Petition for Writ of Certiorari — El Shahawy v. Elliott

~~ \ |

85-318) a

No. Supreme Court, U.S. |

FILED |

IN THE SUPREME COURT OF THE UNITEDAUG 19 1985

STATES sco sens |

CLERK

October Term 1984

Mahfouz El Shahawy, M.D.,

Petitioner

« Vv

Larry P. Elliott, M.D.

On sworn Petition for Writ of

Certiorari Directed to the United

States Court of Appeals for the

Eleventh Circuit in Case No.

84-3618, 83-3154 (District Court

Case No. 31-545 Civ TWC)

SWORN PETITION FOR WRIT OF

CERTIORARI

TO THE SUPREME COURT OF THE

UNTIED STATES

MAHFOUZ EL SHAHAWY, M.D.

1851 Arlington Street

Suite 206

Sarasota, Florida 33579

(813) 366-9800

Petitioner Pro Se

QUESTIONS PRESENTED

I

WHETHER THE LOWER COURTS OVERLOOKED, OR MIS-

APPREHENDED THE FACT THAT THE DEFENDANT DR.

ELLIOTT DID NOT PAY ANY OF THE BILL OF COSTS,

BUT RATHER A THIRD PARTY, “SARASOTA MEMORIAL

HOSPITAL BOARD"', WHICH IS CURRENTLY INVOLVED IN

RELATED LITIGATIONS IN THIS COURT.

II

WHETHER THE LOWER COURTS OVERLOOKED OR MIS-

APPREHENDED THE FACT THAT DEFENDANT'S ATTORNEY

MR. STRELEC COMMITTED PERJURY BY SIGNING AN IN-

CORRECT BILL OF COSTS. FURTHERMORE, HE PRE-

SENTED THE COURT WITH PERJURED TESTIMONIES BY

NUMEROUS WITNESSES. IS THIS NOT FRAUD ON THE

COURT AND THE PLAINTIFF?

Ili

WHETHER ~ THE LOWER COURTS OVERLOOKED OR MIS-

APPREHENDED THE FACT THAT THE BILL OF COSTS SUB-

MITTED WAS NOT SOLEY INCURRED IN THIS CASE, AND

THE APPEAL COURT OVERLOOKED OR MISAPPREHENDED

THE FACT THAT THE DISTRICT COURT FERRED IN

DENYING PLAINTIFF'S MOTION TO STAY RULING UNTIL

RELATED LITIGATIONS HAVE BEEN RESOLVED.

IV

WHETHER THE LOWER COURTS ERRED IN FINDING DR.

ELLIOTT'S REMARKS QUALIFIEDLY PRIVILEGED, THAT

ELLIOTT'S REMARKS WERE NOT UTTERED MALICIOUSLY,

EXCLUDING EVIDENCE FOR DAMAGE OF SHAHAWY'S

REPUTATION.

V

WHETHER THE LOWER COURTS OVERLOOKED, OR MIS-

APPREHENDED THE FACT OF THE NEWLY DISCOVERED

EVIDENCE TO SUPPORT THE LINK OF A CONSPIRACY BE-

TWEEN DEFENDANT DR. LARRY ELLIOTT AND SARASOTA

COUNTY PUBLIC HOSPITAL BOARD, WHICH WAS DIRECTLY

0

BSESES ER RRREREEE:

OR INDIRECTLY RESPONSIBLF FOR DENIAL OF PLAIN-

TIFF'S PRIVILEGES AT SARASOTA COUNTY PUBLIC

HOSPITAL BOARD, WHICH IS IN VIOLATION OF FED-

ERAL ANTI-TRUST LAWS, CIVIL RIGHTS ACT, THE

RACKETEERING INFLUENCED AND CORRUPT ORGANIZATION

ACT, AND FLORIDA STATUTES AND COMMON LAW.

