[236]Opinion
SONENSHINE, J. Ophthalmologist Firooz Oskooi did not disclose his past hospital affiliations when he applied for staff privileges at Fountain Valley Regional Hospital and Medical Center (the Hospital). After the Hospital summarily suspended him for those omissions, he filed a petition in superior court to force the Hospital to set aside the suspension, but failed to take any further action until four years later. Despite the trial court’s finding that Oskooi had no excuse for the delay, it denied the Hospital’s motion to dismiss for lack of prosecution. Thereafter, it set aside Oskooi’s suspension. The trial court erred on both counts.
I
Oskooi sought staff privileges at the Hospital in 1986. He completed the application, but in answering section 6, which asked for “all current and previous hospital affiliations,’’ and section 13, which asked for “previous practice[s],” Oskooi omitted his previous affiliations with Hawaii and Illinois hospitals. In fact, despite warnings on the application that “any significant omission is cause for summary dismissal,” Oskooi failed to mention those hospitals anywhere on the form.
Oskooi was granted provisional staff privileges in July but the Hospital summarily suspended him on July 30, 1987, alleging his “technical judgment [was] not up to the standards of the medical community,” and he experienced “indecision [on] when to perform [certain other medical procedures].” After a hospital judicial review committee hearing on August 17, he was reinstated. His victory was short lived.
On October 1, Oskooi’s privileges were again suspended, this time because of the application omissions. Oskooi exhausted his administrative remedies in January 1988, and on September 2, he filed the underlying petition for writ of mandate asking the court to set aside his suspension. The Hospital responded to the writ on September 20. Oskooi was evidently not in a hurry. Years passed until finally in 1992, Oskooi notified the Hospital he was ready to go forward. In response, the Hospital filed the underlying Code of Civil Procedure 1 sections 583.410 and 583.420 motions to dismiss.
At the August 28, 1992, hearing, Oskooi argued the delay in prosecution was excused because he had not had the money to proceed and he had been waiting for the outcome of two other cases to which the Hospital was a [237]party. The court, although unimpressed with Oskooi’s excuses, denied the Hospital’s motions without prejudice.2
In November, Oskooi finally requested a hearing date, which was set for January 8, 1993. The court granted Oskooi’s writ, but his counsel was ordered to include a statement in the judgment indicating there was no reason the matter could not have been heard before September 2, 1989.3 The Hospital’s subsequent motion to vacate was denied.
II
Reviewability
Oskooi maintains the denial of a motion to dismiss without prejudice is not reviewable on appeal. He is wrong. While a denial of a dismissal motion is not directly appealable, it may be challenged either by a petition for writ of mandate or in an appeal after a final judgment. (Paul E. Iacono Structural Engineer, Inc. v. Rizzo (1984) 162 Cal.App.3d 803, 809 [208 Cal.Rptr. 787].)4
[238]Does Section 583.110 et seq. Apply to Mandamus Proceedings?
The next question to be considered is whether section 583.110 et seq. discretionary dismissal statutes are applicable to mandamus proceedings. One must first note the dismissal statutes do not apply to special proceedings unless incorporated by reference. (§ 583.120, subd. (a).) A petition for administrative mandamus is a special proceeding and the dismissal statutes are not incorporated therein. (Binyon v. State of California (1993) 17 Cal.App.4th 952, 954 [21 Cal.Rptr.2d 673].) But there is another consideration.
Section 583.120, subdivision (b) provides, “Notwithstanding subdivision (a), the court may, by rule or otherwise under inherent authority of the court, apply this chapter to a special proceeding . . . except to the extent such application would be inconsistent with the character of the special proceeding or the statute governing the special proceeding.” The Law Revision Commission comment to section 583.120 provides guidance to understanding the legislative intent. Subdivision (b) permits application of the dismissal statutes to special proceedings unless such application would increase the already applicable time limits. (17 Cal. Law Revision Com. Rep. (June, 1984) pp. 905, 929.) In other words, the general dismissal statutes apply to special proceedings unless to do so would permit rather than prevent delay.
