Dr. Erik Natkin, DO PC v. American Osteopathic Association

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DR. ERIK NATKIN, D.O. P.C., a Utah Case No. 3:16-cv-1494-SI

corporation; and DR. ERIK NATKIN, D.O.,

an individual OPINION AND ORDER

Plaintiffs,

v.

AMERICAN OSTEOPATHIC

ASSOCIATION, et al.,

Defendants.

Benjamin Natkin, LAW OFFICES OF BENJAMIN NATKIN, 9854 National Boulevard, Suite 369, Los

Angeles, CA 90034; and Clark E. Rasche, WATKINSON LAIRD RUBENSTEIN PC, P.O. Box 10567,

Eugene OR 97440. Of Attorneys for Plaintiffs.

Blake J. Robinson and P. Andrew McStay, Jr., DAVIS WRIGHT TREMAINE LLP, 560 SW Tenth

Avenue, Suite 700, Portland OR 97205. Of Attorneys for Defendants Samaritan Health Services,

Inc.; Good Samaritan Hospital Corvallis; and Dr. Luis R. Vela, D.O.

J. Michael Porter and Katherine M. Bennett, MILLER NASH LLP, 1140 SW Washington Street,

Suite 700, Portland, OR 97205; and Mark H. Meyerhoff and Christopher S. Frederick, LIEBERT

CASSIDY WHITMORE, 6033 W Century Boulevard, Fifth Floor, Los Angeles, CA 90045.

Of Attorneys for Defendant Western University of Health Sciences.

Michael C. Lewton, COSGRAVE VERGEER KESTER LLP, 900 SW Fifth Avenue, Suite 2400,

Portland, OR 97204; John R. Danos, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, 555

S. Flower Street, Suite 2900, Los Angeles, CA 90071. Of Attorneys for Defendant American

Osteopathic Association.

Thomas R. Rask III, KELL ALTERMAN & RUNSTEIN LLP, 520 SW Yamhill Street, Suite 600,

Portland, OR 97204; and Ronald Thomas Vera and Robert P. Johnston, THE VERA LAW

GROUP, 300 W Foothill Boulevard, Suite 100, Claremont, CA 91711. Of Attorneys for

Defendant Osteopathic Postdoctoral Training Institute, OPTI-West Educational Consortium.

Michael H. Simon, District Judge.

Pending before the Court are three motions for summary judgment. The first is by

Defendant Western University of Health Sciences (Western), against all remaining claims

asserted by Plaintiffs Dr. Erik Natkin, DO (Natkin) and Dr. Erik Natkin, DO PC (Natkin PC). As

discussed below, these claims are based on respondeat superior liability and require that Western

be the legal employer of individuals alleged to have engaged in wrongful conduct. Western

argues that there is no evidence that it is the employer of any relevant individuals.

The second motion is brought by Defendant American Osteopathic Association (AOA).

AOA seeks summary judgment on the sole remaining claim asserted against it, Plaintiffs’ Sixth

Claim for Relief, alleging breach of contract. AOA argues that it is not a party to any contract

with Natkin.

The final motion is brought by Defendants Samaritan Health Services, Inc. (SHS), Good

Samaritan Hospital Corvallis (Good Sam),1 and Dr. Luis R. Vela, DO (Vela) (collectively, the

“Samaritan Defendants”). The Samaritan Defendants move for partial summary judgment on

three claims: violation of Natkin’s common law right to fair procedure, intentional interference

with Natkin’s alleged contract with AOA, and wrongful discharge based on the public policy

reflected in Oregon Revised Statutes (ORS) § 441.044.2 The Samaritan Defendants argue that:

(1) as stated by AOA, there was no enforceable contract, and regardless, the undisputed evidence

1 In referring to SHS’s hospital in Corvallis, the parties sometimes refer to the legal entity

“Good Samaritan Hospital Corvallis” (Good Sam) and sometimes refer to Good Sam’s assumed

business name, “Good Samaritan Regional Medical Center,” which is the name of the hospital

itself. Both are referenced in this opinion simply as “Good Sam.”

2 Plaintiffs allege violations of “ORS § 441.057,” in the Second Amended Complaint, but

that statute was renumbered in 2019, after the filing of the Second Amended Complaint. It is

now codified at ORS § 441.044.

shows that the Samaritan Defendants did not interfere with any purported contract; (2) Oregon’s

common law right to fair procedure does not apply to Natkin, who was only a resident and not

medical staff and did not have hospital privileges; and (3) Natkin’s claim based on ORS

§ 441.044 fails because he did not bring any evidence of improper care to the “appropriate

authority” and, independently, he was not terminated “solely” because of such action. Plaintiffs

respond that disputed facts, viewed in the light most favorable to Plaintiffs, preclude summary

judgment for all motions. For the following reasons, the Court grants Western and AOA’s

motions and grants in part the Samaritan Defendants’ motion.

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden,

“the moving party must either produce evidence negating an essential element of the nonmoving

party’s claim or defense or show that the nonmoving party does not have enough evidence of an

essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. v.

Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see also Devereaux v. Abbey, 263 F.3d 1070,

1076 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving

party need only point out ‘that there is an absence of evidence to support the nonmoving party’s

case.’” (quoting Celotex, 477 U.S. at 325)). “Where the moving party will have the burden of

proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of

fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509

F.3d 978, 984 (9th Cir. 2007). “If the moving party meets its initial burden, the non-moving

party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that

there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986)).

The Court must view the evidence in the light most favorable to the non-movant and

draw all reasonable inferences in the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters,

Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge . . . ruling on a motion for summary judgment,” the “mere existence of a scintilla

of evidence in support of the plaintiff’s position [is] insufficient.” Anderson, 477 U.S. at 252,

255. “Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586

(2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

DISCUSSION3

A. Evidentiary Objections

Plaintiffs raise many evidentiary objections. These include objections based on:

(1) relevance, hearsay, and authentication; and (2) for exclusion under Rule 37(c) of the Federal

Rules of Civil Procedure because a document or its author was not previously disclosed by a

party in initial disclosures, although the document was produced in discovery. At summary

3 The Court does not set out a separate statement of facts, instead discussing facts as

relevant to each pending motion. For a more comprehensive discussion of the underlying facts,

see the previous opinions in this case. Dr. Eric Natkin, DO PC v. Am. Osteopathic Ass’n

(Natkin I), 2017 WL 9049880 (D. Or. Aug. 30, 2017), report and recommendation adopted in

part sub nom. Natkin v. Am. Osteopathic Ass’n (Natkin II), 2018 WL 452165 (D. Or. Jan. 17,

2018) (resolving motion to dismiss first amended complaint); Dr. Erik Natkin, DO PC v. Am.

Osteopathic Ass’n (Natkin III), 2018 WL 6920122 (D. Or. Oct. 18, 2018), report and

recommendation adopted in part, rejected in part, 2019 WL 1763242 (D. Or. Apr. 22, 2019)

(Natkin IV) (resolving motion to dismiss second amended complaint (SAC)); Dr. Erik Natkin,

DO PC v. Am. Osteopathic Ass’n (Natkin V), 2023 WL 359589, at *6 (D. Or. Jan. 23, 2023)

(resolving earlier motion for summary judgment filed by AOA).

judgment, a court may consider “evidence submitted in an inadmissible form, so long as the

underlying evidence could be provided in an admissible form at trial, such as by live testimony.”

JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016); see also

Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (noting that at summary judgment a

court does “not focus on the admissibility of the evidence’s form. [The Court] instead focus[es]

on the admissibility of its contents”). “Rule 56 is precisely worded to exclude evidence only if

it’s clear that it cannot be presented in an admissible form at trial.” Comite de Jornaleros de

Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 964 n.7 (9th Cir. 2011); cf. Fed. R. Civ.

P. 56(c)(2) (permitting a party to “object that the material cited to support or dispute a fact

cannot be presented in a form that would be admissible in evidence”). Plaintiffs do not object

under Rule 56(c)(2) that the material cited cannot be presented in a form that would be

admissible at trial. Additionally, objections on the grounds of relevance “are inappropriate,

because the Court must determine whether a fact is relevant and material as part of ‘the summary

judgment standard itself.’” Sidhu v. California, 2021 WL 411149, at *7 (E.D. Cal. Feb. 5, 2021)

(quoting Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006)).

As for Plaintiffs’ objections to exclude evidence as a sanction under Rule 37(c)(1) for

failing to comply with initial disclosures, the Court makes some general observations.4 Rule 26

disclosure obligations are enforced by Rule 37(c), which “gives teeth to these requirements by

4 The parties should keep these standards in mind when submitting evidentiary objections

to trial evidence. Objections based on lack of disclosure in initial disclosures to documents that

have been produced in discovery and made known will not be well taken. Objections to

witnesses for lack of disclosure in initial disclosures when documents “revealing [the witness] as

one with knowledge pertinent to [Plaintiffs’] claims” has been produced, Mack v. Cal. Dep’t of

Corr. & Rehab., 790 F. App’x 846, 848 (9th Cir. 2019), or there has been deposition testimony

or responses to interrogatories indicating that the witness has relevant information, see Anigbogu

v. Mayorkas, 2023 WL 8115046, at *5 (N.D. Cal. Nov. 22, 2023), similarly will be unavailing.

forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not

properly disclosed.” Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1179 (9th

Cir. 2008) (quoting Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th

Cir. 2001)). According to Rule 37(c), “[i]f a party fails to provide information or identify a

witness as required by Rule 26(a) . . . the party is not allowed to use that information or witness

to supply evidence on a motion, at a hearing, or at a trial.” Fed. R. Civ. P. 37(c)(1). Under

Rule 37(c)(1), if the party’s failure to make a Rule 26(a) disclosure either “was substantially

justified or is harmless,” exclusion is not required. Id.

