Opposition Brief — El Shahawy v. Harrison

@ GUL 17 19%

No. 94-2082 | CLERK

In The 4

Supreme Court of the United States

October Term, 1995

¢-

MAHFOUZ EL SHAHAWY, M.D. and MAHFOUZ

EL SHAHAWY, M.D., P.A.,

Petitioners,

V.

WILLIAM T. HARRISON, JR., et al.,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

; ;

- i. @

RESPONDENTS’ BRIEF IN OPPOSITION

S

FRANK STRELEC, EsQuireE

(Counsel of Record)

Frazer F. Hitper, Esquire

WituraMs, Parker, HARRISON,

Drerz & GetzENn

Post Office Box 3258

Sarasota, Florida 34230-3258

(941) 366-4800

Attorneys for C. Ted French

July 17th, 1995

C. Lawrence Stace, Esquire

AKERMAN, SENTERFITT & Empson, P.A.

P.O. Box 3273

Tampa, Florida 33601-3273

Attorneys for Sarasota County Public Hospital Board,

David Bowman, H.J. Floyd, and C. Ted French

MuRNAGHAN, FERGUSON AND MAGUIRE

100 S. Tampa Street, Suite 2600

Tampa, Florida 33602 :

Co-Counsel for Sarasota County Public Hospital Board,

David Bowman, H.]. Floyd, and C. Ted French

Donatp W. STANLEY, Jr., EsQuire

SHort, SMITH, HENNEN, JENKINS,

STANLEY & GRAMAVOT, P.A.

One North Dale Mabry, Suite 800 ©

Tampa, Florida 32436

Co-Counsel for David Bowman —

G. Hunter Grpsons, Esquire

RicHARD GARLAND, EsQuiRE

Dickinson & Gripsons, P.A. .

P.O. Box 3979

Sarasota, Florida 34236

Attorneys for Physicians

Davip Mcreapir, Esquire

Lau, L..ng, Preper, CONLEY & McreApDIE

100 :. Ashley Drive, Suite 1700

Tampa, Florida 33601

Attorneys for Patrick DelMastro, M.D.

QUESTION PRESENTED

Whether the court of appeals erred in affirming the

district court’s ruling that the arbitration panel was not

guilty of misconduct by its refusal to admit in evidence a

proffered document.*

*The statement of Questions Presented For Review in the

petition is misleading by asserting baldly (a) that the arbitra-

tors “indisputably” were guilty of misconduct, and (b) that the

evidence in question was “pertinent and material” to the con-

troversy. This brief will show that the document in question

(the so-called “TECS Report”) was not pertinent or material

within the meaning of the arbitration statute and that the

arbitrators clearly were not guilty of misconduct.

TABLE OF CONTENTS

Guestion: Prague oo ci.6.o cs vices cis cwee svat seus i

Tee OF TO. 5 cc vce oc iene iieeans ii

Tae: OE ATO oo isin ee eae elise iii

| rr re rrr rere free ree 1

Summary of Argument .... 2.0.1. ..cccsceccsecsseces 3

ATBUMAORE 20 6 one cin chee rhacieeennsesceestesenensar 4

Reasons for Denying Writ ...............eeeeeeeees 4

I. Exclusion of the TECS Report was not Miscon-

duct on the Part of the Arbitrators.......... 4

A. Shahawy Expressly Waived any Objection

Based on Exclusion of Evidence ........ 6

B. Exclusion of the TECS Report was not

a 8. ghee renege re errr yey 6

II. This Case does not have Broad National Sig-

PATI soo ks wh. ee ak hae ce Es 8

III. Evaluation of this Petition is not Affected by

this Court’s Recent Opinion Concerning Stan-

Ge BE TAU . 5 5 iv kkk eke coke ec ee 9

( DUNE ee os hk roca Lk Oe ka a ees 11

Appendix

Order of the District Court Denying Shahawy’s

Petition to Vacate Arbitration Award.......... App. 1

Order of the Court of Appeals Affirming per

curiam the District Court Order Denying Shah-

awy’s Petition to Vacate Arbitration Award ...App. 8

iil

TABLE OF AUTHORITIES

Page

CASES

City of Columbia v. Omni Outdoor Advertising, Inc.,

499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed. 2d 382

2 | RE Ee ree eb ep R Me re pry eee cc ats ke pee 7

Cordis Corp. v. C.R. Bard, Inc., 30 U.S.P.Q. 2d 1664,

1993 WL 7238443 (S.D. Tex. March 11, 1993)....... 8

First Options of Chicago, Inc. v. Kaplan, ____ U.S. __,

RO Sec, HE EE a kk ak ce ee 4,9, 10

Hoteles Condado Beach, La Concha & Convention

Center v. Union de Tronquistas Local 901, 763 F.2d

co BO PEPE rrr ratty My eyar en 7, 8

Hunt v. Mobil Oil Corp., 654 F.Supp. 1487 (S.D.N.Y.

