USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1987
KISHANLAL CHAKRABARTI,
Plaintiff, Appellee,
v.
JOSEPH L. COHEN, M.D., and MICHAEL J. GILL, M.D.,
Defendants, Appellants.
___________________
No. 92-1988
KISHANLAL CHAKRABARTI,
Plaintiff, Appellant,
v.
JOSEPH L. COHEN, M.D., ET AL.,
Defendants, Appellees.
____________________
ERRATA SHEET
The opinion of this Court issued on July 22, 1994, is
amended as follows:
On page 9, last line, replace "count II;" with "count III;".
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-1987
KISHANLAL CHAKRABARTI,
Plaintiff, Appellee,
v.
JOSEPH L. COHEN, M.D., and MICHAEL J. GILL, M.D.,
Defendants, Appellants.
____________________
No. 92-1988
KISHANLAL CHAKRABARTI,
Plaintiff, Appellant,
v.
JOSEPH L. COHEN, M.D., ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]
__________________________
____________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
______________
____________________
Timothy A. Mullen, Assistant Attorney General, Government Bureau,
__________________
Trial Division, with whom Scott Harshbarger, Attorney General, was on
_________________
briefs for defendants.
Robert LeRoux Hernandez for plaintiff.
_______________________
____________________
July 22, 1994
____________________
BOUDIN, Circuit Judge. Dr. Kishanlal Chakrabarti served
_____________
as a staff psychiatrist at the Lemuel Shattuck Hospital ("the
hospital"), a facility of the Massachusetts Department of
Public Health. In this suit he sought redress for his
discharge by the hospital, and won a jury award of $75,000.
Both sides appeal. We affirm.
The background facts are straightforward. Born in India
and trained in England, Chakrabarti joined the staff of the
hospital in 1979 and worked initially in its geriatric
psychiatry unit. In the early 1980s, another facility--this
one managed by a different state agency--was merged into the
hospital. Chakrabarti disagreed with the merger and its
implementation and made his criticisms known; and he objected
unsuccessfully to the naming of Dr. Michael Gill as head of
the combined psychiatric unit at the hospital.
In October 1985 Gill asked Chakrabarti to resign, citing
their inability to work together and asserted deficiencies in
the latter's performance. Chakrabarti's new immediate
supervisor, Dr. Susan Wehry, also expressed some concerns
about his performance. Gill repeated his request in December
1985 and Chakrabarti rejected the request. In June 1986
Wehry replaced Chakrabarti in her unit with another doctor,
and the hospital's chief of medicine, Dr. Joseph Cohen,
assigned Chakrabarti to a newly created job: guardianship
coordinatorandutilization
reviewphysicianfor
psychiatricpatients.
-2-
-2-
During the next twelve months Chakrabarti did not
perform his new duties to the satisfaction of Cohen, Gill or
Wehry. Chakrabarti in turn took the view that his new job
was effectively a demotion, cutting him off from medical
practice with patients at the hospital. On June 5, 1987,
Gill gave Chakrabarti a negative evaluation and told him that
if Chakrabarti still declined to resign, Gill would urge the
Medical Executive Committee not to renew Chakrabarti's
clinical privileges.1 On June 8, 1987, the Medical
Executive Committee voted unanimously not to recommend
renewal.
Later in June 1987 Chakrabarti was formally notified of
the decision not to renew; the reason given was his failure
to perform satisfactorily his current assignment. He was
told that he could appeal pursuant to the hospital's medical-
staff bylaws. Chakrabarti apparently could not perform his
guardianship role without clinical privileges but he was
continued on the hospital payroll until June 1988. At that
time he was terminated on the ground that no post was
available for him at the hospital because he could not
perform clinical duties there.
____________________
1Under the by-laws clinical privileges were reexamined
every two years by the Medical Executive Committee on which
Cohen sat. Its recommendation could be appealed to the
Public Health Council headed by the State Commissioner of
Public Health.
-3-
-3-
In 1988 Chakrabarti brought the present action in
district court, naming as defendants Cohen, Gill and several
others who are no longer parties to the case. The complaint
set forth five counts: a section 1983 claim under federal
law, 42 U.S.C. 1983 (count I); a claim under the
Massachusetts Civil Rights Act, Mass. Gen. L. ch. 12, 11H,
11I (count II); and state common law claims for intentional
infliction of emotional distress (count III), interference
with business relations (count IV), and defamation (count V).