Under Rule 26(a)(1), a party is only obligated to make initial disclosures and supplements

relating to information in that party’s possession, custody, or control. See Fed. R. Civ.

P. 26(a)(1)(A). This means, for example, that if Western provides as an exhibit a document

produced in discovery by SHS, Plaintiffs may not rely on Rule 37(c)(1) to exclude that

document. Western is not subject to sanctions for failing to provide that document in Western’s

initial disclosures if that document was not originally in Western’s possession, custody, or

control. Because it was produced in discovery to all parties and came to Western the same time it

came to Plaintiffs, then it is no basis to sanction Western.

Additionally, even if a document may be subject to Rule 37(c)(1) because it is offered by

a party who produced it and the party did not disclose the document in its initial disclosures or

supplementation, there are limits to when supplementation is required, and Rule 37(c) sanctions

are not appropriate if the violation is “harmless.” A party is only obligated to supplement a

disclosure if in “some material respect” the disclosure is incomplete or incorrect and the

additional information “has not otherwise been made known to the other parties during the

discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). Subsequent discovery responses or

document production may obviate the need to, or render harmless, any failure to supplement

initial disclosures. See, e.g., Evanston Ins. v. Footprints Behav. Interventions, Inc., 2024

WL 3338308, at *2 (9th Cir. July 9, 2024) (discovery responses indicating the plaintiff had

incurred damages sufficient); Mack v. Cal. Dep’t of Corr. & Rehab., 790 F. App’x 846, 848 (9th

Cir. 2019) (documents produced that reveal a witness has pertinent knowledge sufficient); HH

Assocs., U.S., Inc. v. Evans, --- F. Supp. 3d ---, 2024 WL 727044, at *5 (D. Haw. Jan. 11, 2024)

(declarations previously submitted by witnesses in a parallel litigation sufficient); Clear

Connection Corp. v. Comcast Cable Commc’ns Mgmt., LLC, 501 F. Supp. 3d 886, 896 (E.D.

Cal. 2020) (facts discussed in deposition testimony and expert report sufficient).

The Court will not separately resolve each of the voluminous evidentiary objections

raised by Plaintiffs. The Court, however, only considers relevant, appropriate, factual contentions

in resolving the pending motions.

B. Western’s Motion

Both Western and Plaintiffs recite many irrelevant facts in briefing Western’s motion.

The only relevant facts relate to whether Vela, Dr. Jonathan Evans, Dr. Caroline Fisher,

Dr. Sugat Patel, or Dr. Clint Evans were employees of Western.

1. New Theories of Liability

Plaintiffs attempt to assert new bases of liability in responding to Western’s motion for

summary judgment. Plaintiffs contend that Western has “direct liability” with respect to

Plaintiffs’ fair procedure claim and that Vela as the Director of Medical Education (DME) and

the other doctors as the Program Directors (PD) were nonemployee agents of Western with

respect to that claim. Those theories of liability, however, are foreclosed. In resolving Western’s

motion to dismiss the Second Amended Complaint (SAC), the Court dismissed the fair

procedure claim against Western except to the extent it was based on a theory of respondeat

superior liability.5 See Natkin IV, 2019 WL 1763242, at *8-9 (explaining that for Plaintiffs’ fair

procedure claim liability applies to “the employer of the individuals involved in Natkin’s

suspension and termination” and describing the allegations of employment that suffice to assert a

claim); id. at *9 (“[A]n allegation in the SAC of an employment relationship, particularly one

accompanied by the documents defining the employment relationship, is sufficient. Given the

somewhat confusing and interrelated nature of the entities and the job positions, it is reasonable

for Plaintiffs to rely on their best knowledge and the contracts between Defendants in alleging

the various employment relationships. Defendants may challenge the alleged employment

relationship in a motion for summary judgment . . . .” (footnote omitted)); id. (explaining that the

Court “focuses only on the individual’s employment as a director, staff, or faculty member at

Natkin’s residency program” and that “Plaintiffs’ allegations relating to this claim support that

the DME and PDs are employees of Western and SHS[]”); id. at *10 (“In sum, the Court finds

Plaintiffs’ allegations are sufficient against the following Defendants and based on respondeat

superior liability with respect to the following individuals: . . . . Western, as employer of Vela

5 Plaintiffs cite the Court’s opinion denying the summary judgment motion filed by

Defendant Osteopathic Postdoctoral Training Institute, OPTI-West Educational Consortium

(OPTI-West) against Plaintiffs’ fair procedure claim to support the proposition that Plaintiffs

have a direct claim against Western. In denying that motion, however, the Court rejected OPTI-

West’s general argument that it did not owe a duty of fair procedure to Natkin by explaining

OPTI-West’s general influence over SHS and the residency program, and then connected OPTI-

West’s potential liability to the alleged conduct of OPTI-West’s employee, Dr. J. Michael

Finley, DO. See Natkin V, 2023 WL 359589, at *6 (“It is thus a reasonable inference that OPTI-

West had substantial influence over SHS and Good Sam and Finley’s participation and

comments in Natkin’s disciplinary process would have substantial sway, even though under the

contract, SHS makes disciplinary decisions on its own.”); id. (“Here, Natkin believed it would be

futile to appeal to OPTI-West because Finley had repeatedly expressed his opinion about

Natkin’s situation, both in the initial meeting and at the appeals hearing. . . . Natkin did not take

advantage of OPTI-West as a direct appeal because Natkin believed Finley to be too biased.”);

id. (“Plaintiffs provide sufficient evidence at this stage, viewing the facts in the light most

favorable to Plaintiffs, to raise a triable issue regarding Finley’s conduct in the asserted

deprivation of Natkin’s right to fair procedure.”).

(as PD & DME), Dr. Jonathan Evans (as PD), Dr. Caroline Fisher (as PD), Dr. Sugat Patel (as

PD), and Dr. Clint Evans (as PD)”).

The remaining claims that the Court accepted as adequately alleged against Western also

survived solely based on respondeat liability. See id. at *10 (adopting Judge Beckerman’s

recommendations relating to the Sixth Claim, Natkin III, 2018 WL 6920122, at *22, which

included that the Sixth Claim survives against Western because “Plaintiffs have adequately

alleged that Dr. Vela was an employee-agent of Western”); id. at *11 (discussing for Plaintiffs’

Eighth Claim alleging intentional interference with contract that it turns with respect to Vela and

Western’s liability on whether “Vela is also employed by Western” and “if Vela is an employee

of Western he may be liable for this tort” but “[i]f it is shown at summary judgment that Western

did not have the requisite control over Vela and he was not an employee of Western, then Vela

would only be subject to liability for this tort as an employee of Good Sam if he acted solely for

his own benefit”); Natkin III, 2018 WL 6920122, at *27 (stating for Plaintiffs’ defamation claims

that “Western can therefore be held vicariously liable for defamatory statements Dr. Vela made

in the course and scope of his employment as the DME”); Natkin IV, 2019 WL 1763242, at *15

(stating for Plaintiffs’ intentional interference with economic relations claims that “these claims

are stated only against Vela and the entities that have respondeat superior liability for Vela

(Good Sam, SHS[], and Western)”).

For Plaintiffs’ contention that Vela and Drs. J. Evans, Fisher, Patel, and C. Evans were

nonemployee agents instead of employees, this argument is foreclosed by the Court’s opinion

resolving the motion to dismiss the SAC, as discussed above. This argument also is foreclosed

by Plaintiffs’ allegations in the SAC. Against Drs. J. Evans, Fisher, Patel, and C. Evans,

Plaintiffs allege that they were “employed” by Western (and other entities). Plaintiffs’

allegations relating to Vela are more vague, alleging clauses of the Sponsorship Agreement and

that the DME position and Vela were subject to the control of Western, without using the term

“employed.” The Court, however, repeatedly stated in Natkin III that the claims against Western

survived based on respondeat superior liability through Vela and an alleged employment

relationship.

The Court dismissed the insufficiently alleged claims in Plaintiffs’ SAC without

prejudice. Plaintiffs, however, never moved for leave to file a Third Amended Complaint and did

not file new claims against Western based on nonemployee agency. Nor did Plaintiffs request

reconsideration or clarification of the Court’s determination that the only claims remaining

against Western were claims based on respondeat superior versus nonemployee agency.