EI J xis 66s Panay ne aed ire T A ees a es Oe a rss 7

Newark Stereotypers’ Union No. 18 v. Newark Morn-

ing Ledger Co., 397 F.2d 594 (3d Cir.) cert. denied,

393 U.S. 954, 89 S.Ct. 378, 21 L.Ed. 2d 365 (1958) ..... 7

Robbins v. Day, 954 F.2d 679 (11th Cir. 1992)......... 10

Shahawy v. Harrison, 778 F.2d 636 (11th Cir. 1985),

modified, 790 F.2d 75 (11th Cir. 1986)............... 2

Shahawy v. Harrison, 875 F.2d 1529 (11th Cir. 1989) ..... 2

United Paperworkers Int. Union, AFL-CIO v. Misco,

Inc., 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed. 2d 286

CIB}. oss fa vSae OE TEAS ATE LS OER CUE DE COTES Mek os 6

No. 94-2082

o¢-—

In The

Supreme Court of the United States

October Term, 1995

*

MAHFOUZ EL SHAHAWY, M.D. and MAHFOUZ

EL SHAHAWY, M.D., P.A.,

Petitioners,

WILLIAM T. HARRISON, JR., et al.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

@--

RESPONDENTS’ BRIEF IN OPPOSITION

6

kespondents respectfully pray that the Court deny

the petition for a writ of certiorari to review the decision

of the United States Court of Appeals for the Eleventh

Circuit.

STATEMENT OF CASE

Petitioner, Mahfouz El Shahawy, was a member of

the medical staff of Sarasota Memorial Hospital, owned

and operated by defendant Sarasota County Public Hos-

pital Board. Petition, p.1.

In 1982 the Hospital Board denied Shahawy’s appli-

cation for privileges in the cardiac catheterization labora-

tary. Shahawy filed suit in the federal district court

alleging antitrust, civil rights and RICO claims, plus pen-

dent state law claims. The district court dismissed that

complaint. The Eleventh Circuit affirmed in part and

reversed as to the antitrust counts. Shahawy v. Harrison,

778 F.2d 636 (11th Cir. 1985), modified, 790 F.2d 75 (11th

Cir. 1986).

During pendency of that first appeal, the Hospital

Board declined to renew Shahawy’s medical staff mem-

bership. Following remand, the complaint was amended

to include that non-renewal, alleging antitrust, civil

rights, RICO and various state claims. In addition to the

Hospital Board, the amended complaint named 17 defen-

dants, including four administrators, two attorneys and

11 physicians. Again, the district court ruled in favor of

the defendants. Again, the Eleventh Circuit affirmed

except for the antitrust claims. Shahawy v. Harrison, 875

F.2d 1529 (11th Cir. 1989). The opinion noted that sub-

stantial competent evidence supported the decision to

terminate Shahawy’s medical staff membership, and that

Shahawy had received more than minimum procedural

due process. Id., 875 F.2d at 1533-1534. Thus, the two

Eleventh Circuit opinions do not support Shahawy’s

assertions of a vendetta.

In 1991, the parties agreed to mediation of the

remaining antitrust claims. R1-473,474. A settlement

resulted which included an agreement to “final, binding,

and enforceable” arbitration of the antitrust claims.

R1-483 Ex. A,B. The three member arbitration panel was

selected from a list of 22 retired federal judges. Id. After a

12-day evidentiary hearing, hundreds of documentary

exhibits and extensive post-hearing memoranda, the arbi-

tration panel ruled in favor of all defendants, stating

simply that “the plaintiffs have failed to prove any viola-

tion of federal or state antitrust laws.” R1-483 Ex. F.

The district court denied Shahawy’s petition to

vacate tle arbitration award.! The Eleventh Circuit

affirmed the district court’s order without opinion. 51

F.3d 1049 (11th Cir. 1995).