VI

WHETHER THE LOWER COURTS OVERLOOKED IMPORTANT

FACTS AND FAILED TO REMAND FOR A NEW TRIAL BE-

FORE A JURY BASED ON NEW DISCOVERIES AND FRAUD

OF SARASOTA COUNTY PUBLIC HOSPITAL FUNDS BY DEF-

ENDANT LARRY ELLIOTT.

TABLE OF CITATIONS

CASES PAGE

City of Boca Raton v Boca Villiage

Corp. (Fla. App) 3/72 So2d 485 18-19

Copper Liquor Inc. v Adolph Coors 18-19

684 F2d 1087, 1101(5th Cir. 1982) 21

Heverly v Lewis

99 F.R.D. 135, 136 (1983) 18-19

Miller v Prudential Ins. Co.

362 A2d 1017 20

Pan American Life Ins. Co.

v Manusco 186 So2d 339 20

Person v Association of Bar

CAZ N.Y. F Cert.

Den. 434 U.S. 924, 54 L Ed 2d

282 98 S.Ct. 403 15

State Ex. Rel. Spillman v First

Bank of Nickerson 114 Neb. 423

207 N.W. 674 14

Studiengesellschaft Kohle MBH v

Eastman Kodak Co. /13 F2d 128

(5th Cir. 1983) ll

SESE RER EEE EE SEES

TABLE OF CONTENTS’

QUESTIONS PRESENTED

TABLE OF CITATIONS

SWORN PETITION FOR WRIT

OF CERTIORARI

CERTIFICATE OF SERVICE

APPENDIX A

APPENDIX B

1-27

HHHEEERERERERER SSS SY

STATUTES PAGE

Title 28 U.S.C. par 1254 (1) 2

Title 23 U.S.C. par 1332 3

OTHER REFERENCES

American Jurisprudence 2nd Vol.

81 Page 51 14

American Jurisprudence 2nd Vol.

14, Page 843 16

American Law Reports Vol. 45

Page 1418 14

Disciplinary Rule 7-109 (c) of

Professional Responsibility, 33

Fed Proc. L Ed page 572 (par

80:205, 80-204) 15

Federal Procedures L Ed Vol. 33

page 572 15-20-21

Federal Rule of Civil Procedure

54 (d) 18

Fla. Jur. 2d page 331, Vol. 9 16

Moore's federal Procedure Vol.

7 60.23 (4), 60.30 (2) 23

Restatement of the Law (Contracts

Sections 347-End Vol. II (1932)

page 572 16

ii

To the Honorable, the Chief Justice and

associate Justices of the Supreme Court

of the United States:

Dr. Mahfouz El Snahawy, the

petitioner herein, prays that a writ of

certiorari issue to review the judgement

of the United States Court of Appeals for

the Eleventh Circuit entered in the

above-entitled case on April 18,1985.

Motion for rehearing denied on May 21,

1985, (App. A,original lodged with clerk )

OPINIONS BELOW

The judgment of the United States

Court of Appee'ts for the Eleventh

Circuit was rendered without express

opinion, and entered on April 18, 1985.

That judgment was a "per-curiam affirmed"

judgment and is printed in Appendix B.

| The Journal entry of the order of

August 3, 1984 filed August 3, 1984 of

the United States District Court for the

Middle District of Florida seen on the

docket of the District Court, (App.3-10

lodged with the Clerk).

1

SES ESE EE TE

JL. SDICTION

The judgment of the United States

Court of Appeals for the Eleventh Circuit

(Appendix B) was entered on April 18,

1985. A timely petition for rehearing

was denied on May 21, 1985 (Appendix A).

The jurisdiction of the Supreme Court is

invoked under 28 U.S.C. 1254 (1).

= ERSEE

STATEMENT OF THE CASE £°ID FACTS

The basis for federal jurisdiction

in the court of first instance, the

United States District Court for _ the

Middle District of Florida was

(28U.S.C.1332) diversity of citizenship

between the plaintiff and the defendant

at the time the action was filed. The

plaintiff at the time the action was

filed was a citizen of the State of

Florida and the Defendant was at that

time a citizen of the State of Alabama.

