Elgabri v. Lekas, M.D.

• Court: Court of Appeals for the First Circuit
• Decided: June 3, 1992
• Docket: 91-1763
• Status: Published

Opinion

USCA1 Opinion

June 3, 1992        UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

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  Sue  Zanne Worrell  and
            _____________________________              __________________
        Peabody & Brown were on brief for appellant.
        _______________
            W.  James McKay (for  appellee Robinson)  and John  J. Barton (for
            _______________                               _______________
        appellee Duva) with whom Adler Pollock & Sheehan Incorporated, Taylor,
                                 ____________________________________  _______
        Anderson &  Travers,  Dennis  J.  McCarten, Hanson,  Curran,  Parks  &
        ___________________   ____________________  __________________________
        Whitman,  David  W. Carroll,  Roberts,  Carroll,  Feldstein &  Peirce,
        _______   _________________   _______________________________________
        Christopher  H. Little,  Judith  Kapuscinski,  Tillinghast, Collins  &
        ______________________   ___________________   _______________________
        Graham,  William Jestings, and Carroll,  Kelly & Murphy  were on joint
        ______   ________________      ________________________
        brief for appellees. 
                                 ____________________

____________________

        ____________________
        *Of the District of New Hampshire, sitting by designation.

STAHL,  District  Judge.    This  is an  appeal  from  a
                         _______________

            nineteen-day  jury trial.   Plaintiff-appellant Dr.  Tarek H.

            Elgabri  alleged  various  violations  of  state  and federal

            antitrust laws, as  well as  a common law  claim of  tortious

            interference with prospective business relationships, against

            various doctors  affiliated at  four Rhode  Island hospitals.

            The jury found for defendants on all counts.  On appeal,  Dr.

            Elgabri  challenges  the  jury  instructions,  the  order  of

            examination  of witnesses,  and various  evidentiary rulings.

            We affirm.

Background
                                      Background

                 Dr. Elgabri  is an otolaryngologist practicing  in Rhode

            Island.  Otolaryngology is commonly referred to as "ear, nose

            and throat"  (ENT)  medicine.    He began  his  residency  in

            otolaryngology at the University  of Minnesota.  While there,

            however, he  encountered difficulties and  was terminated for

            cause after his  first year.   He finished  his residency  at

            Rhode Island Hospital.  

                 In  1984, after  concluding his  residency, Dr.  Elgabri

            opened  his  own practice  in  Rhode  Island.   He  submitted

            applications for privileges  at various hospitals  throughout

            the state.  Hospital  privileges allow a doctor to  treat and

            admit  patients   at  a  given  institution.     He  received

            privileges  at Notre  Dame Hospital, Cranston  Hospital, Kent

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County  Memorial  Hospital, and  Memorial Hospital.   Despite

            numerous attempts over the  course of several years, however,

            he  failed to  receive privileges  at Miriam  Hospital, Roger

            Williams  Hospital,  Rhode Island  Hospital,  and St.  Joseph

            Hospital.  

                 On November  9, 1989,  Dr. Elgabri brought  suit against

            six  doctors:    Dr.  Mary  Lekas,  surgeon-in-chief  of  the

            otolaryngology  department  at  Rhode  Island  Hospital;  Dr.

            Steven Issenberg, director of the division  of otolaryngology

            at Roger Williams General Hospital; Dr.  Hani Zaki, a medical

            doctor specializing in  otolaryngology who has  privileges at

            the four  hospitals that  denied Dr. Elgabri  privileges; Dr.

            Mendell Duva,  the chief of the  otolaryngology department at

            St. Joseph  Hospital; Dr.  Mendell Robinson, director  of the

            division  of  otolaryngology  at  Miriam  Hospital;  and  Dr.

            Wexler,   the   present   director   of   the   division   of

            otolaryngology  at Roger  Williams  Hospital.1   Each of  the

            above-named defendant  doctors  is  affiliated  at  the  four

            hospitals which denied plaintiff privileges.  

