- 413 -
There is plenty of conduct alleged as to the Doctors.” But

there is no allegation that they intended for Lheir

inflict severe cmotional distr

or that they knew there was a

high probability that their conduct would do so. The alle

that their “actions . . . were intentional” js not equivalent.

Count V will be dismissed without prejudice. Tf plainnit:

wishes to replead this claim, he must allege sufficient conduct

an adequate basis for liability, and he must allege the requi

intent.

dD. Counts VI_& VII _- Negligence & Gross Negligence

NMFF contends that Counts VI and VII should be dismissed as

against NMFEF because Lhe allegations of these cou

s only go Lo the

School and the Hospital. Counts VI and VII allege that tne Sch

and the Hospital “hired a salvage company to destroy contents

hool,

heing moved to a new pavilion in summer of 2001,” that the

the Hospital, and the Doctors “hed a duty to inform Dr. Redrossian

of the date upon which materials would be destroyed and to inforn

Dr.

¥ we do not agree with defendan
conduct alleged is not sufficiently culrageous, Une
of notice pleading, plaintiff is not obliged to

dis

is warrant
Liberal

claims inflicted emotional distress. See Cook y
1998). Plaintiff specifically refers

3” him, Tn addit , al this s
nation, so long as the hypothese
anjuan v. American Bad, of Psychiatr
Sir. 1994).

¥ Contents of what, this sentence dees not

paragraphs of the complaint reveals that the
laboratory at the Hospital were allegedly destroye



Dear Dr. Bedrossian:

I am pleased to provide you an official offer
appointment in the Northwestern University Medi
School. Your appointment is:

Appointment: Ful] -time

Months: il

Track: Clinician

Tenure Status: Non-tenure eligible

Term: September 1, 1997 through August 31,
2002

Rank: Professor of Pathology

The salary for this position will be recommer
annual basis by your department chairm r
Medical School Faculty Handbook.

Bb

nas

Service on the faculty at Northwestern includes teachir
aS assigned by your department chairman, research, and
the performance of assigned administrative duti
duties of the faculty, as outlined in the Univ
Medical School Faculty Handbooks, help to form the ba
on which your performance will be evaluated.

Copies of the University and Medical School
Handbooks are enclosed, These documents conta
important information and conditions thak pertain to your
faculty position at Northwestern.

Please indicate receipt of the Faculty Handbooks and your
intention to accept this appointment, as specified above,
by signing and returning the original of this letter
the Faculty Administration 0 ce

(ld., Ex. B.) Dr. Bedrossian accepléd the appointment, and his

signature appears on the letter.
In the course of his employment, Dr, Redrossian worked with
defendants Drs. Reddy, Warren, and Nayar in the Department of

Pathology (the “Department”). At the time of the complaint, Dr.



under any set of facts that could be proved consistent wilh the

allegations.’” Ledford v. Suljivan, 105 F.3d 354, 356 (Vth Cir

1987) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

A. Count IIT - Retaliation in Violation of the False Claims Act

he anti-retaliation (or “whistleblower”) provision of Lhe

False Claims Act, 31 U.S.C, § 3730(h), provides that “[ajny
employee who is discharged, demoted, suspended, threalened,
harassed, or jn any other manner discriminated against in Lhe terms
and conditions of employment by his or hear employer because of

lawful acts done by the employee on behalf of the empleo or

others in furtherance of an action under this section . . . snall

be entitled to all relief necessary to make the ployee whole.”

The Doctors move to dismiss this claim and argue that they do not.

constitute Dr. Bedrossian’s “employer(s)” for ourposes of the ralse

laims Act, In response, plaintiff concedes that Count [I should

be dismissed against the Doctors.

Uhe Hospital also moves to dismiss this claim on the s

ground, asserting that the complaint does nol allege sufficient

facts that the Hospital could be found te have been Or.

Bedrossian’s employer. The Hospital points to paragraphs 8 end 12
of the complaint:

8. There is a relationship between [the Hospital,
School, and NMFF], where Professors at. [the
employees of [NMFE|, and these Professors also serve as
the medical staff [ofl [the Hospitall. [NMFF] operates as
the medical practice group, which bills for the clinical



-6-
obstructed Dr. Bedrossian’s scholarly research and retused to

provide performance feedback or information that Dr. Bedrossian

needed to perform his job. Dr. Reddy strictly enforced Department

reguirements against Dr. Bedrossian and failed to enforce th

)

against other physicians. (Id., @ 1S.