Damages and reinstatement were both sought.
The first trial occurred in November 1991. The court
directed a verdict for defendants on count III. Thereafter
the jury found in favor of Cohen and Gill on counts I, II and
V. On count IV the jury found in favor of Chakrabarti and
awarded him $1 in nominal damages and $30,000 in punitive
damages. In answer to interrogatories, the jury said that
Cohen and Gill had not sought to retaliate against
Chakrabarti for constitutionally protected speech.
In January 1992 the district court resumed proceedings
to consider equitable relief. The following month, the court
allowed Chakrabarti to amend his complaint to allege--as
count VI--violations of substantive due process and
procedural due process; these were to be considered as bases
for equitable relief on the existing record. The court also
ordered a new jury trial on damages under count IV because it
-4-
-4-
concluded that punitive damages were not permitted under
Massachusetts law on count IV. A retrial on count IV
occurred in March 1992, and the jury awarded Chakrabarti
$75,000 in actual damages against Cohen and Gill.
Thereafter the district court resolved the claims for
equitable relief. It first found that the substantive due
process claim failed on the merits. Later the court rejected
the procedural due process claim; the court said Chakrabarti
had been terminated prematurely because Cohen and Gill failed
to follow required procedures, but the state provided an
adequate appeal process that Chakrabarti had failed to
follow. Finally, as to count IV the court found that
equitable relief was barred by the Pennhurst doctrine, see
_________ ___
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89
__________________________________ _________
(1984). It also ruled that under state law attorney's fees
were not available as to count IV.
On June 26, 1993, judgment in favor of Chakrabarti and
against Cohen and Gill was entered on count IV in the amount
of $75,000 plus $33,351.45 in pre-judgment interest, plus
costs. Judgment was entered in favor of the defendants on
all other counts. Represented by the state, Cohen and Gill
appeal from the judgment on count IV. Chakrabarti appeals
from the judgment on counts III and VI and the refusal to
allow attorney's fees as damages under count IV.
-5-
-5-
We start with the appeal by Cohen and Gill. Although
limited to count IV, this appeal raises several distinct
issues. Defendants begin by asserting that on this record no
reasonable jury could have found that the defendants had
unlawfully interfered with an advantageous business
relationship, and a verdict should have been directed on this
count. On appeal, we draw all reasonable inferences in favor
of the party who opposed the directed verdict and prevailed
at trial; and credibility issues are similarly resolved in
favor of the jury verdict. Santiago-Negron v. Castro-Davila,
_______________ _____________
865 F.2d 431, 445 (1st Cir. 1989).
Both sides agree that the elements of the count IV claim
under Massachusetts law are a business relationship with a
third party, knowledge of it by the defendants, interference
"through improper motives or . . . means," and harm.2 The
defendants say that under state law they enjoyed the benefit
of statutory privileges that protect them so long as they
acted in good faith and in the reasonable belief that their
actions were proper. See Mass. Gen. L. ch. 231, 85N; Mass.
___
Gen. L. ch. 111, 203(c). And, say the defendants,
Chakrabarti's central argument is that he was fired in
____________________
2United Truck Leasing Corp. v. Geltman, 551 N.E.2d 20,
__________________________ _______
23 (Mass. 1990); see also G.S. Enters. v. Falmouth Marine,
___ ____ ____________ _______________
571 N.E.2d 1363, 1370 (Mass. 1991). Traditionally, the
remedy differs in certain aspects, depending on whether an
existing contract or merely a business relationship is
disarranged; but these differences have not been stressed in
this case.
-6-
-6-
retaliation for his criticism but this claim is negated by
the jury's interrogatory answers on this issue.3
We will assume arguendo that the interrogatory answers
________
established that Cohen and Gill did not retaliate against
protected speech. This may mean a debatable assumption; one
might argue that inconsistency in civil verdicts on different
counts is permissible or, at best, grounds for
contemporaneous relief (e.g., further consideration by the
____
jury before entry of the verdicts). But even if retaliation
for protected speech were disregarded as a possible motive,
defendants must still show that nothing else in the record
supported a finding of bad faith or unreasonable belief.
Defendants' brief does not attempt the task.
