28 To aid in this inquiry, the

Supreme Court has articulated three tests: (1) the nexus or joint-action test,

(2) the public function test, and (3) the state coercion or encouragement test.29

“[T]he nexus or state action test finds state action where the state has ‘so far

insinuated itself into a position of interdependence with the [private actor] that

it was a joint participant in the enterprise.’”30 Under the public function test,

27 Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).

28 Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348–49 (5th Cir.

1985) (internal quotation marks omitted).

29 See Gordon v. Neugebauer, 57 F. Supp. 3d 766, 774 (N.D. Tex. 2014) (citations

omitted).

30 Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 352 (5th Cir. 2003)

(quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357–58 (1974)).

“a private entity acts under color of state law when the entity performs a

function which is ‘exclusively reserved to the state.’”31 Finally, the state

coercion or encouragement test “holds the state responsible ‘for a private

decision only when [the state] has exercised coercive power or has provided

significant encouragement, either overt or cover, that the choice must in law

be deemed to be that of the State.”32

The Court finds that Plaintiff has sufficiently alleged that HPFLA is

fairly attributable to the state under either the nexus test or the public

function test. Plaintiff alleges that “HPFL[A] was originated by the LSBME to

oversee the evaluation, treatment, and monitoring of impaired or potentially

impaired physicians.”33 Plaintiff also contends that HPFLA threatened

Plaintiff with LSBME action if he failed to comply with HPFLA directives.

When HPFLA did report Plaintiff to the LSBME, the LSBME required that

Plaintiff cooperate with HPFLA’s directives in order to maintain his license,

allegedly without conducting an independent investigation. Plaintiff also

states at various places in his Amended Complaint that HPFLA acted as the

“agent” of the LSBME. Plaintiff has thus plausibly alleged that the LSBME

has delegated to HPFLA some of its oversight over medical practitioners, that

the LSBME and HPFLA continue to work together in this function, and that

HPFLA’s actions as to Plaintiff were within the scope of HPFLA’s directive

from the LSBME.

In finding Plaintiff’s allegations sufficient, this Court does not

conclusively decide that HPFLA acted under color state law. Indeed, the “fairly

31 Id. (quoting Flagg Bros. v. Brooks, 436 U.S. 149, 157–58 (1978)).

32 Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

33 Doc. 55 at 3. In his Opposition, Plaintiff also cites an excerpt from HPFLA’s website

wherein it states that it continues to operate under a “Memorandum of Understanding” with

the LSBME.

attributable” inquiry is highly fact-based, and additional discovery may reveal

that HPFLA’s actions are more divorced from LSBME’s than Plaintiff has

alleged.34 However, at this early stage, the Court finds that Plaintiff has

sufficiently alleged that HPFLA’s alleged due process failures are so closely

connected to the function and actions of LSBME as to be fairly attributable to

the state.

IV. Title II of the ADA

Plaintiff brings his claims under Title II of the Americans with

Disabilities Act (“ADA”) pursuant to § 1983. As explained previously in this

matter,35 “where a statutory regime already provides a comprehensive set of

remedies for its enforcement, there is a presumption against the availability of

the more general remedial measures of § 1983. This principle renders further

discussion of the intricacies of § 1983 unnecessary.”36 Accordingly, the Court

will not consider Plaintiff’s claims under § 1983 but will rather proceed to an

analysis of Plaintiff’s claim against HPFLA under Title II of the ADA.

“The ADA forbids discrimination against disabled individuals in major

areas of public life, among them employment (Title I of the Act), public services

(Title II), and public accommodations (Title III).”37 Here, Plaintiff brings suit

against HPFLA under Title II, which provides that “no qualified individual

with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities

34 Frazier v. Bd. of Trustees of Nw. Mississippi Reg’l Med. Ctr., 765 F.2d 1278, 1284

(5th Cir.), amended, 777 F.2d 329 (5th Cir. 1985) (“Imbued with an identity all its own, every

state action inquiry partakes only slightly of the factual stuff of other cases.”).

