Madhavan Pisharodi, M.D. v. Alejandro J. Betancourt, M.D., Miguel Cintron, M.D., Giovanni Ghafoori, M.D., Christopher Hansen, M.D., and Eric Six, M.D.

NUMBER 13-06-479-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MADHAVAN PISHARODI, M.D., Appellant,

v.

ALEJANDRO J. BETANCOURT, M.D., MIGUEL

CINTRON, M.D., GIOVANNI GHAFOORI, M.D.,

CHRISTOPHER HANSEN, M.D., AND ERIC SIX, M.D., Appellees.

On appeal from the 138th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez

Madhaven Pisharodi, M.D., appeals the granting of both traditional and no-evidence motions for summary judgment in favor of appellees, Alejandro J. Betancourt, M.D., Miguel Cintron, M.D., Giovanni Ghafoori, M.D., Christopher Hansen, M.D., and Eric Six, M.D. Dr. Pisharodi sued appellees for defamation, tortious interference with contract, and conspiracy to tortiously interfere with contract. By seven issues, Dr. Pisharodi contends the trial court erred in granting appellees' motions for summary judgment. We affirm.

I. Background

Dr. Pisharodi is a board certified neurosurgeon who maintains practices in Brownsville, Harlingen, and Mission, Texas. Dr. Pisharodi has had privileges to practice medicine at Valley Baptist Medical Center (VBMC) in Harlingen, Texas, since November 1999. Appointment of privileges at VBMC is subject to a credentialing process that involves the following: (1) the credentialing committee makes recommendations to the Medical Board, (2) the Medical Board reviews the credentialing committee's recommendations and then makes recommendations to the Board of Trustees, and (3) the Board of Trustees makes a final decision to grant or deny privileges. ⁽¹⁾

On appeal, Dr. Pisharodi generally alleges that throughout his relationship with Dr. Six, a neurosurgeon who has served as Medical Director of Neuroscience Service at VBMC since 2003, Dr. Six has "manipulatively interfered with [Dr. Pisharodi's] duties and status at VBMC, has made disparaging remarks about [him]" affecting his reputation and interfering with his professional relationships. In addition, Dr. Pisharodi claims that Dr. Six and Dr. Betancourt, also a neurosurgeon, have "been the source of false accusations" which have lead to peer reviews.

More specifically, Dr. Pisharodi points to several incidences allegedly occurring at VBMC that he argues establish his causes of action against appellees. He first describes a 2002 investigation into allegations that he abandoned his intensive care patient. Dr. Pisharodi next maintains that when one of his patients died after surgery, Dr. Cintron, an obstetrician/gynecologist and VBMC's Chief of Staff, and Dr. Ghafoori, a plastic surgeon and Chief of Surgery at VBMC, "made false and deliberate accusations that the patient died during the surgery." He claims that these alleged accusations resulted in a chart review initiated by Dr. Ghafoori. The patient chart from this review was forwarded to a university professor outside of the VBMC community. The professor concluded there was no breach in the standard of care. According to Dr. Pisharodi, Drs. Ghafoori and Cintron then "misrepresented [his] conduct to the executive committee and convinced them to issue a reprimand." Finally, Dr. Hansen, a retired general surgeon and VBMC's Vice-President of Medical Affairs, terminated Dr. Pisharodi's First Response Team contract.

On July 2, 2002, Dr. Pisharodi filed suit in state court against, among others, Drs. Six and Betancourt, alleging violations of the Texas Free Enterprise and Antitrust Act of 1983 (Antitrust Case). See Tex. Bus. & Comm. Code Ann. §§ 15.01-15.52 (Vernon 2002). Summary judgment was granted in favor of the defendants, including Drs. Betancourt and Six, dismissing the Antitrust Case in its entirety. ⁽²⁾

On June 2, 2004, Dr. Pisharodi filed suit against Dr. Betancourt, Dr. Hansen, VBMC, and others alleging Title VII violations for national origin discrimination, intentional infliction of emotional distress, and negligence (Employment Case). Appellees removed the case to federal court. The federal district court granted summary judgment in favor of Drs. Betancourt, Hansen, and Six and dismissed the Employment Case in its entirety. See Pisharodi v. Valley Baptist Med. Ctr., 393 F. Supp. 2d 561, 566, 578 (S.D. Tex. 2005). Dr. Pisharodi did not appeal the federal district court's judgment.