Plaintiffs may not now attempt to avoid summary judgment by raising a new claim (with respect

to the PDs’ nonemployee liability) or resurrect a dismissed claim (direct liability and to the

extent the SAC could be interpreted as having originally alleged nonemployee agency with

Vela), and essentially amend their pleading at this late stage.6 See, e.g., La Asociacion de

Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010) (stating

that the plaintiff “may not effectively amend its Complaint by raising a new theory of standing in

its response to a motion for summary judgment”); Navajo Nation v. U.S. Forest Serv., 535 F.3d

1058, 1080 (9th Cir. 2008) (stating that when allegations are not in the complaint, “raising such

claim in a summary judgment motion is insufficient to present the claim to the district court”),

6 At oral argument, counsel for Plaintiffs argued that any lack of clarity in the SAC

should not be held against Plaintiffs. The primary basis for the Court’s decision here, however, is

that the Court’s opinion in Natkin III was unambiguous in retaining against Western claims

based only on respondeat superior. The Court was not unaware of the possibility of Plaintiffs’

contention of nonemployee status—the Court described Western’s objections to the underlying

Findings and Recommendation as including whether Vela was an “employee or nonemployee

agent” of Western. Natkin IV, 2019 WL 1763242, at *3. The Court, however, concluded that

Plaintiffs only sufficiently alleged claims against Western based on Vela’s purported

employment.

overruled in part on other grounds by Apache Stronghold v. United States, 95 F.4th 608 (9th

Cir. 2024); Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006)

(“Simply put, summary judgment is not a procedural second chance to flesh out inadequate

pleadings.” (quoting Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990))). The

Court rejects Plaintiffs’ arguments about direct liability and nonemployee agency.7

7 After oral argument, Plaintiffs directed the Court to Plaintiffs’ brief in response to

Western’s motion to dismiss the SAC as providing notice to Western that Plaintiffs raised

nonemployee agency. This argument fails for several reasons. First, it is the Court’s opinion in

Natkin III that is binding, which was after the briefing before Judge Beckerman and

unambiguously allowed only respondeat superior claims to proceed. The Court rejected any

nonemployee agency theory. Second, as previously noted, Western was aware of Plaintiffs’

possible nonemployee agency contentions, as stated in Western’s objections. Notice to Western

at that time is not dispositive. It is the fact that in the five years since the Court’s Natkin III

Opinion, this case has been litigated as only including respondeat superior claims against

Western that raises concern. Third, Plaintiffs’ brief at the motion to dismiss stage is not as

Plaintiffs now characterize. That brief only mentions nonemployee agents to highlight the

difference between an employee and nonemployee agent. Plaintiffs argued that Western was

liable as the employer of Vela (along with joint liability positions the Court rejected) and

highlighted Plaintiffs allegations stating as much. See ECF 153 at 8 (“Plaintiffs do allege that

Dr. Vela is an employee of Western”); id. (“To be clear, Vela is alleged to be an employee of

Western . . . .”); id. at 13-14 (distinguishing between employee and nonemployee agents and then

asserting that “Vela, Bell, GME Committee members, J. Evans, Krumrey, Newman, Malkin,

Ballinger, Fisher, Patel, and C. Evans are employee-agents of AOA, OPTI-West, and Western”);

id. at 14 (“Thus, wholly apart from the liability for the acts of these individuals as employee-

agents of the joint venture, these individuals are separately the employee-agents of AOA, OPTI-

West, Western, and Samaritan Entities.”); id. at 19 (“Western is liable as . . . an employer of

Vela . . . .”); id. at 20 (“The allegations now establish Vela as an employee-agent of

Western . . . .”); id. at 26 (“Plaintiffs allege that . . . Western is Vela’s employer.”). Plaintiffs’

brief from April 30, 2018, provides no help to avoid summary judgment.

Plaintiffs also asserted after oral argument that the Court could not “grant” summary

judgment on the grounds that Vela and the others were not nonemployee agents because those

were grounds not raised by Western in its motion and thus Plaintiffs required more notice than

the discussion at oral argument. Plaintiffs misunderstand the Court’s point. The Court is granting

summary judgment on the ground raised by Western—that Vela and Drs. J. Evans, Fisher, Patel,

and C. Evans were not employees of Western in the relevant context (as DME and PDs). What

the Court is rejecting is Plaintiffs attempt to avoid summary judgment in their response by

improperly asserting new theories that were dismissed (that Western is directly liable for the fair

procedure claim and that Western is liable for the individuals’ conduct as principal of

nonemployee agents) and effectively attempting to amend their complaint. The Court need not

give notice to Plaintiffs to reject Plaintiffs’ improper assertions in response to summary

2. Respondeat Superior Liability

“Whether a party has the legal status of employee, or employer, is a question of law.”

McClusky v. City of N. Bend, 308 Or. App. 138, 142 (2020). That legal conclusion, however,

“depends on a factual determination of the extent to which the purported employer has the right

to control the performance of services by the individual.” Schaff v. Ray’s Land & Sea Food

Co., 334 Or. 94, 99-100 (2002). When facts are disputed, the question of right to control and

employment status may need to go the jury. Id. at 101-03. “If the facts and any reasonable

inferences that a jury could draw from those facts would not support a conclusion that the

putative employer had the right to control the putative employee’s work performance, then there

is no triable issue of fact, and a defendant is entitled to have the issue decided as a matter of

law.” Id. at 103.

The employer must have the “right to control the physical details of the work being

performed,” meaning “not only the end result, but also . . . how the employee performs the

work.” Vaughn v. First Transit, Inc., 346 Or. 128, 137 (2009) (emphasis in original). Oregon

Courts “have identified four nonexclusive factors for consideration in assessing the right to

control: ‘(1) direct evidence of the right to, or the exercise of, control; (2) the method of

payment; (3) the furnishing of equipment; and (4) the right to fire.’” McClusky, 308 Or. App

at 142-43 (quoting Or. Country Fair v. Nat’l Council on Comp. Ins., 129 Or. App. 73, 78

(1994)).

judgment. But even if Plaintiffs needed notice, Western repeatedly argued that the Court already

had ruled against Plaintiffs on these points in Western’s reply, before alternatively addressing

Plaintiffs’ arguments on the merits. See ECF 431 at 10, 11, 16. Plaintiffs did not request leave to

file a surresponse addressing this point in Western’s reply. The Court asked Plaintiffs to address

the issue at oral argument.

Western argues that there is no evidence that it is the legal employer of Vela, or

Drs. J. Evans, Fisher, Patel, and C. Evans. Western asserts that Plaintiffs only rely on the

Sponsorship Agreement between Western and SHS, which provides that the DME at SHS’s

residency program may be an employee of Western and that the PD is appointed from Western’s

faculty. Western argues that simply because a position may be filled with a Western employee

does not mean that it was filled with a Western employee.

Although Western may move for summary judgment by pointing to the absence of

evidence for a claim on which Plaintiffs have the burden of proof, Western also cites evidence

that it argues shows it is not the employer for the relevant persons in their role as DME or PD.

Western cites evidence that: (1) Good Sam oversaw its PDs and residency program: (2) Vela was

unaware of the Sponsorship Agreement between Western and SHS until this litigation; (3) a

Good Sam employee recommended Vela as DME, not Western; (4) Vela did not involve

Western in Natkin’s disciplinary process;8 (5) Natkin was never told Western provided direction

to the committee that was involved in Natkin’s termination and Natkin believed the problem was

that Western should have been involved in Natkin’s termination proceedings;9 (6) Vela testified

8 Plaintiffs object that this evidence is irrelevant, but Vela’s exclusion of Western from

Natkin’s disciplinary process tends to show that Western was not Vela’s employer. Vela would

more likely than not include, or at least notify, his employer in a contentious disciplinary

process. Plaintiffs also broadly contend that “it is not relevant whether Western is a principal to

the DMEs, PDs, or faculty.” This is incorrect. The Oregon Supreme Court has instructed that for

purposes of vicarious liability, employees are “‘servant’ agents.” Vaughn v. First Transit,

Inc., 346 Or. 128, 137 (2009). Further, “[a]ll servants are agents and all masters, principals.

However, all principals and agents are not also masters and servants.” Id. (quoting Kowaleski v.

Kowaleski, 235 Or. 454, 457 (1963)). It is relevant whether Western is the employer (or “master”

principal as characterized in Vaughn in the agency context) of the relevant DME and PDs—

respondeat superior liability is the only way in which Plaintiffs can attach liability to Western.

9 Plaintiffs object that this evidence is irrelevant, but Natkin’s belief that Western was not

involved in and had no direction over his termination proceedings, and indeed should have been

involved in the termination proceedings, is evidence that tends to show that Western was not the

employer of Vela. Natkin believed that Vela had essentially unilateral control over Natkin’s

that he was employed by Good Sam as DME and PD and that Western did not exercise control

over him as DME;10 and (7) Vela and Dr. J. Evans signed the letter terminating Natkin on behalf

of SHS in their official capacity as DME and PD, without mentioning Western.11

Plaintiffs’ response mostly focuses on the contractual documents between AOA,

Western, and SHS.12 In resolving both motions to dismiss, the Court explained that the contracts

alone are insufficient to show employment status.13 They establish a framework. The Court

termination proceedings. As discussed in the previous footnote, that Western was not involved at

all in this contentious disciplinary process would tend to show that it was not Vela’s employer.

10 Plaintiffs object that this is improper opinion evidence under Rule 701. The Court

disagrees. Vela’s belief about who employed him is not an expert opinion and the Court does not

consider it to be a legal conclusion. Cf. Doe v. Holy See, 557 F.3d 1066, 1081 (9th Cir. 2009)

(declining to construe allegations that a priest was an “employee” of the defendant as a legal

conclusion because “employee” is “a word used in everyday speech” and allows the defendant to

“understand[] the factual basis for the claim”). The Court considers this a statement based on

Vela’s personal knowledge about who directed his day-to-day work and who paid him.

11 Plaintiffs object that this evidence is irrelevant, but the fact that Vela and Dr. Evans

signed the termination letter in their official capacity and did not purport to be employed by or

affiliated with Western tends to show that Western did not employ them.

12 Plaintiffs also cite allegations in the SAC. Statements in an unverified complaint,

however, are not evidence properly considered on a motion for summary judgment. See Moran v.