Dismissal statutes are inapt to a will contest because a probate court possesses inherent power to dismiss for failure to prosecute. (Horney v. Superior Court (1948) 83 Cal.App.2d 262, 270 [188 P.2d 552].) And these statutes do not apply to mechanic’s lien foreclosures because Civil Code [239]section 3147 provides a two-year dismissal statute for such actions. However, as recognized in Binyon v. State of California, supra, 17 Cal.App.4th 952, 956, because “[t]here is no specific statute that permits dismissal of an administrative mandamus proceeding for failure to prosecute[,] ... it would not be inconsistent to apply the general dismissal statute to [mandamus] proceedings.” Moreover, as noted by the trial court here, delay in prosecuting an administrative mandamus action is particularly egregious because of the inherent claim of irreparable harm.5
Oskooi argues it is nevertheless inconsistent to apply the dismissal statutes to mandamus actions because staleness of evidence is not an issue in a closed-record administrative hearing review. But in Binyon the court rejected the same argument, noting the record may in fact be augmented with new evidence in certain situations. In any event, prevention of prejudice to the defendant is not the statute’s sole purpose; it is also intended to “ ‘ “expedite the administration of justice by compelling every person who files an action to prosecute it with promptness and diligence.” . . .’” (Binyon v. State of California, supra, 17 Cal.App.4th 952, 956.)
A party “cannot file a petition for writ of administrative mandamus, then sit back for years without taking the slightest action to have it determined until it suits his [or her] convenience, and . . . expect that the court must hear [the] petition on the merits despite his [or her] lack of diligence.” (Binyon v. State of California, supra, 17 Cal.App.4th at p. 957.) Binyon is compelling and one must thus conclude section 583.110 et seq. applies to mandamus proceedings.
Is Dismissal Mandatory?
Next to be considered is under what conditions, if any, dismissal is mandatory. The controlling statutes provide, inter alia, the trial court has discretion to “dismiss an action for delay in prosecution” when the action is not brought to trial within the specified time. (§§ 583.410, 583.420, subd. (a)(2)(A) & (a)(2)(B).)
The trial court possesses almost unfettered discretion in deciding factual disputes and whether the proffered reasons justify the delay. But this is a different question; does the trial court retain discretion when there are neither factual disputes nor any reasons justifying the delay?
[240]Our Supreme Court in Denham v. Superior Court (1970) 2 Cal.3d 557, 563 [86 Cal.Rptr. 65, 468 P.2d 193], expressly disapproved prior cases which held a motion to dismiss must be granted unless opposed by an “adequate showing of diligence or excuse for delay.”6 The Denham court concluded: “ ‘ “It is only when there is an entire absence of any showing constituting good cause presented in the Superior Court upon the hearing of the motion to dismiss that a writ of mandate to compel the dismissal of the action may properly issue.” ’ ” (Id. at p. 564, italics added.)
Several courts have interpreted Denham as permitting the trial court discretion even in the absence of any showing of excusable delay. (Williams v. Los Angeles Unified School Dist. (1994) 23 Cal.App.4th 84, 94, fn. 4 [28 Cal.Rptr.2d 219] [“In Denham, the court held that the trial court always had discretion to deny a motion to dismiss, even when the plaintiff failed to present any excuse for its inaction.”]; Scarzella v. DeMers (1993) 17 Cal.App.4th 1762, 1769, fn. 4 [22 Cal.Rptr.2d 329] [Denham disapproved of language which suggested “absent an affirmative showing of excuse by the plaintiff the trial court would be required to grant dismissal. . . .”]; Ladd v. Dart Equipment Corp. (1991) 230 Cal.App.3d 1088, 1105 [281 Cal.Rptr. 813] [“No Supreme Court case has disapproved of the Denham rule that the absence of diligence does not necessarily require dismissal . . . .”]; United Farm Workers National Union v. International Brotherhood of Teamsters (1978) 87 Cal.App.3d 225, 235 [150 Cal.Rptr. 761] [“Denham holds that when there is an entire absence of a showing of good cause the trial court may (i.e., has discretion to) dismiss the action.”].)
Those cases misinterpret Denham which, while expanding trial court discretion, did not render it unlimited. Prior to Denham, a motion to dismiss was mandated when a party failed to make an adequate showing of diligence or excuse. Denham changed the standard permitting trial court discretion unless there is an absence of any showing constituting good cause.
