Petition for Writ of Certiorari — Untracht v. Fikri (No. 07-932)

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ee Mai U.S.

07-932 JAN11 2008

No. 08- OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

STEVEN H. UNTRACHT, M.D., PH.D., F.A.C.S,

Petitioner.

ERDEN FIKRI, M.D., ET AL,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

STEVEN H. UNTRACHT, M.D.

123 Tank Drive

Johnstown, PA 15904

(814) 535-7875

Petitioner pro se

LEGAL PRINTERS, Washington DC e 202-747-24 e¢ legalprinters.com

QUESTIONS PRESENTED

1. Does state action, as contemplated by 42 U.S.C. §

1983, apply to private conduct undertaken pursu-

ant to mandatory governmental statute?

Does 42 U.S.C. § 1981 protect against discrimina-

tion by national origin?

3. Does the issuance of judicial opinions as “non-

precedential” violate the Constitutional guaran-

tee of equal protection of the laws?

COMPLETE LIST OF RESPONDENTS

Petitioner was Plaintiff/Appellant in the Courts below,

whereas the Respondents were all Defendants/Appellees:

Erden Fikri, M.D.

Dinesh Mathur, M.D

Vincent Fiorica, M.D.

Terry Wahl, M.D.

David R. Davis

Sanders Ergas, M.D.

P. James Ridella, M.D.

Bhaskaran Murali, M.D.

Will H. Farthing, M.D.

Brian Gunnlaugson, M.D

Richard Cartwright, M.D.

Denise Weisbrodt, R.N.

Richard Saluzzo, M.D.

Jacob Kolff, M.D.

Bruce Duke, M.D.

Narendra Pai, M.D.

William Fritz, M.D.

Paul Weygandt, M.D.

William M. Carney, M.D.

Harvey Slater, M.D.

George H. Benz, Jr., M.D.

Robert D. Fry, M.D.

Associated Anesthesiologists of Johnstown

UPMC (University of Pittsburgh Medical Center)

Health System, Inc. (““UPMC”)

UPMC Lee Regional Hospital

Lee Regional Health System, Inc.

Lee Regional Health System Foundation, Inc.

Conemaugh Health System

Memorial Medical Center.

TABLE OF CONTENTS

QUESTIONS PRESENTED

COMPLETE LIST OF RESPONDENTS

TABLE OF CONTENTS

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INTRODUCTION

THE OPINIONS AND ORDERS BELOW

JURISDICTION

STATUTES INVOLVED

ee Sse lada, Oe i atenacinnsiusinsatucsusccnecuseannesbammaucatmaiaa 1

Oe eee Bi oosasaescisceecesetoed eee 2

The Health Care Quality Improvement Act............ 3

STATEMENT OF THE CASE 7

A. The Health Care Quality Improvement Act

and the National Practioner Data Bank

REASONS FOR GRANTING THE WRIT..........00..0......

A. The Third Circuit’s ruling on § 1981

legitimizes PerseCcutiON. ..............ccccccsssesceescsseesecee

B. The Third Circuit’s ruling on § 1983

violates longstanding precedent of the

PUN rain circa eae ec tes tivevds Senexenixecnssans

C. The decision below leaves no remedy for

physicians or patients injured by sham

SE IIE i daiicnckigns Andceassatdadeinondiseae ke ieee 29

D. The Constitution guarantees every person

the protection of his or her civil rights,

which the courts below have deprived of

RES NaS BERG e AEN CSE ROU RS PORT era ORE OP ee 31

CONCLUSION

Untracht v. Fikri, 454 F.Supp.2d 289,

W.D.Pa., 2006. Aug 30, 2006

Untracht v. Fikri, 368 F.Supp.2d 409,

W.D.Pa., April 6, 2005

Third Circuit Order, October 30, 2007,

Denying Petition for Rehearing En Banc

Brief of Amicus Curiae, the Association of

American Physicians and Surgeons, to the

kes vases caer oe rea aoes ees 107a

TABLE OF AUTHORITIES

Cases

A.B. Small Co. v. American Sugar Refining

Co., 267 U.S. 233 (1925)

Anastasof v. United States, 223 F.3d 898,

899 (CA8)

Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S.

Ct. 1195 (2006) (per curiam)

Bell v. Cone, 543 U.S. 447, 459-60 (2005) (per

- | __ RNC RREN Ee DLE REID RT Ce ean re Sect Oe Cn aa 32

Berberian v. Lancaster Osteopathic Hospital

Association, 395 Pa. 257, 149 A.2d 456

(1959)

Bradshaw v. Richey, 546 U.S. 74, 126 S. Ct.

| RG mS MC eT Bay eA emer tee oT 31

Brosseau v. Haugen, 543 U.S. 194, 198 n. 3

(2004) (per curiam)

California Democratic Party v. Jones, 530

U.S. 567, 573 (2000)

City of Chicago v. Morales, 527 U.S. 41 (1999)

City of San Diego v. Roe, 547 U.S. 77 (2004)

(per curiam)

Coover v. Saucon Valley School Dist., 955 F.

Supp. 392 (3d Cir. 1997)

Craig v. Boren, 429 U.S. 190, 211 (1976)

CERRITO II ao oivinid ccs csenscnsnessevsseecennen 26

Dye v. Hofbauer, 546 U.S. 1, 126 S. Ct. 5

Se Te BUFO sas ccon dernnseinecedeadasavianccunasanhines 31

Eberhart v. United States, 546 U.S. 12, 126 S.

Ct. 403, 407 (2005) (per curiam)

Evans v. Buchanan, 555 F.2d 373, 378 (3d

Cir. 1977)

Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct.

EG Eas CZOOG) COEF CRF UTI) ainsi vase cccccgsccvscssssnacansenes 31

Government of the Virgin Islands v.

Paniagua, 922 F.2d 178 (3rd Cir. 1990)

Grayned v. City of Rockford, 408 U.S. 104

NESE ei Oe es On Nee ey aa aA eee 28

Holland v. Jackson, 542 U.S. 649 (2004) (per

ladimarco v. Runyon, 190 F.3d 151, 161 (3d

Cir, 1999)

lilinois v. Fisher, 540 U.S. 1174 (2004) (per

curtam)

Kane v. Garcia- Espitia, 546 U.S

407 (2005) (per curiam)

Kolender v. Lawson, 461 U.S. 352 (1983)

Middleton v. McNeil, 541 U.S. 433 (2004) (per

curiam)

Milkovich v. Lorain Journal, 497 U.S

(1990)

Miller v. Indiana Hospital, 277 P

370, 419 A.2d 1191 (1980)

Ministry of Defense and Support for . Arme od

Forces of Islamic Republic of Iran v. Elahi,

946 U.S. 450, 126 S. Ct. 1193 (2006) (per

(SSE aT Oe SD SPP A IR rT SCTE T OTE ‘

Mitchell v. Esparza, 540 U.S. 12, 15 (2003)

(per curtam) ......

Murray v. Silberstein, 882 F.2d 61 (3rd Cir.

Posner v. Lankenau Hosp., 645 F.Supp. 1102,

1106 (E.D.Pa. 1986). ............ ecenialla debe iateah ealeidicilse aiahisiebi

Ryan Operations G.P. v. Santiam-Midwest

Lumber Co., 81 F.3d 355 (3rd Cir. Pa.),

San Filippo v. Bongiovanni, 961 F.2d 1125

(3d Cir. 1992)

Scarano v. Central R. Co. of New Jersey, ‘

F.2d 510, 513 (8d Cir. 1953)

Schriro v. Smith, 546 U.S. 6, 126 S. Ct. 7

a a 31

Silkwood v. Kerr-McGee Corp., 464 U.S. 238,

i a ae a a a 29

Smith v. Allwright, 321 U.S. 649,

(1944)

Smith v. Texas, 543 U.S. 37 (2004) (per

STINT nc saniciidhecscanakiesencbaaaeaiinasaandamadelendasatidandnentane® 32

Stenberg v. Carhart, 530 U.S. 914 (2000)

Terry v. Adams, 345 U.S. 461 (1953)... 26

Yarborough v. Gentry, 540 U.S. 1 (2003) (per

ici ciiidiienidasbisetianstendden ciaciadedamacsudandsansuaees aaa

Constitutional Provisions

First Amendment 27, 33

Fifth Amendment ............... gi ee

Fourteenth Amendment............ 21, 24, 26, 27. 33. ;

Statutes

28 U.S.C. § 1254(1)

28 U.S.C. § 1331 | |

Be BO issseviksnncntecrsnscccenctreaniesnoriesdaciibncabosonss 21

ek Toe 2. | eae .... 2, 4, 20, 22, 24, 25

yy yy

42 U.S.C. § 1983 ......... ad caasehaieaniaeaidanir =

Medical Care Availability and Reduction of

Error Act, “MCARE,” 40 Pa.C.S. §

Pow ig 8 | INR LS AAEM a A PED 2

ne re ans evi paanddauuinbadekunwees

The Health Care Quality Improvement Act of

1986, as amended 01/26/98, 42 USC §§

T2101 of aoe. CTHOCGIA )...nccccccccsccscccccsecess ¢ 3, 7, !

Rules

F.R.C.P. 26(a)(1)

F.R.C.P. 37(c)(1)

Supreme Court Rule 10(a).......................

supreme Court Mule 1006). .................ccccccscceccccereses 24

SPUPU I SOUS TERMI BG occ ccciscccnccccnscncnccsscosecccasces 31

‘ ‘ 4 9 »

Ae ( )

9 & q &d

Other Authorities

Association of American Physicians and

Surgeons, Peer-review Amicus Briefs,

http://www.aapsonline.org/ peerreview-

cases.htm, (last accessed 1/3/2008)

Cole, J. and Bucklo, E.E., A Life Well Lived:

An Interview with Justice John Paul

Stevens, 32 No. 3 Litigation 8, 67 (Spring

RE PLR De SRT A oct 34

David W. Townend, Hospital peer review is a

kangaroo court, Medical Economics (Feb. 7,

2000),

http://www.memag.com/memag/content/prin

tContentPopup.jsp?id=122302 (last accessed

SITIES Si cisdinaciardundniunaatatensiedesisa dein alate 8

Edmund Burke

Gail Weiss, Is Peer Review Worth Saving?,

Medical Economics (Feb. 18, 2005),

http://www.memag.com/memag/content/prin

tContentPopup.jsp?1d=147405 (last accessed

eo TS LAN LEST Mae. 8

Jeff Chu, Doctors Who Hurt Doctors, Time 52

(Bhatt, BI Fe ivicnncdvasiinas pekinese eee 9

John G. Roberts, Jr., Senate Confirmation

Hearings, September 12-15, 2005,

http://frwebgate.access.gpo.gov/cgi-

bin/getdoc.cgi?dbname=109 senate hearing

s&docid=f:23539.wais, (last accessed

RD: ci cssisinsnsinet OMenensas tseanndaces 1, 23, 26, 27,

John Zicconi, Due Process or Professional

Assassination?, Unique Opportunities

(March/April 2001)

Richard S. Arnold, Unpublished Opinions: A

Comment, 1 J. App. Prac. & Process 219,

Be CR iadistitiecsatimicsispsdaea ae 34

Ron Wood, Jury says hospital defamed doctor,

harmed him financially, The Morning News

(Jan. 13, 2004)

Samuel A. Alito, Jr., Senate Confirmation

Hearings, January 9, 2006,

http://frwebgate.access.gpo. gov/cgi-

bin/getdoc.cgi?dbname=109 senate hearing

s&docid=f:25429.wais, (last accessed

1/4/2008). .......... isudideadiinibadaaetetsinisieieens ae

Starzl, T.E ., The Puzzle People, Memoirs of a

Transplant Surgeon, University of

Pittsburgh Press, 1992. ...................... See ee

Steve Twedt, The Cost of Courage, Pittsburgh

Post-Gazette, http://www.post-

gazette.com/pg/03299/234499.stm, (last

accecessed 1/3/2008)

Supreme Court, The Court and Constitutional

Interpretation:

http://www.supremecourtus.gov/about/const

itutional. pdf, (last accessed 1/3/2008). .....

Wilham W. Parmley, Clinical Peer Review or

Competitive Hatchet Job, 36 Journal of the

American College of Cardiology No. 7

/ (2000)

INTRODUCTION

This case—a shocking tale of greed, ego and even life

and death among doctors, hospitals and the unwitting

patients entrusted to their care—appeals to the most sacred

obligations of this Court: defining the perimeters of our civil

rights and assuring to every person within its jurisdiction

the benefits guaranteed by the Constitution, in the words of

the Chief Justice, to “uphold[] the rule of law and safe-

guard[} those liberties that make this land one of endless

possibilities for all Americans.” John G. Roberts, Jr., Senate

Confirmation Hearings, September 12-15, 2005 (opening

statement) (emphasis added).

THE OPINIONS AND ORDERS BELOW

1. Untracht v. Fikri, 2007 WL 2868028 (3rd Cir. (Pa.))

(Not selected for publication in the Federal Reporter) 3rd

Cir. (Pa.) Oct 01, 2007. (Reproduced in the Appendix at p.

la.)

2. Untracht v. Fikri, 454 F.Supp.2d 289 W.D.Pa. Aug 30,

2006. (Reproduced in the Appendix at p. 4a.)

3. Untracht v. Fikri, 368 F.Supp.2d 409 W.D.Pa. Apr 06,

2005. (Reproduced in the Appendix at p. 90a.)

JURISDICTION

The court of appeals entered judgment in this matter

on October 1, 2007. On October 30, 2007, that court denied

Plaintiffs petition for rehearing en banc (Pet. App. p. 105a).

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

42 U.S.C. § 1983

12 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, shall be hable to

the party injured in an action at law, suit in

equity, or other proper proceeding for redress .

42 U.S.C. § 1981

42 U.S.C. § 1981 provides:

(a) Statement of equal rights

All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and

to the full and equal benefit of all laws and

proceedings for the security of persons and

property as is enjoyed by white citizens, and

shall be subject to hke punishment, pains,

penalties, taxes, licenses, and exactions of

every kind, and to no other.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make

and enforce contracts” includes the making,

performance, modification, and termination of

contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the con-

tractual relationship.

The rights protected by this section are pro-

tected against impairment by nongovernmen-

tal discrimination and impairment under color

of State law.

The Health Care Quality Improvement Act

The Health Care Quality Improvement Act of 1986, as

amended 01/26/98, 42 USC §8§ 11101 et seq. (““HCQIA”),

provides in relevant part (emphasis added):

Title 42 - The Public Health And Welfare

Chapter 117 — Encouraging Good Faith Pro-

fessional Review Activities

Sec. 11101. Findings

The Congress finds the following:

(1) The increasing occurrence of medical mal-

practice and the need to improve the quality of

medical care have become nationwide prob-

lems that warrant greater efforts than those

that can be undertaken by any individual

State.

(2) There is a national need to restrict the abil-

ity of incompetent physicians to move from

State to State without disclosure or discovery

of the physician's previous damaging or in-

competent performance.

(3) This nationwide problem can be remedied

through effective professional peer review.

(4) The threat of private money damage liabil-

ity under Federal laws, including treble dam-

age hability under Federal antitrust law, un-

reasonably discourages physicians from par-

ticipating in effective professional peer review.

(5) There is an overriding national need to

provide incentive and protection for physicians

engaging in effective professional peer review.

Sec. 11111. Professional review

(a) In general

(1) Limitation on damages for professional re-

view actions

If a professional review action (as defined in

section 11151(9) of this title) of a professional

review body meets all the standards specified

in section 11112(a) of this title, except as pro-

vided in subsection (b) of this section -

(A) the professional review body,

(B) any person acting as a member or staff to

the body,

mal agreement with the body, and

(D) any person who participates with or assists

the body with respect to the action, shall not

be liable in damages under any law of the

United States or of any State (or political sub-

division thereof) with respect to the action.

The preceding sentence shall not apply to

damages under any law of the United

States or any State relating to the civil

rights of any person or persons, including

the Civil Rights Act of 1964, 42 U.S.C. 2000e,

et seq. and the Civil Rights Acts, 42 U.S.C.§

1981, et seg. Nothing in this paragraph shall

prevent the United States or any Attorney

General of a State from bringing an action, in-

cluding an action under section 15c of title 15,

where such an action is otherwise authorized.

(2) Protection for those providing information

to professional review bodies Notwithstanding

any other provision of law, no person (whether

as a witness or otherwise) providing informa-

tion to a professional review body regarding

the competence or professional conduct of a

physician shall be held, by reason of having

provided such information, to be hable in

damages under any law of the United States

or of any State (or political subdivision thereof)

unless such information is false and the person

providing it knew that such information was

false.

(b) Exception - If the Secretary has reason to

believe that a health care entity has failed to

report information in accordance with section

11133(a) of this title, the Secretary shall con-

duct an investigation. If, after providing notice

of noncompliance, an opportunity to correct

the noncompliance, and an opportunity for a

hearing, the Secretary determines that a

health care entity has failed substantially to

report information in accordance with section

11133(a) of this title, the Secretary shall pub-

lish the name of the entity in the Federal Reg-

ister. The protections of subsection (a)(1) of

this section shall not apply to an entity the

name of which is published in the Federal Reg-

ister under the previous sentence with respect

to professional review actions of the entity

commenced during the 3-year period beginning

30 days after the date of publication of the

name.

Sec. 11133. Reporting of certain profes-

sional review actions taken by health

care entities

(a) Reporting by health care entities

(1) On physicians

Each health care entity which—

(A) takes a professional review action that ad-

versely affects the clinical privileges of a phy-

sician for a period longer than 30 days;

(B) accepts the surrender of clinical privileges

of a physician—

(i) while the physician is under an in-

vestigation by the entity relating to pos-

sible incompetence or improper profes-

sional conduct, or

(ii) in return for not conducting such an

investigation or proceeding; or

fessional society, takes a professional review

action which adversely affects the membership

of a physician in the society, shall report to the

Board of Medical Examiners, in accordance

with section 11134 (a) of this title, the infor-

mation described in paragraph (3).

(3) Information to be reported

The information to be reported under this sub-

section is—

(A) the name of the physician or practitioner

involved,

(B) a description of the acts or omissions or

other reasons for the action or, if known, for

the surrender, and

cumstances of the action or surrender as the

Secretary deems appropriate.

(1) Health care entities

A health care entity that fails substantially to

meet the requirement of subsection (a)({1) of

this section shall lose the protections of section

11111 (a)(1) of this title if the Secretary pub-

lishes the name of the entity under section

11111 (b) of this title.

STATEMENT OF THE CASE

A. The Heaith Care Quality Improvement Act and

the National Practioner Data Bank

In passing the HCQIA, Congress deeply insinuated it-

self into hospital staff governance and explicitly bestowed

on hospitals, most of which are private entities, powers

theretofore exclusively reserved for the States: to declare

physicians incompetent and “to restrict the ability of in-

competent physicians to move from State to State” (42

U.S.C. § 11101, above). Hospitals exercise these powers

through local peer review of its doctors and the reporting of

consequential adverse privileging actions pursuant to 42

U.S.C. §§ 11133 and 11134. The federal government estab-

lished the National Practitioner Data Bank (“Data Bank”)

as a central repository to receive these adverse reports.

