Samuelson v. Susen
| Decision Date | 21 April 1978 |
| Docket Number | No. 77-1806,77-1806 |
| Citation | 576 F.2d 546 |
| Parties | 3 Fed. R. Evid. Serv. 130 Gene H. SAMUELSON, M. D., Appellant, v. Anthony F. SUSEN, M. D., and Peter J. Jannetta, M. D. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph D. Shein, Shein & Brookman, Philadelphia, Pa., Louise Reiber Malakoff, Berger, Kapetan & Malakoff, Pittsburgh, Pa., for appellant.
Henry E. Rea, Jr., Brandt, Milnes, Rea & Malone, Pittsburgh, Pa., for appellees.
Before SEITZ, Chief Judge, and ROSENN and GARTH, Circuit Judges.
This is an approved appeal in a diversity action from an order of the district court limiting discovery. 28 U.S.C. § 1292(b).
Plaintiff, Dr. Gene H. Samuelson, a resident of Steubenville, Ohio, and a neurosurgeon, asserted a claim based upon defamation and tortious interference with business and professional relationships. He alleged that defendants, Drs. Anthony F. Susen and Peter J. Jannetta, published defamatory statements, either by mail, orally or both, to certain physicians at Ohio Valley Hospital, and other persons, including physicians at St. John Medical Center and Harrison Community Hospital (all in the Steubenville area) and at Weirton General Hospital, Weirton, West Virginia. He seeks damages based on his claim that defendants' conduct has resulted in his being refused privileges at two Ohio hospitals and his staff privileges severely limited at the remaining hospitals.
During the course of discovery, plaintiff sought to depose six physicians and administrators of two Steubenville, Ohio hospitals. All of the proposed deponents (appellees) filed motions for protective orders, which were granted by the district court on the basis of Ohio Revised Code § 2305.251, which provides:
Proceedings and records of all review committees described in section 2305.25 of the Revised Code 1 shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review by such committee. No person within attendance at a meeting of such committee shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any finding, recommendation, evaluation, opinion or other action of such committee or member thereof. Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented during proceedings of such committee nor should any person testifying before such committee or who is any member of such committee be prevented from testifying as to matters within his knowledge, but the witness cannot be asked about his testimony before such committee or opinion formed by him as a result of such committee hearing.
The district court, on April 18, 1977 entered an order designating the following as controlling questions of law pursuant to 28 U.S.C. § 1292(b):
(1) Do conflicts of law principles require the application of Ohio law to the instant matter?
(2) Are §§ 2305.25 and 2305.251 of the Ohio Revised Code retrospective in application?
(3) Do those Ohio statutory provisions prohibit discovery of the publication of allegedly defamatory statements made within the context of committee review of an application for hospital staff privileges?
(4) If the Ohio statutory provisions do prohibit discovery with regard to alleged defamation occurring in the context of committee review of an application for staff privileges, are those provisions unconstitutional?
The district court held that, "consistent with Restatement 2d, Conflict of Laws § 149, and with Fed.R.Evid. 501, we will look to the laws of Ohio." We note initially that the section of the cited Restatement deals with the substantive law of defamation. It does not pertain to evidentiary matters and hence has no applicability to the resolution of the issues before us. 2
We turn then to Rule 501 of the Federal Rules of Evidence, 3 which was applied by the district court. Plaintiff first argues that Rule 501 is not applicable since the statute enacting it was to take effect on July 1, 1975, subsequent to the initiation of this action. However, the statute enacting the Federal Rules of Evidence states that the Rules (including 501) should apply to pending cases where practicable and not unjust. P.L. 93-545, § 1, Jan. 2, 1975, 88 Stat. 1926. The application of Rule 501 to these proceedings is clearly feasible. Its application, in our view, would work no injustice, since the same result would likely have obtained under evidentiary principles formerly applied by the federal courts. They required these courts to use "the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held." Former Fed.R.Civ.P. 43(a). We therefore conclude that Rule 501 is applicable to this case.
Rule 501 provides that with respect to state issues in "civil actions and proceedings" any privilege "shall be determined in accordance with State law." However, that Rule provides no explicit guidance as to which state's law regarding privilege is to be applied in a diversity case.
Plaintiff argues that under Rule 501 a federal court must apply the privilege law of the forum, whether or not state courts of the forum would apply their own privilege law. We cannot agree. We believe Rule 501 requires a district court exercising diversity jurisdiction to apply the law of privilege which would be applied by the courts of the state in which it sits.
Prior to the enactment of Rule 501, federal court decisions had determined that in civil actions and proceedings governed by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), state created privileges conferred substantive rights beyond regulation by federal procedural rules. See Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 555-556 n.2 (2d Cir. 1967). In the form originally prepared, the Federal Rules of Evidence would not have required federal courts to recognize privileges created by state law in civil actions and proceedings governed by Erie. Preliminary Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 46 F.R.D. 161 (1969).
The House of Representatives amended the proposed rules to require the application of state privilege law in cases governed by Erie. (It was the House amendment that was eventually enacted into law as Rule 501). The House supported its position with the following contentions: (1) privilege rules are and should continue to be considered substantive for Erie purposes; (2) privilege rules are outcome determinative; (3) where state law supplies the rule of decision, state rules of privilege should be applied because there is no federal interest substantial enough to justify departure from state policy; and (4) state policy regarding privilege should not be thwarted merely because of diversity jurisdiction, a situation which, if allowed, would encourage forum shopping. H.R.Rep. No. 650, 93rd Cong., 1st Sess. 9 (1973).
A federal court's application of the law of privilege which the forum states' courts would apply in cases like the instant one, seems to us to be consistent with Congress' goal of effectuating state substantive rights, laws and policies in controversies where there is no substantial federal interest. Such an approach furthers Congress' goal of preserving the domain of state privilege law in diversity cases by achieving outcome identity between state and federal courts of the forum state on choice of law, thus discouraging forum shopping. Such an approach also takes cognizance of the fact that a forum state's choice-of-law rules may reflect important policy underpinnings of its own law and are an integral part of it. As the Supreme Court has pointed out, our federal system:
leaves to a state, within the limits permitted by the Constitution, the right to pursue local policies. . . . It is not for the federal courts to thwart such local policies by enforcing an independent "general law" of conflict of laws. Subject only to review by this Court on any federal question that may arise, Delaware is free to determine whether a given matter is to be governed by the law of the forum or some other law. . . . Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-497, 61 S.Ct. 1020, 1022, 85 L.Ed. 1477 (1941).
We are mindful of the fact that in Klaxon the Supreme Court was in effect interpreting the reference in the Rules of Decision Act to "the laws of the several states . . . in cases where they 'apply' to include a forum state's choice-of-law rules. As one commentator has pointed out, "(t)he reference in that Act to the laws of the several states . . . in cases where they apply is no less ambiguous in terms of horizontal choice of law than the references to 'State law' in the Federal Rules of Evidence." Wellborn, The Federal Rules of Evidence and the Application of State Law in Federal Courts, 55 Texas L.Rev. 371, 446 (1977).
The interpretation of "State law" urged upon us by plaintiff would prevent the application of all of a forum state's law, including its choice-of-law rules. Such a denial would be antithetical to one of the primary goals of Rule 501, the recognition that where states have created rights, the federal courts should apply the same rules of law to those rights which the states themselves would apply. Moreover, to require a federal court to ignore some of a state's choice-of-law rules, as plaintiff's interpretation of "State law" in Rule 501 would do, would obviously invite forum shopping in direct contradiction of one of the aims of Rule 501.
We believe our interpretation of the meaning of "State law" in the second sentence of Rule 501 to be...
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