35 See Doc. 122 at 14–15.

36 See id. (citing Lollar v. Baker, 196 F.3d 603, 609 (5th Cir. 1999)).

37 PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (citing 42 U.S.C. §§ 12111–12117;

12131–12165; 12181–12189).

of a public entity, or be subjected to discrimination by any such entity.”38 The

ADA defines a “public entity” as “(A) any State or local government; (B) any

department, agency, special purpose district, or other instrumentality of a

State or States or local government; and (C) the National Railroad Passenger

Corporation, and any commuter authority.”39

Defendants argue that Plaintiff’s Title II claim against HPFLA is

improper as HPFLA is a private entity. In response, Plaintiff argues that the

actions of HPFLA are “fairly attributable” to the state under § 1983. This Court

has previously found, however, that Plaintiff cannot use § 1983 to bring suit

against private entities under Title II.40 Accordingly, Plaintiff’s Title II claim

against HPFLA is dismissed with prejudice.

V. Intentional Infliction of Emotional Distress

“[T]o recover for intentional infliction of emotional distress, a plaintiff

must establish that: (1) the conduct of the defendant was extreme and

outrageous; (2) the emotional distress suffered by the plaintiff was severe; and

(3) the defendant desired to inflict severe emotional distress or knew that

severe emotional distress would be certain or substantially certain to result

from his conduct.”41 To succeed on this claim, “[t]he conduct must be so

outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious and utterly intolerable in a

civilized community.”42 “Liability does not extend to mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities.”43

38 42 U.S.C. § 12132 (emphasis added).

39 42 U.S.C. § 12131.

40 See Doc. 122 at 15–16.

41 White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991).

42 Id.

43 Id.

Plaintiff alleges that Defendants in this case are liable for the tort of

intentional infliction of emotional distress because of their dissemination of

false information about him, which allegedly “establishes a pattern [of]

deliberate, repeated harassment over a period of time.”44 As to HPFLA,

Plaintiff contends that it engaged in “outrageous conduct” in “refusing to accept

two fit for duty reports clearing him of any mental impairment that would

implicate his fitness to practice medicine.”45

As support for his claim, Plaintiff quotes the opinion in Currier v.

Entergy Services, Inc., wherein another section of this Court denied summary

judgment on an emotional distress claim after finding evidence that the

defendant’s conduct “did not lead to her loss of only that one job; it destroyed

her career.”46 In Currier, however, the Court found a genuine issue of material

fact as to whether the defendant “concocted a plan to destroy Currier’s

career.”47 Here, Plaintiff does not allege that HPFLA’s actions were made with

an intent to destroy his career or allege that HPFLA engaged in any similarly

outrageous conduct. This Court thus finds that HPFLA’s failure to accept

Plaintiff’s commissioned examinations fails to meet the high bar for intentional

infliction of emotional distress claims in Louisiana.48 Plaintiff’s intentional

infliction of emotional distress claim is therefore dismissed.

VI. Defamation

Under Louisiana law, the elements of a defamation claim include: “(1) a

false and defamatory statement concerning another; (2) an unprivileged

publication to a third party; (3) fault (negligence or greater) on the part of

44 Doc. 89 at 34.

45 Id. at 35.

46 Id. at 679.

47 Id.

48 See Currier v. Entergy Servs., Inc., 73 F. Supp. 3d 673, 678 (E.D. La. 2014).

the publisher; and (4) resulting injury.”49 In his Amended Complaint, Plaintiff

contends that HPFLA defamed him when it reported to the LSBME that

Plaintiff was noncompliant and that Plaintiff had a potential substance abuse

problem or mental health condition that impaired his ability to practice

medicine. Plaintiff also alleges HPFLA made these statements after

acknowledging that PRC’s conclusions regarding his fitness for duty were false

and that HPFLA’s report to the LSBME essentially cost him his license.

