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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`
`JOHNNY DELASHAW, JR.,
`
`CASE NO. C18-0537JLR
`
`v.
`
`Plaintiff,
`
`
`
`
`SEATTLE TIMES COMPANY, et
`al.,
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`ORDER GRANTING IN PART
`AND DENYING IN PART
`DEFENDANT CHARLES
`COBBS’S SECOND MOTION
`FOR SUMMARY JUDGMENT
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`
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`Defendants.
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`I.
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`INTRODUCTION
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`Before the court is a portion of Defendant Charles Cobbs’s second motion for
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`summary judgment. (See Cobbs 2d MSJ (Dkt. ## 185 (redacted); 188 (sealed)).)
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`Plaintiff Johnny Delashaw, Jr., opposes Dr. Cobbs’s motion. (Cobbs 2d MSJ Resp. (Dkt.
`
`# 242).) At the direction of the court, the parties filed supplemental briefs to address the
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`question of Dr. Cobbs’s possible immunity from damages under the Healthcare Quality
`
`Improvement Act (“HCQIA” or “the Act”), 42 U.S.C. § 11111(a). (See Cobbs Suppl. Br.
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`ORDER - 1
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`

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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 2 of 15
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`(Dkt. # 289); Delashaw Suppl. Br. (Dkt. # 290).) Dr. Cobbs subsequently filed a motion
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`to strike portions of Dr. Delashaw’s supplemental brief. (Cobbs Surreply (Dkt. # 296).)
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`The court has considered the motions, the parties’ submissions in support of and in
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`opposition to the motions, and the applicable law. Being fully advised,1 the court
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`GRANTS in part and DENIES in part Dr. Cobbs’s motion to strike. It further GRANTS
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`in part and DENIES in part the remaining portion of Dr. Cobbs’s second summary
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`judgment motion.
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`II. BACKGROUND
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`The court has discussed the procedural and factual backgrounds of this case in
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`detail in its prior orders on motions for summary judgment. (See 6/11/20 MSJ Order
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`(Dkt. ## 160 (sealed); 207 (redacted)) at 2-28; 12/11/20 Am. Order (Dkt. ## 298 (sealed);
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`300 (redacted)) at 2-9.) Therefore, the court only discusses the facts most relevant to the
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`instant motion below.
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`A.
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`Factual Background and Claims Against Dr. Cobbs
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`Dr. Delashaw is a neurosurgeon who took a position at Swedish Medical Center
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`(“Swedish”) in 2013 and remained employed at Swedish’s Cherry Hill campus in Seattle,
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`Washington (hereinafter, “Cherry Hill” or “Swedish-Cherry Hill”) until 2017. (3/2/20
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`Delashaw Decl. (Dkt. # 126) ¶ 2.) In early 2015, he was promoted to Chairman of
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`Neurosurgery and Spine at the Swedish Neuroscience Institute (“SNI”). (Id.)
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`1 Neither party requests oral argument (see Cobbs 2d MSJ at 1; Cobbs 2d MSJ Resp. at 1;
`Cobbs Suppl. Br. at 1; Delashaw Suppl. Br. at 1), and the court finds oral argument unnecessary
`to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4).
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`ORDER - 2
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`

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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 3 of 15
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`On December 20, 2016, Swedish CEO Anthony Armada informed Dr. Delashaw
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`that Swedish had “documented repeated and numerous complaints about your
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`leadership,” and despite Swedish’s efforts to counsel and support Dr. Delashaw, Swedish
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`“continue[s] to hear the concerns and the concerns are growing.” (See 2/6/20 Goldman
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`Decl. (Dkt. # 108) ¶ 5, Ex. 3 at JDEL_027310.) Mr. Armada notified Dr. Delashaw that
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`Swedish could no longer keep him as Chair of Neurosurgery and would instead move
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`him into an administrative role as “Chair Emeritus of Neurosurgery at SNI.” (See id.) In
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`this new position, Dr. Delashaw would continue to focus on his clinical practice, lead
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`SNI’s philanthropic efforts, and help recruit neurosurgeons to Swedish. (See id.)