The Data Bank operates as a blacklist. Virtually no

physician entered into it can survive professionally. By

law, when a physician applies for clinical privileges the

hospital queries the Data Bank and the hospital refuses to

admit the physician to its staff if there is an adverse entry.

With hospitals fending off litigation, they have little reason

to see past a black mark in the Data Bank to allow a black-

listed physician to use its facilities. A surgeon like Peti-

tioner cannot practice his profession without hospital

privileges.

B. Sham Peer Review, a Mask for Evil

Disgruntled doctors and hospital administrators all

too often abuse the awesome power of HCQIA as a salve for

their own personal failings, character defects and profes-

sional impotence. See, e.g., Gail Weiss, Is Peer Review

Worth Saving? Medical Economics (Feb. 18, 2005)

(http://www.memag.com/memag/content/printContentPopu

p.jsp?id=147405); Ron Wood, Jury says hospital defamed

doctor, harmed him financially, The Morning News (Jan.

13, 2004); John Zicconi, Due Process or Professional Assas-

sination?, Unique Opportunities (March/April 2001); Wil-

liam W. Parmley, Clinical Peer Review or Competitive

Hatchet Job, 36 Journal of the American College of Cardiol-

ogy No. 7 (2000); David W. Townend, Hospital peer review

is a kangaroo court, Medical Economics (Feb. 7, 2000),

(http://www.memag.com/memag/content/printCotentPopup.

jsp?id=122302). Respondent UPMC’s own world-famous

transplant surgeon, Dr. Tom Starzl, pointedly denounces

these practices as “administrative murder:”

The most bitter of these struggles occur in

medical universities and hospitals, for stakes

which cannot be divulged because they are too

ignoble to admit. Who wants to concede that

money, academic territory, vanity, or control of

the talents and ideas of one’s colleagues is the

reason for the conflict? These motives are

painted over and presented as generosity, vir-

tue, morality, humility, institutional purpose,

and concern for society in general. If one in-

tends to permanently remove an adversary

from the field of endeavor, one must do so se-

cretly so as to avoid being accused of adminis-

trative murder—the termination of someone’s

professional career. !

1 Starzl, T.E., The Puzzle People, Memoirs of a Transplant Surgeon,

University of Pittsburgh Press, 1992, p. 267.

Like anyone else, physicians and hospitals strive to

maximize their “utility,” including revenues, profits and

ego. When abused, HCQIA and the Data Bank provide a

shortcut to the pot of gold by empowering those so inclined

to inflict pain and confiscate property, livelihood, career

and peace of mind, all without notice, due process or reper-

cussion. The economic incentive for abuse of peer review is

obvious and undeniable. If there are a few surgeons’in a

market, then elimination of one them will cause the in-

comes of the others to increase dramatically. Similarly, if a

physician blows the whistle on serious medical errors that

could cost hospitals and doctors millions of dollars in mal-

practice hability or government fines, then the torture and

ruin of that physician will dissuade other potential whistle-

blowers and save the errant hospitals and doctors a fortune.

See, Steve Twedt, The Cost of Courage, Pittsburgh Post-

Gazette, 2003 (http://www.post-gazette.com/pg/03299/2344

99. stm),

This growing misuse of peer review and the Data

Bank has become so widespread that it has acquired a

descriptive name: “sham peer review.” What purports to be

“peer review” under the pretext of protecting patients is

really a transparent mask for evil and a fig leaf for evildo-

ers. The incentive for misusing this power is even greater

when a greedy doctor suffers a drop in income or loss of

pride because he has a more successful competitor. See,

e.g., Jeff Chu, Doctors Who Hurt Doctors, Time 52 (Aug. 15,

2005) (“Th[e] system is too open to manipulation and needs

reform, says the 4,000-member American Association [sic]

of Physicians and Surgeons.”). If a similar type of peer

review were available to retail stores, then 1t would be in

the self-interest of a struggling K-Mart to try “sham peer

review’ to end the competition from Wal-Mart.

A respected national organization, the Association of

American Physicians and Surgeons (“AAPS”) dedicates

much of its resources to studying and combating this men-

acing problem. After a thorough review of the complete

record of the proceedings at Respondent UPMC Lee Re-

gional Hospital (“Lee”), and after its own statistician evalu-

ated the total clinical outcome data from 1990 through 2002

for Petitioner and his detractors for every patient that these

physicians ever treated at any hospital in Pennsylvania—

data that the hospitals themselves provided to the Com-

monwealth—AAPS felt compelled to provide the Third

Circuit with its objective factual findings and expertise in

an amicus curiae brief, reproduced in the Appendix starting

at page 107a, below. AAPS values its longstanding credibil-

ity and submits amicus briefs very selectively. See,

http://www.aapsonline.org/peerreview-cases.htm. It does

not represent Petitioner, but rather a membership commit-

ted to the best interests of its patients. If necessary to

achieve this goal, it even submits amicus curiae briefs

opposing the doctor. See, e.g., Stenberg v. Carhart, 530 U.S.

914 (2000). AAPS concluded definitively that the Respon-

dents all victimized Petitioner, Dr. Steven H. Untracht,

with a classical sham peer review.

C. Factual background and proceedings below?

In October 1994, a senior UPMC Lee Regional (“Lee”)

surgeon had retired and his associate Dr. Robert McKay

resigned his clinical privileges and relocated. Lee, therefore,

sought to recruit Petitioner to fill the impending void,

telling him that the quality of the remaining surgeons was

inadequate to prevent a continued loss of patients to Re-

spondent Conemaugh Health System’s Memorial Medical

Center (“Conemaugh”). Lee was particularly concerned with

the other surgeons’ unwillingness to treat critically ill

2 Because the Respondents refused to provide any mandatory

disclosures pursuant to F.R.C.P. 26(a)(1), to attend their deposi-

tions or to provide any probative discovery, the facts are taken

from evidence admitted in administrative hearings at the two

Respondent Johnstown, PA, hespitals and from other evidence

properly entered by Petitioner into the case below according to

the Federal Rules of Civil Procedure.

patients or to adopt advanced techniques of minimally

invasive surgery.

The other general surgeons objected to another col-

league coming to Johnstown, PA, and, as documented in

Lee’s own meeting minutes, they complained to the hospi-

tal’s then CEO on September 4, 1994, that there would not

be adequate work for them if another surgeon came to

town. Those minutes state:

A concern was expressed regarding the hospi-

tal recruiting a general surgeon to replace Dr.

Robert McKay. It was noted that it was the

opinion of the general surgeons currently on

staff that the volume in Johnstown does not

warrant another general surgeon. It was felt

that prior to recruitment the surgical depart-

ment should have an opportunity to express

their opinion. (Lee Hearing Exhibit U-189).

Over these objections, Petitioner was appointed to

Lee’s and Conemaugh’s medical staffs in early 1995. From

the day Petitioner arrived he was subjected to major hostil-

ity from some of these competing general surgeons, who lost

considerable business. By 1998 Respondent Fikri’s inpa-

tient surgical caseload had declined by 35% since Petitioner

arrived in Johnstown, corresponding to a net income de-

cline of 50%. At about that time, Respondent Fikri com-

plained to Respondent Dinesh Mathur that Mathur was

referring too much work to Petitioner and not enough to

Fikri.

Additionally, for his entire tenure, Petitioner had been

the only active general surgeon excluded from Lee’s surgi-

cal quality review committee (““SQRC,” the hospital’s com-

mittee charged with carrying out peer review), despite his

annual requests for a seat on that committee. Instead, the

other general surgeons, especially Respondents Fikri and

Murali, populated the SQRC and turned it into a “star-

chamber” proceeding against Petitioner, secretly singling

out his cases and labeling them with “quality concerns’—

often not specifying what were those concerns and, unfath-

omably, even where the patient suffered no morbidity or

mortality. Concurrently, these competitors on the SQRC

reviewed their own cases and passed them off with no

quality concerns, even in cases with major morbidity and

mortality. They excluded Petitioner from the proceedings,

despite explicit provisions in Lee’s medical staff bylaws,

Article [V — Part E: Section 2. (a) (1996), which require:

Any medical staff appointee whose clinical

work is scheduled for discussion at a regular

departmental meeting shall be so notified and

shall be expected to attend such meeting. If

such individual is not otherwise required to at-

tend the meeting, the chairman of the depart-

ment shall give the individual advance written

notice of the time and place of the meeting at

which attendance is expected. Whenever ap-

parent or suspected deviation from standard

clinical practice is involved, the notice to the

individual shall so state, shall be given by cer-

tified mail, return receipt requested and the

individual’s attendance at the meeting at

which the alleged deviation is to be discussed

shall be mandatory. (Emphasis added).

Petitioner never received any notice specified by this

provision, contrary to what the Lee would have done were

they truly interested in “patient safety,” providing fair

investigation or improving the quality of healthcare.

Nonetheless, while Respondent Fikri’s practice was

shrinking, Petitioner flourished, aided by restraints im-

posed on his detractors by Dr. George Wheeling, chairman

of the Lee’s surgery department during Petitioner's first

four years there. Dr. Wheeling gave the baseless complaints

against Petitioner the full benefit of any doubt and had

them evaluated in two independent extramural reviews by

a surgeon who found no deviations from the standard of

care by Petitioner and praised Petitioner’s clinical results.

Dr. Wheeling testified:

Q: During the course of since you were in-

volved with Dr. Untracht’s [{] situation . . . for

several years [] while these charts were being

sent out and so forth, did at any time, in your

opinion, 1s there anything selective about that,

Dr. Untracht being singled out or targeted or

whatever? You know, I don't want to use a

[pejorative] term?

THE WITNESS: Yes, I would have to say that

there was a general feeling of adversity to-

wards Dr. Untracht, as opposed to many other

members of the surgical department. And I

can’t give you any specific reason. The im-

pression was that it was political and person-

alities entered largely into many of the com-

plaints that arose or resulted in this review.

(Lee Hearing Tr. 12/1/01, p. 118).

Dr. Wheeling further testified:

Q Doctor, . . . were you familiar at that time

with the type of cases that Dr. Untracht un-

dertook?

A Yes, we did review that. That was part of

our review and we came to the conclusion that

he did treat an older population and he did, in

fact, participate in surgery which is complex

and that his results were quite good and there

was no basis upon which we could censure him

or reduce his privileges. .. . [Y]ou would an-

ticipate in the older population with more

complex diseases .. . a greater morbidity anda

greater mortality and, in fact, we did not find

that to be the case, in Dr. Untracht’s [pa-

tients]. (Lee Hearing Tr. 12/1/01, p. 109, em-

phasis added).

That review found that whereas Petitioner met the

standard of care, one of his competing surgeons did not. As

if unconcerned with furthering quality, Lee took nn, reme-

dial action to correct the deficient practice of that substan-

dard competing surgeon.

In October 1998, Petitioner submitted his second bi-

ennial reappointment application to Lee’s medical staff. Dr.

Wheeling, saw no reason not to reappoint him without

restriction. But the next month Dr. Wheeling retired and

was replaced as chief of Lee’s surgery department by Re-

spondent Fikri, Petitioner’s direct competitor.

In one of his first acts as chief, Fikri reviewed Peti-

tioner’s credentials file and then secretly withdrew Peti-

tioner’s reappointment application and sequestered the file

from the hospital’s committees and trustees for more than

seven months, violating Pennsylvania law and Lee’s by-

laws, Article VIII Part A § 4 (b) (1996), which states that

the department chairman shall review and comment upon

the applicant’s qualifications and return the reappointment

papers within fifteen days.* Instead, and despite lack of

any prior notice as mandated by the bylaws Article IV -

Part E: Section 2. (a) (1996), page 12 hereinabove, Fikri

appeared before the Lee’s credentials committee in July

1999 with SQRC chairman, Respondent Fiorica, and de-

manded that Petitioner not be reappointed to the medical

staff because of alleged deviation from standard clinical

practice. Fikri and Fiorica justified their recommendation

by contending that during the 1997-1998 appointment term

3 In 2001, Pennsylvania's Department of Health investigated this

issue, complaint # PITO01C390J, and concluded by clear and convincing

evidence that Lee violated its bylaws by permitting Fikri to sequester

Petitioner's reappointment application

Petitioner had six cases in which the SQRC found quality

concerns.

One of those six cases was that of an elderly man

made despondent by a botched, ill-advised hemorrhoidec-

tomy performed by Fikri himself. Because of Fikri’s refusal

to correct the problem, this patient sought refuge from

Petitioner. Petitioner promptly cured the painful complica-

tion, without incident. To this day, the Lee has yet to reveal

their “quality concern” with Petitioner’s treatment of this

elderly man.

According to the July 12, 1999, credentials committee

minutes, based on Fikri and Fiorica’s comments Lee re-

solved to create an objective “summary of peer comparisons

including major procedures performed, infection rates,

blood loss, etc.” “to isolate the depth of concern” about

Petitioner (Lee Hearing Exhibit U-190). This type of com

parison is a national gold standard for assessing quality of

care and constitutes the sine qua non for alleging substan-

dard practice. Lee suppressed that comparison, because

Petitioner’s clinical results were the very best in the sur

gery department. When asked for a copy of it, the hospital

refused to provide it, responding, “the report was not pre-

pared.”

Lee next sent the records of the contested cases to Dr.

J. Milburn Jessup, a UPMC cancer surgeon chosen by Fikri

himself to “rubber stamp” Fikri’s allegations. Instead, Dr.

Jessup returned his report on September 1, 1999, in which

he found no deviation from accepted standards of care in

Petitioner’s handling of those six cases. Respondents Wahl

and Ergas, then Lee’s medical director and credentials

committee chairman, respectively, reviewed Dr. Jessup’s

report with Petitioner on Thursday, September 2, 1999, and

told Petitioner that they saw no problem with anything in

Dr. Jessup’s report and would ask Fikri to sign off on

Petitioner's reappointment application promptly.

Instead of signing off on Petitioner’s reappointment,

Fikri and Fiorica returned to the credentials committee on

October 4, 1999—as the minutes of that meeting state—‘“to

discuss the issues,” and insisted that the committee disre-

gard Dr. Jessup’s report and not allow Petitioner to practice

surgery. This lobbying violated Lee’s bylaws, Article IV,

Part B, § 8 (1996), which specify:

In any instance where a department chairper-

son, or member of any medical staff committee

has a conflict of interest in any matter involv-

ing another medical staff appointee that comes

before such individual or committee, or in any

instance where such an individual brings the

complaint against that appointee, such indi-

vidual shall not participate in the discussion

or voting on the matter, and shall absent him-

self from any meeting concerning the ap-

pointee in question, although that individual

may be asked, and may answer, any questions

concerning the matter before leaving. (Empha-

sis added).

Betraying economic motives, the minutes of that Octo-

ber 1999 credentials committee meeting also reveal that the

committee, Fikri and Fiorica resolved that Petitioner's

competitors at Lee were to “proctor” Petitioner, who “would

have to pay the physician who is proctoring.”

Fikri continually refused to sign Petitioner’s reap-

pointment application, in an ongoing violation of Article

VIII Part A § 4 (b), supra, unless Lee devised a stratagem

to remove Petitioner from the medical staff and report him

to Data Bank. Lee refused to enforce its own bylaws.

Instead, Lee and various of the other Respondents

continually besmirched Petitioner’s character and compe-

tence—especially at medical staff committee meetings, from

which they wrongfully excluded Petitioner—with falsehoods

that they expanded and repeated incessantly despite being

dispelled by each of the hospital’s several outside surgeon

reviewers. Fikri and Murali then compelled Lee to deny

equal access of Petitioner’s patients to its operating rooms

and to change the hospital’s bylaws specifically to prejudice

Petitioner retroactively.

Next, when Petitioner failed to provide his detractors

with even a single surgical complication or bad clinical

result, between noon, Saturday, October 14 and 8 a.m.,

Tuesday, October 17, 2000, Lee then resorted to stripping

the insulation from one of Petitioner’s surgical instruments,

a cautery electrode that the hospital reserved for his exclu-

sive use, knowing that such sabotage would likely cause a

fatal complication. Although Petitioner single-handedly

averted mortality in the patient injured that fateful Tues-

day by the tampered surgical equipment, 59-year-old Mr.

George Fesko, Lee used this one complication—a crisis of

their own creation—to initiate a sham peer review against

Petitioner.‘

In ushering in the sham discipline, glaring evidence

further proves that Lee ignored the conflict-of-interest

clause, Article IV, Part B, § 8 (1996). Not only does the

attendance record for a July 10, 2001, meeting of Lee’s

executive committee (the committee that advises the hospi-

tal’s board on medical staff privileging issues) not state that

any of the general surgeons were asked to leave the meet-

ing and not participate in the discussion about Petitioner,

who was never permitted to appear before the committee,

4 A subsequent review involving the defective surgical equipment by

Pennsylvania’s Department of Health, Complaint # PIT01C407J,

concluded by clear and convincing evidence that Lee was culpable in its

procedures regarding this instrument. The tampering is obvious from

surgical video recordings of the clectrode’s use on October 14, 2000,

unknown to Lee until it already started administrative hearings

against Petitioner. In 2002, Mr. Fesko and his wife sued Lee, but not

Petitioner, for the injuries caused by the damaged cautery probe.

Subsequent evaluation of the cautery electrode by the Fesko’s engineer

confirmed the defects and alteration in the instrument.

that very document (Lee Hearing Exhibit H-139, introduced

by Lee for other purposes, unaware of this significance)

reveals that Respondent Murali, Petitioner’s direct com-

petitor, was permitted to vote to restrict Petitioner’s prac-

tice of surgery!

Ultimately, through vague, disparate and arbitrary

criteria, Lee revoked Petitioner’s clinical privileges and

terminated his career in September 2003, with a defama-

tory report to the Data Bank. Lee took this draconian

action despite the conclusion of its own hearing panel,

which urged that Petitioner should be permitted to practice

surgery at the hospital, and despite having denied Peti-

tioner the right to call witnesses in opposition to the revoca-

tion. See Pet. App. p. 131la. vt seq. Lee was all too eager to

destroy a surgeon’s career on false pretense, because pur-

suant to Petitioner’s whistle blowing to Mr. Fesko’s family

and regulatory agencies the hospital suffered litigation and

sanctions from the Joint Commission for the Accreditation

of Healthcare Organizations and Pennsylvania’s Depart-

ment of Health.

All along, Conemaugh reviewed Lee’s allegations and

found them baseless® until mid 2002 when it began negoti-

ating with Respondent UPMC Health System, Inc., to

acquire Lee, which had collapsed financially because of

executive mismanagement and its poor clinical results

5 In a subsequent lawsuit filed by a patient’s family (that of Mr. E.,

see below) against Conemaugh for not having suspended Petitioner’s

clinical privileges on the basis of the ongoing allegations at Lee, Cone-

maugh certified that it had reviewed all of Lee’s accusations against

Petitioner, saw nothing in them that warranted restricting his surgical

privileges and that “up to and including November 22, 2002,” Petitioner

“appeared to be a competent surgeon.” Conemaugh prevailed in that

lawsuit; hence, judicial estoppel applies to any inconsistent assertions

in this matter. Scarano v. Central R. Co. of New Jersey, 203 F.2d 510,

513 (3d Cir. 1953), Ryan Operations G.P. v. Santiam-Midwest Lumber

Co.,, 81 F.3d 355 (3rd Cir. Pa.), 1996), Government of the Virgin Islands

vu. Paniagua, 922 F.2d 178 (3rd Cir. 1990); Murray v. Silberstein, 882

F.2d 61 (3rd Cir. 1989).

reported by Pennsylvania’s governmental healthcare qual-

ity agency.®

Several months later, November 22, 2002, Conemaugh

and some of its employees, together with Respondents Pai

and Fritz (both of whom were employed by Respondent

Associated Anesthesiologists of Johnstown), then caused

the death of one of Petitioner’s elderly patients with a

lethal combination of intravenous drugs and thereafter

threatened Petitioner that if he wanted to continue his

career, he had “better make an 11th-hour deal with Lee,”

and settle all claims against UPMC and Lee on their terms.