On April 23, 2001, Drs. Reddy and Warren told Dr. Bedrossian
that he would no longer be Director of the Cytopathology Division
because Dr. Bedrossian “was spending too much time on military
‘vacations.’” (Id., @ 16.) A month later, Dr. Reddy offered Dr.
Bedrossian the position of Associate Chairman of the Department,

but rescinded the offer after Dr. Bedrossian acc (id., 4

17.) On June 4, 2001, Drs, Reddy and Warren announced thal Lhe new
Director of Cytopathology would he Dr. Nayar. (iId., 4 18.)

On June 7, Dr. Reddy “informed Dr. Bedrossjan that he wag no
longer te be involved in any currently pending PaLhology Department
internal investigations concerning improper billing practices at
(the Hospital and NMFF], and he ordered other physicians at the
[School] to no longer discuss the propriety of billing issues wilh
Dr. Bedrossian.” (Id., { 20.)

According to Dr. Bedrossian, his scholarly research and

teaching materials, which he had accumulated Lor over thirty years

and which he values at more than $1.2 million, we destroy on

June 8, 2001 by a salvage company hired by the Hospital and the

School. Equipment and materials stored in the same room that


-5-

Reddy was the Chairman of the Department, and Dr. Warren was Lhe

e-Chairman. Dr. Nayar was an Assistant Professor of Patholeay

and replaced Dr. Bedrossian as the dnical Director cf the
Cytopathology Division of the Department in June 2001. (Id., W9 3-
11.)

Dr. Bedrossian alleges that from April 2000 until Aug

Dr. Reddy “harassed” him about days Dr. Bedrossian had taken as

military leave “by routinely changing policies concerning military

had

and by threatening to deduct the days Dr. essian

already used for military leave from his paycheck.” ({Ja., 9 26.)

Tn 2001 and 2002, Dr. Nayar “harassed” Dr. Bedrossian with re

eel
to his military leave by “imposing an excessive, exhausting and

unsafe work schedule prior to scheduled dates of military leave and

placing Dr. Bedrossian on the draft schedule for the days for whicr
he had already been granted military leave.” (Id., J 23.) In 200

and 2002, “despite maintaining the same level of production as in

1997 through 2000,” Pr. Bedrossian did not receive bonuses;

previously he had received bonuses of up to $30,000 from 1997

through 2000. (Id., 9 22.)
bx. Bedrossian also claims that, beginning in April 2001, Drs.

Reddy, Warren, and Nayar “began a policy of harassing D2.

Bedrossian with Dr. Reddy expressly stating at departmen
meetings in Spring of 2001, that he and lr. Nayar intended to force

Dr. Bedrossian to leave the University.” Dr. Nayar restricted and


(Count 7 Malicious destruction of pr

perty (Count Wi

intentional infliction of emotional distress (Count V); negligent

destruction of property (Count VI); and grossly neg]

destruction of property (Count VII).

On August 26, 2003, Dr. Bedrossian moved for a temporary
restraining order and for a preliminary injunction, We denied the
motion for a temporary restraining order on Augusl 27, and we
denied the motion for a preliminary injunction on SepLomber 15
Plaintiff has appealed the denial of a preliminary injunelion; that

2

appeal is pending

Defendants have filed mo Lne
complaint pursuant to Federal Rule of Civil Procedure ‘72 (b) (6}
The Hospital moves to dismiss Counts II and V. Urs. Reddy, Warren,

and Nayar (the “Doctors”) move to dismiss Counts iI, III, and Vv.

NMEFF moves to dismiss Counts V, VI, and VII. Counts and IV of
the complaint are therefore not at issue at this juncture,
DISCUSSION

The purpose of a 12(b) (6) motion to dismiss is Lo test Lhe

sufficiency of the complaint, not to resolve the

merits. SA Charles Alan Wright & Arthur R. Miller,

Practice and Procedure § 1356, at 294 (2d ed. 1990). Dismissal is

appropriate only if “‘it is clear that no relief could be granted

2’ An appeal from an order denying a preliminary injunetion does nok divest

Lnis court of jurisdiction to proceed with the action on the merits.
v. Schewe, 809 F.ad 447, 451 (7th Cir. 1987).