The order of the district court included a ruling that

exclusion of the TECS Report was not improper; the

parties had waived the right to challenge the award on

the ground of an erroneous evidentiary ruling, and the

exclusion was not “egregious error.” Order, App. pp. 3-5.

The petition challenges only the affirmance of exclusion

of the TECS Report. Petition, pp. 16-24.

¢

SUMMARY OF ARGUMENT

The sole ground for this petition is that the arbitra-

tors improperly excluded the TECS Report and that the

district court and the court of appeals improperly refused

to vacate the award for that reason.

That claim is untenable because Shahawy expressly

waived any right to challenge the award on the ground

that the arbitrators were guilty of misconduct by failing

The order of the district court is provided as an appendix

to this brief. It is cited as “Order, App. p. __.” The per curium

order of the court of appeals is also included as an appendix.

to consider pertinent or material evidence. Moreover, the

TECS Report was not “pertinent and material to the con-

troversy” within the meaning of the federal arbitration

statute, so that exclusion of this evidence could not be

misconduct.

This petition falls far outside the criteria for certiorari

petitions set forth in Rule 10. There is no conflict with

decisions of other courts. The per curiam opinion of the

court of appeals does not present any important federal

question. It does not establish any precedent. It simply

affects the medical staff of a single physician. The basic

issue is correctness or incorrectness of an evidentiary

ruling by arbitrators. There is no national significance

worthy of this Court’s attention.

Subsequent to the judgment of the Eleventh Circuit,

this Court announced First Options of Chicago, Inc. v.

Kaplan, <_ U.S. __, 115 S.Ct. 1920 (1995), concerning

courts of appeals’ standard of review of district court

decisions confirming arbitration awards. That opinion

does not affect this petition in view of the overwhelming

correctness of the opinion of the district court in this case.

+

ARGUMENT

REASONS FOR DENYING WRIT

I. Exclusion Of The TECS Report Was Not Misconduct

On The Part Of The Arbitrators.

The petition asks this Court to monitor the arbitra-

tors’ exercise of discretion within their authority. There

are no special circumstances which might call for grant-

ing this petition.

The sole claim in the petition is that “[t]he Arbitra-

tors knowingly and unlawfully excluded a singularly crit-

ical piece of evidence - the ‘TECS Report,’ ” contrary to 9

U.S.C.A. §10(a) (3). Petition, p- 16. The statute provides:

(a) In any of the following cases the United

States court in and for the district wherein the

award was made may make an order vacating

the award upon the application of any party to

the arbitration

* * +

(3) Where the arbitrators were guilty of

misconduct . . . in refusing to hear evidence

pertinent and material to the controversy;

The TECS Report (Training, Education and Consult-

ing Services Report) is described in the Order as a docu-

ment prepared by an outside consultant for the purpose

of assessing the current (1990) status of the Cardiovascu-

lar Program with special emphasis on the cardiac cathe-

terization laboratory. The report was compiled by a

behavioral psychologist, not a physician, based on his

interviews with certain cardiac catheterization laboratory

personnel. R1-482. Thus it was basically hearsay. The

petition contends that the TECS Report, prepared in 1990,

reveals the motivation of the Hospital Board in ruling

adversely to Shahawy years before in 1983. Petition, p. 22.

The district court upheld exclusion by the arbitrators

on the following two grounds.

A. Shahawy expressly waived any objection based

on exclusion of evidence.

In the Arbitration Agreement, Shahawy agreed:

In making decisions about discovery and infor-

mation exchange procedures, admission of evi-

dence, and all other matters, the Arbitrators

shall balance the need to consider the evidence

against the goal of this Agreement to ensure that

the dispute Plaintiffs and Defendant (sic) is

resolved in a timely and cost-effective way. So

long as the Arbitrators allow (1) the written oral

submissions provided for in this Agreement to

be made and (2) the time set out in this Agree-

ment for preparation and hearing, no Party shall

challenge the Award on the ground that the

arbitrators were guilty of misconduct by failing

to consider pertinent or material evidence or by

failing to postpone the hearing.

R1-483 Ex. B; Order, p. App. 3.

The parties are free to set such ground rules. United

Paperworkers Int. Union, AFL-CIO v. Misco, Inc., 484 U.S.

29, 39, 108 S.Ct. 364, 9 L.Ed. 2d 286 (1987). Shahawy did

not raise any question as to the conditions of the waiver.

B. Exclusion Of The TECS Report Was Not

“Egregious Error.”