                 Dr.  Elgabri alleged:  1) defendants violated   1 of the

            Sherman  Act by agreeing not to deal with him and encouraging

            others  not to  deal with him,  thereby constituting  a group

            boycott; 2) defendants  violated    2 of the  Sherman Act  by

____________________

            1.   The case against Dr. Wexler was dismissed with prejudice
            after day twelve of the jury trial.

                                         -3-

conspiring  to monopolize  the provision  of ENT  medical and

            surgical  services  in  the  relevant  market; 3)  defendants

            monopolized the referral of patients  to ENT doctors and have

            maintained their monopoly by denying plaintiff privileges, an

            essential facility to his practice of medicine; 4) defendants

            wilfully contracted, combined, and  conspired in restraint of

            trade  in violation  of Rhode  Island antitrust  law;  and 5)

            defendants tortiously interfered with plaintiff's prospective

            business relationships by preventing him from obtaining staff

            privileges.

                  On  May 29, 1991, the jury found in favor of defendants

            on all claims.  Plaintiff appealed.

Discussion
                                      Discussion

                 Plaintiff raises five issues on appeal:  1)  whether the

            district  court   erred  in   instructing  the  jury   as  to

            defendants' motivations; 2) whether the district court  erred

            in  its  instructions  regarding the  "essential  facilities"

            claim;  3) whether the court erred in instructing the jury to

            utilize  a  "rule of  reason"  analysis  regarding the  group

            boycott  claim;  4)  whether  the  district  court  erred  in

            preventing plaintiff from  examining defendants on direct  as

            part of his case-in-chief; and  5) whether the district court

            erred  in various  evidentiary  rulings made  throughout  the

            trial.

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A. Jury Instructions
                    _________________

                 Dr.  Elgabri  challenges  three  aspects  of   the  jury

            instructions.  He first objects to the court's instruction as

            to motivation under his    2 Sherman Act claim  involving the

            denial  of  essential  facilities.     The  court  gave  this

            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
                      competitors, then their  actions are  not
                      immune from liability.

            Plaintiff argues that the instruction improperly required the

            jury to find for the defendants unless their  sole motivation

            was  anti-competitive.    Dr.  Elgabri also  objects  to  the

            court's refusal to give a "per se"  instruction regarding his

            "group boycott"  claim and challenges the  court's refusal to

            instruct regarding  his claim that defendants interfered with

            his own  patients' utilization of various  essential hospital

            facilities.    We  need not  tarry over  the adequacy  of the

            jury instructions  in this  case because plaintiff  failed to

            preserve properly  his objections.   Rule  51 of  the Federal

            Rules of Civil Procedure states in pertinent part:

                      No party may  assign as error  the giving
                      or  the failure  to  give an  instruction

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unless that party objects  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  to   follow  the  letter  of   the  rule

            constitutes  a  waiver of  the objection."     Cordero  v. De
                                                           _______     __

            Jesus-Mendez, 867 F.2d 1, 5 (1st Cir. 1989); see also Lash v.
            ____________                                 ___ ____ ____

            Cutts,   943  F.2d  147,  152  (1st  Cir  1991);    Smith  v.
            _____                                               _____

            Massachusetts Instit. of Technology, 877 F.2d 1106, 1109 (1st
            ___________________________________

            Cir.), cert. denied, 493 U.S. 965 (1989).
                   _____ ______

                  After  the  judge  charged  the   jury,  the  following

            exchange took place:

                      THE  COURT: Would  you please  deliver to
                      the Marshal the instruction I read to the
                      jury, the verdict form and the exhibits?

                      Draw the alternate jurors

                      THE CLERK:  Alternate No. 1,  Susan Dome.
                      Alternate No. 2, Luther Wechestein.

                      THE COURT: The  Court will designate Miss
                      Gramaldi as Foreperson

                      Counsel, come to the bench, please.
                      (COLLOQUY AT BENCH)

                      THE  COURT:  Any  grievous  omissions  or
                      corrections  right  now  before the  jury
                      goes  out, anything that's egregious.  Is
                      there  anything  misleading or  something
                      like that?

                      MR. CARROLL (attorney  for defendant  Dr.
                      Lekas): No, your honor.

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THE COURT: All right, okay, I'm  going to send them
                                 ________________________________________
                      out and then take exceptions.
                      ____________________________

                      I'm  going  to ask  Mr.  Wechestein, Miss
                      Dome to remain.  The other members of the
                      jury  may  retire  now  to  commence your
                      deliberations.

                      Take them out, Marshal.
                      ______________________
                      (DELIBERATING JURY EXITS COURTROOM)

            (Emphasis added).  

