Date: 11-17-2012

Case Style: Stephen R. Kovacs, D.O. v. Mark Warren

Case Number: CJ-2010-7651

Judge: Rebecca B. Nightingale

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Chad M. Neuens, Brian L. Mitchell and Amy E. Hampton

Defendant's Attorney: Frank W. Frasier, George Miles and Steven R. Hickman

Description: Stephen R. Kovacs, D.O. sued Mark Warren, Bret A. Unterschuetz and Arthur H. Adams, P.C. on intentional infliction of emotional distress, defamation, libel, slander, and intentional interference with contractual relations theories seeking compensatory and punitive damages.

In April of 2005, Stephen R. Kovacs, D.O. (“Dr. Kovacs”) and Urgent Care of Green Country, P.L.L.C. (“Urgent Care”) were selected by American Airlines (“American”) to be a provider of medical services to American employees, including both management and members of the Transport Union Workers Union of America, Local 514 (“Union”). Pursuant to this business relationship between American and Dr. Kovacs/Urgent Care, Union employees of American would receive medical treatment from Urgent Care physicians, including Dr. Kovacs, for work-related injuries. Urgent Care also provided medical services to American Airlines Medical (“AA Medical”). American would pay Urgent Care for providing the foregoing medical services.

On August 13, 2010, Defendant Mark Warren (“Warren”), a member of the Union, injured his left foot while working at American (“Injury”). Warren sought treatment for his Injury at the Owasso, Oklahoma location of Urgent Care. After initial treatment, at which time Warren was released to return to work, Warren decided not to return to work. After approximately a month, American inquired as to the reason why Warren was not returning to work. As part of this process, American requested that Warren have a physician complete forms substantiating his absence and to return them to American.

Warren returned to Urgent Care on September 15, 2010. During Warren’s appointment with Dr. Kovacs, Warren requested that Dr. Kovacs sign the forms that would have retroactively approved Warren’s unexplained absence from work. After consulting with American, and based on his medical judgment, Dr. Kovacs refused to fill out the forms as directed by Warren. Dr. Kovacs did eventually fill out one of the forms, but placed notations on that form to clarify his medical opinion.

When Warren saw that Dr. Kovacs had made notations on the forms he provided, Warren became agitated and began yelling in the Urgent Care office. Dr. Kovacs’ initial efforts to calm Warren were unsuccessful, so he requested that Warren leave the premises, and he retired to his office for several minutes to allow Warren time to leave the facility on his own. Warren remained in the exam room and continued to yell and cause disruption. When it became clear Warren did not intend to leave the premises as asked, Dr. Kovacs, who works as a Reserve Police Officer for the City of Owasso, asked his staff to call 911 and returned to the exam room with his badge on his belt and his duty weapon on his hip, locked in its holster. With his badge in clear view, Dr. Kovacs identified himself as an Owasso Police Officer and again asked Warren to leave. Warren continued to yell as Dr. Kovacs escorted him out of the Urgent Care facility. These events are hereafter collectively referred to as the “Incident.”

Subsequent to the Incident, Dr. Kovacs reported the Incident to American. At this time, American did not take any action to terminate its relationship with Dr. Kovacs/Urgent Care. In fact, both Union and non-Union American employees continued to receive treatment from Urgent Care. Urgent Care also continued to provide medical services for AA Medical. With very few minor exceptions, American was pleased with the service provided it by Dr. Kovacs and Urgent Care.

When Warren complained about the Incident to senior members of the Union, the Union decided to take action against Dr. Kovacs and Urgent Care. Based on their conversations with Warren, Union leaders reported to American that Dr. Kovacs had “pulled a gun” on Warren, and that Warren had done nothing to provoke this action.

After Warren and the Union had misrepresented the facts of the Incident to American, Union leadership began a campaign to have Dr. Kovacs and Urgent Care removed from the American approved physicians list. This campaign was ultimately successful.

After the Incident, Warren also misrepresented the facts of the Incident to at least ten individuals. His attorney at the time, Bret Unterschuetz, sent a letter to the Oklahoma Osteopathic Association and the Oklahoma State Medical Association which contained false statements regarding the Incident.

On November 30, 2010, Dr. Kovacs filed his Verified Petition in Tulsa County District Court Case No. CJ-20 10-7651, asserting claims against Warren for defamation, libel (per se and per quod), slander (per se and per quod), tortious interference with a contract or business relationship, intentional interference with contractual relations, permanent injunction, and exemplary damages. On December 22, 2010, Dr. Kovacs filed his Petition in Tulsa County District Court Case No. CJ-2010-8157, asserting against the Union claims for tortious interference with a contract or business relationship, intentional interference with contractual relations, and exemplary damages.

The Plaintiffs filed their Amended Verified Petition on March 9, 2012, asserting the same claims included in their previous Petitions. In Defendants’ Answer to Plaintiffs’ Amended Verified Petition filed on March 28, 2012, Defendant Warren asserted Counterclaims against Dr. Kovacs for assault and intentional infliction of emotional distress.

B. Defendants’ Statement of Facts:

1. Plaintiffs, Steven R. Kovacs, D.O., and Urgent Care of Green Country, PLLC, were on an American Airlines list of authorized doctors to treat work-related injuries to its employees who were represented by Defendant Transport Workers Union, Local 514.

2. On April 15, 2010, Mark Warren was an employee of American Airlines and a member of the TWU-represented bargaining unit. Because he had a work-related injury, he saw Kovacs that day.