Federal courts applying section 10(a) (3) generally do

not focus on literal tests of “pertinent” or “material.”2

* The TECS Report was conceivably neither “pertinent” nor

“material” under dictionary definitions of those terms. The

|

|

Instead, they customarily look at whether exclusion of

“relevant” evidence “so affects the rights of a party that it

may be said that he was deprived of a fair hearing.”

Hoteles Condado Beach, La Concha & Convention Center v.

Union de Tronquistas Local 901, 763 F.2d 34, 40 (1st Cir.

1985), quoting Newark Stereotypers’ Union No. 18 v. Newark

Morning Ledger Co., 397 F.2d 594, 599 (3d Cir.), cert. denied,

393 U.S. 954, 89 S.Ct. 378, 21 L.Ed. 2d 365 (1968). Here the

district court followed that trend, citing Hunt v. Mobil Oil

Corp., 654 F.Supp. 1487, 1512 (S.D.N.Y. 1987), for the

principle that vacatur is justified only by finding a “most

egregious error” on the part of the arbitrator. Order, App.

p. 4. In this connection, the district court held:

The Court finds that the arbitrators’ refusal to

receive the TECS Report was not an “egregious

error which resulted in adversely affecting the

rights” of the plaintiffs. The TECS Report was

compiled in 1990, years after this case was filed.

There is no indication that the scenarios

depicted in the TECS Report took place during

the period of time relevant to this case. Assum-

ing arguendo that the TECS Report does accu-

rately depict the cardiovascular program at the

times relevant to this case, the plaintiffs had

ample opportunity to offer proof of their theory

by providing direct evidence. The plaintiffs fail-

ure to do so does not create the exceptional

circumstances contemplated in the case law

panel arguably was required to hold there was no antitrust

violation by virtue of the doctrine of state action immunity

delineated in City of Columbia v. Omni Outdoor Advertising,

Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed 2d 382 (1991). In that

circumstance, the Report would have been completely irrele-

vant.

vacating arbitrator awards. In sum, the Court

finds that the plaintiffs have failed to meet their

burden to establish that the TECS Report was

improperly excluded.

Order, App. p. 5. The court of appeals did not need to

write an opinion to agree with that sound reasoning.

Moreover, the district court’s order shows that the

arbitration panel heard extensive argument as to recep-

tion of the TECS Report. Order, App. p. 4.n.4. This further

demonstrates that Shahawy received the “fair hearing”

contemplated by Hoteles Condado Beach. See Cordis Corp. v.

C.R. Bard, Inc., 1993 WL 723844 3 (S.D. Tex. March 11,

1993) (“Because the arbitrator is judge of the admissibility

and relevance of evidence submitted in an arbitration

proceeding, and because the arbitrator in this proceeding

entertained argument on the relevancy of evidence

derived from test performed on used balloons before

deciding to exclude it as irrelevant, the arbitrator’s deci-

sion to exclude this evidence did not prevent Cordis from

receiving a fundamentally fair hearing.”)

II. This Case Does Not Have Broad National Signifi-

cance.

Despite agreeing to binding arbitration, Shahawy is

unhappy with the result. Two federal courts have upheld

that result. Now Shahawy relies on a single evidentiary

ruling by the arbitrators to ask this Court to rexamine the

enormous arbitration record.

The weakness of the petition is emphasized by the

fact that all parties to the arbitration expressly waived

any right to challenge the award on the ground that the

arbitrators had improperly excluded pertinent or material

evidence.

This case does not even approach the general criteria

set forth in Rule 10 of the Supreme Court Rules. There is

no conflict with decisions of other courts interpreting 9

U.S.C.A. §10(a) (3). The materiality of the TECS Report -

discussing events occurring years after the last amend-

ment of the complaint - is not such an important federal

question as to deserve the attention of this Court.

This case involves the qualifications of one physician

to be a member of the medical staff of a major hospital. It

is a “peer review” controversy depending solely on its

own particular facts. It will not establish any precedent,

not even for subsequent peer review proceedings at this

same hospital. National significance - even local signifi-

cance — is completely lacking.

III. Evaluation Of This Petition Is Not Affected By

This Court’s Recent Opinion Concerning Standard

Of Review.

The judgment of the Eleventh Circuit in this case was

entered on March 20, 1995. On May 22, 1995 this Court

decided First Options of Chicago Inc. v. Kaplan, ___ U.S. __,

115 S.Ct. 1920 (1995). The First Options opinion will

undoubtedly provide guidance to the Eleventh Circuit in

the future, but it does not affect this petition.