                 After   the  court   dismissed  the  jury   to  commence

            deliberations   and  briefly  conversed  with  the  alternate

            jurors, the following discussion occurred:

                      THE  COURT:  I know that I do not have to
                      remind Counsel of  the rule in  the First
                      Circuit  that  you don't  talk  to jurors
                      before or after verdicts without an order
                      of the Court.  You're aware of  that I am
                      sure.

                      Now, how about  the instructions,  what's
                      _________________________________________
                      the  objections?  Let me  get  my set  of
                      _________________________________________
                      instructions.
                      ____________

                      MR. MEDEIROS (attorney for  plaintiff Dr.
                      Elgabri):  Your Honor,  I would just make
                      the comments  in the order  that they are
                      in the instructions,  rather than in  any
                      particular order of priority.

            (Emphasis added).  Plaintiff then proceeded  to object to the

            jury instructions at issue on this appeal.  

                 "We have  warned trial  attorneys countless  times `that

            Rule 51 means what it says . . . .'"   Linn v. Andover Newton
                                                   ____    ______________

            Theological  Sch.,  Inc.,  874  F.2d 1,  5  (1st  Cir.  1989)
            _________________________

            (quoting Jordan v. United States Lines, Inc., 738 F.2d 48, 51
                     ______    _________________________

            (1st  Cir.  1984)).    Appellant's trial  counsel  voiced  no

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objection  to  the  court's  instructions  "before  the  jury

            retire[d]"  as required  by Rule  51 in  an unbroken  line of

            decisions  in  this Court.    Although  the phrasing  of  the

            district  court's inquiry  may have  contributed to  a belief

            that little  might be  gained by asserting  objections before

            the jury  retired, trial counsel  was obligated to  object in

            the manner  required by  Rule 51.   It is  the obligation  of

            trial counsel, as well as the trial court, to comply with the

            strict requirements of the Rule.2

                 In the absence of  compliance with the dictates  of Rule

            51, we review  for plain  error.  "However,  the plain  error

            rule  `should be  applied sparingly  and only  in exceptional

            cases  or under  peculiar  circumstances to  prevent a  clear

            miscarriage of justice.'"  Wells Real Estate, Inc. v. Greater
                                       _______________________    _______

            Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (quoting
            ______________________

            Nimrod  v. Sylvester,  369 F.2d  870, 873  (1st  Cir. 1966)),
            ______     _________

            cert.  denied,  488  U.S.  955  (1988).    In  reviewing  the
            _____  ______

            instructions given by the district court using this standard,

            we find no "miscarriage of justice."

                 B. Establishment of Mode and Order of Examination of
                    _________________________________________________
                    Witnesses
                    _________

____________________

            2.  Plaintiff's counsel subsequent to argument  has cited the
            court to Bouley v. Continental Casualty Co., 454 F.2d 85 (1st
                     ______    ________________________
            Cir.  1972).   However, our  unbroken line  of cases  make it
            clear  that  insufficient compliance  with  Rule  51 will  be
            overlooked  only  in  exceptional  cases  or  under  peculiar
            circumstances to prevent a clear miscarriage of justice.  Coy
                                                                      ___
            v. Simpson Marine Safety  Equip., Inc., 787 F.2d 19,  26 (1st
               ___________________________________
            Cir. 1986).  This is not such a case.

                                         -8-

Dr. Elgabri  argues that his ability  to call defendants

            during his case-in-chief was  improperly limited by the trial

            court.  He contends that he  has an "unfettered right to call

            the  adverse party on direct examination as part of his case-

            in-chief  and  to  interrogate by  leading  questions without

            restrictions."  

                 As  part  of  his   case-in-chief,  Dr.  Elgabri  called

            defendant Dr. Lekas.  After some examination  of the witness,

            the  court  informed plaintiff  during  a  recess that  "it's

            unfair sometimes for  a Plaintiff to  prove his case  through

            the  mouth of the Defendant."  Dr. Elgabri then continued his

            examination of Dr. Lekas.  

                 After the  day's testimony,  the court decided  to limit

            plaintiff's examination of defendants in his case-in-chief to

            subject matter  that  could  not  be obtained  in  any  other

            fashion.  The  court suggested that plaintiff could prove the

            essential  nature of  a  defendant's testimony  in a  proffer

            prior  to  the examination  of  each  defendant.   Defendants

            promised  that they  would take  the stand  as part  of their

            case-in-chief and  the court  indicated that  plaintiff would

            have ample  opportunity to  cross-examine them at  that time.