Plaintiff brought an action against

the defendant the essence of which action

was that “the defendant, Dr. Elliott, a

radiologist, wronged the plaintiff, a

cardiologist, by false testimony at a

hearing to determine plaintiff's

qualifications to perform an _ invasive

procedure called cardiac catheterization

at Sarasota Memorial Hospital on October

21, 1980. Plaintiffs only acquaintance

with defendant was limited to the time

———————

ZEEE ER ER RRR BES

between July 1973 and December 1975 when

both were employed as faculty members at

the University of Florida at Shands

Teaching Hospital in Gainsville Florida.

At the time the defendant was a member

of the Division of Radiology and the

plaintiff was an assistant professor in

the Division of Cardiology. During the

period from July 1973 to January 1974

plaintiff was the Director of the Adult

Catheterization Laboratory at said

university. This laboratory | was

physically located in the Department of

Radiology. Defendant Dr.° Elliott had

had a long-standing fight with the

Division of Adult Cardiology in order to

gain control of the Adult Cardiac Cath.

Lab. Plaintiff upon assumption of his

position as Director of the Cath. Lab.

at the university resented along with

the rest of the faculty members of the

Division of Cardiology, the defendant's

continued effort to gain control over

4

the Adult Cardiac Catheterization Lab.

These facts led to continuous

misunderstandings and unpleasant working

conditions in the Cardiac Cath. lab.,

which required at times intervention of

the Chief of Staff and the Dean. This

misunderstanding was well known to some

members of the Sarasota Memorial

Hospital staff who wanted to keep

plaintiff out of the Cath. Lab.; so they

called upon Dr. Elliott to come testify

on their behalf. Dr. Elliott, who in

the interim left the University of

Florida and was practicing in Alabama,

accepted ‘quickly their invitation to

testify on events alleged to have taken

place in the Cardiac Cath. Lab. in

January 1974 while plaintiff was in

charge. Subsequent investigations

however by the Credentials Committee of

Sarasota Memorial Hospital did not

support defendant's statements as

evidenced in their reports of 5/13/80

5

EBERERREBEEEGEGSBEEE

and 5/15/89 (App. 11-13, lodged with

the clerk). this recommendation was

approved by the executive commitee at

it's regular meeting on May 19, 1980

(App. 14, lodged with the Clerk).

Still defendant Dr. Elliott had the

temerity to come and testify falsely

before the Sarasota County Public

Hospital Board hearing on October 21,

1980. Even members af the Board at the

time who sat as a jury recognized his

intention and thought his testimony was

not worth belief, as noted at the end

of the hearing during the Board

daliberation on October 22, 1980,

Hearing Transcript (App. 15-40, lodged

with the Clerk). Board member Mr.

Rand:

I realize that Dr. Curry's testi-

mony and Dr. Daicoff's testimony

I was very much impressed with

their professional atmosphere than

I was with the other folk (App.22

lodged with the Clerk).

Hospital Board member Mrs. Balis:

Dr. Curry and Dr. Daicoff- they

6

all said he was compatent and ade-

quate, and that's what I have to

go on ‘App. 24-25, lodged with

the Clerk).

Hospital Board Member Mr. Hereford:

I think vcnat Dr. El Shahawy was

treated very shabbily in this

whole thing...(App. 28, lodged

with the Clerk). I thought Dr.

Cooper and Elliott were beauts

(App. 30, lodged with the Clerk)

. They wrote letters, I think

their testimony was a classic ex-

hibition of the value of the hear-

say rule. Both exhibited obvious

bias against Dr. Shahawy. I think

Elliott is a blow-hard, political

type of college faculty member, he

was Shahawy' s rival.... He was

Shahawy's rival at the University

of Florida. He rose from the

ranks stepping on his head, if

that be the case. He had personal

--he utilized whatever he did for

personal gain as far as I'm con-

cerned. And I think Cooper was an

insidious smart alleck, and he had

personal gain because Pty got the

status of Petey Pty Shahawy

as the head of the dult Cathet-

eriziation while he was still a

fellow in training. So he got

some personal gain there, and I

bet you he's exploited that from

there on. I don't think either

one of them are credible witnesses.