Minute Order Farm, (06/97)

United States District Court, Northern District of Illinois

ame ned Judge 3 Sitting Judge if Other
we Magia fudge John F. Grady thar Assigned Judge
CASE NUMBER 03 C 3418 DATE March 31, 2004
CASE Bedrossian v.Northwestern Memorial Hospital
TITLE

Un the following box (a) indicate the party Gling the motion, ¢.., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly Uie
nature of the motion being presented, |

MOTION:
DOCKET ENTRY:
qd) a Filed motion of | use fisting in “Motion” box above.]
(2) u Brief in support of motion due
(3) a Answer brief to motion due____..- Reply to answer brief due
(4) a Ruling/Hearing on set for at
(3) 0 Status hearing[held/continued to] [set for/re-set for]on__— set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set forlon set for att
(7) a Trial[set for/re-set for] on at
(8) n [Bench/Jury trial] [Hearing] held/continued to at
(9) ao This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
Ol FRCP4(m) O General Rule 21 0 FRCP41(a)(1) 0 FRCP4)(a)(2).
(0) «ox [Other docket entry] | The Hospital’s motion to dismiss Counts II and V of the complaint [16-1]

is granted. As against the Hospital, Count II is dismissed with prejudice and Count V is dismissed
without prejudice, The motion of NMFF and Doctors Reddy, Warren, and Nayar to dismiss Counts I,
III, V, VL, and VT [18-1] is granted. As against NMFF, Counts V, V1, and VII are dismissed without
prejudice. As against the Doctors, Counts II and Ilf are dismissed with prejudice and Count V is
dismissed without prejudice. Plaintiff is given until April 16, 2004 10 replead Counts V, VI, and VII if
he can allege the required elements of these claims against the relevant defendants, as outlined supra.
ENTER MEMORANDUM OPINION.

ql) [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, eelvised in open court Doeument
Ni
No notices required sumer of ances umber
x Notices MAILED by judge's staff. {
~ Ol: o+
Natified counsel by telephone. 4 ecko
Lunog 1onts ae
Docketing to mail notices wusqa lo
Mait AQ 450 farm. lachering depiy initials %
ous a
Copy to 00 4 red 1 a ie
date rae notice
courtroom
wy “
KAM deputy’s a ee KAM
initials . Date/time reccived'in
contral Clerk's Office reiting deputy inital

(Reserved for use hy the Court)



-.i-
portion of teaching physician’s salaries, and pays these and
additional funds to [NMFF] to be paid as a portion of Lhe

physician’s salaries.” (Response at 3.) First, we note that the

allegations are not pled in the complaint. Even if they were, we

are not convinced that they would sufficiently state a aim,
against the Hospital. Plaintiff fails to support this argument.
with any apposite authority. Accordingly, Count II musl be

dismissed as against the Hospital.

B. Count III _- Breach of Contract

The Doctors move to dismiss Count IT1, which alleges breach of
contract, on the ground that they were not parties to any contrac.

with Or. Bedrossian. Dr. Bedrossian deems this motion “irrelevant”

because, in his view, he “does not allege any contract with any

individual Defendants nor does he seek any monetary damages fr

them.” (Response at 7.) However, the complaint does not clearly
delineate against which defendants this claim is asserted.

Therefore, to the extent (if any) that Count ITI is all

the Nectors, it is dismissed with prejudice.

Cc. Count V - Intentional Infliction of Emotional Distress

The Hospital, the Doctors, and NMPP move to dismiss
plaintiff’s intentional infliclion of emotional distress (“TIED”)
cleim. the elements of an intentional infliction of emo lonal
distress claim under Illinois law are: (1) extreme and outrageous

conduct by the defendant; (2) the defendant’s intent for his


- 10 -

services performed by [School] faculty at [Lhe Hospital]
and compensates the physicians.

12. In 1997, Carlos Bedrossian, M.D., entered into an
employment relationship for a faculty position at [the
School!l, an employment relationship with [NMFPF] en
medical staff directorship at [the Hospital].

(Complaint, (9% 8, 12 (emphasis added).) According Lo the Ho

plaintiff acknowledges that he was not employed by the Hospital by

describing the relationship as a “medical st directorship,” in
contrast with the alleged “employment relationship(s)” with the

School and NMFF.