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`However, effective immediately, Swedish planned to transition the management of the
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`neurosurgery practice at SNI to an interim Chair of Neurosurgery. (See id.)
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`The instant motion is centered around a letter (the “Letter”) that Dr. Cobbs
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`originally sent on November 4, 2016, to Mr. Armada, Rod Hochman, and June Alataras
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`regarding Dr. Delashaw via email. (See 3/16/20 Pratt Decl. (Dkt. # 141) ¶ 19, Ex. 21
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`(“November 2016 Letter”); Am. Compl. (Dkt. # 25-1) ¶¶ 73-78.) Over the next few
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`weeks after sending the letter, Dr. Cobbs distributed it to several other individuals. On
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`November 5, 2016, Dr. Cobbs sent a copy of the November 2016 Letter to his fellow SNI
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`surgeons Drs. Ryder Gwinn, Stephen Monteith, and Akshal Patel, as well as to a man
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`named Michael Vatis, who does not appear to work at Swedish. (See 3/16/20 Pratt Decl.
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`¶¶ 20, 33, Exs. 22, 39.) On November 7, 2016, Dr. Cobbs also emailed the Letter to Dr.
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`David Newell, who did not work at Swedish at that time. (See id. ¶ 33, Ex. 39.) On
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`November 8, 2016, he sent the Letter to Swedish Medical Group’s (“SMG”) CEO, Dr.
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`ORDER - 3
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`

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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 4 of 15
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`Ralph Pascualy. (7/27/20 Pratt Decl. (Dkt. # 243) ¶ 26, Ex. 25.) On November 17,
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`2016, Dr. Cobbs emailed the November 2016 Letter to Dr. Peggy Hutchinson (the
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`“Hutchinson Email”) and cc’d a group of individuals that he allegedly believed were part
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`of Swedish’s Medical Executive Committee (“MEC”). (See 3/16/20 Pratt Decl. ¶ 22, Ex.
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`24 (“Hutchinson Email”); 7/27/20 Pratt Decl. ¶ 23, Ex. 22 (“Pascualy Texts”) at 10-12
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`(text message conversation between Dr. Cobbs and Dr. Pascualy discussing plan to send
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`Letter to MEC); (Cobbs 2d MSJ Reply (Dkt. ## 247 (redacted); 250 (sealed)).)
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`The November 2016 Letter outlined several concerns allegedly raised by
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`physicians, nurses, and staff about Dr. Delashaw that fell into the following categories:
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`(i) a pattern of intimidation, harassment, and retaliation; (ii) discouraging the reporting of
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`errors; (iii) discouraging staff from asking questions; (iv) contributing to the loss of
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`experienced personnel; (v) jeopardizing patient safety with disruptive behavior; and (vi)
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`interfering with other physicians’ referrals and practices. (See 2/27/20 Baer Decl. (Dkt.
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`# 117) ¶ 3, Ex. 26.) Although Dr. Cobbs was the only signatory to the November 2016
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`Letter, he received input from multiple Swedish surgeons on its content. (See id. ¶ 3,
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`Exs. 27-33.) Dr. Cobbs testified that he omitted the names of the other surgeons from his
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`Letter because he believed that those surgeons were afraid of retaliation from Dr.
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`Delashaw. (See id. ¶ 3, Ex. 25 (“Cobbs Dep.”) at 192:19-193:5.) Dr. Delashaw alleges
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`that Dr. Cobbs’s statements resulted in “extreme reputational harm and loss of
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`employment opportunities.” (Am. Compl. ¶ 196.)
