Murphy v. Wedan

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CASE NO. 3:21-CV-5707-DWC Plaintiff, v. ORDER GRANTING SUMMARY RICHARD WILLIAM WEDAN, EXTENSION OF TIME, GRANTING Defendant. Currently before the Court is Defendant Richard William Wedan’s Motion for Summary Judgment and Plaintiff James M. Murphy’s Motion for Extension of Time to Complete Discovery and Motion to Withdraw as Attorney. Dkts. 114, 116, 117.1 After consideration of the relevant record, the Court finds Murphy’s claims are barred by the statute of limitations. The Court, however, declines to impose fees and costs against Murphy. Therefore, the Motion for Summary Judgment (Dkt. 114) is granted-in-part and denied-in-part. The Motion for Extension of Time to Complete Discovery and the Rule 56(d) request are 1 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. Dkt. 69. unrelated to the statute of limitations issue; therefore, the requests (Dkts. 116, 122) are denied as moot. Further, as Murphy’s claims are dismissed and this matter is now resolved, Murphy’s Motion to Withdraw as Attorney (Dkt. 117) is granted. I. Background

Murphy filed the instant action in Clark County Superior Court – a Washington State court – in August of 2021. Dkt. 1. In September of 2021, Wedan removed this action to this Court. Id. In the Second Amended Complaint (“SAC”), Murphy alleges that, in 2013 or 2014, Wedan, a now-retired employee of the Oregon Air National Guard (“ORANG”), became aware of allegations that Murphy performed an unauthorized gynecological exam on a fellow ORANG employee in November 2011. See Dkt. 85; see also Dkt. 1-1 at 5, Dkt. 6 at 2. Wedan was Murphy’s indirect supervisor at the time. Dkt. 123 at ¶ 4. On May 7-9, 2015, a military separation board hearing (“separation hearing”) was held and, thereafter, Murphy was discharged from the military under other than honorable circumstances. Id. at ¶ 19.2

Murphy alleges Wedan directed and/or allowed information to be withheld from Murphy’s counsel and the military separation board and provided false information to Murphy’s employers and to healthcare regulatory boards and agencies, including the Drug Enforcement Agency (“DEA”) and National Provider Identifier (“NPI”) Registry. Dkt. 85. Murphy asserts a primary claim for intentional infliction of emotional distress and alternative claims for negligent infliction of emotional distress and for negligence. Id. Wedan filed his answer to the SAC, which 2 In April 2021, the United States Air Force changed Murphy’s discharge characterization to “Honorable.” Dkt. 123 at ¶ 29. includes an affirmative defense that Murphy’s claims are time-barred by the applicable statute of limitations. Dkt. 113. On April 11, 2024, Wedan filed the pending Motion for Summary Judgment. Dkts. 114, 115 (supporting evidence). Murphy filed his Response to the Motion on May 6, 2024. Dkts. 122,

123 (supporting evidence). On May 10, 2024, Wedan filed his Reply. Dkts. 127, 128 (supporting evidence). Additionally, on April 25, 2024, Murphy filed the Motion for Extension of Time to Complete Discovery and the Motion to Withdraw as Attorney. Dkts. 116, 117. The Court finds this matter can be resolved without oral argument. II. Surreply Murphy has attempted to file a surreply without the assistance of his counsel. Pursuant to Local Civil Rule 7(g)(2), surreplies are limited to requests to strike material contained in or attached to a reply brief. “Extraneous argument or a surreply filed for any other reason will not be considered.” Id; see also Herrnandez v. Stryker Corp., 2015 WL 11714363, at *2 (W.D. Wash. Mar. 13, 2015). Furthermore, surreplies must be filed within five days of the filing of the

reply and shall not exceed three pages. LCR 7(g). The Court declines to consider Murphy’s surreply. The Court has not granted Murphy’s Motion to Withdraw as Attorneys and, therefore, he is still represented by counsel and cannot file documents pro se. Further, his surreply, which was submitted to the Court fourteen days after the reply was filed, was untimely and exceed the three-page limit. Murphy also attempts to provide additional evidence and extraneous argument to the Court. In sum, Murphy’s surreply was submitted to the Court pro se despite Murphy being represented by counsel and does not conform to the Local Rules. Therefore, the Court declines to consider the surreply.

III. Legal Standard Summary judgment is proper only if the pleadings, discovery, and disclosure materials on file, and any affidavits, show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is

entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”); see also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d

626, 630 (9th Cir. 1987). IV. Discussion Wedan asserts Murphy’s claims are barred by the statute of limitations and his claims fail as a matter of law. Dkt. 114. A. Statute of Limitations Wedan first asserts Murphy’s claims are barred by the statute of limitations. Dkt. 114. The statute of limitations for a personal injury action arising in Washington State is three years.