Plaintiff opposes the Hospital’s motion. He argues chat
“[wjhile theoretically [the School, NMFF, and the Hospital! are
separate institutions, where the same chain cf command exists for

the three entities and there is a financial inter-relationship as

well, [the Hospitalj is Dr. Bedrossian’s employer to the same

degree as the [School and NMFF].” (Response at 6-7.) We re

this “contro] and inter-relationship” argument because it is wholly
unsupported by authority. The complaint expressly stops short of
alleging that the Hospital was Dr. Bedrossian’s employer, or
alleging any facts from which it could be found that the Hospital
was his employer.

Dr. Bedrossian also contends that the complainl adeuuately
alleges that the Hospital was his employer “because the Jlospital
bills the federal government for the allowed costs associated with

their [sic] Graduate Medical Education program, which includes that


belonged to other physicians were not destroyed. Dr. Bedrossian

lost rare cancer specimens and is now unable to re-examine Lhe

or

various purposes, including obtaining future grants relating Lo

search involving those specimens, (Id., 7 21.)

On August 21, 2001, Dr. Bedrossian filed a qui tam ection
pursuant to 31 U.S.C. § 3730, alleging that the Hospital and NMFF’s
billing practices violated the Federal False Claims Act, 31 U.S.C.
3729 et seq. (Id., 7 24.)

A year later, on August 29, 2002, Dr, Bedrossian received 5

letter from Dr, Reddy, which stated as follows:

Dear br. Bedrossian:

As you know from Or. James Young’s August 27, 2002
letter, your faculty appointment at the non-tenure-
eligible rank of Professor of Pathology h been
approved. Your new term of appointment is September 1,

2002 through August 31, 2003. For career planning
purposes, I want you to be aware that your appointment at

Northwestern University will not be renewed beyond August
31, 2003.

(Id., Ex. D.) Dr. Bedrossian’s last day of employment was Auy
31, 2003.

Dr. Bedrossian filed the instant action on May 2}, 2003,
before his employment was actually terminated but after he had
received Dr, Reddy’s letter of August 29, 2002. he comolaiat
alleges the following claims: discrimination and reprisals

a member of a uniformed service in violation of 38 U.S.C.

(Count I); violation of the False Claims Act’s anti-reta

provision, 31 U.S.C. § 3730(h) (Count 13); breach of contract


The March 28 letter also provided that Dr. Bedrossian’s salary
would be ‘$170,000 per annum plus the usual fringe benelils
extended to faculty such as membership in the Northwestern Medical

Faculty Foundation (NMFF) with its retirement plan, as well

major médical and dental insurance, and a sum of $2500 cach

support travel, membership dues and journal subscriprions as you
see fit.” (Id., Group Fx, A.)
The letters between Drs. Bedrossian and Reddy contain only

very brief references to Dr. Bedrossian’s Air force Re

obligations. Dr. Bedrossian’s letter of March 25, 1997 states: “My

understanding is that . . . [m]y seven-week military

towards the U.S. Air Force reserve will not be countea

vacation.” Dr, Reddy’s March 28 letter states: “As we discuss

with three members in the division, I anticipate that ik wi

require at least 503 of your effort in this ar The remaining

508 of e

ert should enable you to devote adequate time for

administrative responsibilities, scholarly activities
three to four week time for the U.S. Air Force Reserve.” (1

Group Ex. A.}

On August 1, 1997, Dr. Bedro

sian received a letter

Vice Dean of the School. (Id., § 13 & Ex. B.) The letter provided

in pertinent part:



- 14 -

jen and

save,” and that “the salvage company under the dir

8 resear and

control of the Defendants destroyed Dr.
teaching materials.” (Complaint, FTI 45-47, 49-51.)

In response, plaintiff argues thal NMFF could be found to be
vicariously liable for the Nectors’ actions. The problem, however,
is that plaintiff simply dees nok adequately plead, or even attempt
to plead, vicarious liability in the complaint. Counts VI and VII
therefore will be dismissed without prejudice as against NMFP. od
plaintiff wishes to replead this claim as against NMFF, he must
allege an adequate basis for vicarious liability.

CONCLUSION

For the foregoing reasons, the Hospital’s motion to dismiss

Counls II and V the complaint is granted. As the

Hospital, Count II is dismissed with prejudice and Count ¥
dismissed without prejudice.

