Chakrabarti v. Cohen

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
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.

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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.

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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

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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.

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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.

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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.

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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-

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

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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

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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.

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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

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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.

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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

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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.

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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.

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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.

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