Maleki v. Fine-Lando Clinic Chartered, S.C.

• Decision Date: 23 May 1991
• Docket Number: No. 88-2027,FINE-LANDO,88-2027
• Citation: 469 N.W.2d 629,162 Wis.2d 73
• Parties: , 1991-2 Trade Cases P 69,537 Massoud MALEKI, M.D., Plaintiff-Respondent-Petitioner, v.CLINIC CHARTERED, S.C., Defendant-Appellant, Eddy D. Co, M.D., Defendant-Co-Appellant.
• Court: Wisconsin Supreme Court

Page 629

469 N.W.2d 629

162 Wis.2d 73, 1991-2 Trade Cases P 69,537

Massoud MALEKI, M.D., Plaintiff-Respondent-Petitioner, v. FINE-LANDO CLINIC CHARTERED, S.C., Defendant-Appellant, Eddy D. Co, M.D., Defendant-Co-Appellant.

No. 88-2027.

Supreme Court of Wisconsin.

Argued Jan. 24, 1991.

Decided May 23, 1991.

Donald J. Jacquart, argued, Adrian N. Cohen, Mark M. Leitner, Charne, Clancy & Taitelman, S.C., and Richard H. Hart, Milwaukee, on briefs, for plaintiff-respondent-petitioner.

David J. Cannon, argued, David H. Hutchinson, Machulak & Hutchinson, Kevin P. Reak and Michael, Best & Friedrich, Milwaukee, on brief, for defendant-appellant.

Thomas J. Binder, argued, Otjen, Van Ert, Stangle, Lieb & Weir, S.C., Milwaukee, on brief, for defendant-co-appellant.

HEFFERNAN, Chief Justice.

This is a review of a decision ¹ of the court of appeals reversing the judgment of the circuit court for Milwaukee county, Patricia S. Curley, Judge, that held that Fine-Lando Clinic and Dr. Eddy D. Co were liable to Dr. Massoud Maleki for damages allegedly caused by a conspiracy between Fine-Lando and Dr. Co. We affirm because there is insufficient evidence to support the existence of a necessary element of a civil conspiracy, that the parties to the conspiracy acted "maliciously." Specifically, there is no evidence sufficient in law to support a finding that Dr. Co acted maliciously, as that term is defined in the context of a civil conspiracy.

The claimed conspiracy arose when Fine-Lando, through its agents or employees, allegedly suggested to Maleki, an invasive cardiologist surgeon, that a condition of continued surgical referrals from Fine-Lando, a multi-specialty clinic with at least some emphasis on cardiology, would be dependent upon Maleki's entering into an agreement to share fees with Fine-Lando. Maleki refused to enter into such agreement, telling the representative of Fine-Lando that he considered the proposed arrangement to be fee-splitting, prohibited by sec. 448.08(1), Stats. ² Thereafter, Maleki testified, his referrals from Fine-Lando dropped to zero. Maleki later learned that Co entered into an agreement with Fine-Lando similar to the one proposed to Maleki and commenced receiving a large number of surgical referrals from the Fine-Lando Clinic.

Maleki commenced an action in the Milwaukee county circuit court alleging that he was the victim of a conspiracy between Fine-Lando Clinic and Co in violation of sec. 134.01, Stats. ³ Although other allegations of restraint of trade were asserted, all except the action brought under sec. 134.01 were abandoned or dismissed at the trial level. On this review, only the cause of action arising under sec. 134.01 is at issue, ⁴ and only sec. 134.01 was considered by the court of appeals in reaching its decision.

The following facts pertinent to this review were adduced at trial:

Maleki testified that, in 1976, Doctor Tabet, an officer of Fine-Lando, approached him and asked him to practice cardiology at Trinity Hospital, which was located near the Fine-Lando Clinic. Maleki stated that he first declined, because it would limit the exercise of his staff privileges at other hospitals, but Maleki asserted that Tabet said Fine-Lando would be supportive of Maleki's practices. This latter statement was denied by Tabet. Maleki did, however, accept Tabet's suggestion and his application for staff privileges at Trinity Hospital as an invasive cardiologist was accepted in early 1978, and he immediately commenced performing surgical procedures, apparently on referrals from Fine-Lando. ⁵

It was in 1981, Maleki testified, that a partner in Fine-Lando, Dr. Ali Tavaf, stated that, if referrals were to continue, Maleki would have to agree to pay a percentage of the fees earned to Fine-Lando. It was this proposition that was refused, because Maleki considered it an illegal fee-splitting arrangement. While witnesses for Fine-Lando denied that this offer was ever made, Maleki testified it was soon thereafter the diminution of referrals from Fine-Lando commenced. There was also testimony that two patients at Fine-Lando were discouraged from having procedures performed by Maleki. One invasive cardiologist stated that he was told by a Fine-Lando physician not to use Maleki for angioplasty. Two Fine-Lando physicians testified that they continued to refer patients to Maleki for procedures to be performed at hospitals other than Trinity.

