TVPA, assault and battery, intentional in

838 TVPA, assault and battery, intentional in- fliction of emotional distress, and negli- gence claims against the SAAR Network are dismissed. Adel Batterjee’s motion to dismiss the Burnett complaint is denied. So ordered. © & KEY NUMBER SYSTEM aMms Lawrence AGEE Plaintiff, Vv. Richard GRUNERT, M.D., Chris Fuku- da, M.D., Fletcher Allen Health Care, Inc., and Copley Hospital Defendants. No. 2:00-CV-169. United States District Court, D. Vermont. Oct. 1, 2004. Background: Physician brought federal statutory and state contract and tort claims against former partners in medical eroup practice and others, after partners reported his alleged mental unfitness to practice medicine and placed him on dis- ability leave. Partners moved for summary judgment, and physician cross-moved for summary judgment. Holdings: The District Court, Sessions, Chief Judge, held that: (1) under Vermont law, partners did not make false and defamatory statements about physician in reporting his con- duct; (2) partners’ statements were conditional- ly privileged; (8) physician did not have claim for “re- striction of trade” against doctors who raised legitimate concerns about his fitness to practice; 349 FEDERAL SUPPLEMENT, 2d SERIES (4) partners’ behavior in reporting physi- cian’s suspected mental unfitness was not extreme and outrageous conduct that intentionally inflicted emotional distress; (5) partners did not negligently inflict emotional distress; (6) physician failed to exhaust administra- tive remedies on ADA claim; and (7) physician was not employee for pur- poses of ADA claim. Motions granted in part and denied in part. 1. Federal Civil Procedure #2554 On defendants’ motion for summary judgment, district court would not consider new claims raised for first time in plain- tiffs memorandum in opposition to motion. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 2. Libel and Slander <1 Under Vermont law, the elements of defamation are: (1) a false and defamatory statement concerning another; (2) some negligence, or greater fault, in publishing the statement; (8) publication to at least one third person; (4) lack of privilege in the publication; (5) special damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory dam- ages. 3. Libel and Slander ¢=30 Under Vermont law, partners in medi- cal practice did not make false and defam- atory statements in telling hospitals that physician had been determined to be dis- abled and that he was on disability leave; partners were required under ethics code to question physician’s fitness when he attempted surgery despite not having slept for weeks and while on sleep medication, and their group practice agreement pro- vided for his acquiescence in determination HOUSE_OVERSIGHT_017903