Cook v. Helm

JONES, JUDGE

NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 10-CI-005997 OPINION REMANDING

BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. JONES, JUDGE: Appellants, Dr. Christine L. Cook and Dr. Lynn P. Parker, bring this appeal challenging the Jefferson Circuit Court's denial of their motion for summary judgment. Drs. Cook and Parker theorize that the trial court's denial of summary judgment operated as a denial of their claims of qualified immunity, allowing them to immediately appeal that denial to this Court. For reasons more fully explained below, we remand this matter to Jefferson Circuit Court for clarification and, if necessary, for additional findings of fact and conclusions of law on the question of immunity.

Appellee, Dr. William Helm, was an associate professor, clinician, and researcher at the University of Louisville School of Medicine (the "University") from 2000 until 2009. Dr. Helm began his career at the University on "tenure track," but switched to "term track"—meaning that his contract had to be renewed annually—in August of 2005. The University renewed Dr. Helm's contract each year until 2009, when the events giving rise to this litigation occurred. At all times relevant to this litigation, Dr. Parker served as the director of Dr. Helm's division within the University and Dr. Cook served as Dr. Helm's department chair.

In July of 2009, Dr. Cook recommended that Dr. Helm be promoted to professor. In September of 2009, while the promotion process was underway, one of Dr. Helm's colleagues, Dr. Doug Taylor, met with Dr. Parker and other colleagues to discuss Dr. Taylor's belief that Dr. Helm had plagiarized some of his work. Dr. Taylor had first learned of the alleged plagiarism from Dr. Parker. Dr. Taylor had filed an anonymous complaint with the Research Integrity Ombudsperson, as is the University's protocol, in July of 2009. Dr. Parker, however, did not file an anonymous complaint. Instead, Dr. Parker allegedly informed numerous colleagues at the University that Dr. Helm had been accused of plagiarism. Specifically, Dr. Parker prepared a "Research Integrity" memorandum for the University's Associate Dean for Faculty Affairs, in which Dr. Parker stated that "ideas had been taken" by Dr. Helm from Dr. Taylor's original research for use in Dr. Helm's own research. Around the same time, Drs. Cook and Parker (hereinafter, collectively referred to as the "Appellants") came to the belief that Dr. Helm had not followed the proper approval procedures for the research projects that he was being accused of plagiarizing. This allegedly caused Appellants to be concerned that Dr. Helm's research projects would deplete the supply of blood specimens in the University's Tissue Bank. Dr. Helm maintains that he did follow all proper procedures and that nothing about his research projects would cause depletion of the University's supply of blood specimens.

In October of 2009, the recommendation to promote Dr. Helm to professor was tabled. Thereafter, Dr. Cook ordered Dr. Helm to cease cancer patient activities and placed him on administrative leave. Dr. Cook then ordered that all patient information be removed from Dr. Helm's laptop and disconnected Dr. Helm's access to his research and databases. Dr. Helm was also removed from several research projects. At this time, Dr. Helm had not been made aware of the plagiarism allegations against him. While Dr. Helm was permitted to return to work beginning in February of 2010, his employment at the University ended with the expiration of his contract on July 31, 2010.

Dr. Helm filed a complaint against Appellants in their individual capacities, seeking both compensatory and punitive damages. The complaint alleged slander and defamation, interference with prospective business advantage, and outrageous conduct/intentional infliction of emotional distress ("IIED"). An extensive amount of discovery followed. In July of 2013, Dr. Helm moved for summary judgment on two of the affirmative defenses Appellants had raised in their respective answers—both of which were based on the belief that Dr. Helm's claims of defamation failed because Appellants were entitled to immunity—and Appellants moved for summary judgment on all of the claims raised by Dr. Helm.

Appellants' joint summary judgment motion was comprised of three central arguments. Concerning Dr. Helm's claims that they had defamed him, Appellants opined that the statements alleged against them could be separated into two basic categories—statements concerning Dr. Helm's research and statements used to explain Dr. Helm's absence from the clinic. As to the statements concerning Dr. Helm's research, Appellants contended these statements were not actionable for three reasons. First, Appellants argued that the statements made regarding Dr. Helm's research were necessary in order to resolve problems occurring at the University, which were allegedly being caused by Dr. Helm's research projects. They contended that the resolution of those problems was a discretionary function of Appellants and within the scope of their authority; therefore, they were entitled to qualified immunity for those communications. Second, Appellants claimed that any statements concerning Dr. Helm's research activities were made to others sharing a common interest, which entitled them to the protection of qualified privilege. Finally, they argued that any statements made concerning Dr. Helm's research were either true or statements of opinion and, as such, were not actionable. Appellants contended that statements concerning Dr. Helm's absence from the clinic were not actionable because they not only did not fall within the definition of defamation, but they also were not made by Appellants. The statements were made by members of the staff at the clinic.

Appellants additionally argued that Dr. Helm's claim for interference with prospective business advantage must fail as a matter of law. Appellants reasoned that Dr. Helm's tortious interference claims rested upon his claim to continue employment with the University and/or his desire to continue research with his colleagues at the University. Appellants argued that it is impossible for Dr. Helm to show that they "interfered with the contract 'of another,' i.e., an identifiable third party"—an essential element to his claim—because Appellants were acting as the University's agents at all relevant times. Further, Drs. Cook and Parker contended that Dr. Helm had been unable to show that that there was any reasonable likelihood or probability that a business relationship would have come about if not for Appellants' actions and that Dr. Helm had failed to allege damages suffered—both of which Dr. Helm is required to show to prevail on his claim.

Finally, Appellants argued that Dr. Helm's IIED claims must fail as a matter of law. Appellants argued that because Dr. Helm's IIED claim is premised on facts underlying his defamation and intentional interference with prospective business advantage claims, the IIED claim is preempted under Kentucky law. Additionally, Appellants claimed that none of Dr. Helm's accusations in support of his IIED claim reflected the kind of outrageous conduct necessary to sustain the tort and that Dr. Helm had failed to produce any expert evidence demonstrating his severe emotional distress.

Following responses and replies to both motions for summary judgment, the trial court conducted a three-hour hearing on the motions in January 2014. In February 2014, the trial court issued two orders on the motions. Concerning Appellants' motion for summary judgment, the order simply stated that: "The Court has thoroughly reviewed the pleadings and heard extensive argument. The matter stands submitted. Defendants seek summary judgment on the basis of qualified immunity, among other grounds. The Court finds that multiple issues of material fact exist and summary judgment is not appropriate." The court then entered a separate order denying Dr. Helm's motion for summary judgment, as its determination of Appellants' motion rendered the motion moot.

This appeal followed. Based on our initial review of the trial court's order, we issued an order directing Appellants to show cause why this appeal should not be dismissed as interlocutory. Even though the appeal involves immunity, it did not appear to us that the trial court actually determined that Appellants were not entitled to immunity. Rather, it appeared to us that the trial court determined that summary judgment was not appropriate on immunity because disputed issue of material fact existed preventing it from deciding immunity as part of the summary judgment motions. Appellants responded to the show cause. Therein, they assert that the trial court's rulings effectively denied their claim of immunity. They assert because discovery was complete the trial court had an affirmative obligation to determine the immunity question, and that we must review the record to determine whether it supports the trial court's conclusion that issues of material fact exist on the question of immunity. We determined that Appellants' response was sufficient to warrant further review of this matter.

The trial court's orders present a quandary. The trial court was tasked with resolving various issues as part of summary judgment. The motions filed by the parties requested the trial court to decide whether Appellants were entitled to assert a claim of qualified immunity as well as to determine whether summary judgment was proper on the claims themselves. The trial court entered two rather vague orders denying summary judgment based on the existence of disputed issues of material fact. After the trial court entered summary judgment, it indicated that it intended to set this case for trial. This appeal was filed before it could do so.

The first issue listed on Appellants' prehearing statement filed with this Court is "whether the trial court erred in failing to identify the issues of material fact which precluded summary judgment in favor of Drs. Cook and Parker on the basis of qualified immunity." Having reviewed the record in conjunction with the applicable legal authority, we agree that the trial court's order requires clarification before this Court can meaningfully review the qualified immunity issue. While we review the question of qualified immunity de novo, a trial court must actually make a ruling on the issue that is capable of meaningful appellate review.

[I]n the context of a trial court's view of the material facts in consideration of a motion for summary judgment on the grounds of 'qualified official immunity,' it is necessary to separate out the material issues of fact which apply only to the plaintiff's claims (should they survive summary judgment), from those that are pertinent to the determination of "qualified official immunity."

In this case, based on the orders before us, we are uncertain whether the trial court determined that qualified immunity was not available to Appellants as a matter of law or whether it determined that some issue of material fact precluded it from deciding the immunity issue as part of summary judgment. Complicating matters, both parties moved for summary judgment on the qualified immunity issue, and the trial court denied both motions. Discovery was complete in the case. Moreover, the trial court conducted a lengthy hearing prior to taking up the summary judgment motions. Without further clarification, we cannot even be certain that the trial court actually ruled on the qualified immunity issue. It is entirely possible its order unintentionally failed to address the issue, and is directed instead at the material issues of fact related to the claims, not to the defense of qualified immunity.

While we are reluctant to delay further what has already been a rather protracted matter, we are also cognizant of our jurisdictional responsibilities and limitations. We are not a trial court. We should not make the initial determination with respect to immunity. Even though our review of the immunity issue is de novo, that review should not occur until after the trial court has made an actual determination regarding the applicability of immunity. We are unable to ascertain from the orders before us whether the trial court has actually decided the question of immunity and, if so, its decision on that issue. We are left to speculate whether the orders before us were meant to deny Appellants' defense of qualified immunity, reserve that question for future proceedings, or simply failed to address it one way or the other.

Accordingly, we REMAND this matter to the Jefferson Circuit Court. On remand, the Jefferson Circuit Court shall clarify the effect of its orders on the question of qualified immunity. To the extent that the Jefferson Circuit Court's prior orders did not address immunity, it is ordered to do so. The Jefferson Circuit Court is reminded of its obligation to separately address and dispose of the motions for summary judgment with respect to the arguments that relate to the viability of plaintiff's claims from those that are pertinent to the determination of qualified official immunity.

ALL CONCUR. BRIEF FOR APPELLANTS: Mellissa Norman Bork
Brent R. Baughman
Benjamin J. Lewis
Louisville, Kentucky BRIEF FOR APPELLEE: John S. Reed, II
Michael W. Oyler
Louisville, Kentucky