3. During the appointment, Kovacs, a reserve police officer for the City of Owasso, left the examination room, got his badge and pistol, and returned to the examination room. Warren took this as a threat and assault and was placed in fear.

4. After the incident, Kovacs reported it to American Airlines, and Warren reported it to the TWU, who in turn reported it to American Airlines.

5. Ultimately, American Airlines removed Kovacs and Urgent Care from its list of authorized providers.

6. Kovacs and Urgent Care have sued Warren for defamation and interference with business relations.

7. Kovacs and Urgent Care have sued TWU for interference with business relations.

8. Warren has counterclaimed against Kovacs for assault and intentional infliction of emotional distress.

9. The Defendants deny the allegations made in Plaintiffs’ Petition and Amended Petitions filed herein.

3. Plaintiffs’ Claims for Relief:

A. Plaintiffs’ Claims against Warren

1. Defamation--Trice v. Burgess, 2006 OK CIV APP 79, ¶ 10, 137 P.3d 1253, 1257

2. Libel (Per Se and Per Quod)-- OKLA. STAT. tit. 12, § 1441

3. Slander (Per Se and Per Quod)-- OKLA. STAT. tit. 12 § 1444.1; Sturgeon v. Retherford Publications, Inc., 1999 OK CIV APP 78, 987 P.2d 1218

4. Tortious Interference with a Contract or Business Relationship— Tuft’s, Inc. v. City of Oklahoma City, 2009 0K4, 212 P.3d 1158, 1165; Mac Adjustment, Inc. v. Property Loss Research Bureau, 1979 OK 41, 595 P.2d 427, 428

5. Intentional Interference with Contractual Relations-- Gonzalez v. Sessom, 2006 OK CIV APP 61, 137 P.3d 1245, 1249; Overbeck v. Quaker Lfe Ins. Co., 1984 OK CIV APP 44, 757 P.2d 846, 847-48

6. Permanent Injunction— Thayne A. Hedges Regional Speech and Hearing Center, Inc. v. Baughman, 1998 OK CIV APP 122, ¶ 4, 996 P.2d 939, 941; Dale v. City of Yukon, 1980 OK CIV APP 55, 618 P.2d 954

7. Exemplary Damages-- Mitchell v. Griffin Television, L.L. C., 2002 OK CIV APP 115, ¶ 6, 60 P.3d 1058, 1061; OKLA. STAT. tit. 23, §9.1; Martin v. Griffin Television, Inc., 1976 OK 13, 549 P.2d 85;

B. Plaintiffs’ Claims against TWU

1. Tortious Interference with a Contract or Business Relationship-Tuffy’s, Inc. v. City of Oklahoma City, 2009 0K4, 212 P.3d 1158, 1165; Mac Adjustment, Inc. v. Property Loss Research Bureau, 1979 OK 41, 595 P.2d 427, 428

2. Intentional Interference with Contractual Relations-- Gonzalez v. Sessom, 2006 OK CIV APP 61, 137 P.3d 1245, 1249; Overbeck v. Quaker Life Ins. Co., 1984 OK CIV APP 44, 757 P.2d 846, 847-48

3. Exemplary Damages--OKLA. STAT. tit. 23, §9.1; Navistar Int’l Transp. Corp. v. Vernon Klein Truck & Equip., 1994 OK CIV APP 168, 919 P.2d 443, 446

4. Plaintiffs’ Contentions:

A. List all Theories of Defense and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon.

1. Regarding the Counterclaims asserted against Dr. Kovacs by Warren, Dr. Kovacs asserts the following defenses:

a. The allegations contained within Warren’s Counterclaims fail to state a claim against Dr. Kovacs upon which relief may be granted—OKLA. STAT. tit. 12, §2012(B)(6)

b. Any damages allegedly incurred by Warren were caused by the fault of Warren, not Dr. Kovacs—common law

5. Defendants’ Claims for Relief:

A. List any Claims of Relief Sought (By Cross-Claim, Counterclaim, or Set-Off), and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon.

1. Assault and Battery

2. Intentional infliction of emotional distress

3. Damages (still pending pursuant to Oklahoma’s Workers’ Compensation Court).

6. Defendants’ Contentions:

A. List all Theories of Defense and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon.

1. Estoppel

2. Laches

3. Failure to state a claim upon which relief may be granted

4. Action or inactions of third-parties

5. Duress

6. Contributory negligence

7. Fraud

8. Illegality

9. Privilege

10. Substantial truth

Outcome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“WE, THE JURY, IMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE PLAINTIFF, AND AGAINST DEFENDANT, WARREN, AND, FIX THE DOLLAR AMOUNT OF HER DAMAGES IN THE SUM OF $1.00” ON THE CLAIM LIBEL. JURORS CONCURRING, SIGNED. “WE, THE JURY, IMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE PLAINTIFF, AND AGAINST DEFENDANT, WARREN, AND, FIX THE DOLLAR AMOUNT OF HER DAMAGES IN THE SUM OF $221, 351.13” ON THE CLAIM OF SLANDER. JURORS CONCURRING, SIGNED.“WE, THE JURY, IMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE PLAINTIFFS, AND AGAINST TWUA, AND, FIX THE DOLLAR AMOUNT OF HER DAMAGES IN THE SUM OF OF $221, 351.13” ON THE CLAIM OF INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONSHIP. JURORS CONCURRING, SIGNED: JURY FOREPERSON.

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Defendant's Experts:

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