I think their testimony was inm-

peached very nicely tonight by a

couple of witnesses that showed

a great deal of credibility.

Hospital Board Member Balis:

I think personalies are in it

more than qualifications. That's .

7

OOOO ———————————————EeovV3VrOOO

the thing that bothers me the most

---I know you try and separate it,

but it's in there (App. 36, lodged

with the Clerk).

Hospital Board member Mr. Tolerton:

No one will deny that Dr. Shahawy

is qualified to do the procedure

(App. 38, lodged with the Clerk).

Hospital Board member Greenwald:

I just said I wanted to deny this

six months (App. 39, lodged with

the Clerk).

Hospital Board member Dr. W. Chapman:

As for the testimony of Dr.

Cooper and Dr. Elliott I wasn't

too impressed with it (App. 18,

lodged with the Clerk).

After the Board hearing plaintiff

filed this suit against defendant for

his alleged false testimony.

Furthermore plaintiff has obtained his

records from the University of Florida

during the discovery of this suit.

Again this record did not support

defendant's allegation as shown - to the

lower court during the trial. Defendant

then for the third time at the time of

trial presented a different and false

testimony and tried to plead with the

trial judge for qualified privilege. :::

The defendant's testimony was false as

shown by the record in the courts file. |

Furthermore’ the record shows that the

defendant paid no costs or legal expense

of this action and that his costs and

legal expenses were paid by the Sarasota

county Public Hospital Board and an

*

.

insurance company, as evidenced by the

bill of costs in the courts aa.”

The defendant has not proven or

alleged that he has incurred = any

obligation that he repay his indemnitors

in all events or even if costs were

taxed against the plaintiff Dr. Shahawy.

The defendant's counsel submitted a

perjured bill of costs for $13,296.75.

*(App. 41-91, lodged with the Clerk).

*xk(App. 92-96, lodged with the Clerk).

|

The District Court Clerk however taxed

costs against plaintiff for 6062.85

dollars. By final order made and filed

on August 3, 1984, the district judge

denied plaintiff's motion for relief

from Clerk's taxation of costs (App.

lodged with the Clerk.) A timely notice

of appeal of that order of August 3,

1984 was filed on September 5, 1984

along with Briefs (App. 105-148 Lodged

with the Clerk.) The Appellate Court

affirmed that order on April 18, 1985

without express opinion and _ denied

petition for rehearing on May 21, 1985

(App. A).

While reviewing the bill of costs

plaintiff pro-se discovered new evidence

of conspiracy between defendant and

officials of Saraseta County Public

Hospital Board who were = and are

defendants in a related case in the

Federal Court System (Case No. 83-3650).

Shahawy v. William T. Harrison et. al.,

*(App. 97-104) |

and a Certiorari currently pending in

the Supreme Court (Case No. 84-2036.)

Furthermore, plaintiff discovered

the excessive payments by the Hospital

Board which were paid to witnesses on

behalf of the defendant such as Dr.

Chinoy who was not an expert witness,

who was paid over 4,000 dollars for less

that one-half hour of a= perjured

testimony at the trial court. Other

perjured testimonies on behalf of the

defendant for which the witnesses were

reimbursed by the Hospital Board

involved technician Jeanette Frierson,

Chuck butmer . Dr. Kelly and others. All

this evidence on the bill of costs which

is part of the court file (App. * lodged

with Clerk.) Plaintiff pro-se could

not have discovered this evidence prior

to review of the bill of costs.

Plaintiff then filed a timely motion to

vacate the Clerk's taxation of costs of

June 12, 1984 which was again denied

* (App. 92-96) -

(App.105-106 lodged with the clerk).