Defendants contend that HPFLA’s statements to the LSBME were

“opinions” protected by the First Amendment. “The First Amendment provides

‘a defense against defamation actions for expressions of opinion about matters

of public concern made without knowing or reckless falsity.’”50 Without the

benefit of the actual statement, however, this Court cannot determine whether

it was truly an expression of opinion as opposed to fact or that it was made

without knowing or reckless falsity.51 Rather, this Court must accept as true

Plaintiff’s allegations that the LSBME essentially accepted HPFLA’s

statements as fact.

Defendants also assert that HPFLA’s statements are entitled to the

defense of qualified privilege. “In Louisiana, privilege is a defense to a

defamation action.”52 “The practical effect of the assertion of the conditional

or qualified privilege is to rebut the plaintiff’s allegation of fault and to place

the burden of proof on the plaintiff to establish abuse of the privilege.”53

49 Lewis v. M7 Prods., LLC, 427 F. Supp. 3d 705, 723–24 (M.D. La. 2019) (internal

quotations and citations omitted).

50 Ioppolo v. Rumana, 581 F. App’x 321, 330 (5th Cir. 2014).

51 See id. (explaining that the report was rendered after the committee carefully

considered evidence and that the report is “littered with phrases and statements which

clearly indicate it is a statement of opinion”).

52 Id. at 331.

53 Id. at 332 (quoting Dyas v. Shreveport Police Dep’t, 136 So.3d 897, 904 (La. App. 2

Cir. 2014)).

Establishing whether a conditional privilege exists is a two-step process.

“First, it must be determined whether ‘the attending circumstances of

communication occasion a qualified privilege,’ which means that a

determination must be made of whether the requirements for invoking the

privilege are satisfied.”54 Second, it must be determined “whether the privilege

was abused, which requires that the grounds for abuse—malice or lack of good

faith—be defined.”55

Applying this framework to the matter at hand, the Court first finds that

the circumstances do support a qualified privilege as “Louisiana courts have

held that a qualified privilege is generally necessary for statements made when

reviewing the fitness of medical doctors to practice their profession.”56 Thus, to

sufficiently plead defamation, Plaintiff must allege that HPFLA abused this

privilege—“that [it] made the alleged defamatory statements knowing they

were false or ‘with reckless disregard as to [their] truth or falsity.’”57 Here,

Plaintiff alleges that HPFLA reported to LSBME that Plaintiff was not fit to

practice after acknowledging the fraudulence of the PRC report and refusing

to consider contrary evaluations. Although such allegations could potentially

amount to a finding of recklessness, Plaintiff’s claims are conclusory in nature

and unsupported by facts to make HPFLA’s alleged “acknowledgment” and

“refusal” plausible. For this reason, Plaintiff’s defamation claim is hereby

dismissed.

54 Smith v. Our Lady of the Lake Hosp., Inc., 639 So. 2d 730, 745 (La. 1994).

55 Id.

56 Ioppolo, 581 F. App’x at 332.

57 Russell v. Chevron U.S.A., Inc., No. CV 18-4157, 2018 WL 4816151, at *5 (E.D. La.

Oct. 4, 2018) (quoting Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 674 (La. 2006)).

CONCLUSION

For the foregoing reasons, the Motion is GRANTED IN PART and

DENIED IN PART.

IT IS ORDERED that Plaintiffs claims against Dr. Hammond are

hereby DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs claim against HPFLA for

violation of Title II of the ADA is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff's claims against HPFLA for

intentional infliction of emotional distress and defamation are hereby

DISMISSED WITHOUT PREJUDICE. Plaintiff is granted 15 days from the

date of this Order in which to amend his Complaint.

IT IS FURTHER ORDERED that Plaintiffs claims against HPFLA for

violations of substantive and procedural due process are DISMISSED WITH

PREJUDICE only insofar as they relate to Plaintiffs alleged property interest

in his fellowship. Plaintiff's due process claims related to his alleged interests

in his license, reputation, and freedom from coerced examination remain.

New Orleans, Louisiana this 20th day of August, 2021.

UNITED STATES DISTRICT JUDGE

17