On March 14, 2004, Dr. Pisharodi filed the present suit against appellees alleging defamation, tortious interference with contract, and conspiracy to tortiously interfere with contract. Appellees moved for traditional summary judgment under Texas Rule of Civil Procedure 166a(c) asserting they established one or more affirmative defenses including res judicata, collateral estoppel, release, waiver, immunity, limitations, truth as to the defamation claim, and justification as to the tortious interference with a contract and conspiracy claims. See Tex. R. Civ. P. 166a(c). In the alternative, appellees asserted they were entitled to a no-evidence summary judgment under rule 166a(i) because there was no evidence, or not more than a scintilla of evidence, establishing each of the required elements of defamation, tortious interference, and conspiracy. See id. at rule 166a(i). Without specifying the grounds, the trial court granted summary judgment.

II. Standard of Review

A. Traditional Motion for Summary Judgment

We review the trial court's grant of a motion for summary judgment on traditional grounds de novo. Ortega v. Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.--Corpus Christi 2003, no pet.) (op. on reh'g). The issue on appeal is whether the movant met its summary judgment burden by establishing that no issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). In determining whether there is a genuine issue of material fact, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Ortega, 97 S.W.3d at 772.

A defendant who conclusively negates at least one essential element of a cause of action or affirmatively establishes each element of an affirmative defense to each claim is entitled to summary judgment on that claim. Id.; Sw. Elec., 73 S.W.3d at 215. Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to raise an issue of material fact with regard to the element challenged by the defendant. Centeq Realty Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Clarendon Nat'l Ins. Co. v. Thompson, 199 S.W.3d 482, 486-487 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979)); Rodriguez v. Klein, 960 S.W.2d 179, 182 (Tex. App.--Corpus Christi 1997, no pet.). When a trial court grants the defendant's motion without specifying the ground, we will affirm the summary judgment if any of the theories advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Branton v. Wood, 100 S.W.3d 645, 647 (Tex. App.--Corpus Christi 2003, no pet.).

B. No-Evidence Motion for Summary Judgment

Texas Rule of Civil Procedure 166a(i) provides that "a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof." Tex. R. Civ. P. 166a(i). The trial court must grant the motion if the nonmovant does not produce summary judgment evidence raising a genuine issue of material fact on each element challenged. Id.; Mack Trucks v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The nonmovant must produce more than a scintilla of probative evidence to raise an issue of material fact. Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 252 (Tex. App.--Corpus Christi 2001, pet. denied). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc., v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). We "must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam); City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

III. Res Judicata and Collateral Estoppel

By his first issue, Dr. Pisharodi contends the trial court erred in granting summary judgment on the basis of res judicata and collateral estoppel. Because res judicata and collateral estoppel are affirmative defenses, see Tex. R. Civ. P. 94, the issue on appeal is whether appellees met their burden of establishing that they were entitled to judgment as a matter of law by affirmatively establishing each element of res judicata or collateral estoppel. See id. at rule 166a(c); Sw. Elec., 73 S.W.3d at 215. We will examine appellees' claim of res judicata first; ⁽³⁾ then, if necessary, we will examine their claim of collateral estoppel. Williams v. Nat'l Mortgage Co. 903 S.W.2d 398, 402 (Tex. App.-Dallas 1995, no pet.) (citing Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985)).

Res judicata precludes claims by parties on matters actually litigated in a previous suit, as well as "'causes of action and defenses which arise out of the same subject matter and which might have been litigated in the first suit.'" Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630 (Tex. 1992) (quoting Tex. Water Rights Comm'n v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex. 1979)). The party claiming res judicata must establish the following: (1) a prior and final judgment on the merits by a court of competent jurisdiction; (2) identity of the parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). When a federal opinion bars a state case, federal standards of res judicata apply. San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 281 (Tex. 1996).

It is undisputed that the federal court judgment in this case is a prior and final judgment on the merits by a court of competent jurisdiction. Amstadt, 919 S.W.2d at 652. Challenging the remaining elements of res judicata, Dr. Pisharodi alleges that res judicata does not bar his claims against Drs. Betancourt, Hansen, and Six because the present lawsuit is against defendants who are not "identical parties" as required by federal law and because the claims are not the same. See id.