Selig, 447 F.3d 748, 759 (9th Cir. 2006) (“[T]he complaint in this case cannot be considered as

evidence at the summary judgment stage because it is unverified.”); Hernandez v. Spacelabs

Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003) (stating that the nonmoving party “cannot defeat

summary judgment with allegations in the complaint”); Far Out Prods., Inc. v. Oskar, 247

F.3d 986, 997 (9th Cir. 2001) (stating that “the non-moving party must go beyond the pleadings

and by its own evidence set forth specific facts showing that there is a genuine issue for trial”

(quotation marks omitted)).

13 Even focusing on the Sponsorship Agreement does not help Plaintiffs. That agreement

shows that: (1) Western had the option of employing the DME, but there is no evidence Western

took advantage of that option with Vela; (2) Western, in consultation with SHS, would nominate

a Western faculty member to be DME, but the evidence shows that Western did not do so with

Vela; (3) SHS had sole authority to approve the DME; (4) Western and SHS would evaluate the

DME, but there is no evidence Western did so with Vela; (5) the DME served at the will of

Western; (6) SHS could “compel” Western to remove a DME for cause; (7) Western had its own

chairs to supervise the educational activities and curricula of Western’s departments and SHS

supervised its own—if there was overlap at SHS the two entities would work together to

implement joint curricula; (8) SHS recruited, assigned, paid, and employed residents, including

accepted some claims against Western at the motion to dismiss stage because the documents

were alleged along with allegations on information and belief that Vela and Drs. J. Evans, Fisher,

Patel, and C. Evans as DME and PDs were employees of Western. Western challenges those

allegations, and Plaintiffs now must offer some evidence that these persons were employees of

Western in their roles as DME and PDs.14 This is because “[r]espondeat superior is the doctrine

holding an employer or principal liable for the employee’s or agent’s wrongful acts committed

within the scope of employment or agency.” United States v. Town of Colo. City, 935 F.3d 804,

808 n.3 (9th Cir. 2019) (cleaned up). The actions against Natkin were taken by Vela (as DME)

and Drs. J. Evans, Fisher, Patel, and C. Evans (as PDs). Thus, for the conduct to be in the scope

of employment, liability can be imputed only to their employer for those specific roles.

Plaintiffs point to Vela’s testimony that from around 2008 through 2021 he was

employed by Western as a faculty member of Western’s medical school. Vela taught Western’s

providing benefits and insurance; (9) Western would provide medical students (not residents) to

SHS and SHS would supervise those students following Western’s guidelines as much as

possible, which were attached to the Sponsorship Agreement; (10) SHS would provide adequate

resources, facilities, and services to residents; (11) if, in the sole opinion of SHS, a student or

resident violated a rule, bylaw, or so forth, SHS would notify Western and the DME, and the

DME would suspend the student or resident until corrective action was agreed upon by Western,

the DME, and SHS’s CEO; and (12) PDs were appointed from Western faculty. The Sponsorship

Agreement shows only one factor supporting that Western had the right to control Vela—

Western had the right to terminate Vela’s employment. Otherwise, the document does not show

that Western had the right to control how Vela performed his work, the physical details of his

job, or his compensation. Nor does the Sponsorship Agreement show that Western provided the

DME with equipment. And the Sponsorship Agreement says nothing about any of the relevant

factors for right to control PDs.

14 At oral argument, counsel for Plaintiffs focused on the purported fact that Vela was

“appointed” by Western. This stems from Western’s authority in the Sponsorship Agreement to,

in consultation with SHS, “nominate” the DME. SHS, however, must then approve that nominee.

There is no evidence in this case that Western exercised that nomination authority. Indeed, Vela

testified that Dr. Larry Mullins, from SHS, who helped set up SHS’s residency program and

originally brought Vela on as PD, “asked” Vela to become DME. But even if Western did

nominate Vela, that does not make Vela an employee of Western.

medical students, who were at SHS hospitals, on a volunteer basis—he was not paid by Western.

Vela signed a faculty member agreement with Western. At most, Vela was an employee of

Western in his role teaching students. But that does not show that in his role as DME he was an

employee of Western.15

Plaintiffs also cite general evidence about the connection between Western and SHS and

its affiliated hospitals with respect to the medical school and the residency program. That

Western had a medical school campus with SHS, sponsored SHS’s residency program, had the

authority to engage in certain conduct with respect to SHS or Good Sam, or had the authority to

employ certain leadership positions, however, does not show that Vela or Drs. J. Evans, Fisher,

Patel, or C. Evans were employees of Western in their relevant roles.

Plaintiffs next point to a January 31, 2008 letter, from J. Michael Finley, DO, to Lee

Vander Lugt, DO, of AOA.16 Dr. Finley enclosed the application for SHS’s residency program.

Dr. Finley signed the letter in his capacity as Associate Dean of Western and Chief Academic

15 Section 3.3 of the Sponsorship Agreement describes the DME position and provides

that the DME may be an employee of Western. If, however, the DME is employed by Western,

the person is paid by Western and SHS must reimburse Western a percentage of the DME’s

salary, and the parties sign a separate agreement. There is no evidence that Vela was paid by

Western as a DME or that the requisite separate agreement was signed.

16 The Court previously dismissed all claims asserted by Plaintiffs against Western except

the narrow claims allowed based on respondeat superior liability for Vela and Drs. J. Evans,

Fisher, Patel, and C. Evans. Plaintiffs appear to argue that Western is liable as the employer of

Dr. Finley based on the January 2008 letter. Such an assertion fails as a claim already dismissed

and not proper to be raised in response to summary judgment, but it also fails on the merits. This

letter alone is insufficient to support such a contention. That Dr. Finley identified himself as an

associate dean of Western in January 2008 does not show that he was employed by Western

during the relevant events in 2013 and later, let alone that Western had the right to control

Dr. Finley during Natkin’s termination hearings and other related events, in which Dr. Finley

was identified as representing OPTI-West. Indeed, Dr. Finley stated in a declaration that he

attended the termination hearing on behalf of OPTI-West “as a resource in case there were

questions about the policies and procedures OPTI-West had helped Good Samaritan Hospital

Corvallis put in place when the residency program was established.” ECF 263 at 4.

Officer of Defendant Osteopathic Postdoctoral Training Institute, OPTI-West Educational

Consortium (OPTI-West). Dr. Finley noted that SHS was a member of OPTI-West and that

Western sponsored the proposed residency program. Dr. Finley explained that OPTI-West

requested the approval of Vela as the inaugural PD for SHS/Good Sam’s program and that Vela

had “embraced the opportunity to develop residency programs within SHS.” This letter provides

no evidence that Vela or the other PDs were employees of Western.

Considering the four factors highlighted by the Oregon Court of Appeals, no reasonable

juror could find that Western had the right to control Vela or Drs. J. Evans, Fisher, Patel, or

C. Evans. There is no evidence that Western controlled the physical details of how these

individuals performed their work in the relevant roles. Nor is there evidence that Western paid

them or provided them with equipment. There also is no evidence that Western had the right fire

Drs. J. Evans, Fisher, Patel, or C. Evans. Western did have the right to fire Vela, but that alone

does not make Western Vela’s employer. “[E]ven if it is not the control actually exercised, but

that which may be exercised which is determinative, the control that is actually exercised may be

informative of the control that may be exercised.” Harris v. Vector Mktg. Corp., 753 F. Supp. 2d

996, 1021 (N.D. Cal. 2010) (applying similar California law on right to control) (cleaned up).

There is no evidence that Western exercised any of its rights from the Sponsorship Agreement

with Vela’s DME position. The mere fact that the agreement states that the DME is employed “at

the will” of Western, which implies that Western can fire the DME, does not create an

employment relationship. “As [the] multiple factors suggest, the right to control is a matter of

degree.” Avanti Press, Inc. v. Emp. Dep’t Tax Section, 248 Or. App. 450, 461 (2012) (cleaned

up). Plaintiffs provide no evidence that Western exercised any degree of control. Plaintiffs fail to

show an issue fact that Western was the employer for any of the relevant individuals.

Accordingly, the Court grants Western’s motion for summary judgment on all remaining claims

against Western.17

3. Sua Sponte Consideration of Plaintiffs’ Eighth Claim

The Samaritan Defendants previously moved to dismiss against Vela and SHS, Plaintiffs’

Eighth Claim for Relief, which alleges intentional interference with Natkin’s contract with Good

Sam. The Samaritan Defendants argued that Vela, as an employee of Good Sam, could not

intentionally interfere with a contract to which he was a party. SHS’s liability is based on

respondeat superior for Vela.

The Court declined to dismiss this claim against Vela because Vela was in the “unique”

position of both being a party to the contract as an employee of Good Sam and a stranger to the

contract as an employee of Western. Because he was a stranger to the contract as an employee of

Western, in that capacity he potentially could interfere with the contract and be held liable.

Natkin IV, 2019 WL 1763242, at *11. The Court noted that if at summary judgment the Court

concluded that Western was not Vela’s employer, then Vela would be liable “if he acted solely

for his own benefit.” Id.