When (and because) Petitioner failed to do so, Cone-

maugh then resolved to revoke his clinical privileges by

accusing him of having caused the death of his 85-year-old

patient. Ultimately, Conemaugh’s own attorney agreed at

the end of an intra-hospital hearing, on May 21, 2003, that

Petitioner had proven to a high burden that he had not

mistreated Mr. E., the patient who died, and had not used

bad clinical judgment, but maintained that:

Doctor Untracht acknowledged during my

Cross Examination that in his meetings with

the E family after this unfortunate incident

involving Mr. E that he had instructed them

that Mr. E’s death resulted from the actions of

the anesthesia department. He had assisted

them in retaining the services of a malpractice

attorney to represent the family against those

doctors. And we would submit that that ad-

mission, which is part of the record, is a clear

demonstration that Doctor Untracht has not

demonstrated the collegiality and professional

6 In August 2005, Pennsylvania’s attorney general charged that these

merger negotiations violated the antitrust laws. The merger was

permitted to consummate only after Conemaugh conceded control of

some of its business practices to the Commonwealth.

conduct required of a doctor under the bylaws.

(Conemaugh Hearing Tr. 5/21/2003).

For this very reason alone,” Conemaugh revoked Peti-

tioner’s clinical privileges in August 2003 and immediately

thereafter submitted a false, defamatory report to the Data

Bank. Conemaugh took this action notwithstanding that it

constitutes illegal retaliation against whistleblowers under

Pennsylvania’s Medical Care Availability and Reduction of

Error Act, “MCARE,” 40 Pa.C.S. § 1303.307(b)(4), which

requires open, honest communication between a physician,

his patient and his patient’s family.®

Consequently, in May 2003 Petitioner filed a lawsuit

against the Respondents in the district court. Pursuant to

Respondents’ motions the pleadings were amended. In

addition to various state-law claims and a request for relief

under MCARE, Petitioner stated federal claims of civil

rights violation under 42 U.S.C. §§ 1983 and 1981 (reverse

7 The district court later confirmed the factual finding that “[t]he

Conemaugh hearing panel determined revocation of Plaintiff's privi-

leges was warranted based on the unprofessional nature of Plaintiffs

communications with EE’s family.” Pet. App. p. 38a, below.

This disparate treatment of Petitioner contrasts with Conemaugh’s

appeasement of Fikri. In October 2002 Fikri operated on the wrong side

of a young woman’s neck at Conemaugh, then falsified the medical

record to conceal the misdeed and lied to the patient that he removed

her symptomatic tumor. When this poor woman’s symptoms continued

unabated, on December 12, 2002, (just six days before Conemaugh

resolved to revoke Plaintiffs clinical privileges for what it called

“unprofessional conduct”) Fikri’s then former patient needed to undergo

another major surgical operation by another surgeon at Conemaugh,

this time on the correct side of her neck. Conemaugh took no discipli-

nary action against Fikri, even after the patient sued.

8 In its reports to the Data Bank, Conemaugh stated, notwithstand-

ing its own official conclusions to the contrary and without describing

the acts or omissions or other reasons for the action (per §

11133(a)(3)(B), p. 6, above), that Petitioner had caused the death of Mr.

I. by poor medical judgment, that after having caused the death

Petitioner behaved unethically and that after due process Conemaugh

revoked Petitioners clinical privileges.

national origin discrimination by Fikri, Murali, Mathur and

Pai) and antitrust violations under the Sherman Act §§ 1

and 2. The case was venued in the United States District

Court for the Western District of Pennsylvania according to

28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1367

(supplemental jurisdiction).

Petitioner explicitly stated in paragraph 99 his Com-

plaint that the Defendants’ mandatory reporting to the

Data Bank pursuant to the HCQIA makes them state

actors under § 1983:

These Defendants, as state actors, acted under

color of Pennsylvania state law while exercis-

ing their peer review responsibility pursuant

to federal law (HCQIA) and the 14th Amend-

ment of the United States Constitution.

Each Respondent refused to appear for his or her

deposition, to provide Petitioner with any meaningful

discovery or even to provide any mandatory disclosures

pursuant to F.R.C.P. 26(a)(1), despite lacking protective

orders. Instead, after close of discovery the Defendants

moved for summary judgment, which the district court

granted as to each federal claim, in a 69-page opinion

issued on August 30, 2006, reproduced in the Appendix

beginning on p. 4a. Almost without exception, the district

court copied verbatim the statements of facts as pled by the

Respondents in their motions for summary judgment and

then deemed those allegations as undisputed for the pur-

pose of disposing the case.

In its opinion, the district court not once mentioned

the Respondents’ refusal to provide Petitioner with discov-

ery or disclosure, despite Petitioner having preserved his

rights and emphasized these violations repeatedly and by

the requisite affidavit in his submissions opposing sum-

mary judgment. Although the district court acknowledged

Petitioner’s claim that state action applied because of the

Data Bank reporting pursuant to HCQIA (Pet. App. p. 63a

{FN14]), it immediately dismissed the claim by stating only,

“.. the Court finds that Plaintiff fails to create a genuine

issue of material fact that any of the § 1983 Defendants are

state actors...” (id.). Likewise, the district court disposed

of the § 1981 reverse national-origin discrimination claim

by ruling, “Section 1981, however, does not recognize claims

for national origin discrimination. 42 U.S.C. § 1981. There-

fore, Plaintiffs assertion of reverse national origin dis-

crimination under § 1981 fails to state a claim upon which

relief can be granted” (Pet. App. p. 81a). In the case of the

antitrust claims, despite the ongoing, illegal anticompeti-

tive merger discussions between Conemaugh, Lee and

UPMC and Conemaugh’s direct threat to Petitioner that he

had “better make an 11th-hour deal with Lee,” the district

court ruled, “[ojther than bare allegations, Plaintiff offers

no evidence of a conspiracy, an essential part of an anti-

trust violation” (Pet. App. p. 50a). About Conemaugh’s

undisputed threat, the district court stated, “[t}]he allega-

tion borders on the absurd... .” (Pet. App. p. 62a).9

Petitioner timely appealed to the Third Circuit on Sep-

tember 22, 2006, thereafter supported by AAPS’s amicus

curiae brief. After review by the merits panel, the Third

Circuit scheduled the matter for oral argument, which was

heard on September 26, 2007. Five days later, on October 1,

2007, the Third Circuit affirmed the district court without

comment. The opinion, attached hereto, states only, “[wje

have carefully considered the very thorough, 69 page

memorandum opinion of the District Court, the appellate

9 Because the Respondents refused to provide Petitioner with any

discovery before moving for summary judgment, Petitioner did not

learn until long after he opposed the motion that the acquisition of Lee

by Conemaugh violated antitrust laws. However, when it dismissed

Petitioner’s case the district court knew about the antitrust violations

because Pennsylvania’s lawsuit against UPMC, Lee and Conemaugh

was filed in the same venue in August 2005. Petitioner did, nonethe-

less, make the Third Circuit aware of the Commonwealth’s claims

against the Respondents and the prejudice caused by the Respondents’

refusal to provide discovery and disclosure.

the appellate briefs of the parties, and the oral argument

before this Court. For the reasons stated by the District

Court, we will affirm its August 26, 2006, judgment in favor

of the defendants” (Pet. App. p. 3a).

In taking this extraordinary step, the panel failed to

address any of Petitioner’s federal issues, each of which

rests firmly on well-settled precedent of the Third Circuit

itself and of this Honorable Court. On October 30, 2007, the

Third Circuit declined to rehear the appexi en banc.

REASONS FOR GRANTING THE WRIT

The record below vividly abrogates the standard of

“Equal Justice Under Law.” It lacks “evenhandedness,

predictability, stability, [and] the appearance of integrity in

the judicial process” that the adherence to rules and prece-

dent guarantee. John G. Roberts, Jr., Senate Confirmation

Hearings, September 12-15, 2005 (response to Sen. Spec-

ter). Among the troubling lst of transgressions, we could

find no other case where a district court (even the district

court below) adjudicated a summary judgment motion by

accepting as true and undisputed the facts as pled by the

moving party, discarded the non-movant’s evidence as

“absurd,” and then entered summary judgment for the very

party that refused to attend its own deposition or even to

provide any mandatory F.R.C.P. 26(a)({1) disclosures. Under

F.R.C.P. 37(c)(1) the Respondents’ refusal to disclose pur-

suant to Rule 26(a)(1) required the district court to deny

their motions: “A party that without substantial justifica-

tion fails to disclose information required by Rule 26(a)...

is not, unless such failure is harmless, permitted to use as

evidence at a trial, at a hearing, or on a motion any witness

or information not so disclosed.” Rule 37(c)(1). According to

the Third Circuit’s own precedent, abuse of discretion exists

“when the judicial action is arbitrary, fanciful, or unreason-

able, or when improper standards, criteria, or procedures

are used.” Evans v. Buchanan, 555 F.2d 373, 378 (3d Cir.

1977). Yet, under such bizarre circumstances, the Third

Circuit chose to say only “we affirm” and call it a day.

We also could not find another case from the Third

Circuit where the court affirmed an opinion below without

comment, especially a case that the circuit’s own merits

panel selected for oral argument, and especially following

argument by less than one week. Third Circuit opinions are

routinely issued more than two months after argument.

Thusly was Petitioner denied his Fourteenth Amend-

ment right to equal protection of law and ejected from court

without a single reason ever being mentioned as to why

state action under § 1983 does not apply to activities man-

dated by the government, or why § 1981 does not protect

against discrimination by national origin or why the Re-

spondents need not have appeared at their own depositions

or even provided the disclosures required of all litigants.

The courts below have arbitrarily and capriciously rendered

a decision in favor of the defaulting parties, both profoundly

wrong and intolerably harsh in result; the Third Circuit has

so far departed from the accepted and usual course of

judicial proceedings, and sanctioned such a departure by

the district court, as to call for an exercise of this Court’s

supervisory power. SUP. CT. R. 10(a).

Beyond these extreme departures, this case presents

important, fundamental questions of federal law regarding

civil rights under §§ 1981 and 1983 that either have not

been, but should be, settled by this Court or have been

decided in a way conflicting with this Court's relevant

decisions. Most importantly, this matter presents a serious

Constitutional issue that affects everyone and begs for this

Court’s attention. SUP. CT. R. 10(c).

A. The Third Circuit’s ruling on § 1981 legitimizes

persecution.

Under Pennsylvania law, a hospital’s bylaws consti-

tute a contract between each medical staff member and the

hospital (Berberian v. Lancaster Osteopathic Hospital

Association, 395 Pa. 257, 149 A.2d 456 (1959); Miller v.

Indiana Hospital, 277 Pa.Super. 370, 419 A.2d 1191 (1980),

Posner v. Lankenau Hosp., 645 F.Supp. 1102, 1106 (E.D.Pa.

1986)), and their violations at Lee and Conemaugh by

foreign-born Fikri, Murali, Mathur and Pai—as painstak-

ingly detailed herein above (p. 10 et seq.)—are just the sort

of wrongs that § 1981 was meant to redress by mandating

that all persons shall have equal rights to “make and en-

force contracts.”

According to the district court and, hence, the Third

Circuit, “[a] plaintiff also carries the initial burden to

establish a prima facie case for reverse racial discrimina-

tion in that he must show that the employer is treating

similarly situated people less favorably than others because

of their race; however, a claim for national origin discrimi-

nation is not a viable claim under § 1981.” Pet. App. p. 79a,

(emphasis original).

Ignoring the statute’s plain wording and the Third

Circuit’s own precedent in Jadimarco v. Runyon, 190 F.3d

151, 161 (3d Cir, 1999) (“the plaintiff must be able to pro-

duce sufficient evidence . . . that the defendant treated

plaintiff less favorably than others because of his race,

color, religion, sex, or national-origin”), the ruling below

presumes that 42 U.S.C. § 1981 really means to say “[a]ll

persons within the jurisdiction of the United States, other

than those who differ only by religion, sex, or national

origin, shall have the same right in every State and Terri-

tory to make and enforce contracts, to sue, be parties, give

evidence . . . as is enjoyed by white citizens. . .” Ergo, acting

on ethnic hatred or misogyny are permissible under § 1981,

provided the abuser and victim share the same pigmenta-

tion.

Such are the unsustainable consequences of the dis-

trict court and Third Circuit’s ruling, by their abusing the

tiers of scrutiny and imposing such divisive limitations on

our civil rights laws (see, e.g., Craig v. Boren, 429 U.S. 190,

211 (1976) (concurring opinion)), thereby providing those so

inclined with the most subtle, most efficacious means to

unravel the fabric of American society. As explained by the

Chief Justice, “there are areas in which you think it is

almost never the case that distinctions that are drawn can

be legitimate, distinctions based on race or ethnicity .... it

is perfectly appropriate to apply the Equal Protection

Clause to issues of gender and other types of discrimination

beyond the racial discrimination that was obviously the

driving force behind it.” John G. Roberts, Jr., Senate Con-

firmation Hearings, September 12-15, 2005 (responses to

Sens. Durbin and Grassley, respectively) (emphasis added).

B. The Third Circuit’s ruling on § 1983 violates

longstanding precedent of the Supreme Court.

This Court settled the question of state action in 1944,

by holding that when private parties undertake statute-

mandatory actions that damage other individuals, those

private parties are state actors. “The party takes its charac-

ter as a state agency from the duties imposed upon it by

state statutes; the duties do not become matters of private

law because they are performed by a [private] party.” Smith

v. Allwright, 321 U.S. 649, 663, 64 S.Ct. 757, 765 (1944); see

also, Terry v. Adams, 345 U.S. 461, 463 (1953) (public

function test). This Court has not since disturbed this

important holding. See, e.g., California Democratic Party v.

Jones, 530 U.S. 567, 573 (2000) (“when a State prescribes a[

] process that gives a special role to [private] parties, the

parties’ discriminatory action becomes state action‘).

Smith concerned a private political party in its con-

duct of primary elections under mandate by state law.

Smith was deprived by the private Texas Democratic Party

of the ability to vote in the Party’s primary election, con-

ducted pursuant to Texas law. This Court held that the

Democratic Party, although a private entity, was a state

actor.

Even more immediate than the right to vote, Peti-

tioner was deprived of his good name, livelihood and cher-

ished medical career by the actions of private hospitals and

doctors conducted pursuant to the special role conferred by

HCQIA. In quoting Shakespeare’s Othello, Chief Justice

Rehnquist spoke for this Court about the centuries-old

injunction against character assassination: “he that filches

from me my good name—Robs me of that which not en-

riches him,—And makes me poor indeed.” Milkovich v.

Lorain Journal, 497 U.S. 1 (1990). In the words of his

successor, the dismissal for lack of state action of Peti-

tioner’s § 1983 claim constitutes “[a]n overruling of a prior

precedent[, which] is a jolt to the legal system.” John G.

Roberts, Jr., Senate Confirmation Hearings, September 12-

15, 2005 (response to Sen. Specter).

If private hospitals became state actors for reporting a

physician to the Data Bank and for other activities man-

dated by HCQIA, a physician aggrieved by wrongful report-

ing would, as Congress ostensibly intended, have automatic

standing to bring a federal lawsuit under § 1983. Such a

lawsuit would not be subject to the qualified immunity of

HCQIA § 11111(a) (1)(D). Thus, Petitioner could sue Cone-

maugh under § 1983 for violating his First Amendment

right to free speech. Furthermore, because rogue hospitals

necessarily premise sham peer review on vague, disparate

criteria of healthcare quality—as did Lee against Peti-

tioner—a physician so shammed could base his civil-rights

claim on the void-for-vagueness doctrine.

The void-for-vagueness doctrine under the Fourteenth

Amendment Due Process Clause arose in the context of

challenges to the clarity of criminal statutes. See, Kolender

v. Lawson, 461 U.S. 352, 357 (1983); Coover v. Saucon

Valley School Dist., 955 F. Supp. 392, 401 (3d Cir. 1997). By

failing to articulate the proscribed conduct fully, unconsti-

tutionally vague laws offend notions of fair warning, a

fundamental aspect of due process protection. City of Chi-

cago v. Morales, 527 U.S. 41, 56 (1999); Grayned v. City of

Rockford, 408 U.S. 104, 108-09 (1972); San Filippo v.

Bongiovanni, 961 F.2d 1125, 1135 (3d Cir. 1992). This

Court explained that:

Vague laws offend several important values.

First, because we assume that man is free to

steer between lawful and unlawful conduct, we

insist that laws give the person of ordinary in-

teligence a reasonable opportunity to know

what is prohibited, so that he may act accord-

ingly. Vague laws may trap the innocent by

not providing fair warning. Second, if arbitrary

and discriminatory enforcement is to be pre-

vented, laws must provide explicit standards

for those who apply them. A vague law

impermissibly delegates basic policy matters

to policemen, judges, and juries for resolution

on an ad hoc and subjective basis, with the at-

tendant dangers of arbitrary and discrimina-

tory application.

Grayned, 408 U.S. at 108-09. Because the same fairness

concerns arise in the course of civil litigation, the void-for-

vagueness doctrine also applies to civil cases. See generally

A.B. Small Co. v. American Sugar Refining Co., 267 U.S.

233 (1925); San Filippo, 961 F.2d 1125. Thus, under the

void-for-vagueness doctrine, which Petitioner properly pled,

a state-actor hospital may not remove a good-quality physi-

cian from its medical staff on the basis of cloudy, nonspe-

cific post-hoc criteria, but must follow well-defined, well-

recognized, objective standards of medical quality.

For these reasons, by affirming that Data Bank re-

porting is state action this Court would not only respect

precedent; it would coincidentally promulgate the perfect

remedy for sham peer review. State action provides equal,

potent protection for doctors (against sham peer review)

and for hospitals (against frivolous lawsuits in response to

good-faith peer review). Hospitals could not remove good

doctors from their staffs. But also, hospitals could not

remove only some poor doctors while permitting other,

favorite substandard physicians to continue practicing.

They would need to apply proper standards equally to all

medical staff members. In this way, such a ruling would

conform to this Court’s entrenched precedent and permit

HCQIA to accomplish precisely what Congress intended, to

the public’s ultimate benefit.

C. The decision below leaves no remedy for physi-

cians or patients injured by sham peer review.

The plain wording of the HCQIA (p. 3, above) makes

abundantly clear that Congress did not intend to empower

private hospitals to practice sham peer review, but rather

expected them to use the same standards and criteria in

evaluating its doctors as those used by the states them-

selves; otherwise the law would achieve a result counter to

its purpose, as was the situation with Petitioner. Yet,

without the ability of a wrongfully blacklisted doctor to sue

a hospital under § 1983, HCQIA’s immunity provisions (§

11111fa]{1]) leave no legal remedy not only for the doctor,

but also for patients harmed by the effects of the sham.

