United States District Court, D. Colorado
BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs/Counterclaim Defendants,
MATEJ POLOMSKY, Defendant/Counter Claimant.
ORDER ON MOTION FOR RECONSIDERATION
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Dr. Matej Polomsky asks this Court to reconsider its order
denying his Motion for Summary Judgment. Because Dr. Polomsky
has not shown an intervening change in the law, new evidence
previously unavailable, or that the Court's holdings are
clearly erroneous, the Court denies his motion.
Beyer Laser Center, LLC (“BLC”) and Dr. Craig
Beyer assert claims for defamation, malicious prosecution,
intentional interference with existing contractual
relationship, and civil conspiracy. Am. Compl., ECF No. 4.
Plaintiffs' claims arise out of an ethics complaint Dr.
Polomsky filed against Dr. Beyer during his fellowship with
here, Dr. Polomsky filed a Motion for Summary Judgment on
December 6, 2017. ECF No. 71. Dr. Polomsky asserted that
summary judgment was proper, because he is entitled to
statutory immunity on Plaintiffs' claims, and
Plaintiffs' claims are barred by res judicata.
Id. On January 23, 2018, the Court issued an Order
denying Dr. Polomsky's motion. Ord. on Def.'s Mot.
for Summ. J., ECF No. 78. The Court found a disputed issue of
fact regarding whether Dr. Polomsky filed the ethics
complaint with an evil or improper motive. Id. at
12-13. The Court relied on evidence suggesting that Dr.
Polomsky submitted the ethics complaint out of frustration
and dislike for Dr. Beyer and out of a desire to please a
separate doctor (Dr. Stewart) who had an ongoing lawsuit with
Dr. Beyer. Id. Additionally, the Court found the
evidence did not undisputedly demonstrate that res judicata
bars this case. Id. at 14-18.
February 14, 2018, Dr. Polomsky filed the present Motion for
Reconsideration, ECF No. 79. Dr. Polomsky seeks
reconsideration of the Court's finding that disputed
issues of fact exist as to his immunity defense. According to
Dr. Polomsky, the Court's order was clearly erroneous,
because (1) immunity is a threshold barrier to suit that
should be resolved before trial, (2) the Court's order
does not place the burden on Plaintiffs to rebut the
presumption of immunity, and (3) the evidence does not show
evil or improper intent. Id. Plaintiffs filed a
response to Dr. Polomsky's motion on March 7, 2018. Resp.
to Mot. for Reconsideration, ECF No. 83.
Federal Rules of Civil Procedure do not recognize a
“motion to reconsider.” Van Skiver
v. United States, 952 F.2d 1241, 1243 (10th Cir.
1991). Nevertheless, “motions for reconsideration are
routinely entertained in one form or another by federal
courts.” United States ex rel. Superior
Steel Connectors Corp. v. RK Specialities, Inc., No.
11-cv-01488-CMA, 2012 WL 3264296, at *1 (D. Colo. Aug. 10,
2012). The bases for granting reconsideration are extremely
Grounds warranting a motion to reconsider include (1) an
intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice. Thus, a motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the
controlling law. It is not appropriate to revisit issues
already addressed or advance arguments that could have been
raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000) (internal citations omitted).
Court declines to alter its finding that disputed issues of
fact exist as to Dr. Polomsky's state of mind when he
filed the ethics complaint. Because Dr. Polomsky does not
point to an intervening change in the law or new evidence
previously unavailable, the Court infers that he perceives a
need to correct clear error. Far from committing clear error,
the Court finds that its order correctly identified disputed
issues of fact. The Court will briefly address each of Dr.
Polomsky's arguments to the contrary.
Dr. Polomsky asserts the Court's order “renders the
immunity provision of the Colorado Medical Practice Act
illusory, ” because immunity is essentially lost if a
case is permitted to go to trial. Mot. for Reconsideration
2-4, ECF No. 79. The Court disagrees. Unlike immunity from
suit, a defendant does not lose immunity from liability if
the court requires him to defend his case at trial. See,
e.g., Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) (“An immunity from suit rather than a
mere defense to liability . . . is effectively lost if a case
is erroneously permitted to go to trial.”). This is
because, immunity from liability operates as a mere defense
instead of a right to be free from the burdens of litigation.
See Id. at 529 (stating that qualified immunity for
law enforcement officers “is in fact an entitlement not
to stand trial under certain circumstances”); see
generally Gen. Steel Domestic Sales, LLC v. Chumley, 840
F.3d 1178, 1180-82 (10th Cir. 2016) (denying an interlocutory
appeal on the district court's denial of immunity at
summary judgment, because the immunity was from liability
only). The Court has already stated that Section
12-36-118(3)(b) provides immunity only from liability. Order
on Def.'s Mot. to Dismiss 8 n.3, ECF No. 29
(“Unlike qualified immunity in the civil rights
context, Section 12-36-118(3)(b) explicitly provides immunity
from liability, instead of immunity from suit.”).
Indeed, Section 12-36-118(3)(b) specifically states,
“Any person participating in good faith in the making
of a complaint or report or participating in any
investigative or administrative proceeding pursuant to this
section shall be immune from any liability, civil or
criminal, that otherwise might result by reason of such
participation.” Colo. Rev. Stat. ¶ 12-36-118(3)(b)
(emphasis added). Because the provision does not
“contain ‘an explicit statutory or constitutional
guarantee that trial will not occur, '” the
immunity is only from liability. Gen. Steel Domestic
Sales, LLC, 840 F.3d at 1181-82 (quoting Midland
Asphalt Corp. v. United States, 489 U.S. 794, 801
(1989)). Therefore, the cases Dr. Polomsky cites involving a
government official's immunity under 42 U.S.C. §
1983 or statutory immunity from suit are not persuasive, and
Dr. Polomsky does not forfeit his immunity by defending this
case at trial.
Polomsky also relies heavily on Young v. Hodges, 318
P.3d 458 (Colo. 2014), in which the court held that
negligence is insufficient to rebut the presumption of good
faith underlying statutory immunity for law enforcement
officers. Mot. for Reconsideration 3. According to the court,
permitting a negligence standard would require the defendant
to prove he is not liable in the first place to receive
immunity, thus eviscerating the immunity. Young, 318
P.3d at 461. However, unlike Young, the Court's
order does not equate immunity with liability. To overcome
Dr. Polomsky's immunity, Plaintiffs must convince the
jury that Dr. Polomsky filed the ethics complaint with an
improper or evil motive. To prove their defamation claim,
Plaintiffs must show that Dr. Polomsky filed the complaint
“with fault amounting to at least negligence . . .
.” Williams v. Dist. Court, Second Judicial Dist.,
City & Cty. of Denver, 866 P.2d 908, 911 n.4 (Colo.
1993). Therefore, overcoming Dr. Polomsky's immunity
necessitates that Plaintiffs prove facts beyond that required
by their defamation claim. Furthermore, Young
involved a different statutory immunity provision that, by
its plain language, created a presumption of good faith. 318