            The court further indicated that no limits would be placed on

            the scope of cross-examination.  Plaintiff thereafter made no

            further  proffers  and  vigorously cross-examined  the  other

            defendants during their presentations.  

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We  find  that plaintiff  did  not  have an  "unfettered

            right"  to call  defendants during  his case-in-chief.   Rule

            611(a) of the  Federal Rules of Evidence  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  questioning thus  lies in  the trial

            court's discretion.   See United  States v. Nivica,  887 F.2d
                                  ___ ______________    ______

            1110,  1120  (1st Cir.  1989),  cert. denied,  494  U.S. 1005
                                            _____ ______

            (1990).   We  do  not disturb  decisions regarding  courtroom

            management  unless  these decisions  amount  to  an abuse  of

            discretion that prejudices appellant's case.  Loinaz v. EG&G,
                                                          ______    _____

            Inc.,  910 F.2d  1, 6  (1st Cir.  1990); see  also 3  Jack B.
            ____                                     ___  ____

            Weinberg & Margaret A. Berger, Weinstein's Evidence   611[01]
                                           ____________________

            at 611-17 (1991)  ("Once the judge  exercises his power,  his

            decision is virtually immune to attack and will be overturned

            only in the rare case where the appellate court finds a clear

            abuse of discretion that seriously damaged a party's right to

            a fair trial.").  

                 Dr.  Elgabri argues  that  Fed. R.  Evid. 611(c),  which

            allows  for leading  questions of  adverse parties  on direct

            examination, requires  the court to allow  direct examination

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of defendants in his  case-in-chief.3  Rule 611(c)  does not,

            however, impose such a requirement.  Rather, Rule 611(c) only

            requires  that  the court  allow  a  plaintiff who  calls  an

            adverse  party  on direct  to  use leading  questions  in his

            examination  because the  witness is  presumed hostile.   See
                                                                      ___

            Fed.  R. Evid. 611(c), advisory committee's  note; see also 3
                                                               ___ ____

            Weinstein's Evidence   611[05] at 611-82 to 611-83.
            ____________________

                 In this case, the court reasonably held that plaintiff's

            examination of defendants should  be limited in the described

            manner  in  order  to   make  the  presentation  of  evidence

            effective  and  to   avoid  needless  consumption   of  time.

            Further, plaintiff  does not argue  that he failed  to obtain

            evidence  as a result of the district court's limiting of his

            presentation of his  case; he  only objects to  the order  of

            presentation.  We therefore find no reversible error.

                 C. Evidentiary Errors
                    __________________

                 Dr. Elgabri  challenges four evidentiary  rulings of the

            district court.  He contends that the court erred in refusing

            to admit evidence that defendant Dr.  Issenberg was unable to

____________________

            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  cross-
                 examination.  When a  party calls . . .  an adverse
                               _____________________________________
                 party,  .  .  .  interrogation may  be  by  leading
                 ___________________________________________________
                 questions.
                 _________

            (Emphasis added).

                                         -11-

perform a tracheotomy.  Plaintiff also challenges the court's

            exclusion of a letter  from the New England Otolaryngological

            Society notifying Dr. Elgabri  that his presentation was "the

            winner among those presented by residents from the other  New

            England teaching hospitals."  He further contests the court's

            refusal  to admit a letter of  recommendation written by Mrs.

            Eleanor  Edmonds, an  operating  room nurse  at Rhode  Island

            Hospital and  director of  operating room services.   Finally

            Dr. Elgabri  argues that  the court improperly  admitted into

            evidence segments of testimony from a Minnesota state case he

            had previously instituted.

                      1.   Dr.   Issenberg's   "Inability"   to   Perform
                           ______________________________________________
            Tracheotomy
            ___________

                 Plaintiff  attempted to  ask  defendant Dr.  Robinson on

            cross-examination whether he was aware that Dr. Issenberg was

            unable to perform  a tracheotomy.4   In a  conference at  the

            bench, the parties disputed the circumstances surrounding Dr.