At trial Chakrabarti sought to show that he had enjoyed
good evaluations prior to Gill's arrival; that Gill, with
Cohen's acquiescence and Wehry's support, had set about
building a false record of Chakrabarti's incompetence; that
improper threats had been employed by Gill; that Cohen had
assigned Chakrabarti to a dead-end job with no guidance or
help as a pretext for forcing him out of the hospital; that
defendants ignored procedures that governed removal; and that
others on the staff had been outraged at what they said was
____________________
3As noted, the jury found in response to interrogatories
under Fed. R. Civ. P. 49 that Chakrabarti's "protected
speech" was not "a substantial or motivating factor" in the
actions taken against him by Cohen and Gill.
-7-
-7-
unfair treatment of Chakrabarti. In short, Chakrabarti's
criticism of the new merger and of Gill was only a part of
the story.
Whether the story has much basis may be debatable, but
it is the job of an appellate brief to muster and array the
evidence to show why no reasonable jury could find bad faith
or other misconduct. Here the defendants' brief on appeal
makes no serious effort, in support of this ground of appeal,
to analyze the evidence taking it in the light most favorable
to Chakrabarti and resolving credibility issues in his favor.
It is not our job to comb a seven-volume trial transcript
afresh and without counsel's assistance, and we decline to do
so. Cf. U.S. Healthcare, Inc. v. Healthsource, Inc., 986
___ _____________________ ___________________
F.2d 589, 599 (1st Cir. 1993).
Although it weakens Chakrabarti's case to assume away
the main motive he argued to the jury--supposed retaliation
against protected speech--it does not eliminate that case.
Fabricating false claims of incompetence could easily serve
as wrongdoing under count IV even if one assumed that Gill
acted out of personal dislike and Cohen and Weary out of
loyalty to Gill. The original punitive damage award suggests
that the jury may well have taken such a view of the matter.
Quite possibly the jury was wrong. But it is the job of
defendants' counsel to show us why and counsel has not made
the effort.
-8-
-8-
Later in their brief defendants make a different kind of
argument against liability. They say that as a matter of law
administrators of the hospital cannot be liable for
interference with an advantageous relationship between the
hospital and one of its own employees. This certainly could
be the law and perhaps ought to be; but the general rule is
that supervisor status, or co-employment, merely creates a
privilege for good-faith interference through reasonable
means. See P. Keeton, Prosser and Keeton on Torts 985 (5th
___ ___________________________
ed. 1984) (citing cases).
Defendants cite only a single case to show that
Massachusetts follows a different course. Saint Louis v.
____________
Baystate Medical Ctr., 568 N.E.2d 1181 (Mass. 1991). That
_____________________
case confirms that, as one might expect, an employer cannot
________
be sued by its own employee for interfering with the contract
between them. Id. at 1188. But the case does not say that a
___
supervisor is similarly exempt from suit; it merely says that
the supervisor enjoys a privilege to express his views. Id.
___
Nothing in the discussion, or in the underlying facts
described in the opinion, suggests that this privilege is
absolute or shields an improper motive or improper means.
Accord, Wright v. Shriners Hospital, 589 N.E.2d 1241, 1246
______ ______ __________________
(Mass. 1992).
Turning to damages, defendants make several arguments.
They first point to the directed verdict for defendants
-9-
-9-
entered by the district judge on count III; they note that
Chakrabarti did not claim pecuniary damages (he appears to
have earned more in private practice after leaving the
hospital); and they say that the emotional distress claimed
as damages under count IV represent the same damages that the
judge declined to permit under count III. The short answer
to the supposed inconsistency is that the district judge
dismissed count III because he thought that outrageous
conduct had not been shown. Thus the dismissal had nothing
to do with a lack of emotional distress.
Defendants also say that one who sues for wrongful
interference with an advantageous relationship may not
collect compensatory damages for emotional trauma but only
for pecuniary loss. This argument has some surface appeal
since the wrongful interference tort is directed to
protecting economic relationships, see Keeton, supra, at 978,
___ _____
and Massachusetts has a separately defined tort to protect
against emotional distress. But defendants did not make this
argument to the district court, and we cannot say that it was
"plain error" for the district court to allow such damages
where the relationship in question was an economic one.4
____________________
4Compare American Velodur Metal, Inc. v. Schinabeck, 481
_______ ____________________________ __________
N.E.2d 209, 216 (Mass. 1985) (compensation for mental
distress and anxiety allowed), cert. denied, 475 U.S. 1018
____________
(1986), with Ratner v. Noble, 35 Mass. App. Ct. 137 (1993)
______ _____
(no such compensation allowed where the relationship
interfered with was a non-pecuniary one). See Keeton, supra,
___ _____
at 1003, n.68, listing Massachusetts as one of the states
-10-
-10-
Defendants' last claim on damages is that the first jury
verdict showed that no actual damages were suffered and that
the district court should simply have set aside the punitive
damages award without granting a new trial. In one of
several versions of this argument, defendants contend that
the jury's finding of no actual damages was untainted by the
misinstruction allowing punitive damages. Chakrabarti, say
the defendants, should not benefit from an error in
instructions that he himself invited.
