[00:00:00] Speaker 02:
We'll turn to 23-5227, Smith versus Williams.

[00:00:11] Speaker 02:
Mr. Graham?

[00:00:12] Speaker 03:
Yes.

[00:00:15] Speaker 03:
Good morning.

[00:00:15] Speaker 03:
My name is Kevin Graham.

[00:00:16] Speaker 03:
May it please the court?

[00:00:18] Speaker 03:
I represent Dr. Collette Smith in this employment matter.

[00:00:21] Speaker 03:
And the district court in this case found

[00:00:25] Speaker 03:
that Dr. Smith did not have a property interest and did not have a business expectancy, one in a 1983 case, one in her tortious interference in her Kansas law.

[00:00:36] Speaker 03:
Both cases, or the decision of both claims, revolved around the same set of facts, and it's a really fact-intensive case.

[00:00:45] Speaker 03:
And I think it's important to understand

[00:00:48] Speaker 03:
that this case, I think, tests the limits that a state government employer can do when, you know, I would certainly assert, bullying their employee, how they can operate with regard to their employee.

[00:01:01] Speaker 04:
So... Well, we're dealing with a competition closure, aren't we?

[00:01:07] Speaker 04:
Well, we are, yes, and I think it's really important to understand that.

[00:01:10] Speaker 04:
Did you ever suggest or argue that it was too far-reaching and

[00:01:18] Speaker 04:
Was it unenforceable?

[00:01:21] Speaker 03:
Let me give you some... No, because we didn't need to, and here's why.

[00:01:25] Speaker 03:
So, Mr. Williams was hired in 2015 as the CEO of the hospital.

[00:01:32] Speaker 03:
At that time, Dr. Smith had been there for years.

[00:01:36] Speaker 03:
At that time, there was no contract.

[00:01:38] Speaker 03:
Well, there was nothing signed.

[00:01:41] Speaker 03:
There was no contract.

[00:01:42] Speaker 03:
Right, there's nothing.

[00:01:44] Speaker 03:
So, in June of 2017,

[00:01:47] Speaker 03:
Mr. Williams had two different employees of his.

[00:01:52] Speaker 03:
Tell him, we don't have a contract with her.

[00:01:56] Speaker 03:
We don't have anything.

[00:01:58] Speaker 03:
And he, of course, had only been there a couple years, so he himself has no personal knowledge.

[00:02:03] Speaker 03:
So in June of 2017, he embarks on a process to try to get her to sign a contract.

[00:02:09] Speaker 03:
Law School 101, two parties decide, you know, internet negotiations to enter into a contract.

[00:02:15] Speaker 03:
During that time, he says, we have a contract.

[00:02:18] Speaker 03:
There are four documents that have been asserted.

[00:02:21] Speaker 03:
Not one of them is signed by all parties.

[00:02:23] Speaker 03:
Not one of them is an effective contract.

[00:02:26] Speaker 03:
And even if you believe that any of them are effective contracts, they're all from 2011 or 2012, none of them have an expiration longer than three years.

[00:02:38] Speaker 03:
So even in the best case scenario, there's not a contract in existence starting in 2015.

[00:02:45] Speaker 03:
There's no clauses to make it evergreen.

[00:02:48] Speaker 03:
There are no repetition clauses, nothing.

[00:02:51] Speaker 03:
The fact of the matter is, from 2011 to 2018, Dr. Smith did not have a contract.

[00:02:58] Speaker 03:
It was probably a mistake.

[00:03:00] Speaker 03:
When they found that out, they figured that out, they started the process to do that.

[00:03:06] Speaker 03:
To do what?

[00:03:07] Speaker 03:
Get a contract?

[00:03:07] Speaker 03:
Get a contract.

[00:03:08] Speaker 03:
They negotiated.

[00:03:09] Speaker 03:
And again, Law School 101, they tried to negotiate.

[00:03:12] Speaker 03:
They couldn't get there.

[00:03:13] Speaker 03:
No harm, no foul, right?

[00:03:15] Speaker 03:
You can't buy the car, the dealer won't agree to the money, so you walk away.

[00:03:20] Speaker 03:
And that's what she did.

[00:03:21] Speaker 02:
So the property interest is what?

[00:03:23] Speaker 03:
Well, the property interest is her license.