The motion of NMFF and Doctors Reddy, Warren, and Nayar to

dismiss Counts II, III, V, VI, and VI is granted. ainst NM

Counts V, VI, and VII are dismissed without prejudice. As against

the Doctors, Counts II and III are dismissed with prejudice and

Count V is dismissed without prejudice.
Plaintiff is given until April 16, 2004 to replead Counts V,

VT, and VI? if he can allege the required elements of these cla

against the relevant defendants, as outlined supra.



John Warren, M.D. (“Dr. Warren”), and Ritu Na

Nayar”). Dr. Bedrossian alleges that he was demoted from his

in

position and that his employment contra was then terminale

retalialion for two things: (1) Or. Bedr

* and

the United States Air Force Reserve; operation with
the United States Department of Justice regarding an invesLigation

of improper billing practices at the Hospital and NMFF.

The following facts, taken from plaintiff complaint, are
accepted as true for purposes of this motion. In 1997, br.
Bedrossian “entered into an employment relationship for a Laculty

position at [the School], an employment relationship with [NMFF]

and a médical staff directorship at [the Hospital]. The

his contract, faculty appointment, and administzraLlive

responsibilities at the Hospital were set forth in correspondence

yeen Drs. Bedrossian and Reddy. (Complaint, 7 12.)

Dr. Reddy’s letter of March 28, 1997 (the
stated, inter alia: “It is with great pleasure that | offer you a

faculty position at the rank of Protesser (clini an Lrack} in the

Department of Pathology at [the School] beginning Septe t,
1997. This is a full-time, 1] month, non-tenure eligible, 5 year
renewable appointment. . . As we agreed, you will be the Director

of [sic] Cytopathology Division [of the Department of Pathologyl.”

is a Colonel! in the
14.)

¥ The complaint sla that “br
Corps of the U,S. Air Force Reserve.”



03-3418,041-JCD March 31, 2004

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION Aen GT 2084
CARLOS BEDROSSIAN, M.D., )
)
Plaintiff, )
)
Vv. } No. 03 ¢ 3418
)
NORTHWESTERN MEMORIAL HOSPITAL
et al., }
)
Defendants. )
MEMORANDUM OPINION
Two motions are before the court: (1) the motion of

Northwestern Memorial Hospital te dismiss Counts II and v of the

complaint; and (2) the motion of Northwestern Medical Faculty

Foundation, Inc., Janardan Reddy, M.D., John Warren, M.D., Lt Rite
Nayar, M.D. to dismiss Counts II, Lil, V, VI, and vil of tng
complaint. For the reasons explained below, the motions are
granted.

BACKGROUND

Plaintiff Carlos Bedrossian, M.D. (“Dr. Bedrossian”) brings
this action against Northwestern Memorial Hospital (the
“Hospital”); Northwestern University’s Feinberg School of Medicine
{the “School”); Northwestern Medical Faculty Foundation, Ine,
(“NMPF”’); the McGaw Medical Center of Northwestern University; and

three affiliated physicians, Janardan Reddy, M.D. (“Dr. Reddy”),

2



-~12-
conduct to inflict severe emotional distress or knowledge that

there was a high probability that his conduct would do so; and (3)

severe emotional distress caused by the defendant’s conduct. §

Rekosh v. Parks, 735 N.b.2d 765, 772 (111, App. Ct. 2C00).

Defendants assert that (1) there is no conduct alleged as to NMI?

1

that forms the basis of this claim; (2) the conduct that is atl

is not “outrageous”; (3) and the complaint fails to allege intent.

Plaintiff fails to respond to defendants’ first and th

arguments.

In Count V, plaintiff alleges that “[t]he actions of the
Defendants, as set forth in paragraphs 16-27, as well as other
actions to harass Dr. Bedrossian between April, 2001 anda the

present, were intentional, outrageous and inflicted severe

emotional distress upon the Plaintiff.” (Complainn, I 42.)

Defendants are correct thal the allegations in paragraphs

focus on the Doctors’ alleged conduct and not any particular

conduct of NMFF or the Hospital. There is simply no conduct
alleged, let alone intent, as to NMFF or Lhe Hospital. Moreover,
there are no allegations setting forth a basis Lor vicarious

liability.


. - 15 -

DATE: March 31, 2004

JohrF Grady, United States District Pudge.