Before oral argument on the pending motions for summary judgment, the Court advised

the parties to be prepared to discuss whether the Court should sua sponte dismiss or grant

summary judgment in favor of Vela and SHS on this claim if the Court grants Western’s motion

for summary judgment and concludes that Vela is not employed by Western. At the hearing,

counsel for Plaintiffs argued that there remains an issue of fact regarding whether Vela had a

17 The remaining claims against Western are: Plaintiffs’ Third Claim for fair procedure,

as employer of Vela and Drs. J. Evans, Fisher, Patel, or C. Evans; and Sixth Claim for

Intentional Interference with AOA’s contract, Eighth Claim for Intentional Interference with

Good Sam’s contract, Defamation claims, and Intentional Interference claims based on

Defamation, all as employer of Vela.

“mixed motive” in his actions. The dispositive issue, however, is not whether Vela had a “mixed

motive.” Oregon courts have held for decades that for an employee to intentionally interfere with

his employer’s contract, the employee must have acted solely on his own behalf and not even

partially for the benefit of his or her employer. See, e.g., Sims v. Software Sols. Unlimited,

Inc., 148 Or. App. 358, 364-65 (1997); Boers v. Payline Sys., Inc., 141 Or. App. 238, 242-43

(1996); Mannex Corp. v. Bruns, 250 Or. App. 50, 54-55 (2012). The Court asked counsel for

Plaintiffs at oral argument whether they contend that Vela acted solely on his own behalf, and

they did not so contend. They instead cited that Oregon courts look to the benefit to the

employer.

Oregon courts require that the so long as the employee acts within his or her authority

and acts in part to benefit the employer, any other additional motives are “immaterial.” Sims, 148

Or. App. at 364-65; see also Mannex Corp., 250 Or. App. at 55 (explaining that so long as an

employee acts with proper authority and acts in part to benefit the employer, “it is immaterial

that the actor has additional motives-even improper ones”). This is another way to describe the

requirement that the employee’s action must be solely to benefit the employee.18 If the action is

not done in part to benefit the employer, then it is done solely to benefit the employee. These are

the same standard. See, e.g., Mannex Corp., 25 Or. App. at 55-56 (discussing acting in part to

benefit the employer and acting solely to benefit the employee interchangeably); Sims, 148 Or.

App. at 364-65 (same).

As the Oregon Court of Appeals has explained, “the evidence that [a supervisor] had a

‘personal vendetta’ against plaintiff from which the act of terminating plaintiff’s employment

18 The Oregon Courts also state that employees can be held liable if they act “against the

best interests of their employer” as an alternative to acting “solely in their best interest,” but

Plaintiffs allege in the SAC that Vela “acte[ed] for the benefit of his own interest.” SAC ¶ 116.

flowed is of no legal consequence.” Id. at 365. For example, if the supervisor believes, at least in

part, that he is firing a “troublemaker,” then his actions are done in part to benefit the employer.

Id.; see also Mannex Corp., 25 Or. App. at 55 (affirming summary judgment when supervisor

terminated the plaintiff’s employment despite stating that he “did not like” the plaintiff, she ‘had

too many personal problems,” she was a “troublemaker,” and he had to “get rid of the

troublemakers,” because terminating an employee who is a troublemaker is done in part to

benefit the employer). Plaintiffs offer no argument or dispute that Vela’s firing of Natkin was not

done at least in part to benefit Good Sam and was instead done solely to benefit Vela. Thus, the

Court sua sponte grants summary judgment in favor of Vela and SHS on this claim.19 Cf.

Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 803 (9th Cir. 1995)

(affirming sua sponte grant of summary judgment in favor of non-appearing defendant because

nonmoving party had opportunity to be heard on the issue as it applied to another defendant);

Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (affirming sua sponte dismissal

of a claim shortly before trial).

C. AOA’s Motion

The sole claim remaining against AOA is a breach of contract claim. Plaintiffs contend

that an implied-in-fact contract exists between Natkin and AOA, arising from his membership in

AOA and that AOA breached the terms of this contract. AOA argues that there is no evidence of

an implied-in-fact contract. As with Western’s motion, the parties brief many extraneous facts

19 To the extent Plaintiffs would argue that Vela remains a stranger to the contract

because the Court also has considered Natkin the employee of SHS, Good Sam’s parent

company, the Court would reject this contention. Plaintiffs did not argue this during the motion

to dismiss, and neither the Findings and Recommendation nor the Court suggested such a

possibility. The Court finds that for purposes of this claim, Natkin is not a stranger to the Good

Sam contract based on his employment with SHS sufficient to enable him to interfere with that

contract.

and argument. The Court focuses only on information relevant to whether the parties had an

enforceable contract.

To state a claim for breach of contract, a plaintiff “must allege the existence of a contract,

its relevant terms, plaintiff’s full performance and lack of breach[,] and defendant’s breach

resulting in damage to plaintiff.” Slover v. Or. State Bd. Of Clinical Soc. Workers, 144

Or. App. 565, 570 (1996) (quotation marks omitted). Express contracts and implied-in-fact

contracts “are no different in legal effect.” Mindful Insights, LLC v. VerifyValid, LLC, 301 Or.

App. 256, 270 (2019), adhered to on reconsideration, 302 Or. App. 528 (2020). “The only

difference between an express contract and an implied-in-fact contract is the means by which the

parties manifest their agreement.” Id. at 266 (quotation marks omitted). “In an express contract,

the parties manifest their agreement by their words, whether written or spoken.” Staley v.

Taylor, 165 Or. App. 256, 262 (2000). “In an implied-in-fact contract, the parties’ agreement is

inferred, in whole or in part, from their conduct.” Id.; In re Comp. of Gadalean, 364 Or. 707, 717

n.3 (2019) (same) (citing Larisa’s Home Care, LLC v. Nichols-Shields, 362 Or. 115, 129 n.5

(2017)). An implied-in-fact contract “can arise only where the natural and just interpretation of

the acts of the parties warrants such conclusion.” Owen v. Bradley, 231 Or. 94, 103 (1962).

“Oregon subscribes to the objective theory of contracts.” Newton/Boldt v. Newton, 192

Or. App. 386, 392 (2004). Thus, “whether the parties entered into an agreement does not depend

on whether the parties had the same subjective understanding of their agreement, that is, on

whether their ‘minds met’ on the same understanding.” City of Canby v. Rinkes, 136 Or.

App. 602, 611 (1995). Instead, the Court views the parties’ conduct objectively to see if it gives

rise to the reasonable inference that the parties intended to agree to something. See Staley, 165

Or. App. at 262 n.6 (“Frequently, implied-in-fact contracts arise because an accepted course of

conduct would permit a reasonable juror to find that the parties understood that their acts were

sufficient to manifest an agreement.”).

AOA argues that there is no evidence of an implied-in-fact contract between it and

Natkin as asserted in this lawsuit. Specifically, Plaintiffs contend that AOA had contractually

agreed with Natkin (and all other AOA members) to ensure that Good Sam (and all other AOA

accredited institutions) complied with all the terms of AOA’s accreditation standards for medical

institutions, The Basic Documents for Postdoctoral Training (Basic Documents).

Plaintiffs argue that the Basic Documents were AOA’s “offer” to contract with Natkin

and his payment of dues and applying to an accredited institution were his “acceptance” of the

offer. The only conduct by AOA Plaintiffs rely on to show AOA’s manifestation of agreement to

the contract is the issuance of the Basic Documents. There are several problems with Plaintiffs’

contention.

The first is that Natkin states in his declaration that in preparing to “match” with

internship or residency positions during his final year of medical school, he “found and

skimmed” the Basic Documents. He does not identify any clause that he read or relied on in any

way. Merely skimming a document before applying to a residency program cannot by itself show

Natkin’s conduct manifested agreement to enter into a contract with AOA to ensure that the

residency program to which he applied would comply with AOA standards.

Second, Natkin “found” the Basic Documents during his final year of medical school

(2008-2009), but he joined AOA as a student in 2006. Thus, he could not have considered the

Basic Documents to be his “offer to contract” with AOA relating to his student membership

when he was not even aware of those documents until years after he joined the organization.

Although Natkin disputes AOA’s contention that there is a difference between a student

membership and a professional membership, for purpose of summary judgment and viewing the

facts in the light most favorable to Plaintiffs, the Court considers whether Natkin considered the

Basic Documents as an offer to contract for Natkin’s professional membership, at the end of his

student membership. But the problem that Natkin only “skimmed” the Basic Documents is still

present, as well as the problem of whether objectively the Basic Documents could be considered

a contractual offer, as discussed next.

The clauses cited by Plaintiffs objectively do not reflect an offer to contract with

individual medical students or residents. Plaintiffs first rely on “Section I: Introduction to

Postdoctoral Training.” This introductory statement begins: “This document contains the

standards for internship and residency training programs and accreditation standards for

osteopathic postdoctoral training institutions (OPTI).” ECF 410-1 at 4.20 It then briefly explains

the contents of the different sections of Part One. It next states:

Section VIII presents requirements for evaluation of resident

achievement, remediation, faculty evaluation and improvements

based on feedback from evaluation in addition to approval of new

and current programs and PTRC program actions. The information

provided in this document provides requirements and guidance to

directors of medical education, specialty affiliates, intern and

residency surveyors, program directors, administrators, and interns

and residents. In Part Two are the basic requirements for OPTIs.

The two parts are arranged to reflect the requirements for the

administration of an intern or residency program and their

relationship to an OPTI. In addition, there are eleven appendices

which provide models, forms and examples followed by a glossary

of terms to assist programs, trainees and other users of this

document to prepare and implement program and institutional

requirements.

Id.

