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Beyer Laser Center, LLC v. Polomsky

United States District Court, D. Colorado

March 15, 2018

BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs/Counterclaim Defendants,
MATEJ POLOMSKY, Defendant/Counter Claimant.



         Defendant 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.


         Plaintiffs 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 BLC. Id.

         Relevant 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.

         On 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.


         The 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 limited:

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).


         The 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.

         First, 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.

         Dr. 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 ...

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