“Congress would [not], without comment, remove all means

of judicial recourse for those injured by illegal conduct.”

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984).

After an exhaustive review of the record and a rigor-

ous statistical evaluation of clinical outcome data, AAPS

found that Petitioner cared for the most critically ill pa-

tients with the most difficult clinical problems, patients

that Fikri, Murali and the other Lee surgeons refused to

treat (Pet. App. p. 117a). Yet, even then, Petitioner

achieved clinical results significantly better than those of

his detractors, who ruined Petitioner simply because they

were incapable of competing with him. As a result, with

false Data Bank reports they deprived the United States,

not just Johnstown, PA, of a superior doctor, committing

Petitioner's unwitting potential future patients to signifi-

cantly higher likelihood of morbidity and mortality under

treatment by other surgeons.'° Unless this Court grants a

writ of certiorari in this matter, these patients and their

loved ones will continue to have no protection or recourse

against those who deprived them, via sham peer review, of

a physician who likely would have avoided their morbidity

or untimely death. This defeats what Congress intended.

Although such foul play might be standard practice in the

countries in which Fikri, Murali, Mathur and Pai were born

and educated, America can and should enforce higher

standards.

If this case were only about the “administrative mur-

der” of a single doctor, the stakes would not be so high.

Caught in the middle of this conflict are the innocent pub-

lic, people like Mr. George Fesko, Mr. E. and the young

woman whose throat Fikri cut for naught (n. 7, p. 20), each

of whom suffered because of the toxic atmosphere fomented

by sham peer review. Everyday people like these through-

out the entire country—not just doctors like Petitioner—

depend on the integrity of the system to protect them when

in need of modern medicine or simple justice. By granting a

writ of certiorari and defining yet again the boundaries of

our civil rights, this Court has a unique and rare opportu-

nity to stop medical peer review from becoming primarily a

struggle for money and power, leveraged against patients

who serve as nothing more than commodities and bargain-

ing chips.

10 Pennsylvania’s medical licensing board undertook its own investi-

gation into the revocation of Petitioner’s clinical privileges at Lee and

Conemaugh. Based on the facts, including Petitioner’s superior clinical

outcomes, Pennsylvania took no action against Petitioner's medical

license, which remains in good standing. The licensing board, however,

has no authority to order the reinstatement of Petitioner’s clinical

hospital privileges; only the courts can do so.

D. The Constitution guarantees every person the

protection of his or her civil rights, which the

courts below have deprived of Petitioner.

If this Court were disinclined to order full merits brief-

ing out of concern for its limited resources, it should none-

theless consider summary reversal, perhaps with a well-

deserved judgment of default against the Respondents, so

as to protect paramount Constitutional guarantees and to

fix a travesty in the administration of justice.

Supreme Court Rule 16.1 provides that this Court

may resolve a petition for certiorari by issuing a “summary

disposition on the merits.” SUP. CT. R. 16.1. Summary

dispositions, invariably reversals, occur quite regularly.

During the 2006 Term there have been more than eight

summary reversals (not counting a confsssion of error by

the government).!! Four of those eight suinmary reversals

involved unpublished opinions in the courts of appeals.

During this Court’s 2004 Term there were four summary

11 Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 (2006) (per

curiam) (grant of cert. and summary reversal of en banc Ninth Circuit

due to obvious error); Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S. Ct.

1195 (2006) (per curiam) (granting cert. and vacating unpublished

Eleventh Circuit decision due to error in standard applied); Ministry of

Defense and Support for Armed Forces of Islamic Republic of Iran v.

Elahi, 546 U.S. 450, 126 S. Ct. 1193 (2006) (per curtam) (granting cert.

and summarily vacating decision of Ninth Circuit for error in failing to

consider a critical legal issue underlying its decision); Bradshaw uv.

Richey, 546 U.S. 74, 126 S. Ct. 602 (2005) (per curiam) (granting cert.

and vacating decision of Sixth Circuit due to error); Kane v. Garcia-

Espitia, 546 U.S. 9, 126 S. Ct. 407 (2005) (per curiam) (granting cert.

and reversing unpublished Ninth Circuit decision based on error);

Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403 (2005) (per

curiam) (granting cert. and reversing Seventh Circuit decision based on

error); Schriro v. Smith, 546 U.S. 6, 126 S. Ct. 7 (2005) (per curiam)

(granting cert. and vacating unpublished order of Ninth Circuit based

on error in ordering state court trial); Dye v. Hofbauer, 546 U.S. 1, 126

S. Ct. 5 (2005) (per curiam) (granting cert. and reversing unpublished

Sixth Circuit decision based on error).

reversals.!2 And during the 2003 Term there were five

summary reversals, two of which were of unpublished court

of appeals decisions.!3 Over these three Terms, therefore,

summary reversals account for between 5% and 14% of this

Court’s published dispositions on the merits. This Court

thus is quite willing to use summary reversal as a more

efficient alternative to full review in appropriate cases. In

this matter, where the answer to cach of the first two

questions presented for review herein is clearly and unde-

niably “Yes” and free of doubt, any lesser action would be

tantamount to a decision on the merits and turn Petitioner

into a second-class citizen.

In light of the extreme departures of the courts below,

however, Equal Justice begs for more than the Band-Aid of

a mere remand. This Petition does not concern erroneous

factual findings or the misapplication of a properly stated

12 Bell v. Cone, 543 U.S. 447, 459-60 (2005) (per curiam) (granting

cert. and reversing Sixth Circuit based on error in giving insufficient

deference to prior state court decision); Brosseau v. Haugen, 543 U.S.

194, 198 n. 3 (2004) (per curiam) (granting cert. and reversing Ninth

Circuit decision “to correct a clear misapprehension of the qualified

immunity standard”); City of San Diego v. Roe, 547 U.S. 77 (2004) (per

curiam) (granting cert. and reversing Ninth Circuit decision based on

fact-bound error); Smith v. Texas, 543 U.S. 37 (2004) (per curiam)

(granting cert. and reversing Texas Court of Criminal Appeals based on

error concerning jury instruction).

13 Holland v. Jackson, 542 U.S. 649 (2004) (per curiam) (granting

cert. and reversing unpublished Sixth Circuit decision based on error

regarding fact-specific application of law); Middleton v. McNeil, 541

U.S. 433 (2004) (per curiam) (granting cert. and reversing Ninth

Circuit decision based on error in evaluating particular jury instruc-

tions); Illinois v. Fisher, 540 U.S. 1174 (2004) (per curiam) (granting

cert. and reversing seemingly unpublished Appellate Court of Illinois

decision based on simple misapplication of law); Mitchell v. Esparza,

540 U.S. 12, 15 (2003) (per curiam) (granting cert. and reversing Sixth

Circuit decision based on court having “failed to cite, much less apply,”

controlling statutory provision); Yarberough v. Gentry, 540 U.S. 1

(2003) (per curtam) (granting cert. and reversing Ninth Circuit decision

based on fact-specific analysis of the objective adequacy of a closing

argument by defense counsel).

rule of law. Rather, the actions of the Respondents and then

those of the courts below have deprived the Petitioner of his

irrevocable civil rights as guaranteed by the First, Fifth

and Fourteenth Amendments to the United States Consti-

tution. The judicial result of constricting the boundaries of

Petitioner’s civil rights (as detailed above at p. 23 et seq.)

has sanctioned conduct utterly intolerable in a civil society

(e.g., pp. 17, 19, above), inflicted by powerful, politically

connected Respondents (UPMC, Lee and Conemaugh) allied

to four naturalized aliens (Fikri, Murali, Mathur and Pai)

who swore an oath not to instigate any of these wrongs in

return for the privilege of becoming Americans!

In effecting such a perverse, apocalyptic outcome, the

Third Circuit cocooned its actions within the confines of a

non-precedential opinion. That the Third Circuit failed to

publish its decision is just another reason to view that

decision with great skepticism. The use of unpublished

decisions lacking precedential force is inconsistent with the

judicial function. See Anastasof v. United States, 223 F.3d

898, 899 (CA8) (R. Arnold, J.) (“We hold that the portion of

Rule 28A(i) that declares that unpublished opinions are not

precedent is unconstitutional under Article III, because it

purports to confer on the federal courts a power that goes

beyond the judicial.”), vacated as moot, 235 F.3d 1054 (CA8

2000) (en banc). As stated most succinctly by the Chief

Justice, “judges operate as judges when they are confined

by the law.” John G. Roberts, Jr., Senate Confirmation

Hearings, September 12-15, 2005 (response to Sen.

Grassley).

Unpublished opinions seem too often to function as an

excuse or tactic for less than rigorous analysis of the is-

sues—in Petitioner’s case, no analysis at all. In praising a

more open and candid approach by the Seventh Circuit, this

Court has implicitly criticized decisions, much like this one,

that “bur[y] the issue by proceeding in a summary fashion.”

Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 407

(2005) (per curiam) (praising court of appeals for ruling

squarely on an issue in a manner that “facilitated our

review,” and not “burfying] the issue by proceeding in a

summary fashion”).

A panel’s use of an unpublished opinion allows it to

ignore inconvenient precedent within the circuit or else-

where, tends to insulate a decision from review by this

Court by failing to generate a true “split,” and can be a

means of using purportedly fact-dependant rulings to

undermine legal principles and even inviolable rights that a

court may wish to vitiate but cannot reject explicitly. Cf.

Richard S. Arnold, Unpublished Opinions: A Comment, 1 J.

App. Prac. & Process 219, 223 (1999) (use of unpublished

opinions creates the “temptation” to ignore inconvenient

precedent and “encourages” sweeping difficulties of a de-

sired disposition “under the rug”). By definition, a non-

precedential opinion creates law that applies only to the

parties in the dispute under consideration and, therefore,

violates the Fourteenth Amendment.

Justice Stevens has recognized, “occasionally judges

will use the unpublished opinion as a device to reach a deci-

sion that might be a little hard to justify.” Cole, J. and

Bucklo, E.E., A Life Well Lived: An Interview with Justice

John Paul Stevens, 32 No. 3 Litigation 8, 67 (Spring 2006).

In this instance the decision is much more than a little hard

to justify; it is utterly outrageous. By acting summarily and

non-precedentially in this matter, the Third Circuit has

carved out an exception to the Constitution for the Liti-

gants alone, uniquely stripping Petitioner of inalienable

rights and turning him into a disenfranchised, defrocked

pariah in the country of his birth, permitting Murali,

Mathur and Pai to import the caste system under which

they were born and use it at will to declare Petitioner an

“untouchable.” As stated by the Court itself and conveyed in

the words carved into the architrave of its building’s en-

trance, “Equal Justice Under Law” (see, http://www. supre-

mecourtus.gov/about/constitutional.pdf), this Court bears

the ultimate responsibility to defend the Constitution

against such mockery and rape.

During his ascent to this Court from the Third Circuit,

Justice Alito told the world:

And there is nothing that is more important

for our republic than the rule of law. No per-

son in this country, no matter how high or

powerful, is above the law, and no person in

this country is beneath the law.

Samuel A. Alito, Jr., Senate Confirmation Hearings, Janu-

ary 9, 2006. “[W]ithout the rule of law,” explained Chief

Justice Roberts, “any rights are meaningless.” John G.

Roberts, Jr., Senate Confirmation Hearings, September 12-

15, 2005 (opening statement). Hence, the Court of last

resort cannot deny this Petition without betraying the

foremost reason for its very existence. As cautioned 250

years ago by Edmund Burke—a long-serving member of the

British Parliament who supported the American colonies in

the dispute that ultimately gave birth this Court—“[al]ll

that is necessary for the triumph of evil is that good men do

nothing.”

CONCLUSION

The Supreme Court should grant a writ of certiorari in

this matter, or, in the alternative, a summary reversal.

Respectfully submitted,

STEVEN H. UNTRACHT, M.D.

123 Tank Drive

Johnstown, PA 15904

(814) 535-7875

Petitioner pro se

January 11, 2008

APPENDIX

UNTRACHT V. FIKRI, 2007 WL 2868028

United States Court of Appeals, Third Circuit.

Steven H. UNTRACHT, M.D., PH.D., F.A.C.S.

M.D. Erden FIKRI;M.D. Dinesh Mathur; M.D. Vincent

Fiorica; M.D. Terry Wahl; David R. Davis; M.D. Sanders

Ergas; M.D. P. James Ridella; M.D. Bhaskaran Murali;

Will H. Farthing, M.D.; Brian Gunnlaugson, M.D.; Rich-

ard Cartwright, M.D.; Denise Weisbrodt, R.N.; Richard

Saluzzo, M.D.; Jacob Kolff, M.D.; Bruce Duke, M.D.;

Narendra Pai, M.D.; William Fritz, M.D.; Paul Weygandt,

M.D.; Nicholas Jacobs; James Church, M.D.; Robert D.

Fry, M.D.; Larry Kaiser, M.D.; William M. Carney, M.D.;

Harvey Slater, M.D.; George H. Benz, Jr., M .D.; Univer-

sity of Pennsylvania; Cleveland Clinic Foundation; Stew-

art M. Flam; R. Joseph Federowicz; Dickie Mccamey &

Chilcote, a Professional Corporation; Associated Anesthe-

siologists of Johnstown; UPMC Health System, Inc.;

UPMC Lee Regional Hospital; Conemaugh Health Sys-

tem; Memorial Medical Center; Windber Medical Center;

John Does 1-20; Lee Regional Health System, Inc.; Lee

Regional Health System Foundation, Inc.

Steven H. Untracht, Appellant.

No. 06-4221.

Argued Sept. 26, 2007.

Opinion Filed Oct. 1, 2007.

On Appeal from the United States District Court for the

Western District of Pennsylvania, (D.C. No. 08-cv-

00199J), District Judge: Hon. Kim R. Gibson.

Russell J. Heiple, Esq. (Argued), Johnstown, PA, for

Appellant.

Alyson J. Kirleis, Esq. (Argued), Dickie, McCamey &

Chilcote, Pittsburgh, PA, for Appellees Lee Regional

Health System, Inc.; Lee Regional Health System Foun-

dation, Inc.; UPMC Lee Regional Hospital; UPMC Health

System, Inc.; Dickie, McCamey & Chilcote; R. Joseph

Federowicz; Stewart M. Flam; George H. Benz, Jr.; Har-

vey Slater; William M. Carney; Denise Weisbrodt; Rich-

ard Cartwright; Brian Gunnlaugson; Will H. Farthing;

Bhaskaran Murali; P. James Ridella; Sanders Ergas;

David R. Davis; Terry Wahl; Vincent Fiorica; Dinesh

Mathur; Erden Fikri.

William J. Rogers, Esq. (Argued), Thomson, Rhodes &

Cowie Pittsburgh, PA, for Appellees Memorial Medical

Center; Conemaugh Health System; William M. Carney;

Robert D. Fry; William Fritz; Narendra Pai; Bruce Duke;

Jacob Kolff; Richard Saluzzo.

Andrew L. Schlafly, Esq., New York, NY, for Amicus-

Appellant Association of American Physicians & Sur-

geons, Inc.

Before AMBRO, JORDAN and ROTH, Circuit Judges.

OPINION

ROTH, Circuit Judge:

*1 Dr. Steven H. Untracht brought an action in U.S.

District Court against 29 physicians, health care profes-

sionals, medical groups, health systems, and medical

facilities, claiming violation of his civil rights under 42

U.S.C. §§ 1981 and 1983, federal antitrust violations,

defamation, and other state law causes of action, includ-

ing intentional infliction of emotional distress, tortious

interference with existing and prospective contractual

relations, civil conspiracy, breach of contract, and more.

After numerous proceedings, including a transfer of venue

from the Eastern District to the Western District of

Pennsylvania, the District Court entered summary judg-

ment for all defendants on Dr. Untracht’s Sherman Act

Section 1 claim, Sherman Act Section 2 claim, 42 U.S.C. §

1983 claim, and 42 U.S.C. § 1981 claim for retaliation.

The court dismissed with prejudice Dr. Untracht’s 42

U.S.C. § § 11112 claim and his 1981 reverse discrimina-

tion claim and dismissed his remaining claims over which

the court had supplemental jurisdiction. The District

Court denied Dr. Untracht’s Cross Motion for Summary

Judgment, Injunctive Relief and for the Court’s assump-

tion of Supplemental Jurisdiction. Dr. Untracht appealed.

The District Court had jurisdiction of this case under 28

U.S.C. §§ 1331 and 1367. We have jurisdiction of this

appeal under 28 U.S.C. § 1981. We have carefully consid-

ered the very thorough, 69 page memorandum opinion of

the District Court, the appellate briefs of the parties, and

the oral argument before this Court. For the reasons

stated by the District Court, we will affirm its August 26,

2006, judgment in favor of the defendants.

C.A.3 (Pa.),2007.

Untracht v. Fikri

Slip Copy, 2007 WL 2868028 (8rd Cir.(Pa.))

UNTRACHT V. FIKRI, 454 F.SUPP.2D 289,

W.D.PA., 2006. AUG 30, 2006

United States District Court,

W.D. Pennsylvania.

Steven H. UNTRACHT, MD, PhD, FACS Plaintiff,

Erden FIKRI, MD, et al. Defendants.

No. Civ.A. 03-199J.

Aug. 30, 2006.

Background: Surgeon, whose staff privileges at two

hospitals were terminated, brought action against thirty-

six defendants, including individual physicians and

health care professionals, a university, a law firm, two

lawyers, an anesthesiology group, two health systems,

four medical facilities and 20 John Doe defendants, alleg-

ing Sherman Act violations, Section 1983 civil rights

violations, tortious interference with prospective economic

advantage, negligence, perjury and defamation. Defen-

dants filed motions to dismiss, or, in the alternative, for

summary judgment. Surgeon filed cross motion for sum-

mary judgment, injunctive relief and for the court’s as-

sumption of supplemental jurisdiction.

Holdings: The District Court, Gibson, J., held that:

(1) hospital was not judicially estopped by a statement it

made in its answer in malpractice case filed against

surgeon and hospital and position taken in related arbi-

tration proceedings;

(2) arbitration result in malpractice case was not entitled

to collateral estoppel effect;

(3) surgeon did not have antitrust standing to bring

Sherman Act claim against hospitals;

(4) surgeon failed to establish Sherman Act claim against

either hospital or their doctors;

(5) surgeon failed to establish Sherman Act conspiracy to

monopolize claim;

(6) hospitals and doctors who recommended and/or par-

ticipated in peer review actions against surgeon were not

state actors for § 1983 purposes; and

(7) surgeon’s alleged whistleblower activities were not

protected under § 1981.

Defendants’ motions granted.

West Headnotes

[1] KeyCite this headnote

157 Evidence

1571 Judicial Notice

157k10 Geographical Facts

157k10(6) k. Distances Between Places. Most Cited

Cases

A court can take judicial notice of distances.

[2] KeyCite this headnote

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)3 Proceedings

170Ak2533 Motion

170Ak2533.1 k. In General. Most Cited Cases

A motion to dismiss may be converted to a motion for

summary judgment if the materials submitted warrant a

conversion and the parties had adequate notice.