Plaintiffs rely on the reference to “interns and residents” at the end of the description of

Part One for whom the document provides guidance and “trainees” as a “user” of the document

20 For record cites, the Court cites ECF pagination, not a document’s internal pagination.

identified in the discussion of the appendices as evidence that the Basic Documents is an offer to

contract with residents. The Court finds that objectively, no reasonable person could conclude

that generally identifying that a resident or trainee may find guidance from or use for the Basic

Documents is an “offer to contract” with those persons. Acknowledging that a resident might

find it helpful or useful to see the accreditation standards of a residency program is not a binding

offer separately to contract with that resident.

Plaintiffs next rely on the fact that the accreditation requirements themselves mandate

many benefits to residents, such as requiring the residency institution to provide due process,

implement particular grievance procedures, and include protections related to termination of

residency or internship. This provides no support that the Basic Documents are an offer to

contract individually with residents and interns. Establishing minimum standards to protect

residents (and patients) is the point of an accrediting institution. Again, considering the

document objectively, it is not a reasonable construction that having accreditation standards that

offer benefits to medical students and residents is an offer to directly contract with those students

and residents.

Finally, Plaintiffs rely on the requirement that the residency institution provide

“[c]omplaint procedures,” which are meant as a mechanism for individuals “to bring information

concerning specific actions and programs that may be in noncompliance with the AOA’s

educational standards to the attention of the accrediting agency” and to “[r]ecognize the

responsibility of the AOA to provide complainants the opportunity to use the AOA as a vehicle

to address specific grievances.” ECF 410-1 at 38-39 (Subsection F). This clause, however, must

be considered along with an earlier clause that provides that “[t]he AOA is not a party to any

contractual disputes between trainee and the base institution.” Id. at 38 (Section D.7.5). Section

F.7.5 simply sets forth a requirement that the accredited residency institutions offer specific

complaint procedures. Considering the clause objectively, no reasonable person could find that

AOA is making an offer to contract directly with a resident to address certain grievances.

Generally, Plaintiffs argue that the alleged contract with AOA is similar to cases

analyzing whether representations made in university publications form an implied-in-fact

contract between the student and the university, citing In re Pepperdine University Tuition &

Fees COVID-19 Refund Litigation, 659 F. Supp. 3d 1086, 1094 (C.D. Cal. 2023); Arredondo v.

University of La Verne, 618 F. Supp. 3d 937, 944-46 (C.D. Cal. 2022); Saroya v. University of

Pacific, 503 F. Supp. 3d 986, 996-98 (N.D. Cal. 2020); Kashmiri v. Regents of University of

California, 156 Cal. App. 4th 809, 823-37 (2007). The publications in those cases, however,

were aimed at students and made representations directly to students. The Basic Documents are

directed at the accredited institutions, with a passing acknowledgment that residents and trainees

may find them useful.

Plaintiffs fail to show a genuine issue of fact that AOA objectively manifested an intent

to contract with Natkin (or any resident). The Court grants AOA’s motion for summary

judgment on Plaintiffs’ breach of contract claim.

D. Samaritan Defendants’ Motion

1. Interference with AOA Contract

The Samaritan Defendants move against Plaintiffs’ Sixth Claim, interference with AOA’s

contract, incorporating by reference AOA’s motion for summary judgment. Because the Court

grants AOA’s motion, the Court grants the Samaritan Defendants’ motion against this claim.21

21 Before oral argument, the Court directed the parties to be prepared to discuss whether

the Court should sua sponte grant summary judgment in favor of OPTI-West on Plaintiffs’ Sixth

Claim if the Court finds no enforceable contract between Natkin and AOA and grants the

Samaritan Defendants’ motion for summary judgment on Plaintiff’s Sixth Claim. Plaintiffs’

conceded that under Columbia Steel, summary judgment in favor of OPTI-West on this claim

would be appropriate under those circumstances. The Court, therefore, sua sponte grants

2. Fair Procedure Claim

The Samaritan Defendants next move against Plaintiffs’ Third Claim for Relief,

Plaintiffs’ fair procedure claim, arguing that as a matter of law the claim is not available to

Natkin. The Samaritan Defendants argue that Oregon’s common law right to fair procedure does

not apply because as a resident Natkin did not have hospital privileges, and thus did not lose

them, when he was terminated, and because the right itself does not apply to residents.

In resolving the motions to dismiss Plaintiffs’ First Amended Complaint, the Court

concluded that the Oregon Supreme Court would recognize the common law right to fair

procedure. In reaching this conclusion, the Court discussed Straube v. Emanuel Lutheran Charity

Board, 287 Or. 375 (1979), Huffaker v. Bailey, 273 Or. 273 (1975), and Straube v. Larson, 73

Or. App. 501, 506 n.3 (1985). Natkin II, 2018 WL 452165, at *10. These cases all involved

medical professionals disputing decisions relating to their hospital staff privileges. Natkin,

however, was not a medical “staff” member of Good Sam because he was a resident. Under

Good Sam’s Bylaws, medical staff members must have completed their residency or had five

years’ clinical experience in an accredited hospital or medical center.

The Samaritan Defendants argue that Oregon’s common law fair procedure right

recognized by the Court only extends to hospital medical staff or other persons granted hospital

privileges, and thus does not extend to Natkin, as a resident. Natkin responds that the underlying

discussion by the Oregon Supreme Court in noting the existence of the fair procedure right in

other states had nothing to do with medical staff membership or hospital privileges, and that

Oregon’s fair procedure right is not so limited.

summary judgment in favor of OPTI-West. See Columbia Steel Fabricators, Inc. v. Ahlstrom

Recovery, 44 F.3d 800, 803 (9th Cir. 1995).

The Oregon Supreme Court in Straube recognized California and New Jersey’s fair

procedure right. Straube, 287 Or. at 379 n.3 (citing Ascherman v. S.F. Med. Soc’y, 39 Cal. App.

3d 623 (1974); Falcone v. Middlesex Co. Med. Soc’y, 34 N.J. 582 (1961)). The court described

California’s right, explaining that California’s court adopted the right “for private orthodontic

associations, even though membership in such organizations was not necessary to practice

orthodontics, because membership in the associations was ‘a practical necessity for a dentist who

wishes not only to make a good living as an orthodontist but also to realize maximum potential

achievement and recognition in such specialty.’” Id. at 379 (quoting Pinsker v. Pac. Coast Soc’y

of Orthodontists, 1 Cal.3d 160, 166 (1969)). The Oregon Supreme Court then stated:

Plaintiff contends there is a duty of fair procedure placed upon

defendant in suspending his hospital privileges because those

privileges are very important to plaintiff in pursuing his career and

that the trial court erred in granting the partial summary judgment.

He states that the cases which recognize such a right require “a

hearing, timely notification sufficiently prior to the hearing to

allow adequate preparation of defense, a written statement of the

charges against the individual, and the right to call his own

witnesses before the committee.” This court has never decided

whether there is such a duty in Oregon, and it is unnecessary to do

so in this case because, if such duty exists, it was complied with in

this case.

Id. at 379-80.

In previously denying the motions to dismiss, the Court focused on the framework of

“hospital privileges,” but that does not mean that Oregon would only adopt the right of fair

procedure for medical staff or person with hospital privileges. The Samaritan Defendants argue

that expanding fair procedure to hospitals in a context beyond medical staff and other persons

with hospital privileges would be untenable. The Court disagrees.

A resident is not a medical student, but is a licensed professional. Good Sam requires that

residents be licensed to practice medicine in Oregon. Residents also treat patients.22 More

importantly, the Oregon Supreme Court in Straube emphasized the part of Pinsker concluding

that fair procedure was required because membership in the organization was a practical

necessity to make a good living and maximize achievement in their profession. Straube, 287 Or.

at 379. The court in Straube then articulated the argument for why Oregon should adopt a

requirement for fair procedure—because the loss of hospital privileges was important to the

doctor’s career potential, not simply the loss of privileges working at a particular hospital.

The same career effect is present for residents losing their residency, particularly those

pursing a surgical specialty. It is not the loss of privileges at a hospital that causes the career

effect, but the loss of the residency. Indeed, the California Supreme Court already has extended

the right of fair procedure to a surgical resident in facts similar to Natkin’s claim. See Ezekial v.

Winkley, 20 Cal. 3d 267, 270-76 (1977) (concluding that physician had a common law right to

fair procedure before he could be expelled from his residency, in part because the hospital had

“the power to permit or prevent [residents’] practice of a surgical specialty and to thwart the

enjoyment of the economic and professional benefits flowing therefrom” and because the

plaintiff had an “expectation that the requirements for full utilization of [his] medical license will

22 The Samaritan Defendants argue that residents treat patients “under the supervision of

an attending, board-certified physician.” ECF 435 at 9. The Samaritan Defendants cite no

evidence supporting this contention, and assertions in briefs are not evidence. See Olivier v.

Baca, 913 F.3d 852, 861 (9th Cir. 2019) (“[L]egal memoranda are not evidence, and do not

create issues of fact capable of defeating an otherwise valid motion for summary judgment.”

(cleaned up)). Deposition testimony by Natkin describes he and another resident treating patients

in the emergency room while the supervising attending physician is at home. Dr. Seth Criner also

described in his declaration treating patients alone while Vela was at home. Viewing the facts in

the light most favorable to Natkin, residents treated patients without the supervision of an

attending physician. Further, even if residents treated patients only while supervised, that is not

dispositive, given the rationale behind the Court’s reasoning.

be met through his attainment of specialty status”). The Court previously quoted Ezekiel in

explaining that the right to fair procedure arises in organizations that have the “practical

power . . . to affect substantially an important economic interest,” in explaining why OPTI-

WEST could not assert that it did not owe any duty of fair procedure to Natkin. See

Natkin V, 2023 WL 359589, at *6.

