Professional Documents
Culture Documents
June 3, 1992
No. 91-1763
TAREK H. ELGABRI, M.D.,
Plaintiff, Appellant,
v.
MARY D. LEKAS, M.D., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Cyr, Circuit Judge,
_____________
and Stahl,* District Judge.
______________
____________________
Cornelius J. Moynihan, Jr. with whom
_____________________________
Peabody & Brown were on brief for appellant.
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W. James McKay (for appellee Robinson) and John J. Barton (
_______________
_______________
appellee Duva) with whom Adler Pollock & Sheehan Incorporated, Tayl
____________________________________ ____
Anderson & Travers, Dennis J. McCarten, Hanson, Curran, Parks
___________________
____________________ _______________________
Whitman, David W. Carroll, Roberts, Carroll, Feldstein & Peir
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_________________
_____________________________________
Christopher H. Little, Judith Kapuscinski, Tillinghast, Collins
______________________
___________________
____________________
Graham, William Jestings, and Carroll, Kelly & Murphy were on jo
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________________
________________________
brief for appellees.
____________________
____________________
____________________
*Of the District of New Hampshire, sitting by designation.
STAHL,
nineteen-day
Elgabri
District Judge.
_______________
jury trial.
alleged
is an
appeal
Plaintiff-appellant Dr.
various
antitrust laws, as
This
violations
well as
of
a common law
state
from
Tarek H.
and federal
claim of
tortious
affiliated at
four Rhode
Island hospitals.
challenges
the
jury
instructions,
On appeal,
the
order
Dr.
of
examination
of witnesses,
and various
evidentiary rulings.
We affirm.
Background
Background
Dr. Elgabri
Island.
is an otolaryngologist practicing
in Rhode
and throat"
(ENT)
medicine.
He began
first year.
residency
of Minnesota.
his
in
While there,
He finished
his residency
at
1984, after
his
concluding his
own practice
in
Hospital
patients
privileges
at
at Notre
Rhode
residency, Dr.
Island.
He
at various hospitals
given
institution.
-2-
submitted
throughout
Elgabri
He
treat and
received
Hospital, Kent
County
Memorial
Hospital, and
failed to
Williams
Memorial Hospital.
receive privileges
Hospital,
Despite
Rhode Island
at Miriam
Hospital, Roger
Hospital,
and St.
Joseph
Hospital.
On November
six
doctors:
otolaryngology
9, 1989,
Dr.
Mary
Lekas,
department
at
surgeon-in-chief
Rhode
Island
Mendell Duva,
St. Joseph
Hospital; Dr.
division
of
Wexler,
the
otolaryngology
Hospital;
Dr.
privileges at
privileges; Dr.
otolaryngology department at
otolaryngology
at
Miriam
present
director
at Roger
Williams
above-named defendant
the
of
of otolaryngology
hospitals that
suit against
doctors
is
of
Hospital;
the
Hospital.1
affiliated
of the
and
Dr.
division
of
Each of
the
at
the
four
Elgabri alleged:
1) defendants violated
1 of the
boycott; 2) defendants
violated
thereby constituting
2 of the
a group
Sherman Act
by
____________________
1.
The case against Dr. Wexler was dismissed with prejudice
after day twelve of the jury trial.
-3-
conspiring
surgical
to monopolize
services
in
the provision
the
relevant
of ENT
medical and
market; 3)
defendants
in violation
of Rhode
conspired in restraint of
Island antitrust
law;
and 5)
on all claims.
Plaintiff appealed.
Discussion
Discussion
Plaintiff raises five issues on appeal:
district
court
erred
in
instructing
1)
the
whether the
jury
its
claim;
instructions
regarding the
"essential
as
to
erred
facilities"
utilize
"rule of
boycott
claim;
4)
reason"
analysis
whether
the
regarding the
district
court
group
erred
in
as
erred
rulings made
in various
evidentiary
throughout
the
trial.
-4-
A. Jury Instructions
_________________
Dr.