Subsequently plaintiff appealed the case

and again asked to vacate the clerks

taxation of costs on June 1984 and to

remand the case to the District Court

for a new trial by jury based on newly

discovered evidence of fraud and

conspiracy, or alternatively to stay the

case herein pending completion of

related suits and investigation by state

and federal authorities. this request

again was denied (App149-152 lodged

with Clerk) The record whic. is currently

in the Court's possession is replete

with evidence to support the fact of the

abuse of the power of the office by some

officials of Sarasota Memorial Hospital

Board on supporting the defense of the

defendant for personal vendetta.

REASONS FOR GRANTING WRIT

The record in this case shows that

the defendant Dr. Elliott did not pay

any of the costs in this action;that the

12

costs were paid by the Sarasota County

Public Hospital Board and by~= an

insurance company as alleged in Dr.

Shahawy's pleadings and documented in

the Court's file.

Dr. Elliott has not proven or even

alleged that he has incurred = any

obligation that he repay his indemnitors

in all events or if costs are taxed

against Dr. Shahawy and it was incumbent

on him to go forward forthrightly and

disclose all the details oof his

agreement regarding indemnification of

his legal expense to the court where

such illegal maintenance was alleged by

Dr. Shahawy. The Hospital Board and

insurance company, which did not even

insure the defendant, had no legal right

to reimburse Dr. Elliott for his legal

expense in this action. A special

contract to pay to any ordinary witness

amendable to process more than the

regular fee is nonenforceable for want

13

BEER REE ERR ES ESE .

Z

of consideration. Moreover, because the

contract offers enticement to perjury

and tends thereby to pervert the course

of justice, it is contrary to public

policy and void. 81 AM Jur 2d 51; State

EX.RE1l. Spillman v_ First Bank of

Nickerson 114 Neb 423, 207 N.W. 674, 45

ALR 1418.

Similarly, the fee of an expert

witness retained by a party may be

decided by a contract between them,

provided "That a lawyer shall not pay,

offer to pay,or acquiesce in the payment

of compensation to a witness contingent

upon the cokes of his testimony or the

outcome of the case, although a lawyer

may advance, guarantee, or acquiesce in

the payment of:

| Expenses reasonably incurred by a

witness in attending or testifying.

2. Reasonable compensation to a witness

for his loss of time in attending or

testifying.

14

3. A reasonable fee for the

professional services of an expert

witness" as provided by disciplinary

rule 7-109(c) of the Code of

Professional Responsibility upheld

by Person v Association of Bar (1977

CA2 NY) 554 F2d 534 cert.den 434

&S924, 54 Led 2d 282, 98.SC1.403. 33

Fed Proc, LED page 572 (pat 80:205

and 80:204)

The Hospital Board's agreement to

indemnify Dr. Elliott for any legal

costs he might incur as a result of his

testimony regarding Dr. Shahawy was

unreasonable, particularly in view of

their conclusion about Dr. Elliott's

false testimony at the end of the

hearing of October 22, 1980, and

therefore in violation of the

aforestated Rule 7-109(3) of the Code of

Professional Responsibility, because

that agreement falls within the modern

difinition of maintenance because it

15

obstructs justice by inciting perjury by

relieving the witness from the financial

burden of defending himself from a suit

in case he testifies wrongfully, 9 Fla

Jur 2d page 331. 14 AM Jur 2d 843.

The restatement of the Law

(Contracts sections 347 End Vol MII

(1932) 572) states " A bargain to

indemnify another against the

consequences of committing a tortious

act is illegal unless the performance of

the tortious act is only an undesired

possibility in the performance of the

bargain, and the bargain does not tend

to induce his false testimony as set

forth above."