[00:03:28] Speaker 03:
Well, then her license was never suspended.

[00:03:31] Speaker 03:
It was not, but the law doesn't require an actual suspension.

[00:03:35] Speaker 03:
So what happened is, after she left, he began to try to enforce a non-existent non-competition clause.

[00:03:43] Speaker 03:
With the 60-mile radius, and my eighth grade math tells me that's 11,310 square miles.

[00:03:49] Speaker 03:
That's larger than eight states in the United States.

[00:03:52] Speaker 03:
That she could not practice important... Well, did you argue there was no contract?

[00:03:56] Speaker 04:
What's that?

[00:03:56] Speaker 04:
Did you argue there was no contract?

[00:03:58] Speaker 03:
We filed a summary judgment motion on that, yes.

[00:04:01] Speaker 03:
And that was declared moot when this word came out.

[00:04:03] Speaker 04:
I mean, what was the complaint?

[00:04:05] Speaker 04:
I apologize, I don't understand.

[00:04:06] Speaker 04:
What was the, did you file a complaint?

[00:04:09] Speaker 04:
against the hospital or whoever.

[00:04:12] Speaker 03:
Yes, we filed a complaint alleging the torsion interference.

[00:04:17] Speaker 04:
That there was no contract.

[00:04:20] Speaker 03:
Yes, that was a factual issue in the case, yes.

[00:04:23] Speaker 03:
Let me ask you about the property interest.

[00:04:25] Speaker 02:
What's that?

[00:04:26] Speaker 02:
Let me ask you about, because you're talking about the restrictions on where he could work, but as I understand the law, you have to show that

[00:04:38] Speaker 02:
The defendant's actions destroyed the value or utility, destroyed the value or utility of the license.

[00:04:47] Speaker 02:
And she was able to continue practicing.

[00:04:49] Speaker 02:
She was never handicapped by not having a license or by being denied the utility of the license.

[00:05:04] Speaker 02:
I would argue she was handicapped, of course.

[00:05:06] Speaker 04:
Well, she worked 2649 hours outside of the area.

[00:05:11] Speaker 03:
OK, but she did work.

[00:05:13] Speaker 03:
So she could not work in a 11,000 square mile area.

[00:05:17] Speaker 00:
Well, but she did work.

[00:05:18] Speaker 00:
I mean, were there times that she sought employment through her new, I think it's a newly formed LLC, that was within the non-compete clause range that, even if this assumes there is a non-compete clause in a contract that doesn't exist, but didn't, once that was noted,

[00:05:36] Speaker 00:
to the former employer, didn't they grant exceptions for her to actually do it?

[00:05:41] Speaker 03:
One time.

[00:05:42] Speaker 03:
And certainly, if you don't have a contract and you don't have a non-compete, she shouldn't have to go beg her former employer to let her out of something that doesn't exist.

[00:05:52] Speaker 03:
And if I may, her employer was a company called Docs Who Care, and they would place her.

[00:05:57] Speaker 03:
And what they told her, and so the hospital, Mr. Williams,

[00:06:01] Speaker 03:
reached out to Dr. Kare and said, you can't place her in this area, in this large, large footprint.

[00:06:07] Speaker 02:
How did that destroy the utility of her license when she was able to practice?

[00:06:12] Speaker 02:
And Judge Kelly just gave the number of hours she worked.

[00:06:15] Speaker 02:
But that's inconsistent with saying it was destroyed.

[00:06:19] Speaker 02:
It might have been impaired

[00:06:21] Speaker 03:
But that's not the test.

[00:06:22] Speaker 03:
But I think under STIDM, that is kind of the test.

[00:06:25] Speaker 03:
I mean, it was significantly impaired because she, and understand, her employer said, we're not going to place you in this footprint, this large footprint.

[00:06:32] Speaker 02:
You don't agree with our statement that it has to be destroyed.

[00:06:38] Speaker 02:
I do not think it has to be destroyed.

[00:06:39] Speaker 02:
The language in STIDM is whether the actions destroyed the value or utility of the medical loan.

[00:06:47] Speaker 02:
Correct.

[00:06:48] Speaker 02:
And you think it was destroyed?

[00:06:50] Speaker 03:
Well, so the sentence before that instead says a state agency cannot escape liability for depriving an individual of a legitimate property interest merely by arguing that it has not revoked or destroyed the actual legal title to that interest.