In Woolfson v. Personal Travel Service, Inc. (1971) 3 Cal.3d 909 [92 Cal.Rptr. 286, 479 P.2d 646], the Supreme Court restated this conclusion. “In Denham . . . this court by unanimous opinions . . . held that dismissal under section 583, subdivision (a) . . . is mandatory ‘only when there is an entire absence of any showing constituting good cause.’ ” (Id. at p. 912, [241]italics added.) Again, in Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, 21 [90 Cal.Rptr. 405], the court explained that although plaintiff has no burden to show good cause for delay, plaintiff still has an obligation to make some showing upon which the court can exercise its discretion. The difference is defining “an adequate showing and any showing.” (Original italics.) Recently, in Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 440-441 [41 Cal.Rptr.2d 362, 895 P.2d 469], the Supreme Court reiterated this principle: In order to avoid dismissal, a plaintiff must generally make “ ‘some showing of excusable delay’ . . . .”
Several Courts of Appeal have correctly followed the Denham rule. (Kunzler v. Karde (1980) 109 Cal.App.3d 683, 689 [167 Cal.Rptr. 425] [“[T]he concept that a trial court, absent any evidence of good cause for protracted delays, may deny a motion to dismiss is not to be found in Denham and is faulty.”]; Lopez v. Larson (1979) 91 Cal.App.3d 383, 398 [153 Cal.Rptr. 912] [“[I]t has always been true and remains true that if, in the exercise of its discretion, the trial court determines that insufficient good cause or justification has been shown for protracted delay, it may, and properly should, grant the motion to dismiss.”]; City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 561 [133 Cal.Rptr. 212] [“Dismissal is only mandated when there is an entire absence of any showing of good cause for delay.”].) These cases correctly conclude a trial court must grant a motion to dismiss when there is no showing of excusable delay.
Does This Record Establish Any Showing Constituting Good Cause?
Oskooi argues the suspension caused him to be without the necessary funds to pursue his action. There is no authority which “gives even lip service to the concept that lack of economic resources is sufficient excuse for failure to prosecute with diligence.” (Rodde v. Trousdale Constr. Co. (1969) 276 Cal.App.2d 419, 422 [80 Cal.Rptr. 774].) As noted in American Western Banker v. Price Waterhouse (1993) 12 Cal.App.4th 39, 57 [14 Cal.Rptr.2d 916], no case “supports a conclusion that a litigant may unilaterally put the case in abeyance to meet its own financial needs.7 Moreover, [242]California Rules of Court, rule 373(e) does not include a plaintiff’s financial condition as a factor to be considered by the trial court.8
Even if “we accept the premise, arguendo, that poverty may be considered as one circumstance in the totality of facts presented” (Lowe v. Thomas (1970) 11 Cal.App.3d 867, 870-871 [90 Cal.Rptr. 202]), the result is the same: Poverty does not justify the delay. The administrative record was a mere 32 pages containing only a few exhibits. No discovery was necessary. Oskooi had only to notice a motion and hearing on his petition. And he was no pauper. The record reveals he was averaging a net income of $35,000 a year as an ophthalmologist. As the trial court commented, “[I]t’s hard to imagine [Oskooi and counsel] couldn’t work out some kind of payment schedule. . . . $35,000 may not be a fortune, but it’s certainly enough to . . . make some payments.” From this record one can only surmise the delay was caused not by Oskooi’s financial hardship, but “instead, that, [he] ‘refused’ and ‘failed’ to make the necessary financial arrangements . . . .” (Rodde v. Trousdale Constr. Co., supra, 276 Cal.App.2d at p. 422.)
Oskooi also argues the delay in prosecution was justified because he was awaiting the outcome of Ledergerber v. Fountain Valley Regional Hospital & Medical Center (Feb. 22, 1995) G013843 (nonpub. opn.) and Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434 [282 Cal.Rptr. 819]. His argument is unpersuasive because the issues raised there are neither relevant to nor dispositive of the matters now under consideration. (See, e.g., Putnam v. Clague (1992) 3 Cal.App.4th 542, 560 [5 Cal.Rptr.2d 25]; County of Los Angeles v. Superior Court (1988) 203 Cal.App.3d 1205 [250 Cal.Rptr. 481].) Both cases considered substantive questions regarding a doctor’s clinical judgment and treatment methods. While most of the cited authorities considered fairness, the issues were fact specific to those cases.