In First Options, the Court was reviewing a decision

of the Third Circuit concerning arbitrability of a dispute,

not exclusion of evidence by an arbitrator. In discussing

standard of review of district court arbitration decisions,

10

the Court criticized Robbins v. Day, 954 F.2d 679, 681-682

(11th Cir. 1992), which explained reasons for applying a

specially lenient abuse of discretion standard when

reviewing district court decisions that confirm arbitration

awards. Id., 115 S.Ct. at 1926.

The per curiam judgment of the Eleventh Circuit

does not state that it was applying a lenient standard of

review.

The Eleventh Circuit affirmance cites 11th Cir. R.

36-1. App. p. 8. That rule provides in pertinent part:

When the court determines that any of the fol-

lowing circumstances exist:

(a) judgment of the district court is based on

findings of fact that are not clearly erro-

neous;

* * +

(e) judgment has been entered without a

reversible error of law;

and an opinion would have no precedential

value, the judgment or order may be affirmed or

enforced without opinion.

This is not a case where the court of appeals wrote a

long opinion holding that there were valid arguments

both ways but that its “lenient standard” impelled it to

uphold the district court. To the contrary, the district

court’s opinion is so overwhelmingly correct that the

court of appeals found no need to write any opinion, and

so affirmed per curiam.

11

CONCLUSION

For the foregoing reasons, the writ of certiorari to the

United States Court of Appeals for the Eleventh Circuit

should be denied.

Respectfully submitted,

FRANK STRELEC, ESQUIRE

(Counsel of Record)

FRAZER F. Hi_per, Esquire

WILLIAMS, PARKER, HARRISON,

Dietz & GETZEN

Post Office Box 3258

Sarasota, Florida 34230

(941) 366-4800

Attorneys for C. Ted French

AND

C. LAawreENCE STAGG, EsQuIRE

AKERMAN, SENTERFITT & EIDSON, P.A.

P.O. Box 3273

Tampa, Florida 33601-3273

Attorneys for Sarasota County

Public Hospital Board,

David Bowman, H.]. Floyd,

and C. Ted French

MURNAGHAN, FERGUSON AND

MAGuIRE

100 S. Tampa Street, Suite 2600

Tampa, Florida 33602

Co-Counsel for Sarasota County

Public Hospital Board,

David Bowman, H.J. Floyd,

and C. Ted French

12

DONALD w. STANLEY, JR., ESQUIRE

SHorFI, SMITH, HENNEN, JENKINS,

STANLEY, GRAMAVOT, P.A.

One North Dale Mabry, Suite 800

Tampa, Florida 32436

Co-Counsel for David Bowman

G. Hunter Gipsons, EsQuire

RICHARD GARLAND, ESQUIRE

DickINSON & Grpsons, P.A.

P.O. Box 3979

Sarasota, Florida 34236

Attorneys for Physicians

Davip McrEADIE, ESQUIRE

Lau, LANE, PIEPER, CONLEY

& MCcREADIE

100 S. Ashley Drive, Suite 1700

Tampa, Florida 33601

Attorneys for Patrick DelMastro,

M.D.

App. 1

APPENDIX

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MAHFOUZ EL SHAHAWY,

M.D., etc., et al.,

Plaintiffs,

Case No.

V. 82-1207-CIV-T-WC

WILLIAM T. HARRISON, JR.,

et al.,

Defendants.

ORDER

Before the Court is the plaintiffs’ motion to vacate

arbitration award, (D-482) and defendants’ motion for

enforcement of settlement agreement (D-483).!

The facts and procedural history emanating from this

case are extensive. The Court need not repeat them here

because they are reported at 778 F.2d 636 (11th Cir. 1985),

modified, 790 F.2d 75 and 875 F.2d 1529 (11th Cir. 1989).

The plaintiffs seek vacation of the arbitration award pur-

suant to 9 U.S.C. § 10, and progeny case law. Section 10

provides:

' Plaintiffs’ petition has been filed in violation of Middle

District of Florida Local Rule 3.01(c) to the extent that the peti-

tion exceeds twenty pages in length. The Court directs plain-

tiffs’ counsel to refrain from making non-relevant, personal and

superfluous comments about opposing counsel or parties in

pleadings submitted to the Court.

App. 2

(a) In any of the following cases the Uruted

States Court in and for the district wherein the

award was made may make an order vacating

the award upon the application of any party to

the arbitration -—

(1) Where the award was procured by corrup-

tion, fraud, or undue means.