Based on his remarks, the district judge evidently
believed that the jury had, under the mistaken instruction,
accepted the evidence of emotional distress but compensated
for it in the punitive damages award. The judge thought that
fairness required a fresh start on damages, and he noted that
neither side had properly advised him on the no-punitive
damages rule. A new trial on damages was arguably the right
course and was certainly not an abuse of the trial court's
broad discretion to order new trials. See Fed. R. Civ. P.
___
59(a); Dopp v. HTP Corp., 947 F.2d 506, 518 (1st Cir. 1991).
____ _________
We turn now to the cross-appeal by Chakrabarti. His
first argument is that the district court erred in directing
a verdict against him on his count III claim of intentional
infliction of emotional distress. Massachusetts law
____________________
that allows recovery "for mental suffering" for tortious
interference.
-11-
-11-
recognizes such a tort to redress "extreme and outrageous
conduct." Agis v. Howard Johnson Co., 355 N.E.2d 315, 318
____ ___________________
(Mass. 1976). The district court thought that no reasonable
jury could find that the defendants' conduct rose to that
level. We share that view and therefore by-pass the question
whether count III could have afforded Chakrabarti any further
damages not covered by the count IV award.
Chakrabarti's brief portrays the case as one in which
"an exemplary public servant" and "inspiring leader" was
hounded out of his job through insults, lies and calculated
humiliations. In fact, the record shows not another Dreyfus
affair but a fairly common employment dispute etched not in
black and white but in gray. Chakrabarti, whose own past
evaluations were reasonably good but not flawless, resisted
the new regime; the working relationship deteriorated; he was
shifted to a less attractive job and further disputes ensued;
ultimately, he was terminated, despite the protests of a
number of those with whom he had worked.
In obtaining this termination, the defendants may have
misstated facts concerning Chakrabarti's competence and
conduct, although his brief offers more generalizations than
record citations on this point. The administrators, who
after all had gone to medical school rather than law school,
may also have made some procedural missteps, as the district
-12-
-12-
court found.5 Perhaps it was not an impermissible stretch
for a jury to find their conduct unprivileged (although as
noted the evidence on this issue has not been seriously
sifted by defendants). But there is no indication that any
of their conduct, or all of it taken together, was extreme
and outrageous.
Life is crowded with events that cause emotional upset
and turmoil. As one would expect, the cases indicate that
Massachusetts law keeps a reasonably tight rein on the tort
remedy for intentional infliction of emotional distress. The
courts' language, although general, includes phrases like
"beyond all possible bounds of decency," "utterly intolerable
in a civilized community," and "atrocious." See, e.g., Foley
_________ _____
v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987); Short v.
______________ _____
Town of Burlington, 414 N.E.2d 1035, 1036 (Mass. 1980).
____________________
Lawyers, who use the term "outrage" liberally, may become
tone-deaf to the nuances; but an atrocity is something more
than a faulty evaluation, a procedural error in applying
opaque credentials rules, or even a dead-end job as
competency coordinator.
____________________
5The principal misstep described by the district court
was the termination of Chakrabarti's medical privileges based
on the action of the Medical Executive Committee. As the
district judge read the by-laws, that body merely makes
recommendations to the Public Health Council, which in this
case apparently did not act.
-13-
-13-
This discussion also answers Chakrabarti's next claim of
error. The district court ruled, on count VI, that there was
no violation of substantive due process, a label normally
reserved for conduct that is truly shocking. See Rochin v.
___ ______
California, 342 U.S. 165, 172 (1952) (use of stomach pump to
__________
retrieve evidence). One need not be blind to Chakrabarti's
undoubted distress to appreciate that defendants' conduct
fell far short of the "egregiously unacceptable, outrageous,
or conscience-shocking." Amsden v. Moran, 904 F.2d 748, 754
______ _____
(1st Cir. 1990), cert. denied, 498 U.S. 1041 (1991).