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`Dr. Delashaw also brings claims of civil conspiracy and tortious interference with
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`a business expectancy against Dr. Cobbs. (Id. ¶¶ 197-208.) Dr. Delashaw’s civil
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`ORDER - 4
`
`

`

`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 5 of 15
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`conspiracy claims arise out of Dr. Cobbs allegedly working with Dr. Marc Mayberg and
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`others to harm Dr. Delashaw’s career and reputation. (Id. ¶ 205.) While Dr. Delashaw is
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`not entirely clear on what conduct was a part of this alleged conspiracy and how it was
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`unlawful, his claim encompasses some allegedly defamatory statements made in the
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`November 2016 Letter. (See id. ¶ 206 (claiming that Dr. Cobbs and his conspirators
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`“[d]evis[ed] false complaints to pressure SNI management into taking action against Dr.
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`Delashaw and falsely representing to management that complaints were ‘unanimous’
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`views of SNI’s faculty”).) Dr. Delashaw’s tortious interference claim alleges that Dr.
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`Cobbs interfered with Dr. Delashaw’s business relationship with Swedish “through
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`improper means, including defamation and Dr. Cobbs’s violation of his obligations to
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`Swedish.” (Id. ¶¶ 198-201.)
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`B.
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`Procedural History
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`On November 18, 2020, the court granted in part and denied in part Dr. Cobbs’s
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`second motion for summary judgment. (See 11/18/20 Order (Dkt. # 285 (sealed));
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`12/11/20 Am. Order.) In his second motion for summary judgment, Dr. Cobbs argued
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`that he was immune under the HCQIA from damages for any defamatory statements
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`made in the November 2016 Letter. (Cobbs 2d MSJ at 16-19.) The court found that both
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`Dr. Cobbs’s arguments regarding HCQIA immunity (id.) and Dr. Delashaw’s response
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`(Cobbs 2d MSJ Resp. at 9-12) were lacking and ordered the parties to file supplemental
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`briefs. (See 12/11/20 Am. Order at 23.) Specifically, the court ordered the parties to file
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`supplemental briefing “on the question of whether, and to what extent, the HCQIA
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`provides immunity to liability stemming from Dr. Cobbs’s statements in the November
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`ORDER - 5
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`

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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 6 of 15
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`2016 Letter.” (Id.) After the parties filed their supplemental briefing, Dr. Cobbs moved
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`to strike portions of Dr. Delashaw’s supplemental briefing. (Cobbs Surreply.)
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`III. ANALYSIS
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`The court first lays out the applicable legal standard before turning to Dr. Cobbs’s
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`motion to strike and the parties’ substantive arguments.
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`A.
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`Legal Standard
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`Summary judgment is appropriate if the evidence viewed in the light most
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`favorable to the non-moving party shows “that there is no genuine dispute as to any
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`material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Beaver v. Tarsadia Hotels,
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`816 F.3d 1170, 1177 (9th Cir. 2016). A fact is “material” if it might affect the outcome
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`of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute
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`is “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the
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`non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001)
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`(citing Anderson, 477 U.S. at 248-49).
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`The moving party bears the initial burden of showing there is no genuine dispute
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`of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at
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`323. If the moving party does not bear the ultimate burden of persuasion at trial, it can
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`show the absence of such a dispute in two ways: (1) by producing evidence negating an
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`essential element of the nonmoving party’s case, or (2) by showing that the nonmoving
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`party lacks evidence of an essential element of its claim or defense. Nissan Fire &
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`Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party
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`ORDER - 6
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`

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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 7 of 15
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`meets its burden of production, the burden then shifts to the nonmoving party to identify
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`specific facts from which a factfinder could reasonably find in the nonmoving party’s
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`favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
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`B. Motion to Strike
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`Dr. Cobbs brings a motion to strike two portions of Dr. Delashaw’s supplemental
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`briefing. (Cobbs Surreply.) Specifically, Dr. Cobbs seeks to strike (1) any arguments
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`addressing liability for republication; and (2) Dr. Delashaw’s filing of a declaration that
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`included one email from Dr. Cobbs. (Cobbs Surreply at 2-3 (moving to strike portions of
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`Delashaw Suppl Br. and 11/30/20 Farmer Decl. (Dkt. # 291) (“MEC Email”).) The court
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`agrees that the first category of material is outside the scope of the court’s requested
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`supplemental briefing. Dr. Delashaw presents arguments about liability for republication
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`of the November 2016 Letter. (Delashaw Suppl. Br. § 1.C at 5-6.) This is beyond the
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`scope of the court’s narrow directive to file supplemental briefing regarding HCQIA
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`immunity (see 12/11/20 Am. Order at 23), and as such, the court will not consider it at
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`this time.