The other party to the alleged conspiracy, as the proof developed at trial, was asserted by Maleki to be Dr. Eddy Co, an invasive cardiologist who had staff privileges at Trinity since 1976, a couple years before Maleki became a member of the staff.

Maleki testified that he suspected "that there was some kind of arrangements [sic] made between Dr. Co and Fine-Lando." There was evidence adduced at trial that Co had entered into an agreement with Fine-Lando similar to the one Maleki said he had rejected.

When Maleki was asked why he believed Co contracted with Fine-Lando, he stated that it was to make money and to eliminate competition. He stated that he did not believe that Co had any animosity toward him but he did think Co bore him "ill will." This testimony was contrary to a pre-trial deposition that was placed before the jury in which Maleki concluded that neither Fine-Lando nor Co had any animosity or ill will in respect to him.

The upshot of this testimony at the circuit court level was submission to the jury of two questions, both based upon provisions of sec. 134.01, Stats. The court of appeals correctly concluded that these questions mirrored the protections afforded by sec. 134.01.

The first question addressed to the jury was:

Did both defendants, Fine-Lando Clinic and Dr. Eddy Co, combine, associate, agree, mutually undertake, or conspire for the purpose of willfully or maliciously injuring Dr. Maleki's trade or business?

The jury answered this first question "No."

The second question asked:

Did both defendants, Fine-Lando Clinic and Dr. Eddy Co, combine, associate, agree, mutually undertake, or conspire to maliciously prevent or hinder Dr. Maleki from doing or performing any cardiac procedures?

The jury answered this question "Yes."

The jury awarded $331,833 in compensatory damages and $510,000 in punitive damages. The verdict and damage awards were approved by Judge Patricia Curley. Appeal was taken from the judgment subsequently entered. The court of appeals reversed, saying:

[W]e limit our discussion to the dispositive issue: whether Fine-Lando and Co's actions, as established by the evidence evaluated in a light most favorable to Maleki ... support the jury's answer to the second question.

Id., at 480, 453 N.W.2d 208.

However, the court of appeals limited its evidentiary inquiry to whether there was evidence that Fine-Lando stopped making referrals to Maleki because Maleki refused to enter into a fee-splitting arrangement. It found, because there was some evidence to support that conclusion, the only question was whether the conduct of Fine-Lando created a cause of action. It concluded it did not, because Maleki "ha[d] not demonstrated any legal right to an unremitting stream of referrals from Fine-Lando, termination of those referrals, even if it was to further Fine-Lando's arrangement with Co, does not subject Fine-Lando and Co to liability under sec. 134.01, Stats." Id., at 485-86, 453 N.W.2d 208.

Thus, the court of appeals reversed the circuit court on the theory that there can be no liability unless the conspiracy interfered with Maleki's independent right, and held that, because Maleki had no contractual right to the flow of referrals, he, therefore, could not be damaged by a conspiracy that eliminated those referrals.

We agree with the court of appeals decision that the judgment of the circuit court awarding damages to Maleki must be reversed, first, because the jury answers to Question One and Question Two are inconsistent and, second and more importantly, that evidence of malice, which must be found in respect to both conspirators, is lacking in respect to Co. ⁶ Also, we conclude--although this conclusion is not necessary to the resolution of this review--that the court of appeals erred when it relied upon a principle not recognized in Wisconsin that there can be no recovery for conspiracy unless an independent right is invaded. Contrary to the assertion of the court of appeals that sec. 134.01, Stats., "is not a petri dish in which we may culture new 'rights' absent legislative action" (at 483), the clear legislative intent of sec. 134.01 is that the right protected by the legislative action is not to be damaged in any respect by conspiratorial conduct. The question is: Was the plaintiff damaged by a conspiracy? Wisconsin law is devoid of a legal premise that would support the ratio decedendi of the court of appeals. The review sought in this court by Maleki is premised upon his correct assertion that the plaintiff does not have to demonstrate an independent legal right for there to be civil liability under sec. 134.01. Nevertheless, we are obliged on other grounds to affirm the court of appeals decision to reverse the trial court judgment in favor of Maleki.

We conclude that the verdict questions resulted in inconsistent answers. The answer to the first being unfavorable to the plaintiff, and the answer to the second being favorable. We conclude, however, that the evidence was insufficient to support an affirmative answer to either question and, therefore, the judgment of the trial court must be reversed.

The first question, to which the jury answered "no," was:

Did both defendants, Fine-Lando Clinic and Dr. Eddy Co, combine, associate, agree, mutually undertake, or conspire for the purpose of willfully or maliciously injuring Dr. Maleki's trade or business?

The jury answered "yes" to the question:

Did both defendants, Fine-Lando Clinic and Dr. Eddy Co, combine, associate, agree, mutually undertake, or...