If Dr. Elliott promised to repay

the Hospital Board for having paid his

costs, in the event costs were taxed

against Dr. Shahawy, that would have the

effect of both the Hospital Board and

Dr. Elliott being <celieved of the

financial consequences, (legal expenses)

attendant on Dr. Shahawy's suit against

16

SE ae eaaaSaES EES SS 3

Dr. Elliott. That also would be part

of the illegal, systematic joint action

which succeeded in excluding Dr. Shahawy

from the heart catheterization

laboratory at Memorial Hospital. It is

Hornbook law that neither party to such

an illegal contract has_ enforecable

rights where they are in part delicto,

that is to say Dr. Elliott could incur

no legally enforceable liability to

repay his indemnitors where both parties

are in pari delicto. But if Dr. Elliott

were ordered by the Court to pay back

the Hospital Board on the grounds of bis

greater culpability, because jurisdiction

to award costs on District Courts grew

out of the Court's equity jurisdiction

and follows equitable principles, in no

event should Or. Elliott's costs

consequent on his false testimony be

taxed against Dr. Shahawy, especially in

view of Dr. Elliott's postulated, greater

culpability and the illegal maintenance contract

17

which tends to induce false testimony. Dr.

Elliott's hands are dirty. To have standing in

equity Dr. Elliott's hands must be clean

therefore he has no right to ask this Court

which follows equitable principles to sustain

the District Court which awarded him costs.

F.R.C.P. Fed R Civ-54 (d) provides that

"costs shall be allowed as of course to the

prevailing party unless the court otherwise

directs..."" Thus, the Court has discretion to

allow or disallow expenditures. ordinaril+

recoverable as costs of suit, but it may not

either reduce or increase the amount of the

costs from those reasonably and actually

incurred by the prevailing party see Heverly v

Lewis 99 F.R.D. 135, 136 (1983); Cooper Liquor,

Inc. v Adolph Coors 684F2d 1087 1101 (5th Cir.

1982). Both under the Law of Florida City of

Boca Raton v Boca Village Corp. (Fla App) 372 50

2d 485 and umder rule 54 (D) of the Federal

Rules of Civil Procedures, costs are in the

nature of indemnification Heverly v Lewis Supra;

Cooper Liquor v Adolph Coors Supra.

18

“SE HE ERR EERE ES SBEE

Judges only have discretion to award, (that is

to say to indemnify for) costs actually in-

curred and it is an abuse of discretion to award

costs to a defendant who has incurred no liabil-

ity to pay costs and has paid no costs. Heverly

v Lewis Supra; Cooper Liquor, Inc. v_ Adolph

Coors Supra; City of Boca Raton v Boca Village

Corp. Supra.

Even if Dr. Elliott has promised to repay

the Hospital Board if costs are assessed against

Dr. Shahawy, because Dr. Elliott has dirty hands

as set forth above, the equitable principle that

he who seeks recourse from a court in equity

must come into court with clean hands prevents

the court ‘from awarding him costs. Because

costs under rule 54 (D) of the Federal Rules of

Civil Procedure are in the nature of an indemni-

fication (Heverly v Lewis Supra.) It is fraud on

the court and on Dr. Shahawy that Dr. Elliott

has asked the court for allowance of his costs

where he has neither paid or incurred any liabi-

lity to pay any costs of this action as afore-

Stated by virtue of his contract of indemmity

19

EESSESEECEE ESSE

with the Hospital Board which has paid all his

costs. Any such request for over-reimbursement

is considered fraudulent and unjust. Pan Ameri-

can Life Ins. Co. v Mancuso 186 502d 339; Miller

v Prudential Ins. Co. 362 A2d 1017 43 Am Jur 2d

page 1106.

This court should exercise its’ discretion

and grant a writ of certiorari because the

Appellate Court santioned an extreme departure

from the accepted and usual course of judicial

proceeding by the Trial Court which abused its’

discretion in awarding costs to a defendant who

paid no costs and incurred no liability to pay

costs and _should grant a writ of certiorari

because such a request for over-reimbursement

for costs is considered frauduleni and unjust as

aforesaid. This court has not decided but

should decide the important question whether

under Rule 54d of the Federal Rules of Civil

Procedure the courts have discretion to award

costs to a party who has neither paid nor in-

curred liability to pay costs of an action.