[3] KeyCite this headnote

228 Judgment

228XVII Foreign Judgments

228k828 Effect of Judgments of State Courts in United

States Courts

228k828.9 Nature of Judgment

228k828.9(4) k. Decision on Pleadings. Most Cited

Cases

228 Judgment KeyCite this headnote

228XVII Foreign Judgments

228k828 Effect of Judgments of State Courts in United

States Courts

228k828.22 k. Pleading, Evidence and Enforcement.

Most Cited Cases

Surgeon’s claims before district court, which were raised

in one of his previously filed state court cases which were

dismissed on the basis of preliminary objections, were not

barred by collateral estoppel or claim preclusion since

orders dismissing state court cases did not specify on

which preliminary objection the cases were dismissed and

there was no argument that the preliminary objections

constituted an adjudication on the merits.

[4] KeyCite this headnote

156 Estoppel

156111 Equitable Estoppel

156ITI(B) Grounds of Estoppel

156k68 Claim or Position in Judicial Proceedings

156k68(2) k. Claim Inconsistent with Previous

Claim or Position in General. Most Cited Cases

Doctrine of judicial estoppel prevents a litigant from

asserting a position that is inconsistent with one prev-

ously taken before a court or agency.

[5] KeyCite this headnote

156 Estoppel

156I1II Equitable Estoppel

156111(B) Grounds of Estoppel

156k68 Claim or Position in Judicial Proceedings

156k68(2) k. Claim Inconsistent with Previous

Claim or Position in General. Most Cited Cases

Application of judicial estoppel doctrine involves a three-

part test: 1) whether the party’s present position is irrevo-

cably inconsistent with the position it asserted in the

prior proceeding; 2) whether the party changed its posi-

tion in bad faith; and 3) whether the use of judicial estop-

pel is tailored to address the affront to the court’s author-

ity or integrity

[6] KeyCite this headnote

156 Estoppel

156111 Equitable Estoppel!

156I11(B) Grounds of Estoppel

156k68 Claim or Position in Judicial Proceedings

156k68(2) k. Claim Inconsistent with Previous

Claim or Position in General. Most Cited Cases

In surgeon’s suit against hospital arising from termina-

tion of his clinical privileges, hospital was not judicially

estopped by a statement it made in its answer in the

malpractice case filed against surgeon and hospital and

position taken in related arbitration proceedings, that it

was not negligent in credentialing surgeon through No-

vember, 2002; there was nothing inconsistent between

hospital’s defense that it was not negligent in credential-

ing surgeon between 1995 and November, 2002, and

surgeon’s removal from hospital’s medical staff subse-

quent to November, 2002, and there was no evidence that

hospital’s assertions were accepted or adopted by any

court in the course of the litigation so as to evidence bad

faith on the part of hospital for deviating from those

assertions.

[7] KeyCite this headnote

156 Estoppel

1L56III Equitable Estoppel

L56I1I(B) Grounds of Estoppel

156k68 Claim or Position in Judicial Proceedings

156k68(2) k. Claim Inconsistent with Previous

Claim or Position in General. Most Cited Cases

Judicial estoppel is an extraordinary remedy that should

be used only when a party’s inconsistent behavior would

result in a miscarriage of justice.

[8] KeyCite this headnote

25T Alternative Dispute Resolution

25TII Arbitration

25TII(H) Review, Conclusiveness, and Enforcement of

Award

25Tk381 Conclusiveness of Adjudication

25Tk382 k. In General. Most Cited Cases

Arbitration result in malpractice case was not entitled to

collateral estoppel effect in surgeon’s suit against hospital

arising from termination of his clinical privileges; al-

though the issue of surgeon’s negligence was likely at the

forefront of the matters litigated in the arbitration pro-

ceeding, arbitrator did not offer any explanation as to why

he reached the decision he did, but simply entered an

award in favor of the malpractice case defendants, which

resulted in the malpractice case plaintiff receiving the

“low” end of the high-low arbitration.

[9] KeyCite this headnote

29T Antitrust and Trade Regulation

29TXVII Antitrust Actions, Proceedings, and Enforce-

ment

29TXVII(B) Actions

29Tk959 Right of Action; Persons Entitled to Sue;

Standing; Parties

29Tk963 Injury to Business or Property

29Tk963(1) k. In General. Most Cited Cases

To prove antitrust standing a plaintiff must show that: 1)

he has suffered the type of injury the antitrust laws were

intended to prevent; and 2) the injury ilows from that

which makes the defendant’s acts unlawful.

[10] KeyCite this headnote

29T Antitrust and Trade Regulation

29TXVII Antitrust Actions, Proceedings, and Enforce-

ment

29TXVII(B) Actions

29Tk959 Right of Action; Persons Entitled to Sue;

Standing; Parties

29Tk963 Injury to Business or Property

29Tk963(1) k. In General. Most Cited Cases

10a

Factors to be employed in an antitrust standing analysis

include: 1) the causal connection between the antitrust

violation and the harm to the plaintiff and the intent by

the defendant to cause the harm, with neither factor alone

conferring standing; 2) whether the plaintiffs alleged

injury is of the type for which the antitrust laws were

intended to provide redress; 3) the directness of the in-

jury, which addresses the concerns that liberal applica-

tion of standing principles might produce speculative

claims; 4) the existence of more direct victims of the

alleged antitrust violations; and 5) the potential for

duplicative recovery or complex apportionment of dam-

ages.

{11] KeyCite this headnote

29T Antitrust and Trade Regulation

29TXVII Antitrust Actions, Proceedings, and Enforce-

ment

29TXVII(B) Actions

29Tk959 Right of Action; Persons Entitled to Sue;

Standing; Parties

29Tk963 Injury to Business or Property

29Tk963(1) k. In General. Most Cited Cases

Recovery by a private plaintiff on an antitrust claim can

only be had where the loss stems from a competition-

reducing aspect or effect of the defendant’s behavior.

[12] KeyCite this headnote

297 Antitrust and Trade Regulation

29TXVII Antitrust Actions, Proceedings, and Enforce-

ment

29TXVII(B) Actions

lia

29Tk959 Right of Action; Persons Entitled to Sue;

Standing; Parties

29Tk963 Injury to Business or Property

29Tk963(3) k. Particular Cases. Most Cited Cases

Surgeon, whose staff privileges at two hospitals were

terminated, did not have antitrust standing to bring

Sherman Act claim against hospitals; there was no show-

ing that hospitals acted in concert, and surgeon was not

shut out from competing in the market by hospitals’

actions, rather, surgeon had an active avenue of competi-

tion, his staff privileges at a third hospital, that he chose

to voluntarily foreclose. Sherman Act, § 1, 15 U.S.C.A. § 1.

[13] KeyCite this headnote

29T Antitrust and Trade Regulation

29TXVII Antitrust Actions, Proceedings, and Enforce-

ment

29TXVII(B) Actions

29Tk959 Right of Action; Persons Entitled to Sue;

Standing; Parties

29Tk963 Injury to Business or Property

291Tk963(1) k. In General. Most Cited Cases

Voluntary foreclosure of one’s own opportunities for

competition is not the type of antitrust injury for which

the antitrust laws were designed to provide redress.

[14] KeyCite this headnote

29T Antitrust and Trade Regulation

29TVI Antitrust Regulation in General

29TVI(B) Cartels, Combinations, Contracts, and Con-

spiracies in General

12a

29Tk537 k. In General. Most Cited Cases

To establish a Sherman Act violation for contract, combi-

nation, or conspiracy in restraint of trade, a plaintiff must

prove: 1) concerted action by the defendants; 2) that

produced anti-competitive effects within the relevant

product and geographic markets; 3) that the concerted

actions were illegal; and 4) that he was injured as a

proximate result of the concerted action. Sherman Act, §

1,15U.8.C.A. § 1.

{15] KeyCite this headnote

29T Antitrust and Trade Regulation

29TVI Antitrust Regulation in General

29TVI(B) Cartels, Combinations, Contracts, and Con-

spiracies in General

29Tk542 Participants

29Tk543 k. In General. Most Cited Cases

Unilateral action does not support liability under

Sherman Act for contract, combination, or conspiracy in

restraint of trade no matter what the motivation; there

must be evidence that tends to exclude the possibility of

independent action, meaning that the evidence reasona-

bly tends to prove that the alleged conspirators had a

conscious commitment to a common scheme designed to

achieve an unlawful objective. Sherman Act, § 1, 15

LSC. A. & 1.

{16] KeyCite this headnote

29T Antitrust and Trade Regulation

29TVI Antitrust Regulation in General

29TVI(E) Particular Industries or Businesses

29Tk593 k. Medical Services. Most Cited Cases

13a

Surgeon, whose staff privileges at two hospitals were

terminated, failed to establish Sherman Act claim against

either hospital or their doctors; surgeon did not demon-

strate that, as a result of the peer review actions at both

hospitals, either the doctors on staff at one hospital or the

doctors on staff at the other coerced their respective

hospitals into revoking surgeon’s privileges or that hospi-

tals engaged in concerted activity coercing one another to

revoke surgeon’s privileges. Sherman Act, § 1, 15 U.S.C.A.

_e9

[17] KeyCite this headnote

29T Antitrust and Trade Regulation

29TVI Antitrust Regulation in General

29TVI(C) Market Power; Market Share

291Tk555 Relevant Market

29Tk557 k. Product Market. Most Cited Cases

29T Antitrust and Trade Regulation KeyCite this head-

29TVI Antitrust Regulation in General

29TVI(C) Market Power; Market Share

29Tk555 Relevant Market

29Tk558 k. Geographic Market. Most Cited Cases

In Sherman Act case, anticompetitive effects within the

relevant geographic and product market may be proven

by proving the existence of actual anticompetitive effects

or by the defendant’s market power. Sherman Act, § 1, 15

U.S.C.A. § 1.

[18] KeyCite this headnote

29T Antitrust and Trade Regulation

l4a

29TVI Antitrust Regulation in General

29TVI(E) Particular Industries or Businesses

29Tk593 k. Medical Services. Most Cited Cases

Surgeon, whose staff privileges at two hospitals were

terminated, failed to establish that the alleged concerted

action resulted in anticompetitive effects in the relevant

geographic and product market, and therefore failed to

establish Sherman Act claim against either hospital or

their doctors; surgeon’s voluntary choice to resign his

privileges at a nonparty hospital in the geographic market

ultimately created the anticompetitive effects, if any, on

the market. Sherman Act, § 1, 15 U.S.C.A. § 1.

[19] KeyCite this headnote

29T Antitrust and Trade Regulation

29TXVII Antitrust Actions, Proceedings, and Enforce-

ment

29TXVII(B) Actions

29Tk959 Right of Action; Persons Entitled to Sue;

Standing; Parties

29Tk963 Injury to Business or Property

29Tk963(2) k. Causation. Most Cited Cases

In antitrust cases, a plaintiff must prove injury of the

type the antitrust laws were intended to prevent and that

flows from that which makes the defendants’ acts unlaw-

ful. Sherman Act, § 1, 15 U.S.C.A. § 1.

[20] KeyCite this headnote

29T Antitrust and Trade Regulation

29TVIT Monopolization

15a

29TVII(B) Cartels, Combinations, Contracts, and

Conspiracies

29Tk625 k. In General. Most Cited Cases

In a conspiracy to monopolize claim under the Sherman

Act, plaintiff must prove: 1) an agreement or understand-

ing between two or more parties; 2) a specific intent to

monopolize; and 3) overt acts in furtherance of the alleged

conspiracy. Sherman Act, § 2, 15 U.S.C.A. § 2.

[21] KeyCite this headnote

29T Antitrust and Trade Regulation

29TVII Monopolization

29TVII(E) Particular Industries or Businesses

29Tk688 k. Medical Services. Most Cited Cases

Surgeon, whose staff privileges at two hospitals were

terminated, failed to establish Sherman Act conspiracy to

monopolize claim against hospitals and its doctors since

he failed to show that the doctors and hospitals conspired

to end his surgical career. Sherman Act, § 2, 15 U.S.C.A. §

[22] KeyCite this headnote

78 Civil Rights

Sill Federal Remedies in General

78k1323 Color of Law

78k1325 k. State or Territorial Action, or Individual

or Private Action, in General. Most Cited Cases

To satisfy the state action requirement under § 1983, a

plaintiff must prove that the alleged violations are fairly

attributable to the state and courts require careful adher-

ence to the state action requirement because it preserves

an area of individual freedom by limiting the reach of

16a

federal law and federal judicial powers. 42 U.S.C.A. §

1983.

[23] KeyCite this headnote

78 Civil Rights

78III Federal Remedies in General

78k1323 Color of Law

78k1324 k. In General. Most Cited Cases

A plaintiff bringing a civil rights claim for damages under

§ 1983 must demonstrate that the defendant was a person

acting under color of state law; if the record does not

reflect that the defendant acted under color of state law

when engaged in the alleged misconduct, a claim for

violation of civil rights under § 1983 must fail as a matter

of jurisdiction and there is no need for the court then to

determine whether a federal right has been violated. 42

U.S.C.A, § 1983.

[24] KeyCite this headnote

78 Civil Rights

78III Federal Remedies in General

78k1323 Color of Law

78k1325 k. State or Territorial Action, or Individual

or Private Action, in General. Most Cited Cases

In § 1983 actions, state action is shown if: 1) the depriva-

tion of federal rights was caused by the exercise of some

right or privilege created by the state or by a person for

whom the state is responsible; and 2) the party charged

with the deprivation was a person who may fairly be said

to be a state actor. 42 U.S.C.A. § 1983.

[25] KeyCite this headnote

78 Civil Rights

17a

78III Federal Remedies in General

78k1323 Color of Law

78k1325 k. State or Territorial Action, or Individual

or Private Action, in General. Most Cited Cases

Regardless of the approach used in § 19838 actions, the

heart of the state action inquiry is to discern if the defen-

dant exercised power possessed by virtue of state law and

made possible only because the wrongdoer is clothed with

the authority of state law. 42 U.S.C.A. § 1983.

[26] KeyCite this headnote

78 Civil Rights

78111 Federal Remedies in General

78k1323 Color of Law

78k1326 Particular Cases and Contexts

78k1326(3) Private Persons or Corporations, in

General

78k1326(5) k. Cooperation with State Actor. Most

Cited Cases

92 Constitutional Law KeyCite this headnote

92VII Constitutional Rights in General

92VII(B) Particular Constitutional Rights

92k1073 k. Fourteenth Amendment in General. Most

Cited Cases

(Formerly 92k82(5))

Under symbiotic relationship test for determining exis-

tence of state action in § 1983 case, a symbiotic relation-

ship exists where a state has so far insinuated itself into a

position of interdependence with the actor that it must be

18a

recognized to be a joint participant in the challenged

activity which, on that account, cannot be considered so

purely private as to fall outside the scope of the Four-

teenth Amendment; the interdependence between the

state and the private actor must be pronounced before the

law will transform the private action into state action.

U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983.

[27] KeyCite this headnote

78 Civil Rights

78III Federal Remedies in General

78k1323 Color of Law

78k1326 Particular Cases and Contexts

78k1326(3) Private Persons or Corporations,

Genera!

78k1326(4) k. In General. Most Cited Cases

Close nexus test for determining existence of state action

in § 1983 case requires that a plaintiff demonstrate that

there is a sufficiently close nexus between the government

and the private party; primary issue to be examined

under the nexus test is not whether the state was in-

volved in some manner in the relevant events, but

whether there is a sufficiently close nexus between the

state and the challenged action of the private party so

that the action of the private party may be fairly attribut-

able to the state. 42 U.S.C.A. § 1983.

[28] KeyCite this headnote

78 Civil Rights

7T8III Federai Remedies in General

78k1323 Color of Law

78k1326 Particular Cases and Contexts

19a

78k1326(6) k. Schools; Education. Most Cited Cases

Private hospitals, which were distinct and separate

entities from state university, were not state actors for §

1983 purposes under the symbiotic relationship or close

nexus test. 42 U.S.C.A. § 1983.

[29] KeyCite this headnote

78 Civil Rights

78III Federal Remedies in General

78k1323 Color of Law

78k1326 Particular Cases and Contexts

78k1326(9) k. Pursuit of Private or Judicial Reme-

dies. Most Cited Cases

Private hospitals’ action of lawfully seeking the revocation

of a preliminary injunction put in place by state court at

the surgeon’s request in order to comply with their statu-

tory duty of reporting to National Practitioners Data

Bank (Data Bank) in no way made the hospitals state

actors subject to hability under § 1983 for terminating

surgeon's staff privileges. 42 U.S.C.A. § 1983.

[30] KeyCite this headnote

78 Civil Rights

78III Federal Remedies in General

78k1323 Color of Law

78k1326 Particular Cases and Contexts

78k1326(6) k. Schools; Education. Most Cited Cases

Private hospital’s contractual relationship with university

which had been held to be a state actor did not make

hospital a state actor for purposes of surgeon’s 1983

claim arising from termination of his staff privileges;

20a

affiliation agreement between university and hospital did

not create a relationship of such a level that it would

transform hospital’s internal staffing decisions into ac-

tions that could in any way, let alone fairly, be attribut-

able to university. 42 U.S.C.A. § 1983.

[31] KeyCite this headnote

78 Civil Rights

78III Federal Remedies in General

78k1323 Color of Law

78k1326 Particular Cases and Contexts

78k 1326(6) k. Schools; Education. Most Cited Cases

Individual doctors at private hospital, who recommended

and/or participated in peer review actions against surgeon

which resulted in revocation of his staff privileges, could

not be considered state actors for purposes of surgeon’s §

1983 claim by virtue of fact that doctors held faculty

positions at universities which had been deemed to be

state actors. 42 U.S.C.A. § 1983.

[32] KeyCite this headnote

78 Civil Rights

78III Federal Remedies 1n General

78k1323 Color of Law

78k1326 Particular Cases and Contexts

78k1326(6) k. Schools; Education. Most Cited Cases

Regardless of whether individual doctors at private hospi-

tal, who recommended and/or participated in peer review

actions against surgeon which resulted in revocation of

his staff privileges at universities which had been deemed

to be state actors, they could not be held hable on sur-

geon’s § 1983 claim since there was no evidence showing

21a

that any of them utilized power possessed by virtue of

state law or their positions as clinical professors at either

university when they recommended and/or participated in

peer review actions against surgeon as members of the

medical staffs at their respective hospitals. 42 U.S.C.A. §

> this heacinote

78 Civil Rights

78I1 Employment Practices

78k1118 k. Practices Prohibited or Required in Gen-

eral; Elements. Most Cited Cases

Elements of a prima facie case under § 1981 are the same

as those under Title VII. 42 U.S a .§ 1981; Civil Rights

Act of 1964, § 701 et seq., 42 U. A. § ZU00e et seq.

[34] KeyCite this headnote

78 Civil Rights

781 Rights Protected and Discrimination Prohibited in

General

78k1007 Bases of Discrimination and Classes Pro-

tected

78k1009 k. Race, Color, Ethnicity, or National Origin

Most Cited Cases

78 Civil Rights KeyCite this headnote

781 Rights Protected and Discrimination Prohibite

Genera!