It thus appears this excuse was conceived in hindsight. Oskooi fails to establish he even knew about Rosenblit until after it was published. And [243]Oskooi’s reliance on Ledergerber is no more compelling. There, the plaintiff, represented by the same counsel who represented Oskooi, did not file his writ of mandate petition until more than a year after that doctor’s suspension, and then almost four years elapsed before he asked for a hearing. Oskooi cannot expect to excuse this delay by claiming he was waiting for the outcome of another case his counsel also delayed.
Ill
Oskooi fares no better even if the merits of the writ are considered. Clearly substantial evidence supported the Hospital’s decision to suspend his staff privileges.9
The trial court granted Oskooi’s writ and set aside his suspension, finding the Hospital abused its discretion “within the meaning of . . . [section] 1094.5.” Abuse of discretion within the meaning of section 1094.5 occurs when a hospital proceeds in an unlawful manner, its findings are unsupported by the evidence, or its decision is unsupported by the findings. (§ 1094.5, subds. (b) & (d).)
Because appellant is a private hospital, the trial court reviews the administrative record to determine whether the Hospital’s findings are “supported by substantial evidence in the light of the whole record.” (§ 1094.5, subd. (d); see also Unterthiner v. Desert Hospital Dist. (1983) 33 Cal.3d 285, 297-298, fn. 6 [188 Cal.Rptr. 590, 656 P.2d 554].)10 The findings must be affirmed unless they are “so lacking in evidentiary support as to render them unreasonable.” (Gaenslen v. Board of Directors (1985) 185 Cal.App.3d 563, 572 [232 Cal.Rptr. 239]; Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 155 [196 Cal.Rptr. 367]). Our review of findings is based on the same standard. (Bonner v. Sisters of Providence Corp. (1987) 194 Cal.App.3d. 437, 444 [239 Cal.Rptr. 530]; Gaenslen v. Board of Directors, supra, 185 Cal.App.3d at pp. 572-573.)
The court concluded, “There was definitely substantial evidence to support the fact that the information was omitted” and noted the form [244]warned of the consequences of such omissions. The court nevertheless found the suspension was inconsistent with the Hospital’s bylaws standards for summary dismissal.
As the Hospital explains, however, this is a distinction without a difference. Oskooi was told from the beginning that he was being suspended because of the application omissions. Moreover, the result is the same no matter whether the application or bylaws govern. The application warned Oskooi “any significant omission is cause for summary dismissal.” The Hospital’s bylaws provide in part: “The applicant shall have the burden of producing adequate information for a proper evaluation of his competence, character, ethics and other qualifications, and of resolving any doubts about such qualifications. He shall have the burden of providing evidence that all the statements made and information given on the application are factual and true.”
The issues to be resolved therefore are whether Oskooi’s omissions justified his dismissal and whether the proceedings were in any way unlawful. The answers are yes and no.
Oskooi argues his suspension was merely a ruse because the Hospital had previously failed to remove him. Stated another way, he argues the Hospital should be estopped from pursuing this matter because the application contained enough information to put it on notice (i.e., he indicated he had practiced in Illinois and Hawaii). Moreover, even though the Hospital discovered the omissions during the time of the first suspension, it waited to proceed until after those proceedings were concluded. He is wrong.
It was Oskooi’s obligation to provide the Hospital with the requested information. The Hospital had no duty to search for it, but once it was put on notice, it had a continuing duty to evaluate its physicians for public safety. (See Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 346 [183 Cal.Rptr. 156].) Its reinstatement of Oskooi after his first suspension did not relieve it of this duty. And, the Hospital was under no compulsion to act within a particular time; in fact, there was no reason to suspend Oskooi because of the omission if he was going to be suspended in any event.