Wash. Rev. Code (“RCW”) § 4.16.080(2). The parties do not appear to dispute that the three- year limitations period is applicable in this case. See Dkts. 114, 122.3 In the SAC, Murphy alleges that, in December of 2013, he was accused of performing an unauthorized medical examination on a female military member in 2011. Dkt. 85 at ¶ 6. In

January of 2015, the allegations were investigated by law enforcement and the district attorney’s office found insufficient evidence to support charges against Murphy. Id. at ¶ 10. On April 8, 2015, a Quality Assurance Investigation Report (“QAI Report”) was provided to non-party Col. Eric Schadler of the ORANG. Id. at ¶ 12. Murphy contends Wedan instructed Schadler to withhold the QAI Report from Murphy sometime between April and May of 2015. See Dkt. 115- 1 at 43. Murphy’s claims arise from Wedan’s alleged conduct in directing and/or allowing the QAI Report to be withheld from Murphy’s counsel and the military separation board and Wedan’s alleged conducting in providing false information to Murphy’s employer and to healthcare regulatory boards. Dkt. 85 at ¶¶ 16-27. Wedan contends Murphy’s claims are barred by the statute of limitations because the

conduct giving rise to the allegations in the SAC occurred in 2015 and Murphy did not initiate this action until August of 2021. See Dkt. 114. Murphy asserts that he was unaware of his claims until he received a copy of the “Moushon Report” in 2020. Dkt. 122. Essentially, Murphy is arguing that, under the “discovery rule,” the limitations period was tolled until he received a copy of the “Moushon Report,” despite the fact the allegations arose out of conduct occurring in 2015.

3 It is unclear if Washington’s or Oregon’s statute of limitations applies in this case. As Washington allows an additional year to file and the parties cite to the Washington law, the Court will apply Washington’s limitations period. The “discovery rule” operates to toll the date of accrual until the plaintiff knows or, through the exercise of due diligence, should have known all the facts necessary to establish a legal claim. Crisman v. Crisman, 85 Wn.App. 15, 20 (1997). “Due diligence, with respect to the discovery rule, is a question of fact unless reasonable minds could reach but one conclusion.”

Azpitarte v. Sauve, 188 Wash. App. 1016 (2015). The plaintiff bears the burden of proving that the necessary facts could not be discovered in time. G.W. Constr. Corp. v. Prof'l Serv. Indus., Inc., 70 Wn.App. 360, 367 (1993). The evidence before the Court indicates Murphy was aware of the QAI Report on or before September 18, 2015. See Dkt. 115-1. In an email exchange between Schadler and Murphy, Murphy noted that the QAI Report was issued in April but not provided to Murphy. Id. at 30. Murphy appeared to ask if it was intentionally suppressed. Id. Schadler’s response was that the QAI Report was provided to Murphy after Murphy requested it and Schadler received approval to release it. Id. This email exchange shows that, before September of 2015, Murphy had a copy of the QAI Report and believed it had been intentionally suppressed from him before

his separation hearing. Further, Murphy testified that sometime around his medical board hearing,4 which was in July 2016, he was contacted by DEA and notified that they had received a report from a former colonel in the National Guard. Dkt. 115-1 at 67-68, 77; Dkt. 123, Murphy Dec., ¶ 20. Murphy testified he did not know any other former colonel who would be incentivized to have Murphy removed from his position. Dkt. 115-1 at 68. The evidence also shows Wedan testified at

4 Murphy also had a hearing before the Oregon State Medical Board in July 2016. See Dkt. 123, Murphy Dec., ¶ 20. Wedan testified at this hearing and the medical board revoked Murphy’s medical license. See Dkt. 115-1 at 77. Murphy’s separation hearing and Murphy’s medical board hearing. See id. at 68, 77; Dkt. 123, Murphy Dec. Murphy asserts that, in 2021, he received a copy of the “Moushon Report.”5 Dkt. 123, Murphy Dec., ¶¶ 23-24. Murphy contends emails contained in the Moushon Report show Wedan

was trying to remove Murphy from the military. Id. at ¶¶ 24-27. Murphy’s position is that emails and reports within the Moushon Report led to a reasonable inference that Wedan influenced or directed Schadler to suppress the QAI Report. Id. at ¶ 27. Murphy’s assertion is that he was not aware of Wedan’s conduct until he was able to review the Moushon Report in 2021. This allegation is not supported by the record. Rather, the record supports a finding that Murphy knew or should have known about the allegations in the SAC no later than 2015 or 2016, five or six years before filing this lawsuit. Murphy was aware that Wedan testified negatively about Murphy at the separation hearing. Then, in September of 2015, Murphy was aware the QAI Report existed and was aware that it was not presented to Murphy’s counsel before his separation hearing. By 2016, Murphy knew Wedan testified at his

medical board hearing. Further, in 2016, Murphy was receiving phone calls from outside agencies (such as DEA) and was told the agencies had received a report from a former colonel with the National Guard. The record indicates Murphy believed Wedan was the only colonel incentivized to remove Murphy from his position and notify the outside agencies. The emails and documents provided to this Court that were allegedly contained in the Moushon Report do not show Wedan directed the QAI Report to be withheld or suppressed. At