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`The court will, however, consider the evidence included in the 11/30/20 Farmer
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`Declaration, as it is relevant to the question at hand. When ordering the parties to provide
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`additional briefing, the court instructed the parties to present arguments regarding
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`“whether, and to what extent, the HCQIA provides immunity to liability stemming from
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`Dr. Cobbs’s statements in the November 2016 Letter.” (Id. at 23.) Dr. Delashaw has
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`done just that by bringing the court’s attention to an email, authored by Dr. Cobbs, that
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`provides evidence of Dr. Cobbs’s intended audience when distributing the November
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`ORDER - 7
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`

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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 8 of 15
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`2016 Letter. (See 11/30/20 Farmer Decl. (Dkt. # 291).)This is in line with the court’s
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`request and goes directly to the potential applicability of the statute Dr. Cobbs seeks to
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`invoke. (See infra § III.C.) Dr. Cobbs filed a motion for summary judgment raising the
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`issue of HCQIA liability, as well as a reply and supplemental briefing addressing the
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`same. (See generally Cobbs 2d MSJ; Cobbs 2d MSJ Reply; Cobbs Suppl. Br.) The court
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`will not turn a blind eye to relevant evidence because Dr. Cobbs claims he has been
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`ambushed despite having three opportunities to provide the court with his own evidence.
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`The court also will not allow Dr. Cobbs a fourth opportunity to submit evidence.2
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`Thus, the court grants in part and denies in part Dr. Cobb’s motion to strike. The
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`court will not consider Dr. Delashaw’s arguments regarding liability for republication at
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`this time. The court will, however, consider the declaration that Dr. Delashaw submitted
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`in support of his arguments in the supplemental briefing.
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`C.
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`Applicability of the HCQIA
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`Dr. Cobbs contends that he enjoys immunity from damages for any statements
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`made in the November 2016 Letter under the HCQIA and thus should be granted
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`summary judgment on all claims. (Cobbs Suppl. Br. at 1.) The court finds that while
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`some immunity from damages may exist, it is not absolute. The court first lays out the
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`2 To the extent Dr. Cobbs’s motion to strike is based on a lack of parity between the
`length of the arguments the parties were able to raise in their supplemental briefs, the court finds
`this argument to be unfounded. The court ordered the parties to submit six pages of additional
`briefing. (12/11/20 Am. Order at 23.) Dr. Delashaw provided six pages of double-spaced
`briefing, while Dr. Cobbs provided six pages of single-spaced briefing. (Compare Delashaw
`Suppl. Br., with Cobbs Suppl. Br.) The court sees no imbalance in considering Dr. Delashaw’s
`three-page declaration under these circumstances.
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`ORDER - 8
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`

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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 9 of 15
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`relevant portions of the Act before analyzing what damages Dr. Cobbs may be immune
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`from and how Dr. Delashaw may overcome this presumption of immunity.
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`1. Relevant Portions of the HCQIA
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`The applicability of the HCQIA turns on whether the recipients of Dr. Cobbs’s
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`Letter were members of a professional review body, as defined under the Act. The
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`relevant portion of the HCQIA states that:
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`Notwithstanding any other provision of law, no person . . . providing
`information to a professional review body regarding the competence or
`professional conduct of a physician shall be held, by reason of having
`provided such information, to be liable in damages under any law of the
`United States or of any State . . . unless such information is false and the
`person providing it knew that such information was false.