This court should grant a writ of

20

certiorari because the Appellate Court's

decision in affirming the District Court's award

of costs to the defendant who paid no costs and

incurred no liability to pay those costs is in

conflict with Cooper Ligour, Inc. v Adolph Coors

684 F2d 1087 1101 5°" cir 1982.

The Appellate court erred by denying

appellant's motion to vacate the award of costs

and remand for jury trial on the basis of newly

aiscovered evidence. This was a departure from

the usual course of judicial proceedings and

sanctioned the unjust judgment of the trial

judge which had imposed costs on appellant in

favor of a defendant who had testified falsely

against appellant under circumstances proving

his malice (App. 41-90, lodged with the clerk).

Appellate Court's denial of plaintiff's

motion to remand for a new trial in view of the

evidence of new discovery is inconsistant with

rule 60 (b) (2) Federal Rules of Civil Procedure

which provide in relevant part that:

"on motion and upon such terms as are

just, the court may relieve a party...

from a final judgment,... for ... (2)

newly discovered evidence which by due

21

diligence could not have been

discovered in time to move for

a new trial under rule 59 (b);...

Appallent could not have discovered prior

to review of bill of costs even with due

diligence that Sarasota County Public Hospital

Board who had filed a Motion with the District

Court on September 16, 1981 as non-party (App.

4, lodged with the clerk) © was the entity

who had been maintaining the defense of defend-

ant Dr. Elliott, who is not even a member of the

medical staff of Sarasota Memorial Hospital and

who also was found by the Board to be not worthy

of belief at it's hearing on October 21, 22,

1980 (App. 18, 22, 30, lodged with the clerk).

The fact that Sarasota Memorial Hospital Board

became a party of a related suit which is cur-

rently in this Court does not give them the

power to abuse public funds in maintaining Dr.

Elliott's defense for personal reasons. This

abuse of the public funds of Sarasota County

taxpayers by the Hospital Board in maintaining

the defense of Dr. Elliott for personal reasons

should not be sanctioned by the Court. The

22

| Ge et ne a LS ee

ES EEEEEREEE

Appeal court ruling on this matter was in con-

fiict with established case law 7 Moore's Federal

Practice 60.23(4) and cases sited herein.

In view of the above and persuant to Rule

17 (a, c) of the Supreme Court's Rule, plaintiff

feels that certiorari should be granted and the

case should be remanded for a new trial before a

jury. It is Hornbook Law that such fraud prac-

ticed on any court is grounds for any court to

set aside at any time such unjustified judgment.

23

EEER EE EE

CONCLUS iON

Based on the forgoing facts and authorities

the plaintiff would like to assert the

following:

1. Dr. Elliott did not pay one cent of

the bill of costs nor any other expenses in this

case; rather, it was paid fully by Sarasota

Memorial Hospital Board and an _ insurance

company, PIMCO, which covers other physicians

involved in related litigation in this Court as

well s the State Court. It is of interest to

note that PMIOCO was not insuring Dr. Elliott.

Those payments were improper and amount to con-

spiracy and fraud.

2. ‘It should ‘not be overlooked by the

Court that defendant's counsel has presented an

improper bill of costs signed by him under

penalty of perjury, and also has_ provided

perjured testimony by witnesses cules by the

defense.

3. A payment of $4625.00 from the Sara-

sota County Public Hospital Board's funds to Dr.

D. hinoy, a former student, a mnon-expert

24

witness, to come from Jacksonville to Tampa for

one-half hour of testimony (which was perjured)

is definitely unlawful and a fraud of Sarasota

County taxpayer's money. This should not be

left unpunished.

4. The bill of costs, which has been paid

by the Sarasota Memorial Hospital Board and not

by defendant Elliott, represents not only money

spent in this case but in at least three other

related litigations referred to above which are

still pending in state and federal Courts.

5. Sarasota county Public Hospital Board

has abused the power of the office tn allowing

such expenses for Dr. Elliott whose link with

related epaee should be recognized pending

completion of litigation questioning his

conduct.

6. Newly discovered evidence shows beyond

any doubt that as a result of the conspiracy and

scheming between defendant Dr. Elliott and

officials of Sarasota Memorial Hospital Board

and others, plaintiff's privileges at Sarasota

Memorial Hospital to practice medicine were

25

unlawfully revoked, in violation of

plaintiff's civil and constitutional

rights.

