Elgabri v. Lekas

• Decision Date: 08 April 1992
• Docket Number: No. 91-1763,91-1763
• Citation: 964 F.2d 1255
• Parties: 1992-1 Trade Cases P 69,838, 23 Fed.R.Serv.3d 212, 35 Fed. R. Evid. Serv. 1009 Tarek H. ELGABRI, M.D., Plaintiff, Appellant, v. Mary D. LEKAS, M.D., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1255

964 F.2d 1255

1992-1 Trade Cases P 69,838, 23 Fed.R.Serv.3d 212,

35 Fed. R. Evid. Serv. 1009

Tarek H. ELGABRI, M.D., Plaintiff, Appellant, v. Mary D. LEKAS, M.D., et al., Defendants, Appellees.

No. 91-1763.

United States Court of Appeals, First Circuit.

Heard April 8, 1992.

Decided June 3, 1992.

Rehearing and Rehearing En Banc Denied July 6, 1992.

Cornelius J. Moynihan, Jr. with whom Sue Zanne Worrell and Peabody & Brown, Providence, R.I., were on brief, for plaintiff, appellant.

W. James McKay, Providence, R.I. (for defendant, appellee Robinson) and John J. Barton, Boston, Mass. (for defendant, appellee Duva) with whom Adler Pollock & Sheehan Inc., Providence, R.I., Taylor, Anderson & Travers, Boston, Mass., 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, Providence, R.I., were on joint brief, for defendants, appellees.

Before BREYER, Chief Judge, CYR, Circuit Judge, and STAHL, ^* District Judge.

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

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 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 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

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.

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 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, 110 S.Ct. 406, 107 L.Ed.2d 372 (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.

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 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, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988). In reviewing the instructions given by the district court using this standard, we find no "miscarriage of justice."...