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`42 U.S.C. § 11111(a)(2). The Act defines a “professional review body” as
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`. . . [A] health care entity and the governing body or any committee of a
`health care entity which conducts professional review activity, and includes
`any committee of the medical staff of such an entity when assisting the
`governing body in a professional review activity.
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`42 U.S.C. § 11151(11). The Act further defines a health care entity to include “a hospital
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`that is licensed to provide health care services by the State in which it is located.” 42.
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`U.S.C. § 11151(4)(A).
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` At the outset, the court finds that the plain meaning of the Act demonstrates that
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`Dr. Cobbs’s assertion that the HCQIA entitles him to summary judgment on all claims is
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`overbroad. The Act only provides immunity from liability for damages. 42 U.S.C.
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`§ 11111(a)(2). Dr. Delashaw seeks both damages and equitable relief from Dr. Cobbs.
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`(Am. Compl. Prayer for Relief ¶ 2 (seeking an order “enjoining Dr. Cobbs from making
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`ORDER - 9
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`

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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 10 of 15
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`false statements about Dr. Delashaw”).) Thus, even if Dr. Cobbs is immune for all
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`damages under the HCQIA, it would not dispose of all Dr. Delashaw’s claims.
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`2. Recipients of the November 2016 Letter
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`Turnning to the question of damages, the court does not find that Dr. Cobbs is
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`immune for all potential damages—only those tied to specific recipients of the Letter that
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`constitute members of a professional review body. Dr. Delashaw argues that Dr. Cobbs
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`cannot establish that all the recipients constitute a member of a “professional review
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`body” as defined by the HCQIA.3 (Cobbs MSJ Resp. at 10-12; Delashaw Suppl. Br. at
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`1-4.) Dr. Cobbs argues that the HCQIA provides immunity because the Swedish
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`recipients fall into two categories. First, the November 4, 2016, recipients of the
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`November 2016 Letter: Mr. Armada, Ms. Altaras, and Mr. Hochman, are corporate
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`officers of Swedish and thus “personify the ‘health care entity’ and its ‘governing body.’”
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`(Cobbs Suppl. Br. at 3 (quoting 42 U.S.C. §§ 11151(4)(A), (11)).) Second, the
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`November 17 recipients of the Letter—Dr. Hutchinson and other Swedish employees—
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`constitute members of Swedish’s MEC, and thus are part of a “professional review
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`body.” (Id.; Cobbs 2d MSJ Reply at 8 n.5 (asserting that all recipients of Letter on
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`November 17 were MEC members).) The court addresses each group of recipients in
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`turn.
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`3 Dr. Delashaw does not contest that the November 2016 Letter contains the type of
`“information” that is protected under the Act. (See Cobbs 2d MSJ Resp. at 9-12; see generally
`Delashaw Suppl. Br; see also Bryan v. James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318, 1324
`(11th Cir. 1994) (affirming grant of immunity under the HCQIA when a doctor who was
`“generally considered to be a skilled surgeon” was removed in part due to perception he was
`“volcanic-tempered perfectionist” and “difficult man to work with”)
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`ORDER - 10
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`

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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 11 of 15
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`a. Corporate Officers
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`Dr. Cobbs contends that, because one can only communicate with a corporate
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`entity through its officers and directors, one can only “provid[e] information” to a “health
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`care entity” as contemplated by the Act by providing information to the individuals who
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`run that corporate entity. (Cobbs Suppl. Br. at 3.) While the court offers no opinion on
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`Dr. Cobbs’s argument that this is only way to communicate with a health care entity
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`under the HCQIA, it agrees that information provided to corporate officers should be
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`viewed as information provided to a health care entity under the Act. See Bryan 33 F.3d
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`at 1324, 1334 (11th Cir. 1994) (finding members of hospital board of directors to be
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`included in HCQIA’s definition of health care entity); Talwar v. Mercer Cty. Joint Twp.
