925 F2d 1470 Hendy

925 F.2d 1470

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

John HENDY; Wanda K. Hendy, Plaintiffs-Appellants,
Gary LOSSE, M.D.; San Diego Chargers Football Company;
Does 1-20, Defendants-Appellees.

No. 89-55430.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 1990.
Decided Feb. 12, 1991.

Before JAMES R. BROWNING and PREGERSON, Circuit Judges, and MacBRIDE, District Judge.*



John Hendy began playing professional football for the San Diego Chargers in 1985. He alleges he injured his right knee while playing for the Chargers in August 1986, and reinjured the knee in 1987. The Chargers terminated his contract in September 1987.

Hendy and his wife Wanda Hendy filed this action in California state court in September 1988, asserting various tort claims against the Chargers and the team physician, Gary M. Losse, M.D. Defendants removed the action on the ground the Hendys' claims were preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, and therefore arose under federal law within the meaning of 28 U.S.C. Sec. 1331. Defendants then moved to dismiss, asserting the claims were governed by a collective-bargaining agreement between the National Football League Players Association and the National Football League Management Council, and the Hendys had not exhausted the grievance and arbitration procedures provided by that agreement. The Hendys cross-moved to remand the case back to state court. The district court dismissed claims one through three, for negligent hiring and retention of Dr. Losse and intentional and negligent misrepresentation of John Hendy's medical condition, for failure to exhaust contractual remedies; and remanded claims four and five, for medical malpractice and loss of consortium.

The Hendys appeal the dismissal of claims one, two and three.1


We review subject matter jurisdiction de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989).

"[F]ederal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). "[A] case may not be removed to federal court on the basis of a federal defense, including the defense of preemption...." Id. at 393 (emphasis in original).

Notwithstanding this "well-pleaded complaint" rule, a federal statute having extraordinary preemptive force may convert an ordinary state common-law complaint into one stating a federal claim. "[T]he pre-emptive force of [section] 301 is so powerful as to displace entirely any state cause of action" for violation of a collective-bargaining agreement. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23 (1983). Section 301 preempts not only contract claims, but tort claims as well "when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement...." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985).

A state-law claim is independent of the collective-bargaining agreement and therefore not preempted only if "resolution of the state-law claim does not require construing the collective-bargaining agreement." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 (1988). "If the presence of the necessary elements of a state-law claim can be ascertained without recourse" to the collective-bargaining agreement, then the claim is not preempted. Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1062 (9th Cir.1989) (citing Lingle ).


Hendy's claim 1, for negligent hiring and retention of Dr. Losse, alleges Dr. Losse lacked the necessary knowledge and skill to treat Hendy's condition properly, and further that the Chargers knew or should have known of Dr. Losse's lack of skill and negligently selected, hired and retained Dr. Losse as club physician.

The elements of a negligence claim include the existence of a duty, a breach of that duty and an injury proximately caused by the breach. United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal.3d 586, 463 P.2d 770, 774 (1970). The duty to use due care in the hiring and retention of employees arises from state law. See, e.g., Atlas Assurance Co. v. McCombs Corp., 146 Cal.App.3d 135, 194 Cal.Rptr. 66, 73 (1983); Elam v. College Park Hosp., 132 Cal.App.3d 332, 183 Cal.Rptr. 156, 164-65 (1982).

The Chargers argue the scope of their duty cannot be ascertained without reference to Article XXXI of the collective-bargaining agreement, which requires each team to hire "a board certified orthopedic surgeon," or Paragraph 9 of Hendy's Player Contract, which sets out the conditions under which the Chargers were to provide medical care. Hendy does not allege the Chargers failed to hire a certified orthopedist or that he was not treated when he was contractually entitled to treatment. He asserts instead the Chargers failed to use due care when they hired and retained Dr. Losse. On its face, this claim arises solely under state law and is wholly independent of the collective-bargaining agreement.

Thus, this case is entirely different from United Steelworkers v. Rawson, 110 S.Ct. 1904 (1990), or International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851 (1987). Holding that section 301 preempted survivors' claims for wrongful death due to the Union's negligent inspection of the mine where union members were killed, the Court in Rawson noted "[i]f the Union failed to perform a duty in connection with inspection, it was a duty arising out of the collective-bargaining agreement signed by the Union...." 110 S.Ct. at 1910. Similarly, Hechler's claim her union breached its duty to provide her with a safe workplace was preempted because "[u]nder the common law ... it is the employer, not a labor union, that owes employees a duty to exercise reasonable care in providing a safe workplace." Hechler, 481 U.S. at 859 (emphasis in original).

Further, we note Hendy's claim does not depend in any way on his status as a member of the Players Association. The identical claim could be asserted by anyone Dr. Losse treated in connection with his employment. Compare Rawson, 110 S.Ct. at 1910 (defendants not "accused of acting in a way that might violate the duty of reasonable care owed to every person in society").

If the Chargers argue Article XXXI limits their duty to exercise care in the hiring and retention of the team physician, the argument is in the nature of a defense and does not alter the state-law nature of Hendy's claim. Caterpillar, 482 U.S. at 398-99.

Since the alleged breach and injury can be ascertained independent of the collective-bargaining agreement, section 301 does not preempt Hendy's negligent hiring and retention claim.


Hendy's claims 2 and 3, for intentional and negligent withholding of medical information, allege that Dr. Losse, with the consent of the Chargers, and acting as their agent misrepresented to Hendy he was fit to play.

The essential elements of Hendy's claims are: (1) concealment or misrepresentation of a material fact, (2) scienter, (3) intent to induce reliance, (4) justified reliance, and (5) injury. Molko v. Holy Spirit Ass'n, 46 Cal.3d 1092, 762 P.2d 46, 53 (1988). With respect to his concealment claim, Hendy must also establish defendants' duty to disclose. California Jury Instructions, Civil, BAJI 12.35 (7th ed. 1986).

Defendants argue the scope of their duty to disclose can only be determined by reference to Article XXXI and Article XXXII of the collective-bargaining agreement. Article XXXI provides that if the club physician advises the club that a player's physical condition could adversely affect the player's performance or health, the physician must also advise the player. Article XXXII gives the player the right to examine his medical records twice each year.

Again, Hendy does not assert any violation of the collective-bargaining agreement. Contrary to defendants' arguments, Dr. Losse's duty to disclose arises from the state-law doctrine of informed consent. Furthermore, California has articulated a clear public policy to promote patient access to medical information. See Cal.Health & Safety Code Secs. 1795-1795.26; National Football League Management Council v. Superior Court, 138 Cal.App.3d 895, 188 Cal.Rtpr. 337, 341-42 (1983).

Any defense defendants may assert that the collective-bargaining agreement limits Hendy's right of access to his medical information would have no effect on the jurisdictional analysis. Caterpillar, 482 U.S. at 398-99.

These claims are independent of the collective-bargaining agreement and not preempted.


Because Hendy's claims one through three can be determined without reference to the collective-bargaining agreement, the district court lacked jurisdiction to reach the merits. Accordingly, we VACATE the judgment below and REMAND to the district court with instructions to remand these claims to state court.


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The Honorable Thomas J. MacBride, Senior District Judge for the Eastern District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


It is unclear why Wanda Hendy has joined in this appeal, since she obtained the remand relief she requested on her sole claim for loss of consortium