A. Identical Parties

In his federal lawsuit, Dr. Pisharodi sued Drs. Betancourt, Hansen, and Six, VBMC, and others alleging Title VII violations for national origin discrimination, intentional infliction of emotional distress, and negligence. Pisharodi, 393 F. Supp. 2d at 568. In the present case, Dr. Pisharodi filed suit against Drs. Betancourt, Hansen, Six, Ghafoori, and Cintron for defamation, tortious interference with contract, and conspiracy. Dr. Pisharodi argues that res judicata does not apply because he sued three additional defendants in the federal suit; therefore, the parties are not identical in both cases. However, Dr. Pisharodi cites no authority for this contention, and we find none. We are therefore not persuaded by this argument. In effect, res judicata applies in a later lawsuit between identical parties who appeared in a prior lawsuit; in this case, the parties are Dr. Pisharodi, the identical plaintiff in both cases, and Drs. Betancourt, Hanson, and Six, identical defendants in both cases. See Abbott Labs. v. Gravis, 470 S.W.2d 639, 642 (Tex. 1971) (allowing Abbott Laboratories to bar action by plaintiff as res judicata although plaintiff sued additional defendants); see also Haynes v. Lemann, 921 F. Supp. 385, 390 (D. Miss. 1995) (applying res judicata in favor of defendants although plaintiff sued others in second lawsuit); cf. Richards v. Jefferson County, 517 U.S. 793, 794 (1996) (providing that it is a violation of due process "to bind litigants to a judgment rendered in an earlier litigation to which they were not parties"). Because Drs. Betancourt, Hansen, Six and Pisharodi were all parties to the federal lawsuit and to the present lawsuit, we conclude they are identical parties.

B. Same Claims

In determining whether res judicata bars a subsequent lawsuit, Texas follows the "transactional" approach of the Restatement (Second) of Judgments section 24. Barr, 837 S.W.2d at 631; see Restatement (Second) of Judgments § 24 (1982). The transactional approach "provides that a final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose." Id. (citing Restatement (Second) of Judgments § 24(1)). A "'transaction or series of connected transactions' connotes a natural grouping or common nucleus of operative facts." Restatement (Second) of Judgments § 24 cmt. b (1982). In deciding whether a common nucleus of operative facts exists, we look to the factual predicate of the claims asserted and not the legal theory claimed by the plaintiff. Collins v. City of Corpus Christi, 188 S.W.3d 415, 424 (Tex. App.--Corpus Christi 2006, no pet.); see Nilsen v. Moss Point, 701 F.2d 556, 563 (5th Cir. 1983) ("This Court has recognized that the principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action." (quoting Stevenson v. Int'l Paper Co., 516 F.2d 103, 109 (5th Cir.1975))). We determine whether a transaction or series of transactions exist by "pragmatically, 'giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties' expectations or business understanding or usage.'" Barr, 837 S.W.2d at 631 (quoting Restatement (Second) of Judgments § 24 (2)). "A determination of what constitutes the subject matter of a suit necessarily requires an examination of the factual basis of the claim or claims in the prior litigation." Id. at 630.

In his original complaint filed in federal court against Drs. Betancourt, Hansen, and Six, Dr. Pisharodi alleged "[Drs. Six and Betancourt] have subjected [Dr. Pisharodi] to needless, harassing peer reviews; they have published untrue, defamatory statements about him; they have interfered with his patients and hospital contracts; and in many ways, have actively sought to demean [Dr. Pisharodi's] competence and professional integrity and reputation." Dr. Pisharodi stated that he believed that Dr. Six was the "driving force of this hostility and aggressive interference with [his] practice and career."