[00:07:05] Speaker 03:
And so there is a point where if you say you can't work.

[00:07:09] Speaker 02:
It hasn't destroyed the legal title, but it hasn't destroyed the utility.

[00:07:13] Speaker 02:
There are ways you can destroy the utility.

[00:07:17] Speaker 02:
without revoking the license.

[00:07:20] Speaker 02:
Instead I'm just saying we look at it pragmatically.

[00:07:24] Speaker 03:
If she was unable to use her license then she lost her property.

[00:07:27] Speaker 03:
I would say you would look at it pragmatically and I would say if you have to drive 12 hours to effectively practice and buy a trailer and go live in a trailer two weeks on and two weeks off in Nebraska so you can be a doctor, that does essentially destroy the utility of her license.

[00:07:44] Speaker 00:
But can you help me understand why if she's in this scenario with docs who care and they say, well, we're not going to schedule you within this 60 mile radius because of your prior contract.

[00:07:56] Speaker 00:
But she says, well, I have no prior contract.

[00:07:58] Speaker 00:
In fact, that's why I left.

[00:08:00] Speaker 00:
There was no contract.

[00:08:00] Speaker 00:
They tried to get me sign a contract.

[00:08:02] Speaker 00:
I wouldn't.

[00:08:02] Speaker 00:
There's no non-compete clause.

[00:08:04] Speaker 03:
Correct.

[00:08:05] Speaker 00:
So why was that even an issue?

[00:08:07] Speaker 03:
Because Mr. Williams reached out to Docs Who Care, reached out to McPherson Medical Center, contacted Neosho Medical Center, contacted multiple medical centers, and said, if you do this, you will be sued.

[00:08:18] Speaker 03:
We will take legal action.

[00:08:19] Speaker 00:
But Docs Who Care, why didn't they say, well, we don't care, because you don't have a contract?

[00:08:24] Speaker 03:
Because apparently, that's a question for them, but they didn't want to get into litigation with Labette County Hospital.

[00:08:33] Speaker 03:
And so her employer says, we're getting bullied also.

[00:08:35] Speaker 03:
We're not going to do this.

[00:08:37] Speaker 04:
So why did she sue Godot Care?

[00:08:40] Speaker 03:
Well, she thought she should sue the person who won't let her work, which is the hospital in question that lied to everyone about having a contract.

[00:08:48] Speaker 00:
But why isn't it speculative, though, to say that they were going to schedule her within this range anyway?

[00:08:53] Speaker 00:
Because the one time they did, they granted an exception.

[00:08:55] Speaker 00:
So why didn't they say, well, we're just going to keep doing that?

[00:08:57] Speaker 03:
And I guess, in pregnancy, is that reasonable to say every time you're going to work a weekend, you have to go get permission from a hospital that you used to work for that you never had a contract with to get relief from a non-existent non-compete?

[00:09:11] Speaker 03:
That feels incredibly burdensome and unnecessary.

[00:09:15] Speaker 03:
That's not where, to me, that can't be the law, that she has to go ask permission for something that doesn't exist every single time she wants to work.

[00:09:23] Speaker 03:
Because this is a placement kind of hospital employment, where one weekend she's here, one weekend she's here, another weekend she's here.

[00:09:33] Speaker 03:
It's a one-year contract someplace, and you have to ask once.

[00:09:37] Speaker 02:
This is perhaps more relevant to the second claim.

[00:09:42] Speaker 02:
But where was the reasonable expectation of a

[00:09:46] Speaker 02:
business that was impaired here for the second claim.

[00:09:51] Speaker 02:
What was the business prospect she had that she was deprived of?

[00:09:56] Speaker 02:
She hasn't shown any offer that she was turned down.

[00:10:00] Speaker 03:
She worked for Docs Who Care.

[00:10:02] Speaker 03:
Her employer was Docs Who Care.

[00:10:03] Speaker 03:
Docs Who Care said, we will not place you in this radius.

[00:10:09] Speaker 03:
That's her employer.

[00:10:11] Speaker 03:
The confusion that the district judge had was, well, what about the hospitals?

[00:10:16] Speaker 03:
Her employer's docs who care.