            Issenberg's  "refusal"  to  perform   a  tracheotomy  in  the

            emergency room.   Dr.  Issenberg's counsel explained that his

            client  had  not  refused  or  been  unable  to  perform  the

            procedure, but  rather that he had  considered it appropriate

            that  a general surgeon  perform the procedure.   Counsel for

            Dr.  Elgabri argued that there was no general surgeon on duty

____________________

            4.  During  Dr.  Robinson's  testimony, he  stated  that,  in
            writing a negative letter about plaintiff which was placed in
            plaintiff's  file at Miriam  Hospital, he had  relied to some
            extent on information received from Dr. Issenberg.

                                         -12-

at the  time and  that Dr. Issenberg's  "refusal" constituted

            negligence.  The court  observed that Dr. Issenberg's alleged

            negligence  during the  incident  in the  emergency room  had

            little  to  do with  the  issues at  trial.   The  court then

            decided  that the testimony would be "getting a long way from

            wherewe're going,"andthereforesustained defendants'objection.

                 Rule 403  of the  Federal Rules  of Evidence requires  a

            court  to  balance  the  relevance of  evidence  against  the

            substantial risk  of prejudice  and the cumulative  nature of

            the evidence.  Miller v. Town of Hull, 878 F.2d 523, 529 (1st
                           ______    ____________

            Cir. 1989).  A decision to exclude evidence under Rule 403 is

            within the discretion  of the  trial court.   We will  review

            such a ruling only for abuse of discretion.  United States v.
                                                         _____________

            Rodriguez Cortes, 949 F.2d 532, 541 (1st Cir. 1991).  
            ________________

                 We find  no abuse of  discretion.  The  court reasonably

            found that the evidence, though marginally relevant, was only

            tangentially  related  to  the  issue  at  hand.   The  court

            determined that  the evidence  would only confuse  the issues

            which  were at  the heart  of the  litigation.   It  was well

            within  the court's  discretion to  exclude the  evidence for

            that reason.

                      2. Exclusion of Prize Notification Letter
                         ______________________________________

                 As noted above, Dr. Elgabri  attempted to admit a letter

            from the New England Otolaryngological Society notifying  him

            that his case presentation was the winner among presentations

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made by residents from  New England teaching hospitals.   The

            court excluded  it  as hearsay.    Plaintiff argues  that  it

            should have been admitted under the business record exception

            to the hearsay rule.5  Fed. R. Evid. 803(6).

                 Rulings  of the  district  court under  Rule 803(6)  are

            reversed only for abuse of discretion.  Belber v. Lipson, 905
                                                    ______    ______

            F.2d  549, 552  (1st Cir.  1990).   "Admission as  a business

            record  requires `the  testimony  of the  custodian or  other

            qualified witness.'   This  testimony is essential.   Without

            such  a witness the writing must be excluded."  Id. (citation
                                                            ___

            omitted).   Dr.  Elgabri never  offered  the testimony  of  a

            custodian or  other qualified  witness.  We,  therefore, find

            that the court properly excluded the letter.6

                      3. Other Evidentiary Objections
                         ____________________________

                 We briefly address Dr.  Elgabri's remaining claims.  Dr.

            Elgabri  argues  that  the  court  improperly excluded  Nurse

            Edmond's  letter.    He  claims  that  the  letter  had  been

            authenticated  as  part  of  his application  file  at  Roger

            Williams  Hospital.     The  letter,  however,  was  properly

            excluded as  inadmissible hearsay  not within  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  that the letter  was

            part of his application file, Dr. Elgabri failed to produce a

            qualified witness or custodian of records to authenticate the

            letter as a business record.  See Belber, 905 F.2d at 552.
                                          ___ ______

                 Finally, Dr.  Elgabri  states without  elaboration  that

            testimony from a Minnesota  state court litigation instituted

            by  him was improperly admitted.   It is  a settled appellate

            rule,  however, "that  issues  adverted to  in a  perfunctory

            manner,   unaccompanied   by   some   effort   at   developed

            argumentation, are deemed waived."  United States v. Zannino,
                                                _____________    _______

            895  F.2d 1,  17  (1st Cir.),  cert.  denied, 494  U.S.  1082
                                           _____  ______

            (1990).   Finding  that  Dr. Elgabri  failed  to develop  any

            argument after raising this issue, we deem this claim waived.

Conclusion
                                      Conclusion

                 For  all of the  above reasons,  we affirm  the district

            court's challenged rulings.  Affirmed.
                                         _________

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