Between the Oregon Supreme Court’s discussion of Pinsker’s general theme about the

importance of an organization’s effect on making a living and maximizing career potential, and

the Oregon Supreme Court’s consideration of California law, the Court finds that the Oregon

Supreme Court would not so narrowly define the common law right to fair procedure as only

applying to a loss of hospital privileges.23 As the California court held in Ezekial, the loss of a

residency program has the practical power to affect substantially the career of a licensed

physician (this again distinguishes medical students). Indeed, terminating a residency might

exclude a licensed physician from a specialty because it may be a practical impossibility to

obtain another residency in that specialty. Thus, the minimum requirements of fair procedure are

triggered in terminating a licensed physician from a residency program. The Court denies the

Samaritan Defendants’ motion based on the argument that Oregon’s right to fair procedure does

not apply to residents. This claim may proceed to trial.

23 At oral argument, counsel for the Samaritan Defendants argued that including residents

in the scope of Oregon’s fair procedure protection would be improper “trailblazing,” which

federal courts are not entitled to do. See Cervantes v. Countrywide Home Loans, Inc., 656

F.3d 1034, 1043 (9th Cir. 2011). The Court disagrees. Including residents is a “prediction” of

what the Oregon Supreme Court would do based on its discussion of the issue and not

“trailblazing” new state law. See id.

3. Wrongful Termination Claim

The Samaritan Defendants move for summary judgment against Plaintiffs’ Fifth Claim

for Relief, Plaintiffs’ wrongful termination claim based on the public policy expressed in ORS

§ 441.044(2), arguing that Natkin’s conduct fell outside the requirements of the statute. The

statute precludes a health care facility from taking an adverse employment action against an

“employee who in good faith brings evidence of inappropriate care or any other violation of law

or rules to the attention of the proper authority solely because of the employee’s action as

described in this subsection.” ORS § 441.044(2).

This claim by Plaintiffs is based on the allegation that the Samaritan Defendants

terminated Natkin’s employment based on comments he made regarding Dr. Richard Stanley’s

treatment of two patients during a “fracture conference.”24 The Samaritan Defendants argue that

there is no genuine dispute that: (1) Natkin did not bring the issues relating to Dr. Stanley’s

treatment “to the attention of the proper authority”; and (2) Good Sam did not terminate Natkin’s

employment “solely” because of Natkin’s actions in the fracture conference relating to

Dr. Stanley.25

24 A “fracture conference” was a meeting held on Fridays in which medical students and

residents reviewed a certain number of orthopedic cases, usually from the preceding several

weeks, by reviewing imaging and discussing what treatment should happen and critiquing what

treatment actually occurred. Interested faculty also attended these conferences.

25 At oral argument, counsel for the Samaritan Defendants also asserted that Natkin failed

sufficiently to raise a patient safety issue during the fracture conference. This argument,

however, was not raised in the Samaritan Defendants’ briefing and was first raised at oral

argument. The Court declines to address arguments raised for the first time during oral argument.

See Booth v. United States, 914 F.3d 1199, 1206 (9th Cir. 2019) (stating that arguments raised

for the first time at oral argument are waived); Perez-Guzman v. Lynch, 835 F.3d 1066, 1075 n.4

(9th Cir. 2016) (“[W]e treat this argument as waived because any textual distinction between the

two terms was raised for the first time at oral argument”). The Samaritan Defendants may,

however, make this argument to the jury.

a. Proper Authority

The Samaritan Defendants argue that “criticizing a physician’s care” at a fracture

conference was inconsistent with Good Sam’s “established reporting procedures.” The Samaritan

Defendants assert that if a physician had a concern that another physician’s care endangered

patient safety, the concerned physician needed to submit an “incident report” to the Peer Review

Committee, report to a department head, or report to the Quality Improvement Committee.

Plaintiffs dispute that there were any such established requirements, formal or informal.

The Samaritan Defendants do not argue that there was a written policy establishing the

procedures to report concerns about a physician’s care of a particular patient. For use of an

“incident report” and reporting to a department head, the Samaritan Defendants cite the

deposition testimony of Dr. Todd Lewis. Dr. Lewis testified: “I would think that if a physician

perceived that somebody was being endangered that that would be reported directly through to

the chief of their department or through to administration through some incident report process.·

I’m not sure if we ever had anything like that.” ECF 413-1 at 246 (Lewis Dep. Tr. 40:12-18). He

then explained that “physicians don’t tend to do that” but “if you felt strongly enough about it

you would find a pathway to make your objections known.” Id. (Lewis Dep. Tr. 40:22-25).

Dr. Lewis’s testimony shows two specific methods that he anticipated—an incident

report or reporting directly to a department head. He added that physicians would find some

“pathway,” leaving an open-ended additional possibility for how physicians could be expected to

convey a concern about the care of a particular patient. This contrasts with his testimony about

how a physician would be expected to report a concern of overall incompetency of another

doctor. Dr. Lewis testified that to make that type of report, “probably the only way to do it”

would be through an incident report. Id. at 245 (Lewis Dep. Tr. 39:11-24).

Vela testified about the Quality Improvement Committee, explaining that it was another

option for reporting concerns. That Dr. Lewis, who had been employed at Good Sam for decades

and sat on leadership committees, did not know about the Quality Improvement Committee as an

option for reporting concerns, shows that Good Sam’s reporting options were not well

established. Additionally, the fact that two doctors in leadership appeared to “brainstorm” at

deposition three different potential avenues for reporting concerns, also supports the conclusion

that Good Sam did not have an established procedure or requirement.

The Samaritan Defendants provided the Court with Good Sam’s Bylaws, although they

do not reference the Bylaws in briefing their motion for summary judgment. The Corrective

Action Policy of the Bylaws states:

Information. Any person may provide information to the medical

staff about the conduct, performance or competence of a member.

Issues of concern or written complaints regarding a member’s

clinical or professional conduct shall be referred to the Peer

Review Committee (“PRC”) for review and to the department

chief for information. Information may come to the PRC from the

following sources:

* * *

• Information collected and analyzed as a result of a specific

complaint or unusual occurrence report related to

competence or professional conduct;

• Information obtained from public sources, Hospital

employees, patients, families or from a member;

ECF 415 at 47 (Bylaws § 2.1).26

26 Natkin denies receiving a copy of the Bylaws, but the Court need not resolve that

evidentiary dispute because the Bylaws do not support the Samaritan Defendants’ argument

regarding the “proper” procedure for complaints. Instead, they support Natkin’s argument on this

point. The Court did not rely on the Bylaws for the point on which the Samaritan Defendants

submitted them.

At oral argument, counsel for the Samaritan Defendants referenced the “Peer Review

Policy” of the Bylaws as establishing the proper “reporting procedures,” but that section does not

directly address how to report issues relating to the conduct, performance, or competence of a

member. That section describes how a member will be professionally evaluated through the peer

review process. In so doing, it explains that “[p]eer review is conducted using multiple sources

of information” and that there is an ongoing professional evaluation component that “includes

individual cases identified for peer review through review screening criteria, as well as referrals

for adverse events.” ECF 415 at 61. It does not describe how information is provided or “adverse

events” are referred. This policy does not foreclose that fracture conferences could be a method

by which to convey concerns, or definitively establish reporting procedures.

The Court must view the facts in the light most favorable to Plaintiffs. In this light, the

record shows that fracture conferences were attended by medical students, residents, and

interested faculty members. These conferences were intended to review the care provided to a set

of cases, discuss whether different care would have been preferable, and critique the treatment

given. Dr. Lewis’s testimony is equivocal on the procedure by which a physician would be

expected to report a concern about another physician’s care of a specific patient and does not

foreclose that a fracture conference could be a proper avenue to raise concerns about the specific

treatment of a given fracture. Vela was asked about how to invoke the “peer review” process,

without establishing that invoking the peer review process is the only way to raise concerns

about another physician’s care. Good Sam’s Bylaws, on the other hand, state that issues of

concerns “may come” to the Peer Review Committee through a specific complaint or unusual

occurrence report or from information obtained from hospital employees, among others. The

Bylaws do not limit the Peer Review Committee to responding only to “incident reports,” reports

given to department heads, or reports to the Quality Improvement Committee. Good Sam’s only

written policy in the record is broad and vague as to how information is “obtained” from

employees and how it gets to the Peer Review Committee, in addition to specific complaints and

unusual occurrence reports. But the fact that the Bylaws contains a separate bullet means that

there is another method besides those types of formal complaints and reports.

There is a genuine dispute about whether a fracture conference was a “proper authority”

at Good Sam at which to raise concerns about a physician’s care of a specific patient giving rise

to concerns about patient safety. Cf. Bala v. Or. Health & Sci. Univ., 2022 WL 17593169, at *3

(D. Or. Dec. 13, 2022) (less formal reports constituted the basis of ORS § 441.044 claim), aff’d

in part, vacated in part on other grounds, remanded sub nom. Bala v. Henrikson, 2024 WL

546349 (9th Cir. Feb. 12, 2024); McQuary v. Bel Air Convalescent Home, Inc., 69 Or. App. 107,

111 (1984) (applying the statute when it was numbered ORS § 441.057, noting that oral

statement to nursing home administrator was enough to invoke statutory protection).

