# Petition for Writ of Certiorari — El Shahawy v. Elliott

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 980

## Text

~~ \ |
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0634%3A1. Public record. Not legal advice.