78k1030 Acts or Conduct Causing Deprivation

8k1033 Discrimination in General

78k1033

(3) k. Affirmative Action and Reverse

crimination. Most C

ited C ases

Claims for national origin discrimination or reverse

national origin discrimination are not viable claims under

§ 1981. 42 U.S.C.A. § 1981.

KeyCite this headnote

[35]

78 Civil Rights

781 Rights Protected and Discrimination Prohibited in

General

78k1030 Acts or Conduct Causing Deprivation

78k1033 Discrimination in General

78k1033(1) k. In General. Most Cited Cases

Whistleblower activities are not protected under § 1981;

rather a claim for retaliation for such conduct must be

brought under the appropriate whistleblower statute. 42

U.S.C.A. § 1981.

[36] KeyCite this headnote

198H Health

198HI Regulation in General

198HI(C) Institutions and Facilities

198Hk268 Staff Privileges and Peer Review

198Hk274 k. Liability or Immunity. Most Cited

Cases

Purpose of immunity provision of the Health Care Quality

Improvement Act (HCQIA) is to grant immunity from

monetary damages to those persons participating in

professional peer review activities in order to deter anti-

trust suits by disciplined physicians. Health Care Quality

Improvement Act of 1986, § 411, 42 U.S.C.A. § 11111.

[37] KeyCite this headnote

13 Action

131 Grounds and Conditions Precedent

13k3 k. Statutory Rights of Action. Most Cited Cases

Section of Health Care Quality Improvement Act

(HCQIA) establishing guidelines for assuring that those

involved in the peer review process receive immunity does

not create the basis of a cause of action for a physician

who has been subject to a peer review process. Health

Care Quality Improvement Act of 1986, § 412, 42 U.S.C.A.

§ 11112.

[38] KeyCite this headnote

170B Federal Courts

L7OBI Jurisdiction and Powers in General

170BI(A) In General

170Bk14 Jurisdiction of Entire Controversy; Pendent

Jurisdiction

170Bk14.1 k. In General. Most Cited Cases

Although a district court assumes supplemental jurisdic-

tion over some claims, a district court does not assume

supplemental jurisdiction over claims that a plaintiff

chooses to bring in state court separately from the claims

he brings in federal court. 28 U.S.C.A. § 1367

[39] KeyCite this headnote

334 Removal of Cases

334III Citizenship or Alienage of Parties

334k44 k. Parties Entitled to Remove in General

Cited Cases

24a

Only defendants may remove an action to federal court.

28 U.S.C.A. § 1446.

*294 Russell J. Heiple, Johnstown, PA, for Plaintiff.

Alyson J. Kirleis, Frederick W. Bode, III, Kristen Hock

Prex, Dickie, McCamey & Chilcote, P.C., David R. John-

son, William James Rogers, Thomson, Rhodes & Cowie,

David _J. Porter, Buchanan Ingersoll, Pittsburgh, PA,

Mary Kay Brown, Buchanan Ingersoll, Philadelphia, PA,

for Defendants.

MEMORANDUM OPINION

and

ORDER OF COURT

GIBSON, District Judge.

SYNOPSIS

This matter comes before the Court on the following

motions: Motion to Dismiss Plaintiffs Second Amended

Complaint [FN1] by Erden Fikri, Dinesh Mathur, Vincent

Fiorica, Terry Wahl, David R. Davis, Sanders Ergas, P.

James Ridella, Bhaskaran Murali, Will H. Farthing,

Brian Gunnlaugson, Richard Cartwright, Denise Weis-

brodt, William M. Carney, Harvey S!ater, George H. Benz,

Jr., Stewart M. Flam, R. Joseph Federowicz, Dickey

McCamey & Chilcote, P.C., UPMC Health System and

UPMC Lee Regional (hereinafter sometimes referred to as

“Lee Defendants”) (Document No. 136), their Brief in

Support (Document No. 137) and their Revised Exhibits

in Support (Document No. 142); Motion to Amend the

Caption by Richard Saluzzo, Jacob Kolff, Bruce Duke,

Narendra Pai, William Fritz, Paul Weygandt, William M.

Carney, Robert D. Fry, Conemaugh Health System and

Memorial Medical Center (hereinafter sometimes referred

to as “Conemaugh Defendants”) (Document No. 138);

Motion to Dismiss, or, in the Alternative, for Summary

Judgment with Respect to Plaintiffs Second Amended

Complaint by Conemaugh Defendants (Document No.

139), their Brief in Support (Document No. 140) and their

Appendix to their Brief in Support (Document No. 141);

Plaintiff's Cross Motion for Summary Judgment, Injunc-

25a

tive Rehef [FN2] and for the Court’s Assumption of Sup-

plemental Jurisdiction (Document No. 146) and his Brief

in Support (Document No. 147); Conemaugh Defendants’

Response to Plaintiffs Cross Motion for Summary Judg-

ment, Injunctive Relief and for the Court’s Assumption of

Supplemental Jurisdiction (Document No. 151) and their

Brief in Support (Document No. 152); Lee Defendants’

Response to Plaintiffs Cross Motion for Summary Judg-

ment, Injunctive Relief and for the Court’s Assumption of

Supplemental Jurisdiction (Document No. 154) and their

Brief in Support (Document No. 155); and Motion to

Dismiss Plaintiffs Second Amended Complaint by Lee

Regional Health Systems, Inc. and Lee Regional Health

System Foundation, Inc. *295 (Document No. 161) and

their Brief in Support (Document No. 162); and Plaintiffs

Brief in Opposition to Lee Regional Health Systems, Inc.

and Lee Regional Health System Foundation, Inc.’s

Motion to Dismiss (Document No. 163). For the reasons

stated herein, the Defendants’ Motions are granted,

except the Motion to Amend the Caption which is ren-

dered moot, and Plaintiff's Motions are denied.

FN1. As explained in Analysis, II. Legal Standard of

this opinion, this pleading is also treated as a motion

for summary judgment.

FN2. Despite Plaintiffs caption, he makes no claim

for injunctive relief in his motion, therefore, his

motion for injunctive relief is denied herein without

additional discussion. (See Doc. No. 146).

JURISDICTION

Jurisdiction is proper in the United States District Court

for the Western District of Pennsylvania pursuant to 28

U.S.C. § 1331 based on federal question jurisdiction and §

1367 based on supplemental jurisdiction.

26a

PARTIES

For purposes of this Memorandum Opinion and Order the

Court has broken the Defendants into three groups based

on their representation. The Lee Defendants, the Cone-

maugh Defendants, and Lee Regional Health Systems,

Inc. and Lee Regional Health System Foundation, Inc.

The main purpose of the breakdown is for ease of refer-

ence when the Court must refer to all of the Defendants in

a particular group. The Court may, however, at times

refer to a Defendant individually, refer to all Defendants

or refer to a different, but clearly identified, group of

Defendants as necessary in the circumstances.

BACKGROUND

I. MATERIAL FACTS [FN3]

FN3. The parties failed to submit proposed state-

ments of Material Facts Not in Dispute in comphiance

with Local Rule 56.1, therefore, the Court assessed

the record and determined the relevant material

facts.

Plaintiff began his medical career in New Jersey with the

Garden State Medical Staff. Untracht v. West Jersey

Health System, et al., 803 F.Supp. 978, 980 (D.N.J.1992).

In Apri! 1990, Plaintiffs Garden State Medical Staff

privileges were suspended. /d. In addition, his staff privi-

leges at the remaining West Jersey Health System divi-

sions were also suspended. Jd. Plaintiff filed at least four

lawsuits in state and federal court related to this turn of

events. Id.; (Doc. No. 141, Exs. 19, 20, 22, 24). Plaintiffs

federal lawsuit in New Jersey alleged violations of § 1983,

the Health Care Quality Improvement Act (hereinafter

“HCQIA”), Sherman Act § 1 and § 2 and tortious interfer-

ence with prospective economic advantage. /d. at 981. The

lawsuit was dismissed by the New Jersey District Court.

Untracht v. West Jersey Health System, et al., 803 F.Supp.

978, 978 (D.N.J.1992), affd Untracht_v. Wei Jersey

Health Systems, 998 F.2d 1006 (3d _Cir.1993); see also

Untracht uv. Weimann, 141 Fed.Appx. 46, 47-49 (3d

Cir.2005) (affirming the district courts dismissal of

27a

Untracht’s Complaint and holding that the Complaint,

which claimed violations of § 1983 resulting from defen-

dants’ alleged violations of his due precess and equal

protection rights by denying his reappointment applica-

tion, was inextricably intertwined with his prior adjudica-

tion).

Plaintiff subsequently went to work for Corning Hospital

in New York. (Doc. No. 147, p. 3). After a short time at

Corning Hospital, Plaintiff applied for privileges at hospi-

tals in the Johnstown, Pennsylvania area. (Doc. No. 147,

Ex. 1--Pl. Aff. 4 20).

Plaintiff applied for clinical privileges at UPMC Lee

Regional Hospital (hereinafter “Lee”), Conemaugh Memo-

rial Medical Center (hereinafter “Conemaugh”’) and

Windber Medical Center (hereinafter “Windber”). (Doc.

No. 147, Ex. 1--Pl. Aff. 20). Plaintiff was granted staff

privileges at Lee in late 1994. (Doc. No. 133, p. 6, {| 29).

Although Plaintiff alleges he was recruited by Lee in

order to help them *296 compete against Conemaugh, he

admits he applied for and was granted privileges at

Conemaugh in early 1995, only a few months later. (Doc.

No. 133, p. 6, 99 25, 29). By 1996, Windber had also

granted Plaintiff staff privileges. (Doc. No. 147, p. 4 & Ex.

1--P]. Aff. 4] 20, 22). Plaintiff was reappointed at Lee in

1997. (Doc. No. 147, Ex. 1--Pl. Aff., § 22). He was reap-

pointed at Conemaugh in 1996, 1998, 2000 and 2002 and

at Windber in 1998, 2000 and 2002. Jd. At the 2000 and

2002 reappointments by Conemaugh and Windber, Plain-

tiff informed the respective hospitals of the actions Lee

was taking against his clinical privileges that began in

1999 and provided each hospital with full documentation

about every allegation that Lee had raised against him.

(Doc. No. 147, Ex. 1--Pl. Aff. at § 23). After reviewing the

allegations, Conemaugh and Windber both reappointed

him without restrictions in 2000 and 2002. (Doc. No. 147,

Ex. 1--Pl. Aff.9] 23, 24).

A. LEE

When Plaintiff reapplied for surgical privileges at Lee in

January of 1999, the Department of Surgery Chairman,

28a

Dr. Fikri, did not recommend a reappointment. (Doc. No.

155, Ex. A--p. 8). As a result, the Lee Medical Staff Cre-

dentials Committee (hereinafter referred to as the “Cre-

dentials Committee”) hired Dr. Milburn Jessup to provide

an outside review of Plaintiffs cases. (Doc. No. 155, Ex. A,

p. 8).

Dr. Jessup offered a report dated September 1, 1999, in

which he found that Plaintiff displayed poor judgment in

two of the nine cases submitted to him for review, both of

which involved fatalities. (Doc. No. 155, Ex. A, p. 8).

Upon receipt of Dr. Jessup’s report, the Credentials

Committee reviewed his recommendations. (Doc. No. 155,

Ex. A, p. 8). By letter dated November 15, 1999, the

Chairman of the Board of Directors of Lee informed the

Plaintiff that his surgical privileges were being renewed

for an abbreviated appointment term through July 2000

with certain requirements for continuing peer review and

a request for a series of supervised operations by surgeons

at UPMC Presbyterian Hospital. (Doc. No. 133, pp. 8-9,

42); (Doc. No. 155, Ex. A, p. 8). Plaintiff was required to

have a second surgeon present when pancreatic or liver

resections were conducted. (Doc. No. 155, Ex. A, p. 8).

This became a requirement that was imposed on all

surgeons at Lee at the time. (Doc. No. 155, Ex. A, p. 8).

On February 23, 2000, Plaintiff filed a Complaint in

Equity in the Court of Common Pleas of Cambria County,

Pennsylvania (Case No. 2000-646) (hereinafter “Untracht

I’), against, two of the Defendants in this federal action,

UPMC Health System, Inc. (hereinafter “UPMC”) and

Lee. (Doc. No. 142, Ex. A). The Complaint sought to enjoin

UPMC and Lee from carrying out the peer review activi-

ties outlined in the November 15, 1999 letter to Plaintiff

from the Chairman of the Board of Directors at Lee and

sought money damages for the alleged breach of Lee’s

Bylaws by UPMC and Lee. [F-N4] Id.

FN4. On or about December 22, 2003, the Honorable

Thomas A. Swope, Jr., of the Court of Common Pleas

of Cambria Countv. entered an Order of Court sus-

29a

taining Defenaants’ Preliminary Objections which

dismissed Plaintiffs Complaint in Equity with Preju-

dice. (Doc. 142, Ex. G--Order

Sustaining Defendant’s Preliminary Objections Case

No. 2000-646).

By letter dated March 10, 2000, the Lee Board of Direc-

tors (hereinafter referred to as the “Lee Board”) modified

its actions relating to Plaintiff. (Doc. No. 137, p. 8). The

Lee Board granted Plaintiff unrestricted clinical privi-

leges for a two-year *297 period retroactive to February 1,

1999. (Doc. No. 137, p. 8). The Lee Board also requested

that prior to Plaintiffs next recredentialing in January

2001, Plaintiff arrange to have a series of major surgeries

monitored by a surgeon not employed by Lee. (Doc. No.

137, p. 8).

By letter dated March 23, 2000, signed by Lee’s Medical

Director, the Chairman of the Credentials Committee and

Lee’s President, Plaintiff was informed that Dr. George

Benz had been selected to monitor six to ten of Plaintiffs

major abdominal surgeries. (Doc. No. 155, Ex. A, p. 8).

The letter also informed Plaintiff that because of concerns

Plaintiff had previously raised concerning peer review

activities by the Lee Surgical Quality Review Committee,

future issues involving Plaintiffs care of patients at Lee

would be referred to Dr. Benz for review. (Doc No. 155,

Ex. A, p. 8). [FN5] Dr. Benz was to submit a written and

verbal report to the Credentials Committee prior to its

consideration of Plaintiff's next recredentialing in Janu-

ary 2001. (Doc. No. 155, Ex. A, p. 8).

FN5. Dr. George Benz was recommended by Dr.

Marshall Webster, a prominent surgeon at UPMC

Presbyterian Hospital. (Doc. No. 155, Ex. A., p. 8)

Dr. Benz graduated from the University of Pitts-

burgh School of Medicine in 1967, did his internship

and residency at the University of Pittsburgh School

of Medicine, Department of Surgery and was Board

certified in general surgerv. (Doc. No. 155. Ex. A.. p.

30a

8). He had been an assistant professor .of Clinical

Surgery at the University of Pittsburgh in the Surgi-

cal Department since 1975. (Doc. No. 155, Ex. A., p.

8). Dr. Benz retired in July of 2001, but maintained

his medical license and remained Board certified in

general surgery since 1973. (Doc. No. 155, Ex. A., p.

8). He had been on the staffs of Presbyterian Univer-

sity Hospital, Montefiore Hospital, and Forbes

Health Systems since 1975. (Doc. No. 155, Ex. A., p.

8).

Forbes Regional Hospital is located in Monroeville,

Pennsylvania, has 300 beds and approximately 20 to

25 surgeons on staff. (Doc. No. 155, Ex. A., p. 8). Dr.

Benz was the Chief of the Section of General Surgery

for seven years at Forbes, was on the Medical Execu-

tive Committee for 20 years and was the Coordinator

of Surgical Teaching at the Forbes Family Practice

Program from 1978 to 1995. (Doc. No. 155, Ex. A., p.

8). He was Chairman of the Operating Room Com-

mittee from 1987 to 1992 and Chairman of the

Department of Surgery from 1990 to 1998. (Doc. No.

155, Ex. A., p. 8). He was also President of the Medi-

cal Staff from 1986 to 1987. (Doc. No. 155, Ex. A., p.

8). He had been involved in the prior review of sur-

geons including a protracted review of a surgeon in

Meadville, Pennsylvania, where he scrubbed with the

doctor to observe the surgical techniques and he also

monitored other surgeons at Forbes in his role as

Chief of Surgery and has extensive peer review

experience. (Doc. No. 155, Ex. A., p. 8-9). Addition-

ally, he was involved in at least five or six reviews of

surgeons at Forbes. (Doc. No. 155, Ex. A., p. 9).

Throughout the period between May 2000 and February

2001, Dr. Benz observed Plaintiff perform six surgeries

and reviewed the medical records of six other patients on

whom Plaintiff had performed surgery. (Doc. No. 155, Ex.

A, pp. 8-9, 14-18). On April 8, 2001, following the review

3la

of Plaintiffs cases, Dr. Benz wrote a letter to Terry Wahl,

M.D., the Medical Director of Lee, in which he recom-

mended that a second board certified surgeon be involved

with Plaintiff in all major abdominal procedures. (Doc.

No. 155, Ex. A, p. 9). Dr. Benz’ recommendation was

based upon his review of the records, as well as his per-

sonal observation of six operative procedures, four of

which were major abdominal surgeries. (Doc. No. 155, Ex.

A, p. 9).

On May 7, 2001, after Plaintiff had an opportunity to

review Dr. Benz’ recommendation, his request to appear

before the Credentials Committee to rebut the recom-

mendation was granted. (Doc. No. 155, Ex. A, p. 18).

Subsequent to reviewing Plaintiffs thirty-three page

letter, submitting *298 it to Dr. Benz for comment and

listening to Plaintiffs oral argument, the Credentials

Committee recommended to the Lee Medical Staff Execu-

tive Committee (hereinafter the “Executive Committee”)

that Plaintiffs grant of clinical privileges be subject to the

second surgeon requirement recommended by Dr. Benz.

(Doc. No. 155, Ex. A, p. 18).

Lee further selected Dr. Harvey Slater to “review the

reviewers.” (Doc. No. 155, Ex. A, p. 9). Dr. Slater reviewed

the cases under a “totality of circumstances basis.” (Doc.

No. 155, Ex. A, p. 10). Dr. Slater believed that the cases

should not be reviewed in isolation and, in light of all the

matters that he reviewed, believed the recommendation to

be appropriate. (Doc. No. 155, Ex. A, p. 10).

On July 25, 2001, Plaintiff filed a Complaint for damages

against Erden Fikri, M.D., Vincent Fiorica, M.D., Terry

Wahl, M.D., David R. Davis, and Lee in the Court of

Common Pleas of Cambria County, Pennsylvania (Case

No. 2001-2718) (hereinafter “Untracht IT”). (Doc. No. 142,

Ex. B). All Defendants in Untracht II are Responding

Defendanis in this federal action. (Doc. No. 142, Ex. B).

This law.s1t set forth virtually identical factual allega-

tions and claims against the individually named defen-

dants as were contained in Untracht I, and reiterated

causes of actions against Lee and UPMC despite the

existence of Untracht I. [FN6] (Doc. No. 142, Ex. B).

32a

FN6. Preliminary Objections were sustained by

Judge Swope in Untracht II on December 22, 2003,

which dismissed the various Counts against the

various defendants with prejudice. (Doc. 142, Ex. G--

Order Sustaining Defendants’ Preliminary Objections

Case No. 2001-2718). As noted earlier, Judge Swope

also sustained preliminary objections in Untracht I

on December 22, 2003. See Footnote 3.