Dr. Pisharodi described events and facts which he believed supported these allegations including the following: (1) defendants, including Drs. Hansen, Betancourt and Six, blocked Dr. Pisharodi from obtaining privileges at VBMC; (2) Dr. Six refused to allow Dr. Pisharodi to name him as backup, while he offered support to other competing physicians; (3) during Dr. Pisharodi's application for privileges at VBMC, Drs. Betancourt, Hansen, and Six made false accusations that Dr. Pisharodi caused the death of a six-year-old patient; (4) Drs. Betancourt, Hansen, and Six kept Dr. Pisharodi off the emergency room call list even though he had a valid contract to participate in the First Response Team; (5) Drs. Betancourt, Hansen, and Six prevented other physicians from providing backup to Dr. Pisharodi for first response, making him ineligible for emergency room duty; (6) Drs. Betancourt, Hansen, and Six unilaterally and without authority terminated Dr. Pisharodi's valid contract with VBMC to participate in the first response team; (7) Dr. Pisharodi was not given a welcome dinner when he was granted privileges at VBMC; (8) Dr. Betancourt openly discussed plans to oust Dr. Pisharodi from VBMC at a welcome dinner for another physician; (9) Drs. Betancourt, Hansen, and Six falsely informed the medical director at VBMC that Dr. Pisharodi had made a trip to India without securing backup coverage for his patients; and (10) Drs. Betancourt, Hansen, and Six have subjected Dr. Pisharodi to numerous and unfounded case reviews resulting in embarrassment and defamation of his reputation and professionalism.

After considering the motion for summary judgment on its merits, the federal trial court granted summary judgment in favor of Drs. Betancourt, Hansen, and Six. Pisharodi, 393 F. Supp.2d at 578. In its order, attached as summary judgment evidence in this case, the federal court summarized Dr. Pisharodi's claims as follows:

[Dr. Pisharodi] claims that he is a highly qualified neurosurgeon who has not succeeded at the same rate as similarly-skilled physicians. He also claims that 'he has been forced to deal with relentless hostilities and unreasonable encumbrances in the performance of his professional duties' and that '[Drs. Betancourt, Hansen, and Six] have subjected [him] to needless, harassing peer review,' have published false defamatory statements about him, have interfered with his contracts . . . and that Dr. Six has used racial slurs about Dr. Pisharodi's colleagues' company.

Id. at 566.

Dr. Pisharodi argues that the claims in this case are not the same because he alleged different theories of recovery: in the federal case he asserted employment claims brought under Title VII, intentional infliction of emotional distress and negligence, while in the current case he is asserting slander, libel, tortious interference with contract, and conspiracy.

Applying the transactional approach to res judicata, which requires any cause of action arising out of the same facts to be litigated in the same lawsuit, if practicable, Barr, 837 S.W.2d at 630-31, we have looked at the factual predicate of the claims asserted and not the legal theory claimed by Dr. Pisharodi, and conclude that the present allegations against Drs. Betancourt, Hansen, and Six merely assert new theories based on the same nucleus of operative facts alleged in the federal lawsuit. See Restatement (Second) of Judgments § 24 cmt. b; Collins, 188 S.W.3d at 424; see also Nilsen, 701 F.2d at 563. Furthermore, after examining the factual basis of the claims "pragmatically, 'giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties' expectations or business understanding or usage,'" we conclude that the two actions constitute the same cause of action for res judicata purposes. Barr, 837 S.W.2d at 631.

Therefore, because Drs. Betancourt, Hansen, and Six met their summary judgment burden of establishing that no issue of material fact exists as to their res judicata defense and Dr. Pisharodi did not raise an issue of material fact, Drs. Betancourt, Hansen, and Six are entitled to summary judgment as a matter of law on that basis. See Tex. R. Civ. P. 166a(c); Sw. Elec., 73 S.W.3d at 215; Centeq Realty Inc., 899 S.W.2d at 197; Thompson, 199 S.W.3d at 486-487; Rodriguez, 960 S.W.2d at 182. The trial court did not err in granting summary judgment based on res judicata in favor of Drs. Betancourt, Hansen, and Six. Because we conclude Drs. Betancourt, Hansen, and Six established that res judicata bars the relitigation of Dr. Pisharodi's causes of action, it is not necessary for us to address collateral estoppel as to these appellees. See Jeanes, 688 S.W.2d at 103. We overrule Dr. Pisharodi's first issue as it relates to Drs. Betancourt, Hansen, and Six.