[00:10:18] Speaker 03:
And they said, we're not going to do it.

[00:10:20] Speaker 03:
So now she's faced with this huge footprint that she can't be a doctor.

[00:10:24] Speaker 03:
So the business expectancy is with her employer docs who care.

[00:10:29] Speaker 02:
And where is her expectation that she could get a position with one of those hospitals?

[00:10:34] Speaker 02:
Doesn't she have a burden of showing that she was expecting to be able to work at one of these hospitals and was denied?

[00:10:40] Speaker 02:
Because the only time there was some communication about a job with one of those hospitals, it was the plaintiff, not docs who care, somebody else who kept her from working there.

[00:10:51] Speaker 03:
Sure.

[00:10:53] Speaker 03:
She certainly was offered to work in those locations, and then Mr. Williams contacted them and said, you can't have her.

[00:10:59] Speaker 03:
That's in the record?

[00:11:00] Speaker 03:
Yep.

[00:11:02] Speaker 03:
Yep, she was with McPherson, I think in Wilson, yes.

[00:11:05] Speaker 03:
Wilson Medical Center, absolutely.

[00:11:07] Speaker 02:
And they had offered her positions, and she

[00:11:11] Speaker 02:
couldn't take those positions because of obstruction by the defendant.

[00:11:15] Speaker 03:
She was offered positions scheduled to work.

[00:11:18] Speaker 03:
Mr. Williams found out, contacted both the hospital and Docs Who Care and said, she's got non-compete.

[00:11:25] Speaker 03:
You can't have her.

[00:11:27] Speaker 03:
Docs Who Care then says, we're going to honor your request.

[00:11:30] Speaker 03:
And then Docs Who Care says, we're not going to place you anymore.

[00:11:36] Speaker 00:
the Newton and McPherson job opportunities.

[00:11:39] Speaker 00:
Wasn't she granted privileges?

[00:11:41] Speaker 00:
And how is that within the range of the non-compete?

[00:11:44] Speaker 00:
Weren't those sort of separate issues?

[00:11:47] Speaker 03:
I'm not sure I'm comfortable.

[00:11:48] Speaker 00:
We're talking about her business expectations.

[00:11:50] Speaker 00:
And so she has to have had some business interests that was impeded, right?

[00:11:55] Speaker 00:
Correct.

[00:11:56] Speaker 00:
OK.

[00:11:56] Speaker 00:
So as I was reading through the case, I thought there were like three instances where she was alleging that she had some business interests that was somehow impeded.

[00:12:06] Speaker 00:
And she listed Newton, McPherson, and then I think it was a Wilson or something, Wilson Medical Center.

[00:12:11] Speaker 00:
Correct.

[00:12:11] Speaker 00:
And Judge Hartz just talked with you about Wilson Medical Center, where it was her, when given the opportunity for a four-day shift, said, no, thank you.

[00:12:18] Speaker 00:
But help me understand Newton and McPherson.

[00:12:23] Speaker 00:
What was the interference with those two potential employments?

[00:12:30] Speaker 03:
So at least with McPherson,

[00:12:33] Speaker 03:
They continued to send notices from LaBette County Hospital to McPherson indicating that she was not really qualified or should not be considered for privileges, because they felt she didn't have a good temperament, essentially.

[00:12:49] Speaker 00:
But she got her privileges, right?

[00:12:50] Speaker 03:
She did.

[00:12:50] Speaker 03:
She did.

[00:12:51] Speaker 03:
Again, and this is the confusion, I think, that the district court judge had.

[00:12:57] Speaker 03:
Her employer was DoxuCare.

[00:12:59] Speaker 03:
At the point, DoxuCare says that we're not going to place you.

[00:13:02] Speaker 03:
She has no option.

[00:13:03] Speaker 03:
to work, and that's why she has to go to Sydney, Nebraska to get a job.

[00:13:08] Speaker 04:
What if she just tells the docs who care, I'm out of here.

[00:13:11] Speaker 04:
I'm going to go myself.

[00:13:12] Speaker 03:
Well, because that's who she's worked with, Docs Who Care, for years.

[00:13:15] Speaker 04:
Well, so what?

[00:13:16] Speaker 04:
Now they're saying, I'm not going to place you.

[00:13:19] Speaker 04:
Well, because she also... Well, for whatever reason, Docs Who Care is the one who did it to her.