Oskooi fares no better with his other arguments the omissions were irrelevant because they did not directly relate to his medical abilities and the record fails to establish the necessity for a complete list of past affiliations. The “obvious purpose [of the required information] was to obtain a basis for determining whether a grant of privileges would [adversely affect patient care].” (Unterthiner v. Desert Hospital Dist., supra, 33 Cal.3d 285, 299; see [245]also Lapidot v. Memorial Medical Center (1986), 144 Ill.App.3d 141 [98 Ill.Dec. 716, 494 N.E.2d 838].) It was necessary to know of all of Oskooi’s past affiliations to be able to assess his qualifications.
Oskooi’s reliance on Rosenblit is misplaced because it is factually distinguishable. There, another panel of this court concluded the hearing was unfair because of the “cumulative impact of the manner in which Hospital initiated its proceedings, responded to [the doctor’s] repeated requests for specificity [of the charges], and ultimately rendered judgment on his professional competency . . . .” (Rosenblit v. Superior Court, supra, 231 Cal.App.3d 1434, 1445.) Although the doctor was suspended for medical incompetence, the hospital, despite repeated requests, failed to provide him with the specific charges. And then it upheld the suspension because the doctor was unable to establish the decision was unreasonable.
Here, Oskooi was suspended for omitting information from his application. He was notified exactly why he was suspended and was given a full and fair opportunity to respond and to present a defense. Nothing more is necessary. (Miller v. National Medical Hospital (1981) 124 Cal.App.3d 81, 90-91 [177 Cal.Rptr. 119].)11
IV
The matter is remanded to the trial court to vacate its judgment setting aside Oskooi’s suspension and to enter a new judgment denying his petition. The Hospital shall receive its costs on appeal.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The court made the following statements during the hearing: “[A] matter that has just been sitting for this long a time should just be dismissed”; “it’s hard to imagine [Oskooi] couldn’t work out some kind of a payment schedule”; “I think it’s going to be difficult for [Oskooi] to rely on another case”; “to let this thing languish for four years, frankly, just doesn’t make a whole lot of sense”; the Hospital “had every reason to believe [the matter had] gone by the wayside”; and “someone interested in redress just doesn’t wait four years.” The court ultimately denied the motion “with a great deal of reluctance” and warned Oskooi “you [had] better do something about this."
The court hoped this finding would minimize Oskooi’s damages, thus eliminating the Hospital’s prejudice claim.
Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 1995) paragraph 11:190, page 11-65 concludes Reid v. Balter (1993) 14 Cal.App.4th 1186 [18 Cal.Rptr.2d 287] holds a denial of a discretionary motion to dismiss is reviewable only by writ. But the Legislature in enacting section 906 determined a reviewing court “may review . . . any intermediate ruling . . . which substantially affects the rights of a party.” A denial of a motion to dismiss is such a ruling. Reid therefore cannot be read to divest the trial court of its legislatively granted jurisdiction. (Savage v. Smith (1908) 154 Cal. 325 [97 P. 821].) Moreover, Reid did not hold appellate review was unavailable. Rather, it concluded appellate relief was unjustified based on the circumstances presented there. Specifically, the court pointed to the lack of prejudice to the appellant and the counterproductiveness of waiting until after a lengthy trial to seek review.
In justifying its first argument, Reid relied solely on Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830 [16 Cal.Rptr.2d 38], a case involving an appeal from an adverse judgment after an unsuccessful summary judgment motion. The Waller court, citing article VI, section 13 of the California Constitution determined “a more favorable outcome, at trial” was a condition precedent to appellate relief. (12 Cal.App.4th at p. 833, original italics.)
But article VI, section 13 of the California Constitution contains no language mandating the conclusion that only error affecting a trial outcome is prejudicial. (If it did, all cases allowing [238]default relief after an adverse judgment would be in contravention of the Constitution.) Indeed, the phrase “examination of the entire cause” found in article VI, section 13 suggests review is to be made of all the matters in a case, including those independent of trial on the merits.