Elgabri
instructions.
challenges
of
aspects
of
the
jury
three
essential
The
involving the
court
instruction:
If the Defendants in this case acted,
even in part,
with an intention to
promote good patient care to protect the
patients and the hospitals
from the
actions
of
physicians who
are not
unquestionably
qualified
under
all
professional standards, their actions are
lawful under the antitrust laws.
If,
however, the Defendants used the peer
review process for the sole purpose of
promoting their
own self-interest as
gave
this
actions are
not
anti-competitive.
Dr.
Elgabri also
his own
We
to
the
court's refusal to
facilities.
objects
instruct regarding
sole motivation
need not
tarry over
jury instructions
in this
preserve properly
his objections.
essential hospital
the adequacy
51 of
of the
failed to
the Federal
thereto before
______
the jury retires to consider its verdict,
stating distinctly the matter objected to
and
the
grounds of
the objection.
Opportunity shall be given to make the
objection out of the hearing of the jury.
(Emphasis
added).
"We
have consistently
and emphatically
held
that
failure
constitutes
to
waiver of
follow
the
letter
the objection."
of
the
Cordero
_______
rule
v. De
__
943
F.2d
147,
152
(1st
Cir
1991);
Smith
_____
v.
the
judge
charged
the
jury,
the
-6-
Dr.
following
the
deliberations
court
and
dismissed
briefly
the
conversed
jury
with
to
the
commence
alternate
to object to the
warned trial
attorneys countless
874
times `that
F.2d 1,
(1st
Cir.
1989)
Cir.
1984)).
Appellant's trial
counsel
voiced
no
-7-
objection
to
retire[d]"
in
the manner
this Court.
might be
instructions
by Rule
court's inquiry
that little
the jury
court's
as required
decisions
district
the
Although
may have
an unbroken
the phrasing
contributed to
gained by asserting
51 in
"before
Rule 51.
jury
line of
of
the
a belief
objections before
was obligated to
It is
the
object in
the obligation
of
of Rule
51, we review
for plain
rule
`should be
cases
or under
error.
"However,
applied sparingly
peculiar
miscarriage of justice.'"
the plain
and only
circumstances to
error
in exceptional
prevent a
clear
Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (quoting
______________________
Nimrod
______
cert.
_____
v. Sylvester,
_________
denied,
______
488
369 F.2d
U.S.
955
870, 873
(1988).
(1st
In
Cir. 1966)),
reviewing
the
Dr. Elgabri
to call defendants
He contends that he
in-chief
and
to
interrogate by
of
his
leading
questions without
restrictions."
As
part
court
Dr.
Elgabri
informed plaintiff
case-in-chief,
during
a Plaintiff to
called
of the witness,
recess that
"it's
through
day's testimony,
to limit
The
that
could
nature of
prior
the examination
promised
that they
case-in-chief and
have ample
be obtained
in
any
other
essential
to
not
defendant's testimony
of
each
would take
the court
opportunity to
in a
defendant.
the stand
indicated that
as part
proffer
Defendants
of their
plaintiff would
cross-examine them at
that time.
proffers
and
vigorously cross-examined
the
other
-9-
We
right"
find
that plaintiff
to call
611(a) of the
did
not
defendants during
have an
"unfettered
his case-in-chief.
Rule
states in pertinent
part:
The
court shall
exercise reasonable
control
over the mode and order of
interrogating witnesses and presenting
evidence
so
as
to
(1)
make the
interrogation and presentation effective
for the ascertainment of the truth, [and]
(2) avoid needless consumption of time .
. . [.]
The
mode and
order of
court's discretion.
1110,
1120
(1990).
We
management
1989),
not disturb
unless
lies in
(1st Cir.
do
questioning thus
cert. denied,
_____ ______
the trial
887 F.2d
494
U.S. 1005
decisions regarding
courtroom
these decisions
amount
to
an abuse
of
Loinaz v. EG&G,
______
_____
Inc.,
____
also 3
____
910 F.2d
1, 6
(1st Cir.
1990); see
___
Jack B.
611[01]
____________________
at 611-17 (1991)
his
Elgabri argues
for leading
examination, requires
that
Fed. R.
questions of
Evid. 611(c),
adverse parties
which
on direct
direct examination
-10-
of defendants in his
case-in-chief.3
Rule 611(c)
does not,
requires
that
the court
allow
plaintiff who
adverse
party
on direct
to
examination
Fed.
because the
use leading
witness is
questions
presumed hostile.