[00:13:26] Speaker 04:
Based upon the conversation that... Suppose they had said, you know, she's really a sorry doc, too.

[00:13:33] Speaker 04:
Would that be libelous or slanderous?

[00:13:36] Speaker 03:
Depends on the facts.

[00:13:37] Speaker 03:
Depends on whether it's a true statement, I think.

[00:13:39] Speaker 03:
But the genesis of the case is that Brian Williams reached out and tried to enforce something that didn't exist and bullied hospitals and docs who care into not allowing Dr. Smith to work.

[00:13:53] Speaker 04:
Are we talking about a liberty interest?

[00:13:56] Speaker 04:
We're talking about a property interest.

[00:13:59] Speaker 04:
You're talking about a property interest.

[00:14:01] Speaker 04:
But the property hasn't been damaged.

[00:14:03] Speaker 03:
The property's damaged if you can't practice within 11,000 square miles.

[00:14:07] Speaker 02:
In district court, you said she had business expectations with three hospitals.

[00:14:16] Speaker 02:
Two of them were Newton Medical Center and McPherson.

[00:14:23] Speaker 02:
They were not within this radius, were they?

[00:14:28] Speaker 02:
So how did the defendant keep her from working at those two hospitals?

[00:14:32] Speaker 03:
The defendant didn't on any that were outside the radius.

[00:14:35] Speaker 03:
Other than on certifications that were sent in, they also said this person isn't a good doctor, isn't qualified.

[00:14:43] Speaker 02:
So what were your business expectations that were damaged?

[00:14:48] Speaker 02:
Again, she was an employee of Docs Who Care who wouldn't... You didn't argue this geographical... you didn't make this geographical argument below.

[00:14:55] Speaker 02:
You just argued... your business expectations argument was restricted to the three hospitals, and two, they didn't affect her because they were outside the radius, and the third, she was offered a position there.

[00:15:09] Speaker 02:
Her... the defendant said, okay, you can work there, and she said, knock on it.

[00:15:14] Speaker 03:
And I see I'm out of time.

[00:15:17] Speaker 03:
But it was argued below the radius.

[00:15:21] Speaker 03:
It's always been 60 miles.

[00:15:22] Speaker 03:
All I did was add eighth grade math to it.

[00:15:26] Speaker 03:
So thank you very much.

[00:15:36] Speaker 01:
Good morning, Your Honors.

[00:15:37] Speaker 01:
May it please the Court.

[00:15:37] Speaker 01:
My name is Mark Cole.

[00:15:38] Speaker 01:
I represent Bryan Williams in LaBette County Medical Center.

[00:15:42] Speaker 01:
And we will ask you to affirm the District Court's grant of summary judgment in this case because the plaintiff, Dr. Smith, was not deprived of a protected property interest in her medical license, and she did not suffer a loss of any legitimate business expectancy.

[00:15:59] Speaker 01:
Dr. Smith appeals the district court's decision on those two claims out of the four that were decided by the district court.

[00:16:09] Speaker 01:
I'll turn first to the Section 1983 claim that Dr. Smith was deprived of a property interest.

[00:16:16] Speaker 01:
That property interest is in her medical license and specifically her Kansas medical license.

[00:16:22] Speaker 01:
And when we know from the case law in this circuit around the country and from the Supreme Court that when a property interest is in a medical license, that license must be either actually or effectively revoked in order to properly state a deprivation of that property interest.

[00:16:39] Speaker 01:
Can you justify that?

[00:16:41] Speaker 01:
That seems pretty harsh.

[00:16:44] Speaker 01:
That's the law, Your Honor.

[00:16:45] Speaker 01:
And I think when it comes to a property interest, to take those into two- When it seems unnecessarily harsh.

[00:16:53] Speaker 02:
It makes you want to look at the cases and see if they really, that was really a holding in those cases.

[00:16:59] Speaker 02:
Can you justify why it has to be a total revocation, effective revocation of a license to be a property?

[00:17:08] Speaker 01:
Yeah, and I think the case law is instructive as to what effective revocation means.

[00:17:12] Speaker 01:
And the Stidham case from this circuit is a great example.

[00:17:16] Speaker 01:
In that case, there was a peace officer who was terminated from his position based on very bad allegations.

[00:17:25] Speaker 01:
And in the course of him trying to pursue other employment, was effectively unable to become employed as a peace officer, I believe in the state of Utah.

[00:17:35] Speaker 01:
He had evidence in that case that he sought 17 open positions

[00:17:41] Speaker 01:
with the cities within the reasonable range of him and then positions outside of that range.

[00:17:47] Speaker 01:
And even though he was highly ranked and should have been considered to the top of the class and very much eligible for those jobs, he couldn't get a single one.

[00:17:58] Speaker 01:
And so that, I think, is a great example of where his peace officer certificate was not actually revoked.

[00:18:05] Speaker 01:
It wasn't torn up.

[00:18:06] Speaker 01:
It wasn't rescinded.

[00:18:08] Speaker 01:
But he couldn't use it to get a job at all in order to use that.

[00:18:12] Speaker 01:
And a similar case is the Phelps case, in which an attorney was making an allegation that

[00:18:19] Speaker 01:
representations in a newspaper made it difficult for him to get clients in the future.

[00:18:26] Speaker 01:
And of course, there was a liberty and property interest there in that case, but the court said, look, you had your license.

[00:18:31] Speaker 01:
It was never limited or revoked in any way.

[00:18:33] Speaker 01:
There's nothing preventing you from using that license.

[00:18:36] Speaker 01:
And that's the case here.

[00:18:37] Speaker 01:
We can look at the undisputed facts as it came from the district court that Dr. Smith was able to and did in fact use her medical license on a number of occasions.

[00:18:48] Speaker 01:
And I think it was mentioned by Judge Kelly earlier in the record, there's over 2,600 hours that Dr. Smith worked in the 13 months after she left Labette Health in the state of Kansas using her Kansas medical license.

[00:19:02] Speaker 00:
Counsel, does it make any difference to our analysis whether there ever was a valid contract between the doctor and your clients?

[00:19:08] Speaker 01:
No, it doesn't.

[00:19:09] Speaker 01:
I don't think we have to get there.

[00:19:10] Speaker 01:
The district court didn't need to get there to make that decision.

[00:19:14] Speaker 01:
Of course, we can discuss that as certain other allegations are made regarding limitations on docs who care, which the record doesn't support.

[00:19:22] Speaker 01:
But we don't have to get to whether or not there was or was not a contract.

[00:19:26] Speaker 01:
That's not necessary for a determination.

[00:19:28] Speaker 01:
And that's why the district court here validly denied the motion for summary judgment made by Dr. Smith, because Dr. Smith had a competing motion for summary judgment on that specific part, and that was denied as moot.

[00:19:47] Speaker 01:
truly arguing that her Kansas license was effectively revoked.

[00:19:52] Speaker 01:
Dr. Smith essentially relies on language analyzing liberty interest cases to say that her license was weakened and devalued.

[00:20:00] Speaker 01:
Now this argument fails for two reasons.

[00:20:03] Speaker 01:
The first is legal.

[00:20:05] Speaker 01:
The argument that a license or property interest is weakened or devalued is not supported by the case law.

[00:20:11] Speaker 01:
And there's no significant interest or real reason presented to this court to develop new case law or create a new claim in this case.

[00:20:20] Speaker 01:
The second is factual, because even if losing one or some opportunities could suffice, the undisputed facts in this case are that Dr. Smith did not lose any opportunity at all.

[00:20:34] Speaker 01:
In fact, she received privileges at every single hospital at which she applied.

[00:20:39] Speaker 01:
There is no evidence in the record that she sought employment at any particular institution

[00:20:47] Speaker 01:
and did not receive that employment at a basic level and then not to mention not because of Mr. Williams or LaBette County Medical Center's statements.

[00:20:58] Speaker 02:
She argues, as I understood the argument here, that the defendants had contacted the hospitals within this range, within the radius, and said, you're going to get sued if you hire her.

[00:21:15] Speaker 02:
And so she didn't seek it, and her employer didn't seek positions in that area.

[00:21:22] Speaker 02:
So does ceding to what seems to be inevitable defeat her claim?

[00:21:32] Speaker 02:
Isn't it reasonable to think that she might have sought employment at hospitals closer to her home so she wouldn't have to commute as far?

[00:21:44] Speaker 01:
What's your response to that?

[00:21:46] Speaker 01:
There's a few points in response.

[00:21:49] Speaker 01:
The first is factual, and there are undisputed facts in this case, one of which is there was only one hospital that Mr. Williams or the hospital reached out to to inform them of the non-compete.

[00:22:03] Speaker 01:
Only one?

[00:22:04] Speaker 01:
Only one, and that was Wilson Medical Center.

[00:22:06] Speaker 02:
Did they tell her employer that they wouldn't let her

[00:22:12] Speaker 02:
work within this area?

[00:22:14] Speaker 01:
So to back up a little bit on that, her employer was actually an entity called Quality Care LLC.

[00:22:20] Speaker 01:
It was an entity that she owned along with her husband.

[00:22:24] Speaker 01:
She was never employed by Docs Who Care.

[00:22:26] Speaker 01:
The Docs Who Care contract, which is in the record, she's an independent contractor of Docs Who Care.

[00:22:32] Speaker 01:
Docs Who Care is what's called a locum tenants company.

[00:22:35] Speaker 01:
Essentially, they're a temporary physician placement company.

[00:22:38] Speaker 01:
So they have Docs Who Care as contracts with hospitals and medical centers.

[00:22:43] Speaker 01:
And when those medical centers have a short-term need, be it that a physician is on vacation, sick or whatever else, they'll contact people who they have an independent contractor arrangement with to place those people in those hospitals for a short period of time.

[00:22:58] Speaker 01:
That's the Docs Who Care business that we're talking about here.

[00:23:01] Speaker 02:
So she was never employed.

[00:23:03] Speaker 02:
Is there any evidence about whether Docs Who Care was

[00:23:06] Speaker 02:
contacted by any hospitals within the radius?

[00:23:09] Speaker 01:
Not hospitals, but Mr. Williams did contact Docs Who Care in response to Dr. Smith working a shift at Wilson.

[00:23:17] Speaker 01:
So Dr. Smith did work a shift at Wilson Medical Center in February of 2019.

[00:23:22] Speaker 01:
After learning of that, Brian Williams contacted Docs Who Care and said, she is subject to a non-compete agreement, and we intend to enforce it.

[00:23:32] Speaker 01:
Now, to add onto that,

[00:23:34] Speaker 01:
He said specifically, we don't have a signed agreement.

[00:23:38] Speaker 01:
He told them, we don't have one.

[00:23:40] Speaker 01:
We've looked for one.

[00:23:40] Speaker 01:
We don't have one.

[00:23:41] Speaker 01:
However, we have paid her under these agreements for years, and we believe them to be enforceable.

[00:23:47] Speaker 01:
So his state of mind is present there telling them, we don't have a signed agreement, but we believe we have an enforceable arrangement with her.

[00:23:55] Speaker 02:
That would discourage a company that doesn't want to get involved in litigation, would it not?

[00:23:59] Speaker 01:
I agree that it could.

[00:24:00] Speaker 01:
The record further indicates, though, that these email exchanges are in the record.

[00:24:04] Speaker 01:
that there's conversations with Dr. Smith in which she asserts that she does not have a non-compete that is effective against her.

[00:24:13] Speaker 01:
And then there's conversations back with the hospital and Mr. Williams.

[00:24:16] Speaker 01:
And in the end, there is a statement from Docs Who Care

[00:24:21] Speaker 01:
to Dr. Smith when they re-offer the four-day position or the four-day shift at Wilson Medical Center, saying, I know you don't need Mr. Williams' permission to do anything, but I wanted to let you know that this was available.

[00:24:36] Speaker 01:
So saying, we don't think that you have any restriction on you either, and we're offering this back to you again.

[00:24:45] Speaker 01:
So there's no evidence that Docs Who Care believed that there was a non-competed issue.

[00:24:49] Speaker 01:
There's no evidence that the hospital, Wilson, believed that there was a non-compete that could be enforced.

[00:24:55] Speaker 02:
So I assume from that there's no evidence that any of the hospitals within the radius had been in communication with Docs Who Care about Dr. Smith not being able to work there.

[00:25:08] Speaker 01:
That's entirely accurate, Your Honor.

[00:25:11] Speaker 01:
The evidence here, and to take it back to what I discussed earlier about the Stidham case.