Accordingly, the Court denies the Samaritan Defendants’ motion based on this argument.

b. Sole Reason

The Samaritan Defendants also argue that Plaintiffs’ claim fails because there is no

genuine dispute whether his conduct at the fracture conference was the “sole” reason he was

terminated. The Samaritan Defendants argue that there were several bases on which they based

Natkin’s termination of employment. The Samaritan Defendants first point to Natkin’s

disciplinary history. They next argue that his disciplinary history was compounded by the

“negative” meeting with Vela and Dr. Stanley the day before the fracture conference. They also

argue that shortly after the fracture conference, resident Dr. Kelli Baum reported that Natkin

stated “payback’s a bitch,” adding further grounds to terminate Natkin’s employment. Finally,

the Samaritan Defendants emphasize that Dr. Seth Criner, who chose and presented the cases at

the fracture conference, was only reprimanded because he did not have the disciplinary history of

Natkin. The Samaritan Defendants contend that given these undisputed facts, no reasonable juror

could conclude that the Samaritan Defendants’ only reason for terminating Natkin’s employment

was because of his comments at the fracture conference.

There are many disputed facts related to Natkin’s history with Good Sam. It is

undisputed, however, that Natkin was placed on a “learning contract” in his second year of

residency. The Samaritan Defendants characterize that Natkin’s third year of residency “went

well.” In his fourth year of residency, Dr. Stanley raised a complaint to Vela about Natkin’s

conduct in the operating room. Natkin met with Dr. Stanley and Vela on September 26, 2013, to

discuss Dr. Stanley’s concerns. After that meeting, Vela told Natkin to have no more conflict

with Dr. Stanley and to stay off Vela’s radar. The next day was the fracture conference at issue.

Dr. Criner states in his declaration that he alone selected the 12 cases to be discussed at the

fracture conference, and he did not consult with Natkin. Dr. Criner explains that he chose

Dr. Stanley’s elbow repair because an attending physician, Dr. Jacqueline Krumrey, previously

asked for that surgery to be revisited “because of how poorly the surgery was performed.”

ECF 268-3 at 4-5 (Criner Decl. ¶ 11). It also is a reasonable inference that Dr. Criner selected

these cases more than one day before the conference.

After the fracture conference, Dr. Baum reported that Natkin stated “payback’s a bitch,

isn’t it?”27 Vela called a meeting of the Orthopedic Residency Advisory Committee (ORAC) for

September 30, 2013. The committee voted to sanction Natkin, including possible termination of

employment, and send his case to the Graduate Medical Education Committee. According to

Dr. Criner, he spoke with Dr. Krumrey and Dr. J. Evans, the other members of the ORAC, and

27 Natkin denies saying this, but he does not dispute that Dr. Baum reported that Natkin

said it.

they reported that Vela had decided to fire Natkin and they believed there was nothing they could

do about it. According to Dr. Krumrey, Vela began the ORAC meeting by telling the other two

members that Vela had decided to terminate Natkin’s employment. Dr. J. Evans then essentially

conceded that if that was what Vela wanted to do, then that was what needed to be done, and

Dr. Krumrey emphasized that Vela needed to have appropriate documentation because in her

previous job a resident was fired and brought legal action.

Vela testified during deposition that he was only “one part of the process” to fire Natkin.

Vela explained that the process included considering Natkin’s issues “over the past two years.”

Vela, however, was “particularly” bothered by the fact that Natkin discussed Dr. Stanley’s cases

the day after Vela personally told Natkin to have no more conflict with Dr. Stanley. Vela

considered Dr. Stanley’s cases to have been “pulled” from the “past” with questions by Natkin to

“incite doubt.” Vela stated that also considering the “payback’s a bitch” comment, he believed

that Natkin’s decision to “incite doubt” about Dr. Stanley was “a calculated decision.” Because

of that, Vela believed that Natkin had “crossed a red line” because Natkin engaged in conduct

“in direct contrast to the orders I had given him within the last 24 hours.”

In discussing proof of causation in the comparable context of retaliation,28 the Oregon

Court of Appeals has explained:

Proof of a causal connection between protected conduct and a

materially adverse action can be established (1) “indirectly, by

showing that the protected activity was followed closely by

discriminatory treatment or through other evidence such as

disparate treatment of fellow employees who engaged in similar

conduct” or (2) “directly, through evidence of retaliatory animus

directed against a plaintiff by the defendant.” Boynton-Burns v.

University of Oregon, 197 Or. App. 373, 380 (2005) (emphases in

original; internal quotation marks omitted). In Boynton-Burns, we

elaborated on the initial portion of that test by noting that, “[i]f the

28 Retaliation, however, requires “but for” causation, not “sole” causation.

plaintiff attempts to establish the causal connection indirectly,

relying on mere temporal proximity between the events, the events

must be ‘very close’ in time.” 197 Or. App. at 381 (citing Clark

Cnty Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).

Meyer v. Or. Lottery, 292 Or. App. 647, 681-82 (2018). The Court then discussed federal

retaliation cases, noting that a gap of six weeks to two months has been found to be sufficient to

infer causation.

The gap here is three days—the fracture conference was September 27, 2013, and the

ORAC meeting took place September 30, 2013. Viewing the disputed facts in the light most

favorable to Natkin, Vela had decided to fire Natkin before that meeting took place, and the other

participants simply acquiesced to Vela’s decision.29 That only leaves Vela’s motivation—was it

solely because of the fracture conference or was it because of something more? Based on the

extremely close temporal proximity and Vela’s testimony, the Court concludes this presents an

issue of fact for the jury.

Vela emphasized that warned Natkin to have no more conflicts with Dr. Stanley and stay

off Vela’s radar. It particularly bothered Vela that the next day, at the fracture conference, Natkin

discussed Dr. Stanley’s cases despite Vela’s warning. This is not a focus on the concerns raised

by Dr. Stanley that predated the fracture conference, it is that Natkin’s conduct at the fracture

conference felt disrespectful to Vela by ignoring his direct warning and crossing the “red line.” A

reasonable juror could conclude that Natkin’s conduct at the fracture conference is the sole

reason Vela decided to fire Natkin, considering Vela’s testimony and the temporal proximity. A

29 Viewing the facts in the light most favorable to Plaintiffs, there are fact issues with the

remainder of the process for terminating Natkin’s employment. The members of the subsequent

hearing panels were either picked by Vela or included some of the same members as the ORAC,

thereby potentially “infecting” the panels with the allegedly tainted motives. Thus, the ORAC

meeting is the only meeting that could potentially dispose of this claim at summary judgment.

reasonable juror also could determine that Vela’s raising to the committee Natkin’s conduct from

a year earlier was pretext, particularly given that the decision to fire Natkin had already been

made and Dr. Krumrey had given her warning to properly “document” the employment

termination. The fact that Dr. Criner was merely reprimanded could be seen as further evidence

of Vela’s targeted animosity against Natkin. The Court thus denies this portion of the Samaritan

Defendants’ motion for summary judgment.

E. Remaining Claims

After this decision and the Court’s previous opinions on the motions to dismiss, no

claims remain against Western and AOA. With summary judgment granted sua sponte against

Plaintiffs on their Sixth Claim, asserted against OPTI-West, and their Eighth Claim, asserted

against Vela and SHS, the only claims remaining for trial are:

1. Third Claim, Fair Procedure, against;

• Vela (directly),

• Good Sam (directly, as Natkin’s employer, and by respondeat superior as

Vela’s employer),

• SHS (directly, as Natkin’s employer, and by respondeat superior as the

employer of Vela, Nancy Bell, and Drs. J. Evans, Fisher, Patel, C. Evans,

and Krumrey), and

• OPTI-West (by respondeat superior liability as Finley’s employer);

2. Fourth and Fifth Claims, Wrongful Termination—against Good Sam (directly);

3. Eighth Claim, Intentional Interference Good Sam Contract—OPTI-West (by

respondeat superior as Finley’s employer);

4. Ninth Claim, Breach of Good Sam Contract—against Good Sam (directly);

5. Tenth Claim, Breach of Good Sam Contract Implied Covenant—against Good

Sam (directly);

6. Defamation Claims (Twelfth-only for Natkin’s application to Pennsylvania,

Thirteenth, and Twenty-Second), against:

• Vela (directly), and

• Good Sam and SHS (by respondeat superior as Vela’s employer); and

7. Intentional Interference Claims based on Defamation (Sixteenth and Twenty-

third), against:

• Vela (directly), and

• Good Sam and SHS (by respondeat superior as Vela’s employer).

CONCLUSION

The Court GRANTS Defendant AOA’s motion for summary judgment, ECF 407. The

Court GRANTS Defendant Western’s motion for summary judgment, ECF 404. The Court

GRANTS IN PART and DENIES IN PART the Samaritan Defendants’ motion for summary

judgment, ECF 412. The Court grants summary judgment against Plaintiffs’ Sixth Claim for

Relief and denies summary judgment against Plaintiffs’ Third and Fifth Claims for Relief. The

Court sua sponte grants summary judgment on Plaintiffs’ Eighth Claim for Relief, as alleged

against Vela and SHS. The Court sua sponte grants summary judgment on Plaintiffs’ Sixth

Claim for Relief, as alleged against OPTI-West.

IT IS SO ORDERED.

DATED this 23rd day of July, 2024.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge