Dennis King v. Terence McGee

FILED
NOT FOR PUBLICATION
JUN 18 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS KING and TRICIA KING, No. 17-35111
husband and wife,
D.C. No. 2:12-cv-00622-TOR
Plaintiffs-Appellees,
v. MEMORANDUM*
TERENCE SEAN MCGEE, M.D. and
KIM MCGEE,
Defendants-Appellants,
and
OHS HEALTH & SAFETY SERVICES,
INC.,
Defendant.
DENNIS KING, Husband and TRICIA No. 17-35149
KING, Wife,
D.C. No. 2:12-cv-00622-TOR
Plaintiffs-Appellees,
v.
OHS HEALTH & SAFETY SERVICES,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
INC.,
Defendant-Appellant,
and
TERENCE SEAN MCGEE, M.D. and
KIM MCGEE,
Defendants.
DENNIS KING and TRICIA KING, No. 17-35160
husband and wife,
D.C. No. 2:12-cv-00622-TOR
Plaintiffs-Appellants,
v.
GARFIELD COUNTY PUBLIC
HOSPITAL DISTRICT NO. 1; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief District Judge, Presiding
Argued and Submitted June 6, 2018
Seattle, Washington
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Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,** District
Judge.
1. Motion for Judgment as a Matter of Law on Agency. The district court
erred by not granting OHS Health & Safety Services, Inc.’s (OHS) motion under
Federal Rule of Civil Procedure 50. “Apparent agency occurs, and vicarious
liability for the principal follows, where a principal makes objective manifestations
leading a third person to believe the wrongdoer is an agent of the principal.” D.L.S.
v. Maybin, 121 P.3d 1210, 1213 (Wash. Ct. App. 2005) (citing Restatement
(Second) of Agency § 267 (Am. Law Inst. 1958)). Under Washington law, after a
principal makes such representations, “the plaintiff must, as a result, rely upon [the
apparent agent’s] care or skill, to her detriment.” Id. (emphasis added). There is no
evidence that Dennis King (King) relied on OHS’s representations that Terence
McGee (McGee) was its agent. King did not go to McGee because of OHS’s
representations that he was its agent. Rather, Garfield County Public Hospital
District No. 1 (GCPH) brought McGee into the situation and directed King to
submit his documentary evidence to McGee. Cf. Wilson v. Grant, 258 P.3d 689,
695-96 (Wash. Ct. App. 2011) (reversing summary judgment for hospital on
apparent agency grounds where injured plaintiff sought treatment at the emergency
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
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room).1 We therefore reverse the district court’s judgment against OHS and
remand for entry of judgment as a matter of law in OHS’s favor.
2. Motion for Summary Judgment on Duty. The district court correctly
denied the Motion for Summary Judgment filed by Terence and Kim McGee
(collectively “McGees”). There is no statutory duty for a Medical Review Officer
under Washington law, and Dennis and Tricia King (collectively “Kings”) allege
none. However, the Kings do allege a common law duty. In Affiliated FM
Insurance Co. v. LTK Consulting Services, Inc., the Washington Supreme Court
held that an engineering firm had a common law duty of care beyond its
contractual obligations. 243 P.3d 521, 528 (Wash. 2010) (en banc). Particularly, it
held that “the measure of reasonable care for an engineer undertaking engineering
services is the degree of care, skill, and learning expected of a reasonably prudent
engineer in the state of Washington acting in the same or similar circumstances.”
Id. at 529. The district court correctly concluded that McGee owed a common law
duty to King.
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Because we find the district court incorrectly denied OHS’s Motion for
Judgment as a Matter of Law, we do not reach OHS’s remaining claims on appeal.
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3. Standard of Care Jury Instruction.2 The McGees do not dispute that the
jury instructions were jointly proposed. The parties jointly proposed a standard of
care instruction, which the district court gave. If the McGees were aware of a
deficiency in the instructions, they cannot invite the error and then object to it later
on appeal. See United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997). In the
alternative, the standard of care instruction was not plain error. Hunter v. County of
Sacramento, 652 F.3d 1225, 1230 (9th Cir. 2011). The Kings presented evidence
on how a reasonable medical review officer should act, and the district court gave
an instruction that allowed the jury to apply that standard.
4. Emotional Distress Claim. The district court did not err by denying the
Rule 50 motion regarding emotional distress. “Serious emotional distress can be
diagnosed even in the absence of any physical manifestation, and can be proved
with medical and psychiatric evidence.” Hegel v. McMahon, 960 P.2d 424, 431
(Wash. 1998) (en banc). Such diagnoses can include “severe and disabling
emotional or mental condition[s,] which may be generally diagnosed by
professionals trained to do so.” Id. (quoting Sorrells v. M.Y.B. Hosp. Ventures, 435
2
It is unclear from the briefing and the record whether the McGees dispute a
denial of a judgment as a matter of law or the jury instruction. Therefore, because
the argument is based on the text of the jury instruction, we construe this argument
as one challenging the standard of care instruction given by the district court.
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S.E.2d 320, 322 (N.C. 1993)). The psychologist testified that King demonstrated
problems with “mood maintenance” and “[e]xcessive apprehension” and that
King’s underlying health issues were “lit up or magnified under the stress of
termination.” Washington law allows psychologists to make “emotional”
diagnoses, see Wash. Rev. Code § 18.83.010(1)(b) (defining the “practice of
psychology” to include “[d]iagnosis and treatment of mental, emotional, and
behavioral disorders, and psychological aspects of illness, injury, and disability”),
and the McGees point to no Washington case law that holds otherwise.
5. Front Pay Claim. The district court did not err by denying the Rule 50
motion regarding front pay. First, King’s testimony, that he earned “approximately
$42,000 a year,” was 54 years old when he was fired, and planned to retire at 65
years old, was sufficient evidence for a jury to determine a future pay award. See
Lords v. N. Auto. Corp., 881 P.2d 256, 266 (Wash. Ct. App. 1994) (“Once an
employee produce[s] evidence from which a reasonable future employment period
may be projected, the amount of front pay, including the likely duration of
employment, should go to the jury.”). Second, no party presented evidence
regarding a discount rate or requested a jury instruction on present value.
Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 509 (9th
Cir. 2000) (holding present value instruction should not be given where no
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evidence was presented regarding an appropriate discount rate); Kellerher v.
Porter, 189 P.2d 223, 236 (Wash. 1948) (holding present value instruction should
only be given when requested).
6. GCPH’s Motion for Summary Judgment. The district court correctly
granted summary judgment to GCPH. “Liability will lie against a municipal entity
under § 1983 only if a plaintiff shows that his constitutional injury was caused by
employees acting pursuant to an official policy or ‘longstanding practice or
custom,’ or that the injury was caused or ratified by an individual with ‘final
policy-making authority.’” Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143,
1151 (9th Cir. 2011) (quoting Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d
950, 964 (9th Cir. 2008) (en banc)). GCPH “provided [King] with notice that the
presence of drugs in his sample could result in termination,” “[King] had an
opportunity to explain the drug test result” at a meeting with GCPH and McGee,
and “[King] also had ample opportunity (a period of several weeks) to submit
additional documentation explaining the presence of drugs in his sample.” King v.
Garfield Cty. Pub. Hosp. Dist. No. 1, 641 F. App’x 696, 698-99 (9th Cir. 2015).
There was no constitutional injury, because this was sufficient process. Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement of due process
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is the opportunity to be heard at a meaningful time and in a meaningful manner.”
(quotation marks omitted)).
As we find no merit in any of the McGees’ arguments on appeal, we affirm
the district court’s judgment against the McGees. Parties shall bear their own costs.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
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