[00:25:16] Speaker 01:
In that case, you had clear evidence that employment opportunities were sought and denied.

[00:25:21] Speaker 01:
and denied specifically for the reasons that individual officer was terminated from his previous position.

[00:25:34] Speaker 01:
We don't have that in this case.

[00:25:35] Speaker 01:
There are no employment opportunities that are sought and denied, which would be a necessary requirement to get to the level of even asking whether a property interest was effectively revoked.

[00:25:48] Speaker 00:
Do you know if her contract with Docs Who Care

[00:25:50] Speaker 00:
addressed at all any matters of geography, either prohibitions based upon her former employment or promises to her about placing her at facilities that were closer to her residence?

[00:26:02] Speaker 01:
The contract did not, and Dr. Smith admitted, and this is an undisputed fact, that she had no entitlement to work at any hospital that worked with Docs Who Care.

[00:26:13] Speaker 01:
There was no guarantee of a number of hours in that contract.

[00:26:17] Speaker 01:
There was no guarantee of any work.

[00:26:19] Speaker 01:
in that contract.

[00:26:20] Speaker 01:
It's simply a temporary placement agreement where if we have a need and you agree to serve it, then we'll pay you accordingly.

[00:26:29] Speaker 01:
That's all that agreement was.

[00:26:34] Speaker 01:
To touch on that just briefly too, there is no, there was statements made, there's statements made in the district court, there's statements made and arguments made before this court that Docs Who Care had said we won't place you in these hospitals within an hour of your home.

[00:26:52] Speaker 01:
There is no admissible evidence in the record to that effect.

[00:26:55] Speaker 01:
The only evidence, if you want to call it that, is a statement by Dr. Smith in her deposition that she heard that from somebody.

[00:27:04] Speaker 01:
But that's hearsay it's not admissible, and there's nothing to support that in the record.

[00:27:08] Speaker 01:
In fact, everything, all the other evidence refutes that statement by Dr. Smith.

[00:27:14] Speaker 01:
The second issue I'll turn to is the tortious interference claim.

[00:27:18] Speaker 01:
And this really follows much of the same reasoning as the Section 1983 claim.

[00:27:23] Speaker 01:
Dr. Smith must show that there was a loss of a legitimate business expectancy, but it's undisputed, and the facts are undisputed here, that she did not lose any business expectancy, not to mention a legitimate one.

[00:27:36] Speaker 01:
The primary argument advanced by Dr. Smith on appeal is this generalized claim that she was prevented from working with one hour of her home, this 11,310 square mile area.

[00:27:50] Speaker 01:
There is no support under Kansas law for that being a legitimate business expectancy.

[00:27:56] Speaker 01:
Kansas law requires that the business expectancy be reasonably certain, and an expectancy like that is simply speculative.

[00:28:04] Speaker 01:
As I mentioned earlier, Judge Federico, the

[00:28:07] Speaker 01:
The DoxuCare contract, that's what is relied on by Dr. Smith for that expectation, but there's no guarantee in that contract of placement at any particular location, not to mention within a certain geographical distance from her home.

[00:28:22] Speaker 01:
And as I referenced earlier, the undisputed facts here contradict that.

[00:28:26] Speaker 01:
Because she was an independent contractor of DoxuCare, she was simply agreeing to provide temporary locum services.

[00:28:33] Speaker 01:
And I think it's important to note that there was no entitlement

[00:28:37] Speaker 01:
to any job or any work anywhere under that agreement.

[00:28:47] Speaker 01:
At a basic level, Your Honors, there was no genuine issue of material fact to show that Dr. Smith lost any kind of business expectancy that would support her claim for tortious interference.

[00:28:58] Speaker 01:
And so I'll stop there and ask you to affirm the district court's judgment here, granting summary judgment on the two claims that are before you.

[00:29:06] Speaker 01:
The 1983 came and tortious interference.

[00:29:09] Speaker 01:
Thank you.

[00:29:16] Speaker 02:
Does he have any remaining time?

[00:29:19] Speaker 02:
I don't think so.

[00:29:20] Speaker 02:
29 seconds.

[00:29:21] Speaker 02:
Thank you then.

[00:29:23] Speaker 02:
Case is submitted.

[00:29:23] Speaker 02:
Counselor excused.