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`Cmty. Hosp., 520 F. Supp. 2d 894, 899 (N.D. Ohio 2007) (same). Dr. Delashaw does not
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`appear to contest that Mr. Armada, Ms. Altaras, Dr. Hochman, and Dr. Pascualy were
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`corporate officers with the ability to direct Swedish. (See Cobbs 1st MSJ Resp. (Dkt.
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`# 140) at 14 (referring to Letter as being sent to “Swedish CEO Tony Armada,
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`Providence CEO Rod Hochman, and CEO of Swedish Seattle June Altaras”); 7/27/20
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`Pratt Decl., ¶ 25, Ex. 24 (submitting email to court that refers to Dr. Pascualy as Chief
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`Executive of Swedish Medical Group).) A health care entity is defined to be a
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`professional review body under the Act, and these four individuals were corporate
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`officers with control over the health care entity of Swedish. Thus, when Dr. Cobbs
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`shared the November 2016 Letter with these individuals, he was providing information to
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`a professional review body as defined by the HCQIA.
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`//
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`ORDER - 11
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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 12 of 15
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`b. MEC Members
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`Dr. Delashaw does not dispute that MEC members are members of a professional
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`review body under the HCQIA, but instead contends that Dr. Cobbs has only established
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`that Dr. Hutchinson is a member of the MEC. (See Delashaw Suppl. Br. at 4.) In his
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`reply brief, Dr. Cobbs argued that the 16 other individuals who received the email were
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`members of Swedish’s MEC. (Cobbs 2d MSJ Reply at 8 (“These were the MEC
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`members.”) (emphasis and bolding in original); but see id. at 8 n.5 (“At least, these were
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`the MEC members as communicated to [Dr.] Cobbs by Swedish’s CMO.”) (citing
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`Pascualy Texts at 10-12).)
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`But Dr. Cobbs’s own evidence belies his representation. The text message
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`exchange makes it clear that Dr. Cobbs did not believe this list of names comprised the
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`MEC, but instead considered them to be members of the SMG Executive Council. (See
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`Pascualy Texts at 10-12 (showing that Dr. Cobbs was awaiting the list of SMG executive
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`counsel names when Dr. Pascualy responded with the list of names and emails that are
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`cc’d on the Hutchinson Email).) This is bolstered by the fact that Dr. Cobbs emailed Dr.
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`Gwinn Ryder 13 hours before he sent the Hutchinson Email that stated “[t]hese are
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`MEC,” followed by a list of names, only two of which appear on the list Dr. Cobbs is
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`now contending to be the MEC: Peggy Hutchinson and Michael Myint. (Compare
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`11/30/20 Farmer Decl., Ex. 1 (“MEC Email”), with Hutchinson Email.) Thus, the court
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`determines that Dr. Hutchinson and Michael Myint4 were members of the MEC at the
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`4 While Dr. Delashaw argues that Dr. Hutchinson is the only MEC member listed on the
`Hutchinson Email, he does not appear to dispute the accuracy of the list of MEC names that he
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`ORDER - 12
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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 13 of 15
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`time of the Hutchinson email and constitute members of a professional review body
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`under the HCQIA. Dr. Cobbs has made no arguments and submitted no evidence
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`suggesting that the SMG executive council is a professional review body. (See generally
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`Cobbs 2d MSJ; Cobbs 2d MSJ Reply; Cobbs Suppl. Br.) Thus, viewing the evidence in
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`the light most favorable to Dr. Delashaw, Dr. Cobbs has failed to demonstrate that the
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`remaining 15 recipients of the email were members of a professional review body. Dr.