Weinstein's Evidence
____________________
calls
an
in his
See
___
in
effective
order
and
to
to
avoid
Further, plaintiff
evidence
make
the
needless
of
consumption
that he failed
evidence
of
time.
to obtain
presentation of his
presentation.
case; he
only objects to
the order
of
C. Evidentiary Errors
__________________
Dr. Elgabri
district court.
rulings of the
____________________
3. Fed. R. Evid. 611(c) states in pertinent part:
Leading questions should not be used on the direct
examination of a witness except as may be necessary
to develop the witness' testimony.
Ordinarily
leading questions should be permitted on crossexamination. When a party calls . . . an adverse
_____________________________________
party, . . . interrogation may be by leading
___________________________________________________
questions.
_________
(Emphasis added).
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perform a tracheotomy.
exclusion of a letter
refusal
to admit a letter of
Eleanor
Edmonds, an
Hospital and
Dr. Elgabri
operating
director of
room nurse
at Rhode
argues that
New
Island
Finally
admitted into
Dr.
Issenberg's
"Inability"
to
Perform
______________________________________________
Tracheotomy
___________
Plaintiff
attempted to
ask
defendant Dr.
Robinson on
a tracheotomy.4
In a
conference at
the
"refusal"
to
emergency room.
Dr.
client
refused
had
not
procedure, but
that
Dr.
perform
tracheotomy
in
the
been
a general surgeon
unable
to
perform
the
considered it appropriate
Counsel for
____________________
at the
time and
negligence.
The court
negligence
during the
little
do with
to
decided
"refusal" constituted
the
in the
issues at
emergency room
trial.
The
had
court then
to
of the
balance
substantial risk
the evidence.
Cir. 1989).
Federal Rules
the
relevance of
of prejudice
of Evidence requires
evidence
against
a
the
nature of
of the
trial court.
We will
review
United States v.
_____________
no abuse of
discretion.
The
court reasonably
related
determined that
which
were at
within
to
the
the evidence
the heart
the court's
issue
at
hand.
The
of the
discretion to
litigation.
exclude the
court
the issues
It
was well
evidence for
that reason.
2. Exclusion of Prize Notification Letter
______________________________________
As noted above, Dr. Elgabri
him
-13-
it
as hearsay.
Plaintiff argues
that
The
it
of the
court under
549, 552
(1st Cir.
1990).
Rule 803(6)
are
"Admission as
a business
record
requires `the
qualified witness.'
such
testimony
This
of the
custodian or
testimony is essential.
omitted).
Dr.
custodian or
Elgabri never
other qualified
offered
other
Without
Id. (citation
___
the testimony
witness.
We,
of
therefore, find
argues
letter.
authenticated
Williams
that
as
He
part
Hospital.
excluded as
the
claims
of
The
improperly excluded
that
the
letter
his application
letter,
inadmissible hearsay
however,
not within
file
was
Dr.
Nurse
had
been
at
Roger
properly
any exception.
____________________
5. Plaintiff also argues that the court should have admitted
the letter under the "catch-all exception."
Fed. R. Evid.
803(24).
Because plaintiff failed to offer proof in the
court below that the requirements of Rule 803(24) were met,
we deem this claim waived. See Fed. R. Evid. 103(a)(2).
___
6. We also note that the letter's substance did find its way
into evidence through plaintiff's uncontradicted testimony.
-14-
Fed. R. Evid.
802.
Even
if we assume
was
Elgabri
states without
however, "that
manner,
issues
unaccompanied
by
It is
F.2d 1,
(1990).
17
Finding
(1st Cir.),
that
a settled appellate
adverted to
some
that
rule,
elaboration
in a
effort
at
perfunctory
developed
cert.
_____
Dr. Elgabri
denied, 494
______
failed
U.S.
to develop
1082
any
Conclusion
Conclusion
For
all of the
above reasons,
Affirmed.
_________
we affirm
the district
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