____________
As his third claim of error, Chakrabarti asserts that
the district court erred in failing to find a violation of
procedural due process. The district court said that
Chakrabarti's privileges had been terminated prematurely (see
note 5, above), but that no improper state action was
implicated. The court reasoned that the fault lay not in the
by-laws but in defendants' mistaken treatment of committee's
action as final. Citing Lowe v. Scott, 959 F.2d 323 (1st Cir.
____ _____
1992), the court called this a random and unauthorized action
by individuals and not a basis for relief against the state.
On appeal, Chakrabarti's brief points to a different
possible defect in the by-laws and insists that under section
1983 he is entitled to an injunction reinstating his clinical
privileges (and presumably to attorney's fees as provided
where relief is obtained under that section). The supposed
-14-
-14-
defect, created by obscure wording in the by-laws, is the
possibility that hospital administrators could frustrate an
appeal from an adverse committee action by having the chief
of the applicant's service unilaterally withdraw the
disapproved application.6 This, Chakrabarti argues at
length, is a wholly foreseeable threat to due process.
There is no evidence that any such pocket veto was used
to frustrate an appeal here. Rather, Chakrabarti was
specifically and promptly advised of his right to appeal the
adverse recommendation of the Medical Executive Committee.
He took no action to pursue that right. It is unclear that
the by-law creates such a pocket veto--the language may
envision a withdrawal, with the applicant's consent, to avoid
further embarrassment--but in any event the potential defect
caused no harm in this case.
The last issue in the case concerns attorney's fees
under count IV. At the second jury trial, Chakrabarti sought
to offer evidence of attorney's fees as part of his damages
claimed for tortious interference by defendants. Recognizing
that attorney's fees are not normally compensable damages in
____________________
6Section 6.5-5(c) of the bylaws reads:
Adverse Recommendation: When the
________________________
recommendation of the MEC is adverse to
the applicant, the superintendent shall
immediately request the chief of services
to resubmit a revised application within
10 days or to withdraw the original
application.
-15-
-15-
common law actions, Chakrabarti's counsel cited to the court
an exception recognized in Massachusetts in tortious
interference cases where the victim is forced "to sue . . . .
a third party in order to protect his rights." M.F. Roach
__________
Co. v. Town of Provincetown, 247 N.E.2d 377, 378 (Mass.
___ ______________________
1969).
The district court rejected the evidence, saying that,
by contrast to Roach, the present case did not involve
_____
attorney's fees incurred in suing a third party to restore
contractual rights; rather the fees were incurred in the
present suit to recover against the alleged tortfeasors
themselves. Roach is a very brief opinion, little
_____
illuminated by later cases. But its language and what can be
discerned of its rationale give no hint that Roach applies to
_____
legal fees incurred in suing the tortfeasor.
Rather imaginatively, Chakrabarti's brief on appeal
tries to analogize this case to a suit against the hospital
in proper persona for reinstatement: the brief asserts that,
_________________
so far as equitable relief is concerned, the request for
reinstatement is made against the doctors in their official
________
capacity, just as if the hospital had been joined as a
defendant. This analogy is not without some force, although
it may not have been clearly presented to the district court.
In any case, reinstatement was not granted to
___
Chakrabarti in this case or, so far as we know, in any other.
-16-
-16-
In Roach the attorney's fees allowed were incurred to achieve
_____
redress against the third party. Here, no such reinstatement
has been achieved and, in view of Chakrabarti's failure to
appeal the action of the Medical Executive Committee, such
relief was always unlikely. We have no warrant to extend
Roach to such a situation where redress against the third
_____
party is not achieved or even likely, unless and until the
Massachusetts courts choose so to extend it. See, e.g.,
__________
Pearson v. John Hancock Mut. Life Ins. Co., 979 F.2d 254, 259
_______ _______________________________
(1st Cir. 1992).
This case reveals the limitations of the trial process,
which imposes yes or no answers on liability questions, in
coping with muddled disputes of this kind. Frankly, it is
not manifestly clear to us that Chakrabarti deserved to lose
his clinical privileges, nor that Cohen and Gill acted in bad
faith or through patently improper means. But the parties
chose to litigate the case rather than to settle, as the
district judge wisely encouraged them to do, and we find no
legal error affecting substantial rights in the proceedings,
nor any basis to overturn the jury's decision.
Affirmed.
________
-17-
-17-