5 It appears the “Moushon Report” is a bankers box of material provided by General Moushon to an Oregon state court judge in relation to a lawsuit between Murphy and the patient on which Murphy allegedly performed an unauthorized gynecological exam. See Dkt. 123-9. Murphy did not provide the Moushon Report or provide sufficient information to explain the connection between the Moushon Report and the statute of limitations argument. See Dkt. 122. most, the Moushon Report shows Wedan sent an email about his desire to remove Murphy from the military. This does not indicate Wedan directed the QAI Report to be withheld or contacted Wedan’s employer and government agencies. The portions of the Moushon Report submitted to the Court and Murphy’s inferences about the Moushon Report are not sufficient to prove the

necessary facts related to Murphy’s claims were not and could not have been discovered until 2021. In conclusion, Murphy filed this lawsuit more than three years after Wedan’s alleged conduct giving rise to the allegations in the SAC. Murphy has not pled facts to show any tolling provisions or exceptions to the statute of limitations make the filing of this case timely. Therefore, the Court finds Murphy’s claims are time-barred and the Motion for Summary Judgment should be granted. B. Claims Fail as a Matter of Law and Requests to Strike As the Court finds the SAC is barred by the statute of limitations, the Court declines to consider the remaining arguments raised in the Motion for Summary Judgment. Further, the

parties have requested to strike evidence from the record; however the requests to strike are unrelated to the statute of limitations arguments. Therefore, the Court finds any requests to strike are denied as moot. C. Request for Sanctions Wedan requests the Court award fees and costs under RCW § 4.84.185 because this lawsuit is frivolous. Dkt. 114. RCW § 4.84.185 “permits the court to award reasonable attorney fees in any civil action, upon written findings that the action is frivolous in its entirety and was advanced without reasonable cause.” Reid v. Dalton, 124 Wash. App. 113, 125, 100 P.3d 349

(2004) (citing Biggs v. Vail, 119 Wash.2d 129, 133–34, 830 P.2d 350 (1992)) (emphasis in original). Throughout this case, Wedan has filed four motions to dismiss. Dkts. 6, 33, 47, 53. The orders entered on these motions resulted in dismissal of some of the claims brought by Murphy,

but also allowed some claims to proceed. See Dkts. 32, 54, 52, 61. As a result, Wedan has not shown the totality of Murphy’s claims to have been frivolous or advanced without reasonable merit. Accordingly, Wedan’s request for fees and costs is denied. V. Request for Extension of Time Murphy moves for an order: (1) extending the case scheduling order to change the trial date and other dates 60 days; (2) expanding the scope of discovery; and (3) continuing the summary judgment noting date 60 days. Dkts. 116, 122. Murphy’s requests for extensions are unrelated the statute of limitations issue and Murphy has not alleged he needs additional time to conduct discovery related to the statute of limitations argument. As the Court finds the claims alleged in the SAC are time-barred, the requests for an extension are denied as moot.

VI. Withdrawal of Attorney Based on the Court’s finding that this matter is barred by the statute of limitations, the Court concludes this matter is now resolved. As a result and based on Murphy’s consent to the withdrawal, the Court finds it appropriate to allow counsel for Murphy to withdraw at this time. Accordingly, the Motion to Withdraw as Attorney (Dkt. 117) is granted. VII. Conclusion For the above stated reasons, the Court finds Wedan’s Motion for Summary Judgment (Dkt. 114) should be granted-in-part and denied-in-part. Wedan’s request that this case be dismissed is granted because the claims alleged in the SAC are barred by the statute of

limitations. However, Wedan’s request for fees and costs is denied. Murphy’s requests for an extension of time (Dkts. 116, 122) are denied as moot. Murphy’s Motion to Withdraw as Attorney (Dkt. 117) is granted. Philip A. Haas of Haas Law, P.S. and Cory C. Kirchert of SECIL Law PLLC are hereby withdrawn as counsel for Murphy. Mr. Haas is directed to provide

Murphy with a copy of this Order. Dated this 27th day of June, 2024. A David W. Christel United States Magistrate Judge