Ze Newly discovered evidence

should revove any _ shred of doubt that

scheming and conspiracy between Dr.

Elliott and other parties has resulted

directly and indirectly in non-renewal

of plaintiff's privileges by’ the

Sarasota County Public Hospital Board;

in spite of the fact that petitioner's

training and credentials in the field of

cardiology and internal medicine exceeds

those required from any physician

currently practicing at said hospital

(App. 152-159, lodged with the clerk).

This unlawful conduct was in violation

of plaintiff's civil rights and in

in violation of the United States Con-

stitution. Plaintiff feels that. Dr.

Elliott is fully responsible for the',in-

justice which was done and this case

should be remanded for new trial —_

26

a_ jury.

Based on irz foregoing, plaintiff

prays this Court to grant the

certiorari and stay the mandate for

costs until the case has been heard on

its merit.

Respectfully submitted,

Jel CL) Oe Se.

“MAHFOUZ EL SHAHAWY, M.D.

Plaintiff/Appellant Pro Se

1851 Arlington Street

Suite 206

Sarasota, Florida 33579

(813) 366-9800

27

BSBEBEEBEE EE EEA 2 22 ==

ae to ee ee ee ee ee ee oo ee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and

correct copy of this Petition ‘was furé

nished by mail to defendant Dr. Larry

Elliott and his counsel Mr. Frank E.

Strelec Esq. and Clare L. Hamner Esq.

P.O. Box 3979 Sarsota, Florida 33578,

Charles Johnson M.D., Chairman Sarasota

County Public Hospital Board, Sarasota

Memorial Hospital, 1700 Tamiami Trail,

Sarasota, Florida 33579, Department of

Justice, Washington D.C., and Mr. Philip

Beauchamp, Administrator, Sarasota Mem-

orial Hospital, 1700 Tamiami AFeail,

Sarasota, Florida 33579, this 16 day

of august, S98S-

val ff rf ,

Va e. jee he Ay }

M. El SHAHAWY, M.D., Petitioner Pro Se

1851 Arlington Street, Suite 206

Sarasota, Florida 33579

(813) 366-9800

STATE OF FLORIDA

COUNTY OF SARASOTA

SWORN AND SUBSCIBED TO ME THIS 16°?

DAY OF AUGUST, 1985, AND BEFORE ME

PERSONALY APPEARED MAHFOUZ EL SHAHAWY,

M.D., TO ME WELL KNOWN AND KNOWN TO ME

TO BE THE PERSON WHO EXECUTED THIS

DOCUMENT.

4

NOTARY PUBLIC Sarl

My Commission Expires:

Alis|ee

28

EBEEEEBEEEREESE ESBS S&=

ad ew ee oo - -* «- + tee 4 -_— o — om Fe «tee ~_—« ee

MAHFOUZ EL SHAHAWY, M.D.

Plaintiff-Appellant,

versus

LARRY P. ELLIOTT, M.D.

Defendant-Appellee

Appeal from the United States District Court for

the Middle District of Florida

ON PETITION FOR REHEARING

( May 21, 1985 )

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT,

Circuit Judges.

PER CURIAM:

*

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be

and the same is hereby denied.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

29

=-EP BEER EBEEEESES&&@ =

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 84-3618

Non-Argument Calendar

D.C. Docket No. 81-545

MAHFOUZ EL SHAHAWY, M.D.,

Plaintiff-Appellant,

Ve

LARRY P. ELLIOTT, M.D.

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

( April 18, 1985 )

Before FODBOLD, Chief Judge, KRAVITCH and HATCHETT,

Circuit Judges.

PER CURIAM: AFFIRMED. See Circuit Rule 25.

"Costs taxed against plaintiff-appellant."

Judgment Entered: April 18, 1985

For the Court: Spencer D. Mercer, Clerk

By: ’

Deputy Clerk

ISSUED AS MANDATE:

30