By letter dated July 13, 2001 from Lee’s President and

CEO, David R. Davis, Plaintiff was informed that the

Executive Committee had voted to recommend to the

Board of Directors that Plaintiffs clinical privileges be

subject to the restriction that a second surgeon be in-

volved in all major abdominal surgeries. (Doc. No. 155,

Ex. A, p. 1). The letter also informed Plaintiff that under

the Medical Staff Bylaws, Plaintiff could request a hear-

ing before a panel of physicians prior to the recommenda-

tion being forwarded to the Board. Id.

On August 8, 2001, Plaintiff filed a Petition for Prelimi-

nary Injunction in Untracht I seeking to enjoin Lee and

UPMC from taking action to impose or enforce the condi-

tion that he have a second surgeon present for major

abdominal surgeries. (Doc. 142, Ex. C). On September 17,

2001, Lee and UPMC filed, in Untracht I, a Motion to

Dismiss the Petition for Preliminary Injunction, or in the

Alternative to Stay Proceedings Pending Exhaustion of

Plaintiffs Internal Remedies Under Lee’s Medical Staff

Bylaws. (Doc. 155, Ex. A to Ex. B, p. 2).

By letter dated August 14, 2001 to the President of Lee,

Plaintiff requested a hearing under Lee’s Medical Staff

Bylaws. (Doc. No. 155, Ex. A, p. 1). Dr. Ian Katz, Dr.

Johnnie Barto and Dr. John J. Seeber, were appointed by

Lee as a hearing panel (hereinafter the “Hearing Panel”).

(Doc. No. 155, Ex. A, p. 1) These medical staff members

did not actively participate in consideration of the matter

at the Medical Staff Committee level and were not in

direct economic competition with Plaintiff. (Doc. No. 155,

33a

Ex. A, p. 1). Both parties accepted the Hearing Panel

before the proceedings began. (Doc. No. 155, Ex. A, p. 1).

The Court of Common Pleas of Cambria County issued an

Order dated November 20, 2001, “staying all proceedings

before the Court pending completion of the internal *299

remedies afforded Plaintiff under | ] Lee Hospital’s Medi-

cal Staff Bylaws.” (Doc. No. 142, Ex. D). Additionally, the

Court enjoined Lee from filing a report with the National

Practitioner Data Bank (hereinafter “Data Bank”) until

permitted to do so by the Court. (Doc. No. 142, Ex. D).

On or about November 30, 2001, the internal hospital

hearing requested by Plaintiff began. (Doc. No. 155, Ex. A,

p. 2). The appointed hearing officer was Daniel W. Rullo,

Esquire, who presided over the hearings. (Doc No. 155,

Ex. A, p. 1). Hearings were held on December 1, 2001,

December 4, 2001, December 14, 2001, January 4, 2002,

January 5, 2002, January 12, 2002, and January 23, 2002.

(Doc No. 155, Ex. A, n. 1-2). Plaintiff was represented by

legal counsel at these hearing sessions. (Doc No. 155, Ex.

A, n. 1-2). During these first eight hearing sessions, [FN7]

Hearing Officer Rullo made certain rulings on the admis-

sibility of evidence and other procedural issues. (Doc. No.

137, p. 11). As part of the proceedings, testimony about

surgeries performed by Plaintiff after the recommenda-

tion that a second surgeon be present at all major ab-

dominal surgeries performed by Plaintiff had been ren-

dered was introduced and extensively rebutted by Plain-

tiff. (Doc. No. 155, Ex. A to Ex. B, p. 1).

FN7. A total of nineteen hearing sessions were held

over thirteen and a half months before the Hearing

Panel. (Doc. No. 155, Ex. A to Ex. B, p. 1). Both

Plaintiff and Lee were given ample opportunity to

present evidence in support of their respective posi-

tions. (Doc. No. 155, Ex. A to Ex. B, p. 1). The tran-

script of the hearing record is over 3000 pages long

and includes over 200 exhibits. (Doc. No. 155, Ex. A,

p. 2).

34a

On March 11, 2002, in Untracht I, Plaintiff filed a Motion

on Pending Internal Fair Hearing, requesting the Court of

Common Pleas of Cambria County to review and overturn

certain rulings that had been made by Hearing Officer

Rullo in the internal Lee hearings. (See Doc. No. 142, Ex.

E). By Order dated March 19, 2002, Plaintiffs motion was

denied and the Court of Common Pleas of Cambria

County stated that it would “not intervene in the ongoing

hearing process.” (Doc. 142, Ex. E).

Thereafter, further internal hearing sessions were held on

March 22, 2002, April 17, 2002, April 24, 2002, and May

2, 2002. (Doc. No. 155, Ex. A, n. 2). Plaintiff represented

himself at these sessions after he and his attorneys ended

their attorney-client relationship. (Doc. No. 155, Ex. A, n.

1).

On June 20, 2002, despite the stay of all proceedings by

the Court of Common Pleas of Cambria County in Un-

tracht I, Plaintiff, for the third time, sought judicial

intervention into the interna] Lee peer review process by

filing a Motion to Order Defendants to Produce Docu-

ments, Compel Testimony, and Comply With Accepted

Standards of Review. (See Doc. No. 142, Ex. E). On July

17, 2002, the Court of Common Pleas of Cambria County

denied Plaintiffs Motion and again stated it would not

intervene in Lee’s ongoing internal hearing process. (Doc.

No. 142, Ex. F).

Further internal hearing sessions were held at Lee on

May 2, 2002, August 14, 2002, August 15, 2002, October

8, 2002, November 14, 2002, November 20, 2002, Decem-

ber 16, 2002, and January 15, 2003. (Doc. No. 155, Ex. A,

n. 2). A total of nineteen hearing sessions were held. (Doc.

No. 155, Ex. A, p. 2).

In the midst of these final internal hearing sessions, on or

about November 13, 2002, Plaintiff filed a writ of sum-

mons in the Court of Common Pleas of Cambria County,

Pennsylvania (Case No. 2002-3825) against Dr. Benz, Dr.

Ridella, Dr. Fiorica, Dr. Ergas, Dr. Farthing, Dr.

Gunnlaugson, Ms. Weisbrodt, Mr. Davis, *300 Lee,

UPMC and Dr. Slater. (Doc No. 141, Pl. Depo., Ex. 31)

35a

(hereinafter “Untracht LII.”). This was the third lawsuit

filed by Plaintiff in Cambria County dealing with the

same series of events. (/d.; See Doc. No. 142, Ex. A, B).

On March 7, 2003, following completion of the nineteen

hearing sessions, the Hearing Panel unanimously found

that the recommendation of the Credentials Committee

and Executive Committee that Plaintiff have a second

surgeon for all major abdominal surgeries was proper;

was supported by substantial evidence; and should be

implemented. (Doc. No. 155, Ex. A, p. 23). In accordance

with Hearing Officer Rullo’s interpretation of the Lee

Bylaws, the Hearing Panel’s only options were to accept

or reject the recommendation that a second surgeon be

present with Plaintiff whenever he performed major

abdominal surgery. (Doc. No. 155, Ex. A to Ex. B, p. 1).

The Hearing Panel unanimously accepted the recommen-

dation. (Doc. No. 155, Ex. A, p. 23). The Hearing Panel

found that Plaintiff often lacked sound medical judgment,

had not been inclined to accept criticism and may not

recognize his limitations or the limitations of the facility

in which he operates. (Doc. No. 155, Ex. A, pp. 22-23).

Plaintiff appealed the Hearing Panel’s recommendation to

the Lee Board. (Doc. No. 155, Ex. A to Ex. B, p. 2); (Doc.

No. 147, Ex. 15). An appellate review panel was appointed

by the Lee Board to review Plaintiffs appeal (hereinafter

the “Appellate Review Panel”). (Doc. No. 155, Ex. A to Ex.

B, p. 2). The Appellate Review Panel met on April 9, 2003,

oi reviewed the evidence and transcript from the hear-

ing sessions and the report of the Hearing Panel. (Doc.

No. 147, Ex. 15--Letter from Chairman of the Board of

Trustees of Lee to Plaintiff dated June 24, 2003, p. 1). The

Appellate Review Panel concluded that Plaintiffs behav-

ior could not be corrected by merely requiring a second

surgeon. (Doc. No. 155, Ex. A to Ex. B, p. 1). The Appel-

late Review Panel recommended that, for the protection of

Lee’s patients, Plaintiffs application for reappointment

should be denied and his staff privileges should be termi-

nated. [FN8] (Doc. No. 155, Ex. A to Ex. B, p. 2)

FN8. The Appellate Review Panel acknowledged that

36a

the Hearing Panel had no authority to impose a more

stringent sanction on Plaintiff, but recognized that

the Board did have the ultimate authority to assure

the competency of its medical staff and protect its

patients. (Doc. No. 147, Ex. 15--Letter from Chair-

man of Board of Trustees of Lee to Plaintiff dated

June 24, 2003, p. 1). Therefore, the Review Panel

concluded that the evidence against Plaintiff pre-

sented during the hearing, much of which post dated

the original recommendations of the Credentials and

Executive Committees, supported a more stringent

sanction than had originally been recommended. Jd.

at 2.

On May 5, 2003, the Lee Board adopted the recommenda-

tion of its Appellate Review Panel. (Doc. No. 147, Ex. 15,

p. 1). By letter dated May 6, 2003, Plaintiff was advised of

the Lee Board’s decision to consider terminating his staff

privileges. (Doc. No. 147, Ex. 15, p. 2).

The Lee Board then directed a joint committee of the

Board and medical staff (hereinafter the “Joint Commit-

tee”) to consider the Appellate Review Panel’s recommen-

dation that Plaintiffs staff privileges be terminated. (Doc.

No. 155, Ex. A to Ex. B, p. 2; Doc. No. 147, Ex. 15, p. 1).

After Plaintiff and the medical staff submitted written

responses, further evidence, and oral arguments, the

Joint Committee recommended that Plaintiffs staff

privileges be terminated. (Doc. No. 155, Ex. A to Ex. B, p.

2); (Doc. No. 147, Ex. 15, p. 2). At the conclusion of Lee’s

fair hearing proceedings, on June 24, 2003, the Lee Board

voted to terminate Plaintiffs staff privileges. (Doc. No.

147, Ex. 15, pp. 1-2); *307 (Doc. No. 155, Ex. A to Ex. B, p.

2). The Lee Board notified Plaintiff of its decision by letter

dated June 24, 2003. (Doc. No. 147, Ex. 15, pp. 1-2); (Doc.

No. 155, Ex. A to Ex. B, p. 2).

On July 25, 2003, in Untracht I, Lee filed a Motion to End

Injunction, Lift Stay or Grant Other Relief. (Doc. No. 155,

Ex. B). Plaintiff filed a Motion to Continue. (Doc. No. 155,

37a

Ex. C). On September 4, 2003, the Honorable F. Joseph

Leahey, of the Court of Common Pleas of Cambria County

denied Plaintiffs Motion to Continue in Untracht I and

entered an Order vacating the Order dated December 20,

2001 that enjoined Lee and the other defendants in Un-

tracht I from reporting the internal actions and outcomes

to the Pennsylvania State Medical Board of Medical

Examiners and the Data Bank. (Doc No. 147, Ex. 13).

On or about September 17, 2003, Lee made a Data Bank

submission reporting that Plaintiff was denied privileges

for continuing problems with poor judgment and failure to

provide proper patient care. (Doc. No. 137, p. 17).

On December 22, 2003, two Orders were entered, one in

Untracht I and one in Untracht II, sustaining Defendants’

Preliminary Objections which dismissed Plaintiffs Com-

plaint in Equity against Lee and UPMC with prejudice

and also dismissed all the other claims against the vari-

ous defendants. (Doc. No. 155, Ex. G).

B. CONEMAUGH

When Plaintiff was up for reappointment at Conemaugh

in 2000 and 2002 he provided Conemaugh with full docu-

mentation of Lee’s ongoing allegations. (Doc. No. 147, Ex.

1--Pl. Aff., § 63). Upon review of that documentation,

Conemaugh reappointed him to its medical staff in 2000

and in February of 2002. (Doc. No. 147, Ex. 1-Pl. Aff., 4

31). Plaintiff experienced no problems or adverse action at

Conemaugh until November 22, 2002 when Plaintiff

operated on an 85 year old Jehovah’s Witness who was

suffering from colorectal cancer. (Doc. No. 147, Ex. 1--Pl.

Aff.4 25). The patient, Earl Esherick (hereinafter “EE”),

died and on November 27, 2002, Plaintiff was informed

that his clinical privileges at Conemaugh were being

suspended because of this patient’s death. (Doc. 147, Ex.

1--Pl. Aff.4] 25). The next day, Thanksgiving 2002, Plain-

tiff called Dr. Saluzzo and informed him that Plaintiff felt

the patient’s death was the fault of the anesthesiologists.

(Doc. No. 147, Ex. 1--Pl. Aff.4, 25).

38a

As a result of events in the operating room that led to the

patient's death, and Plaintiff's attempts to blame the

anesthesiologists, the Conemaugh Credentials Committee

voted to revoke his clinical privileges on December 17,

2002. (Doc. No. 147, Ex. 1--Pl. Aff.4| 33). The Conemaugh

Credentials Committee based its recommendation on four

findings: 1) Plaintiff mismanaged the care of EE; 2)

Plaintiffs poor judgment was responsible for the death of

EE; 3) Plaintiff behaved unprofessionally and non-

collegially by attempting to shift blame for EE’s death

back to the anesthesiologists and others; and 4) Plaintiff

violated a Conemaugh Medical Staff bylaw by not signing

a third-party release. (Doc. No. 133, p. 18, § 86).

On December 19, 2002 Plaintiff informed EE’s family of

the wrongdoing Plaintiff felt occurred in the deceased

patient’s care, including that the anesthesiologists were

at fault, and Plaintiff assisted the family in finding an

attorney to sue to protect their rights. (Doc. No. 133, p. 19,

{ 88).

In response to Conemaugh’s vote to revoke his privileges,

Plaintiff participated in Conemaugh’s fair hearing proc-

ess. (Doc. No. 147, Ex. 1--Pl. Aff. § 25; Ex. 10). The hear-

ings were conducted between *302 March 10, 2003 and

May 21, 2003. (Doc. No. 147, Ex. 1--Pl. Aff. | 25; Ex. 10).

During the Conemaugh fair hearing process, Plaintiff

called witnesses and presented evidence and Conemaugh

made a determination to suspend and/or revoke his staff

privileges. (Doc. No. 147, Ex. 1--Pl. Aff., p. 8, § 38). The

Conemaugh hearing panel determined revocation of

Plaintiffs privileges was warranted based on the unpro-

fessional nature of Plaintiff's communications with EE’s

family. (Doc. No. 133, p. 19, § 92).

Subsequently, Attorney Alan H. Perer, the attorney

contacted by Plaintiff on behalf of EE’s family, filed suit of

behalf of the personal representative of EE’s estate

against Conemaugh and Plaintiff (no anesthesiologist or

other doctors), alleging negligence on the part of Plaintiff

and negligence on Conemaugh’s part in granting clinical

privileges to Plaintiff. (Doc No. 133, p. 20, § 96; Doc. No.

39a

147, Ex. 1--Pl. Aff. §| 43). The parties agreed to binding

high-low arbitration, which meant that Conemaugh and

Plaintiff would have to pay regardless of the outcome and

the arbitration was only to determine in what amount.

(Doc. No. 133, p. 20, 4 97). The arbitration was held

March 10, 2005. (Doc. No. 147, Exs. 8, 9). Despite the fact

the arbitrator awarded $375,000 to the deceased patient’s

personal representative, Plaintiff elects in his pleadings

to this Court to characterize this as a ruling in his favor.

(Doc. No. 1338, p. 20, § 97; Doc. No. 147, p. 20).

On or about June 9, 2003, Conemaugh made submissions

to the Data Bank regarding Plaintiff on the basis of

substandard and inadequate care, poor clinical judgment

and unprofessional behavior. (Doc. No. 147, Ex. 22).

C. WINDBER

{1] Plaintiff had privileges at Windber, which is located

ten miles from Lee and eight miles from Conemaugh.

Mapquest, www.mapquest.com, (last visited July 27,

2006)._[FN9] Windber never had any problems with

Plaintiffs patient care. (Doc. 147, Ex. 1--Pl. Aff., § 61).

Plaintiff informed Windber of the actions taken against

his clinical privileges at Lee and after review of the alle-

gations, Windber reappointed him without restrictions in

2002. (Doc. 147, Ex. 1--Pl. Aff., § 24). In August of 2002,

however, Plaintiff voluntarily resigned his privileges at

Windber. (Doc. No. 147, Ex. 1--Pl. Aff., { 60; Doc. No. 137,

Ex. B--Pl. Depo., p. 52, lines 10-16). When Plaintiff re-

signed his clinical privileges at Windber, no disciplinary

actions were pending at the facility, nor were any disci-

plinary actions planned. (Doc. No. 147, Ex. 1-Pl. Aff., 9 62;

Doc. No. 137, Ex. B--Pl. Depo., p. 52, lines 19-25).

FNQ. A court can take judicial notice of distances. See

Gordon v. Lewistown Hosp., 272 F.Supp.2d 393, 429

n. 34 (M.D. Pa.2003) (holding a court can take judicial

notice of driving distances disclosed on an internet

mapping service).

40a

D. DISTRICT COURT AND REMAINING STATE

COURT PROCEEDINGS

On May 14, 2003, Plaintiff filed a pro se complaint in the

United States District Court for the Eastern District of

Pennsylvania against thirty-six defendants, including

individual physicians and health care professionals, a

university, a law firm, two lawyers, an anesthesiology

group, two health systems, four medical facilities and 20

John Doe Defendants. (Doc. No. 1). The Complaint con-

tained 522 Paragraphs and 15 counts alleging Sherman

Act violations, Section 1983 civil rights violations, tortious

interference with prospective economic advantage, negli-

gence, perjury and defamation. (Doc. No. 1).

*303 On May 14, 2003, Plaintiff also filed a Petition for

Temporary Injunction in the United States District Court

for the Eastern District of Pennsylvania. (Doc. No. 2). A

supporting brief was filed by Plaintiff on May 20, 2003.

(Doc. Nos. 3, 4). Ali of the Defendants filed a timely Brief

in Opposition to Plaintiff's Petition for Temporary Injunc-

tion. (Doc. Nos. 14, 15, 16, 17).

All of the Defendants filed Motions to Dismiss, Motions to

Strike and Motions to Transfer Venuc, as well as Bricfs in

Support of those Motions. (Doc. Nos. 23, 24, 25, 26, 27, 28,

30, 32, 33, 35). These were filed between June 9-12, 2003.

Id.

On June 26, 2003, Plaintiff, without leave of Court, filed

an Amended Complaint. (Doc. No. 52). The Amended

Complaint did not bolster the allegations against the

Defendants, nor did it cure the defects in the original

Complaint. Jd. This Amended Complaint consisted of 114

pages, 15 causes of action and 655 Paragraphs. Id.

Between July 7 and:11, 2003, Defendants again filed

Motions to Dismiss and/or Strike Plaintiffs Amended

Complaint and Motions to Transfer. (Doc. Nos. 55, 56, 57,

08, 59, 61, 62, 63, 64, 65).