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`Cobbs has also failed to demonstrate that HCQIA immunity applies to any other
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`recipients of the November 2016 Letter besides Mr. Armada, Ms. Alataras, Dr. Hochman,
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`Dr. Pascualy, Dr. Hutchinson, and Mr. Myint.5
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`3. The Falsity Exception
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`The HCQIA does not provide immunity in all instances where information is
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`provided to members of a professional review body. If the information is false and the
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`provider knew it was false, there is no immunity even if the recipient is a member of a
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`professional review body. 42 U.S.C. § 11111(a)(2). The court has previously determined
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`that five out of seven categories of Dr. Cobbs’s allegedly defamatory statements in the
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`November 2016 Letter were not made with a reckless disregard for truth. (See 6/11/20
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`submitted in support of his arguments. (See generally Delashaw Suppl. Br.; MEC Email.) Since
`Michael Myint appears on both lists (see MEC Email), the court determines there is no genuine
`dispute of material fact as to Michael Myint’s position on the MEC.
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` Dr. Cobbs argues in his supplemental brief that, while HCQIA immunity does not apply
`to Dr. Cobbs’s sending of the Letter to Dr. Newell, Dr. Delashaw cannot establish all the
`elements of a defamation claim for that publication. (Cobbs Suppl. Br. at 3 n.5.) The court will
`not address this argument, raised in a footnote in supplemental briefing on the narrow issue of
`HCQIA immunity. (Cf. Cobbs Surreply (moving to strike arguments made in supplemental
`briefing because they did not squarely address HCQIA immunity).)
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`ORDER - 13
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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 14 of 15
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`MSJ Order at 60-66.) Since knowledge of falsity is a higher standard than reckless
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`disregard for truth, the court finds that Dr. Cobbs is immune from any damages stemming
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`from those five categories of statements made to the professional review body members.
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`The court determined that only Dr. Cobbs’s statements regarding (1) SNI surgeons’
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`unanimous opposition to Dr. Delashaw and (2) Dr. Delashaw causing mass personnel
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`departures would survive summary judgment under a reckless disregard for truth
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`standard. (Id.) Viewing the evidence in the light most favorable to Dr. Delashaw, the
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`court determines there is a genuine dispute of material fact as to the falsity of these
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`categories of statements and Dr. Cobbs’s knowledge of their falsity. Thus, Dr. Cobbs
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`will not enjoy immunity from these two categories of statements if Dr. Delashaw is able
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`to demonstrate that they are false and that Dr. Cobbs knew they were false when he made
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`them.
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`In summary, the court finds that six recipients of the November 2016 Letter
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`constitute members of a professional review body under the HCQIA: corporate officers
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`Mr. Armada, Ms. Alataras, Dr. Hochman, Dr. Pascualy; and MEC members Dr.
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`Hutchinson and Mr. Myint. Thus, Dr. Cobbs can only be found liable for damages
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`resulting from the publication of the Letter to these individuals if the statements he made
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`to them were false and Dr. Cobbs knew they were false at the time of publication. Only
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`two categories of allegedly defamatory statements—those regarding unanimous
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`opposition to Dr. Delashaw and Dr. Delashaw causing mass departures—are potentially
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`subject to this falsity exception to immunity. To the extent immunity exists, it applies to
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`liability for damages caused by the protected statements in all claims against Dr. Cobbs,
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`ORDER - 14
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`Case 2:18-cv-00537-JLR Document 302 Filed 01/07/21 Page 15 of 15
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`not just the defamation claim. See 42 U.S.C. § 11111(a)(2) (providing immunity for
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`liability “under any law of the United States or of any State”). However, the court finds
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`that there is a genuine dispute of material fact as to the HCQIA’s applicability to the
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`remaining recipients of the November 2016 Letter, and no immunity for statements made
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`to these individuals exists at this time. Therefore, the portion of Dr. Cobbs’s second
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`motion for summary judgment that remains after the court’s November 18, 2020 order is
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`granted in part and denied in part.
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`IV. CONCLUSION
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`For the foregoing reasons, the court GRANTS in part and DENIES in part both
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`Dr. Cobbs’s motion to strike (Dkt. # 296) and the remaining portion of Dr. Cobbs’s
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`second motion for summary judgment (Dkt. ## 185 (redacted); 188 (sealed)).
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`Dated this 7th day of January, 2021.
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`A
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`JAMES L. ROBART
`United States District Judge
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`ORDER - 15
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`