Second, there is a difference between the erroneous denial of a summary judgment motion (or demurrer, or nonsuit, see Waller v. TJD, Inc., supra, 12 Cal.App.4th at pp. 833-834) and error or abuse in ruling on procedural motions, such as relief from default. The former are, in effect, self-correcting by virtue of the trial process itself. After all, if a plaintiff does not have enough evidence to establish a cause of action (i.e„ vulnerable to demurrer or nonsuit) or triable issues of fact (i.e., vulnerable to summary judgment), that will either be revealed in trial or it will become clear that in all justice the demurrer, nonsuit or summary judgment motion should never have been denied in the first place. The same cannot be said for procedurally grounded motions not bearing on the essential merits of the case. Thus, regardless of the soundness of Waller, it is distinguishable from Reid.
Reid's alternative rationale that it is “counterproductive” to wait until after a case has been tried to request review of a discretionary dismissal motion is simply laches by another name and unpersuasive because as explained, intermediate orders affecting the rights of a party are subject to appellate review. (§ 906; In re Matthew C. (1993) 6 Cal.4th 386, 394-395 [24 Cal.Rptr.2d 765, 862 P.2d 765].)
The court noted, “[0]ne of the purposes of a writ of mandate is that you get an answer fairly soon. Most people complain that they can’t get a hearing soon enough, . . . they want something immediately. And they file the petition and they immediately . . . order the record and they try to get everything on calendar as soon as possible, but to let this thing languish for four years, frankly, just doesn’t make a whole lot of sense from [Oskooi’s] point of view.”
Denham disapproved the following cases: Carnation Co. v. Superior Court (1969) 1 Cal.App.3d 891, 895 [82 Cal.Rptr. 98]; Paul W. Speer, Inc. v. Superior Court (1969) 272 Cal.App.2d 32, 36, 37 [77 Cal.Rptr. 152]; Market-Front Co. v. Superior Court (1969) 271 Cal.App.2d 505, 506-507 [76 Cal.Rptr. 526]; City of Los Angeles v. Superior Court (1969) 271 Cal.App.2d 292, 298 [76 Cal.Rptr. 256]; Black Bros. Co. v. Superior Court (1968) 265 Cal.App.2d 501, 507 [71 Cal.Rptr. 344]; and Breckenridge v. Mason (1967) 256 Cal.App.2d 121 [64 Cal.Rptr. 201].
Oskooi argues service of process cases are inapt authority for discretionary dismissal cases. He is wrong. The legislative intent underlying both is the same: avoidance of prejudice to a defendant and “ ‘expediting] the administration of justice by compelling every person who files an action to prosecute it with promptness and diligence.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 332 [216 Cal.Rptr. 718, 703 P.2d 58].)
California Rules of Court, rule 373(e) states: “In ruling on the motion [to dismiss] the court shall consider all matters relevant to a proper determination of the motion, including the court’s file in the case and the affidavits and declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; the diligence in seeking to effect service of process; the extent to which the parties engaged in any settlement negotiations or discussions; the diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; the nature and complexity of the case; the law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case; the nature of any extensions of time or other delay attributable to either party; the condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial; whether the interests of justice are best served by dismissal or trial of the case; and any other fact or circumstance relevant to a fair determination of the issue. The court shall be guided by the policies set forth in § 583.130 »»
The author agrees with the conclusions reached in Justice Sills’s concurring opinion.
In Unterthiner v. Desert Hospital Dist., supra, 33 Cal.3d 285, the doctor failed to list relevant information in response to two application questions. One of those questions was almost identical to the question Oskooi failed to answer. The question asked the doctor to list all current and previous hospital affiliations, starting with the most current. (Id. at p. 289.)
Oskooi raised other issues below which he does not raise here. He claimed the Hospital’s hearings were unfair because: (1) the hearing officer limited the hearing to the omissions; (2) the hearing panel was influenced by the Hospital’s chief of staff acting as the prosecutor; and (3) the hearing officer and panel were different than those who reviewed Oskooi’s first suspension.
The hearing officer correctly limited the issue because Oskooi’s suspension was based on Oskooi’s omissions, and not on the prior suspension. And although the chief of staff presented the case, he did not participate in the ultimate decision; nothing in the record indicates he unfairly influenced the panel. Moreover, the second panel was chosen in an unbiased and fair manner.