On July 25, 2003, the Honorable Timothy J. Savage, of

the United States District Court for the Eastern District

of Pennsylvania entered an Order granting the Defen-

dants’ Motions to Transfer and transferred the case sub

judice to the Western District of Pennsylvania. (Doc. No.

80).

4la

On December 29, 2003, in the case sub judice Plaintiff

filed a Motion to Supplement the Pleadings and a Motion

and Brief for Summary Judgment and Injunctive Relief.

(Doc. Nos. 86, 87, 88).

On January 5, 2004, Plaintiff revived the November 13,

2002 writ of summons which was filed a year earlier in

Untracht III and, yet again, filed a Complaint against

several of the Defendants named in this federal court

action, and some who were named in the previous state

court actions, and asserted causes of action including

defamation as a result of testimony and documents pro-

vided at the Lee internal fair hearings. (Doc. No. 136, p.

5).

On March 11, 2004, in the case sub judice Plaintiff filed a

Motion for Leave to Amend his Complaint and Brief in

Support. (Doc. No. 98).

On May 28, 2004, this Court entered a Case Management

Order setting the deadlines for the case, including that

discovery would close on January 7, 2005. (Doc. No. 103).

Defendants sent out timely discovery requests and sched-

uled and conducted Plaintiff's deposition on December 20,

2004 and December 21, 2004. (Doc. No. 141, Ex. 1). Plain-

tiffs deposition was to be concluded at the end of Decem-

ber 2004/first week of January 2005; prior to the close of

discovery, but at Plaintiff's request, the discovery dead-

line was extended until February 14, 2005. (Doc. Nos.

112, 116). Discovery was stayed on February 10, 2005

pending the Court’s decision on certain motions. (Doc. No.

126). Those motions were decided on April 7, 2005. (Doc.

No. 131). Discovery, therefore, was completed on April 11,

2005.

On April 7, 2005, this Court issued an Order granting

defendants’ Motion tu [S]trike the Amended Complaint

and granting Plaintiff leave to file a Second Amended

Complaint, which he did on April 25, 2005. (Doc. No. 131).

The motions currently pending before the Court were filed

after the close of discovery between June 13, 2005 and

October 21, 2005.

42a

ANALYSIS

II. LEGAL STANDARD

The Lee and Conemaugh Defendants filed Motions to

Dismiss, or, in the Alternative, *304 for Summary Judg-

ment. (Doc. Nos. 136, 139). The Conemaugh Defendants’

Motion (Document No. 139) is so captioned and the Lee

Defendants’ Brief in Support (Doc. No. 137) indicates the

alternative in the first sentence of the Introduction. (Doc.

Nos. 137, 139). Plaintiff responds to the Motions with a

Cross Motion for Summary Judgment and Brief in Sup-

port. (Doc. Nos. 146, 147). Additionally, both Plaintiff and

Defendants filed extensive exhibits with their Motions

and Briefs in Support including: depositions; affidavits;

prior state court pleadings and orders; and letters and

other documentation related to the actions taken at Lee

and Conemaugh. (Doc. Nos. 136, 137, 139, 140, 141, 142,

146, 147, 151, 152, 154, 155). Accordingly, the Court

treats the motions before it as motions for summary

judgment.

[2] A motion to dismiss may be converted to a motion for

summary judgment if the materials submitted warrant a

conversion and the parties had adequate notice. Jn Re

Rockefeller Center Properties Inc. Securities Litig., 184

F.3d 280, 288 (8d Cir.1999). The Third Circuit has held

that the parties have adequate notice where some of the

motions to dismiss are framed in the alternative as mo-

tions for summary judgment. Hilfirty v. Shipman, 91 F.3d

573, 578-79 (3d Cir.1996).

In the case sub judice the Court has no question that the

parties had notice that the Motions to Dismiss would be

treated, in the alternative, as Motions for Summary

Judgment. The Motions to Dismiss were denoted as

Motions for Summary Judgment in the alternative in

either the caption of the Motion or the first sentence of

the Introduction of the Brief in Support. (Doc. Nos. 137,

139). Plaintiff responded with a Cross Motion for Sum-

mary Judgment indicating it was clear to him Motions for

Summary Judgment had been filed by the Defendants.

43a

(Doc. No. 146). Finally, the parties attached extensive

exhibits to their Motions. (Doc. Nos. 136, 137, 139, 140,

141, 142, 146, 147, 151, 152, 154, 155). Accordingly, the

Court treats the motions as Motions for Summary Judg-

ment except in two instances where a Motion to Dismiss

is a more appropriate manner in which to address the

issue. [FN10

FN10. These instances involve Plaintiffs § 1981

claim for reverse national origin discrimination and

Plaintiffs 42 U.S.C. § 11112 claim and are discussed

more fully later in this Memorandum Opinion and

Order.

A. MOTION TO DISMISS STANDARD

In analyzing a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6):

the district court [is] required to accept as true all allega-

tions in the complaint and all reasonable inferences that

can be drawn from them after construing them in the

light most favorable to the non-movant. Rocks v. City of

Philadelphia, 868 F.2d 644, 645 (3d Cir.1989); D.P. En-

ters., Inc. v. Bucks County Community College, 725 F.2d

943, 944 (3d _Cir.1984). In determining whether a claim

should be dismissed under Rule 12(b)(6), a court looks

only to the facts alleged in the complaint and its attach-

ments without reference to other parts of the record.

Moreover, a case should not be dismissed for failure to

state a claim unless it clearly appears that no relief can

be granted under any set of facts that could be proved

consistently with the plaintiffs allegations. Hishon_uv.

King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-

33, 81 L.Ed.2d 59 (1984); D.P. Enters., 725 F.2d at 944.

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir.1994). The defendant bears the burden

to demonstrate that the complaint fails to state a *305

claim. Gould Electronics Inc. v. U.S., 220 F.3d 169, 178

44a

(38d_Cir.2000) (citing Kehr Packages, Inc. v. Fidelcor, Inc.,

926 F.2d 1406, 1409 (3d Cir.1991)).

B. SUMMARY JUDGMENT STANDARD

Summary judgment i is appropriate only when it 1s demon-

strated that there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a

matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-

32, 106 S.Ct. 2548, 2552-57, 91 L.Ed.2d 265 (1986);

Fed.R.Civ.P. 56(c). An issue of material fact is genuine “if

the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson _v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91

L.Ed.2d 202 (1986). In deciding a motion for summary

judgment, all reasonable inferences must be drawn in

favor of the non-movant. Oritani_[Sav. & Loan Ass’n uv.

Fidelity & Deposit Co., 989 F.2d 635, 638 (8d Cir.1993) }.

Troy Chem. Corp. v. Teamsters Union Local No. 408, 37

F.3d 123, 125-126 (3d Cir.1994).

As to materiality, the substantive law will identify which

facts are material. Only disputes over facts that might

affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment. Fac-

tual disputes that are irrelevant or unnecessary will not

be counted. See generally 10A C. Wright, A. Miller, & M.

Kane, Federal Practice and Procedure § 2725, pp. 93-95

(1983). This materiality inquiry is independent of and

separate from the question of the incorporation of the

evidentiary standard into the summary judgment deter-

mination. That is, while the materiality determination

rests on the substantive law, it is the substantive law’s

identification of which facts are critical and which facts

are irrelevant that governs. Any proof or evidentiary

requirements imposed by the substantive law are not

germane to this inquiry, since materiality is only a crite-

rion for categorizing factual disputes in their relation to

the legal elements of the claim and not a criterion for

evaluating the evidentiary underpinnings of those dis-

putes. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986).

45a

III. DISCUSSION

A. COLLATERAL ESTOPPEL OR CLAIM

PRECLUSION

1. Defendant’s Assertion of Collateral Estoppel or

Claim Preclusion

[3] Defendants assert that all claims before the Court in

the case sub judice are barred by collateral estoppel or

claim preclusion because Plaintiff should have asserted

such claims in one of his previously filed and dismissed

state court cases. The cases to which Defendants refer are

Untracht I and II, both of which were dismissed on the

basis of preliminary objections. (Doc. No. 142, Ex. G).

Defendant judicially admits in Untracht I and Untracht II

that “[t]he federal action includes all of the same claims

presently before this Court.” (Doc. No. 155, Ex. 2, p. 3).

However, the Orders dismissing Untracht I and Untracht

II do not specify on which preliminary objection the cases

were dismissed and Defendants do not clarify this for the

Court. (Doc. No. 142, Ex. G). Furthermore, the Defen-

dants present no argument to the Court suggesting that

the preliminary objections were an adjudication on the

merits. See Parking Auth. of the City of Wilkes-Barre uv.

Ten East South Street Co., 788 A.2d 1096, 1100-01

(Pa.Cmwlth.2001) (holding dismissal on_ preliminary

objections was not an adjudication on the merits and

collateral estoppel *306 did not apply). Since the prelimi-

nary objections on which the cases were dismissed are

relevant to whether this Court can apply collateral estop-

pel or claim preclusion and since no argument is made

that the preliminary objections constituted an adjudica-

tion on the merits, viewing the facts before it in the light

most favorable to the Plaintiff, the Court cannot dismiss

Plaintiffs claims on this basis.

2. Plaintiffs Assertion of Collateral Estoppel

First, Plaintiff moves for summary judgment in his favor

against Conemaugh based on his assertion that Cone-

maugh is judicially estopped by a statement it made in its

Answer in the malpractice case filed by EE’s estate

46a

against Plaintiff and Conemaugh (hereinafter the “Mal-

practice Case”) and by the position it took in the March

10, 2005 arbitration proceeding that it was not negligent

in credentialing Plaintiff through November 22, 2002. The

statement in Conemaugh’s Answer in the Malpractice

Case to which Plaintiff refers reads as follows:

“{I]t is denied that [Conemaugh] was negligent in creden-

tialing Dr. Untracht. To the contrary, when Dr. Untracht

was credentialed, [Conemaugh] carefully and in compli-

ance with all hospital, state and federal regulations, did

appropriately evaluate the information that was provided

by Dr. Untracht requesting surgical privileges. Dr. Un-

tracht at the time that his credentials were granted

appeared to be a competent surgeon up to and including

November 22, 2002 [the day of EE’s operation]. At all

times, [Conemaugh] exercised reasonable care in conduct-

ing an investigation into the credentials, skill, judgment

and ability of Dr. Untracht up to and including November

22, 2002; The hospital did not know, nor did it have any

reason to believe that there were any serious concerns or

problems associated with the surgery and practice of Dr.

Untracht from the time he was credentiaied up to and

including November 22, 2002. Further, at all times,

[Conemaugh] acted in an appropriate fashion with regard

to ali patients ... it is denied that [Conemaugh] had any

information prior to the surgery performed by Dr. Un-

tracht on Earl Esherick on November 22, 2002, that

would have warranted a suspension or other action with

regard to the privileges of Dr. Untracht.” (Doc. No. 147,

Ex. 6--Conemaugh’s Answer and New Matter to EE

Complaint).

Plaintiffs contention, that Conemaugh should be judi-

cially estopped as a result of its September 7, 2004 An-

swer in the Malpractice Case and the position it took in

the March 10, 2005 arbitration proceeding that it was not

negligent in credentialing Plaintiff through November 22,

2002, makes no sense. (Doc. No. 147, p. 16). First, Plain-

tiff never adequately explains what Conemaugh should be

judicially estopped from asserting. Presumably he wants

to bind Conemaugh to its denial of the allegation that

Conemaugh was negligent in credentialing Plaintiff. To

4Va

begin, whether Conemaugh was negligent in credentialing

Plaintiff between 1995 and November 22, 2002 is simply

not an issue in the case sub judice. Furthermore, whether

Conemaugh was negligent in credentialing Plaintiff

between 1995 and November 22, 2002 is not an issue to

which the doctrine of judicial estoppel is applicable.

[4}{5] The doctrine of judicial estoppel prevents a litigant

from asserting a position that is inconsistent with one

previously taken before a court or agency. Ryan Opera-

tions G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355,

361 (3d Cir.1996). Application of the doctrine involves a

three-part test: 1) whether the party’s present position is

irrevocably inconsistent with the position it asserted in

the prior *307 proceeding; 2) whether the party changed

its position in bad faith; and 3) whether the use of judicial

estoppel is tailored to address the affront to the court’s

authority or integrity. Dam Things from Denmark; a/k/a

Troll Company ApS v. Russ Berrie & Co. Inc., 290 F.3d

548, 559 n. 15 (3d Cir.2002).

[6] Here, the basic requirement of inconsistency is not

satisfied because there is nothing inconsistent between

Conemaugh’s defense in its Answer in the Malpractice

Case or in the March 10, 2005 arbitration proceeding that

it was not negligent in credentialing Plaintiff between

1995 and November 22, 2002 and Plaintiff's removal from

Conemaugh’s medical staff subsequent to November 22,

2002. Additionally, the fact that Conemaugh took a posi-

tion in the March 10, 2005 arbitration of the Malpractice

Case that it had not been negligent in credentialing

Plaintiff between 1995 and November 22, 2002 has abso-

lutely nothing whatsoever to do with the issue of whether

Plaintiff was negligent in his treatment of EX, an 85-year

old patient, on November 22, 2002. Furthermore, Cone-

maugh’s position that it was not negligent in credential-

ing Plaintiff between 1995 and November 22, 2002 has

absolutely nothing whatsoever to do with whether he

acted unprofessionally in accusing others of negligence.

Conemaugh’s assertion that it acted properly when it

initially credentialed Plaintiff does not constitute an

admission by Conemaugh that Plaintiff acted properly

48a

thereafter. Therefore, it is not inconsistent for Cone-

maugh to assert Plaintiff acted improperly, whether

negligently or unprofessionally, on or after November 22,

2002. Since there is no irreconcilable inconsistency, the

doctrine of judicial estoppel is not applicable.

[7] Additionally, there is no evidence that Conemaugh’s

assertions were accepted or adopted by any court in the

course of the litigation so as to evidence bad faith on the

part of Conemaugh for deviating from those assertions.

Id. (citing Cleveland v. Policy Management Systems Corp.,

526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999)).

Finally, judicial estoppel is an extraordinary remedy that

should be used only when a party’s inconsistent behavior

would result in a miscarriage of justice. See Dam Things,

290 F.3d at 559-60. Plaintiff makes no argument regard-

ing how failing to apply judicial estoppel in the case sub

judice would result in a miscarriage of justice.

[8] Second, Plaintiff asserts the March 10, 2005 arbitra-

tion result is entitled to collateral estoppel effect. (Doc.

No. 147, pp. 20, 23). Plaintiff is incorrect in his assertion,

the March 10, 2005 arbitration result is not entitled to

collateral estoppel effect. Collateral estoppel requires that

the following four factors be met: 1) the identical issue

was previously adjudicated; 2) the issue was actually

litigated; 3) the previous determination was necessary to

the decision; and 4) the party precluded from relitigating

the issue was fully represented in the prior action.

Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir.1995).

Although the issue of Plaintiffs negligence was likely at

the forefront of the matters litigated in the arbitration

proceeding, Judge Murphy did not offer any explanation

as to why he reached the decision he did. (Doc. No. 147,

Ex. 9). Judge Murphy simply entered an award in favor of

the Malpractice Case defendants, which resulted in the

Malpractice Case plaintiff receiving the “low” end of the

high-low arbitration, in the amount of $375,000. (Doc. No.

147, Ex. 9).

In short, Plaintiff requests that the Court declare res

judicata “Judge Murphy’s finding that Plaintiff did not

49a

mismanage the care of Patient EE.” (Doc. No. 146, p. 4).

Plaintiff blatantly misrepresents to the Court the arbitra-

tion Judge’s “holding” *308 on this issue. Plaintiff inter-

prets a judgment against him in the amount of $375,000

to mean that Judge Murphy made a “finding” that he did

not mismanage the care of EE. No such finding was made.

The reasoning behind Judge Murphy’s decision to award

Plaintiff $375,000, the low side of the high-low binding

arbitration is not disclosed by Judge Murphy. (Doc. No.

147, Ex. 9). Nowhere does Judge Murphy find, state or

imply that Plaintiff did not mismanage the care of EE.

(Doc No. 147, Ex. 9). The Court cannot and will not de-

clare res judicata a finding that simply does not exist.

B. ANTITRUST CLAIMS

1. Antitrust Standing

[9][10] To prove antitrust standing a plaintiff must show

that: 1) he has suffered the type of injury the antitrust

laws were intended to prevent; and 2) the injury flows

from that which makes the defendant’s acts unlawful.

Gulfstream Jil Assocs., Inc. vu. Gulfstream Aerospace

Corp., 995 F.2d 425, 429 (3d Cir.1993). The factors to be

employed in a standing analysis include: 1) the causal

connection between the antitrust violation and the harm

to the plaintiff and the intent by the defendant to cause

the harm, with neither factor alone conferring standing;

2) whether the plaintiffs alleged injury is of the type for

which the antitrust laws were intended to provide re-

dress; 3) the directness of the injury, which addresses the

concerns that liberal application of standing principles

might produce speculative claims; 4) the existence of more

direct victims of the alleged antitrust violations; and 5)

the potential for duplicative recovery or complex appor-

tionment of damages. Associated Gen. Contractors of Cal.

v. California State Council of Carpenters, 459 U.S. 519,

537-45, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

[11] “In addition to establishing that he has suffered an

antitrust injury, the plaintiff must prove that he is the

most efficient enforcer of the laws.” Baglio v. Baska, 940

F.Supp. 819, 828 (W.D.Pa.1996) (citing Alberta Gas Chem.

50a

v. E.I. Du Pont De Nemours & Co., 826 F.2d 1235, 1249

(3d_Cir.1987)). “Antitrust standing goes beyond the Con-

stitutional standing requirement of ‘injury in fact’ and is

not satisfied by the mere allegation of a causal connection

between an alleged antitrust violation and harm to the

plaintiff.” Mathews v. Lancaster Gen. Hosp., 883 F.Supp.

1016, 1045 (E.D.Pa.1995), aff'd, 87 F.3d 624 (8d Cir.1996).

“ “An antitrust plaintiff must prove that the challenged

conduct affected the prices, quantity or quality of goods or

services, not just his own welfare.” Mathews, 87 F.3d at

641 (quoting Tunis Bros. Co., Inc. v. Ford Motor Co., 952

F.2d 715, 728 (3d Cir.1991)). Recovery by a private plain-

tiff on an antitrust claim can only be had where the loss

“stems from a competition-reducing aspect or effect of the

defendant’s behavior.” Atlantic Richfield Co. v. USA

Petroleum Co., 495 U.S. 328. 344, 110 S.Ct. 1884, 109

L.Ed.2d 333 (1990).

[12] The Defendants argue that the Plaintiff lacks anti-

trust standing and, therefore, may not bring a claim

under the Sherman Act. (Doc. No. 137, pp. 44- 46; Doc.

No. 152, pp. 9-11; Doc. No. 161, p. 4; Doc. No. 162, p. 5).

The Plaintiff cites Angelico v. Lehigh Valley Hosp., Inc.,

184 F.3d 268 (3d Cir.1999) to argue that he has antitrust

standing suggesting that his circumstances are compara-

ble to Dr. Angelico’s. The Court d

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