IV. No-Evidence Summary Judgment In his sixth issue, Dr. Pisharodi contends that the trial court erred in granting appellees' no-evidence motion for summary judgment under rule 166a(i) because his summary judgment proof raised a fact issue as to each of the required elements of his claims for defamation, tortious interference, and the derivative conspiracy claim. Having determined that res judicata bars Dr. Pisharodi's claims against Drs. Betancourt, Hansen, and Six, we need only determine whether the trial court erred in granting summary judgment under rule 166a(i) in favor of Drs. Cintron and Ghafoori. See Tex. R. App. P. 47.1.

"To maintain a defamation cause of action, the plaintiff must prove that the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either actual malice if the plaintiff was a public official or public figure, or negligence if the plaintiff was a private individual, regarding the truth of the statement." WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). An oral defamatory statement is slander while a written defamatory statement is libel. See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2005); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). A defamatory statement is one that tends to injure a person's reputation and thereby exposes the person to public hatred, contempt, ridicule, or financial injury. See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2005); Einhorn v. LaChance, 823 S.W.2d 405, 410-11 (Tex. App.--Houston [1st Dist.] 1992, writ dism'd w.o.j.). The threshold issue is whether there are published words capable of a defamatory meaning. Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654 (Tex. 1987).

In their no-evidence motion for summary judgment, Drs. Cintron and Ghafoori specifically challenged the second element of defamation--that any statements made were defamatory. See Tex. R. Civ. P. 166a(i) (requiring that the movant state the elements of the claim or defense to which there is no evidence). In his response to appellees' motion for summary judgment, without stating what Drs. Cintron and Ghafoori said about him, Dr. Pisharodi asserted only that Drs. Ghafoori and Cintron acted with appellees Drs. Six and Betancourt "to do things includ[ing] publishing statements to harm [his] reputation and cause [him] to be subjected to contempt, ridicule are [sic] financial injury." Moreover, on appeal, Dr. Pisharodi maintains that Drs. Cintron and Ghafoori "made false and deliberate accusations that the patient died during . . . surgery" resulting in a chart review initiated by Dr. Ghafoori and that they "misrepresented [his] conduct to the executive committee and convinced them to issue a reprimand." However, Dr. Pisharodi did not produce any summary judgment evidence that Drs. Cintron and Ghafoori made these statements. See Tex. R. Civ. P. 166a(i). We, therefore, conclude Dr. Pisharodi did not produce summary judgment evidence raising a genuine issue of material fact that Drs. Cintron and Ghafoori made defamatory statements about him. See id; Mack Trucks, 206 S.W.3d at 582. Thus, the trial court did not err in granting Dr. Cintron's and Ghafoori's no-evidence motion for summary judgment on Dr. Pisharodi's defamation claim.

Furthermore, in the pleadings and now on appeal, Dr. Pisharodi does not make any assertions that Drs. Cintron and Ghafoori tortiously interfered with Dr. Pisharodi's contract or conspired to interfere with a contract. See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). In fact, in his pleadings Dr. Pisharodi directs all allegations of interference and conspiracy toward Drs. Betancourt, Hansen, and Six. We, therefore, need not address these claims as to Drs. Cintron and Ghafoori. See Tex. R. App. P. 47.1; Tilton, 925 S.W.2d at 681 ("[A] defendant's liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable."). Accordingly, we conclude that the trial court did not err in granting summary judgment in favor of Drs. Cintron and Ghafoori on Dr. Pisharodi's tortious interference and conspiracy claims. See Tex. R. App. P. 47.1. Dr. Pisharodi's sixth issue as to Drs. Cintron and Ghafoori is overruled.

Having overruled Dr. Pisharodi's first and sixth issues and concluding that summary judgment was properly granted, we need not consider his remaining issues as they are not "necessary to the final disposition of the appeal." Tex. R. App. P. 47.1; Branton, 100 S.W.3d at 647 (providing that we will affirm the summary judgment if any of the theories are meritorious).

VI. Conclusion

The trial court's judgment is affirmed.  

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 10th day of January, 2008.

1. In their brief, appellees state that Drs. Cintron, Ghafoori, and Hansen have participated in the credentialing process but that Drs. Six and Betancourt have not.

2. Dr. Pisharodi's appeal of the Antitrust Case, filed on and styled Pisharodi v. Six, is pending in this Court under cause number 13-07-00019-CV.

3. Appellees present their res judicata argument only as to Drs. Betancourt, Hansen, and Six.