(2) Where there was evident partiality or cor-

ruption in the arbitrators, or either of them.

(3) Where the arbitrators were guilty of mis-

conduct in refusing to postpone the hearing,

upon sufficient cause shown, or in refusing to

hear evidence pertinent and material to the con-

troversy; or of any other misbehavior by which

the rights of any party have been prejudiced.

(4) Where the arbitrators exceeded their

powers or so imperfectly executed them that a

mutual, final, and definite award upon the sub-

ject matter submitted was not made.

The plaintiffs set forth six arguments in support of their

petition.

As a threshold matter, it should be noted that the

burden to establish these claims rests squarely upon the

plaintiffs. Furthermore, judicial review of arbitration

awards is very limited. Brown v. Rauscher Pierce Refsnes,

Inc., 994 F.2d 775, 778 (11th Cir. 1993). The Eleventh

Circuit has set forth the following framework for analyz-

ing an arbitration award:

The FAA (Federal Arbitration Act) presumes

that awards will be confirmed, 9 U.S.C. § 9, and

enumerates only four narrow bases for

vacatur. . . . In addition to these four statutory

grounds for vacatur, we have recognized two

App. 3

additional non-statutory bases upon which an

arbitration award may be vacated. First, an arbi-

tration award may be vacated if it is arbitrary

and capricious. Second, an arbitration award

may be set aside if contrary to public policy.

Id. at 778-79 (citations omitted).?

The plaintiffs first argue that “the [a]rbitrators know-

ingly and unlawfully excluded a singularly critical piece

of evidence — the “Training, Education and Consulting

Services Report” (“TECS Report”).3 The TECS Report was

prepared by an outside consultant “for the purpose of

2 The plaintiffs do not argue that the arbitrators’ award was

arbitrary and capricious or contrary to public policy. Accord-

ingly, the Court will limit its analysis to the statutory grounds

for vacatur as set forth in 9 U.S.C. § 10.

3 For reasons unknown to this Court, the argument and

subsequent panel ruling were not reported as part of the tran-

script testimony.

Paragraph 7.1 of the parties’ Arbitration Agreement pro-

vides:

In making decisions about discovery and information

exchange procedures, admission of evidence, and all

other matters, the Arbitrators shall balance the need

to consider the evidence against the goal of this

Agreement to ensure that the dispute between Plain-

tiffs and Defendant [sic] is resolved in a timely and

cost-effective way. So long as the Arbitrators allow (1)

the written oral submissions provided for in this

Agreement to be made and (2) the time set out in this

Agreement for preparation and hearing, no party

shall challenge the Award on the ground that the

Arbitrators were guilty of misconduct by failing to

consider pertinent or material evidence or by failing

to postpone a hearing.

App. 4

assessing the current status of the Cardiovascular Pro-

gram with special emphasis on the Heart Catheterization

Laboratory.” In their current motion, the plaintiffs spend

a significant amount of time relaying the contents of the

TECS Report, while advancing few substantive argu-

ments on its alleged wrongful exclusion. The arbitration

panel apparently excluded the TECS Report based upon

the following grounds: (1) hearsay; (2) irrelevance; and

(3) Evidence Rule 403.4

Federal Courts, in dealing with an arbitrator’s refusal

to hear evidence, have held that “[o]nly the most

egregious error which resulted in adversely affecting the

rights of a party would justify the application of the rule

(9 U.S.C. § 10(c)) and require vacatur of an award.” Hunt

v. Mobil Oil Corp., 654 F.Supp 1487, 1512 (S.D.N.Y. 1987).

Furthermore, absent exceptional circumstances, a review-

ing court may not overturn an arbitrator’s determination

of the relevancy or persuasiveness of evidence submitted.

Hoteles Condado Beach, La Concha and Convention Center v.

4 At the arbitration hearing, the plaintiffs also contended

that the TECS Report was admissible because it was not within

the purview of Florida Statute § 768.40. Section 768.40 shields

investigations, proceedings and records of a committee/board

“in any civil or administrative action against any provider of

professional health services arising out of the matters which are

the subject of evaluation and review” by such committee /

board. The defendants argued, inter alia, that 768.40 precluded

admissibility of the TECS Report because it fell squarely within

the language of the statute. The arbitrators found, however, that

§ 768.40 could not bar the admissibility of such evidence in the

trial of a federal cause of action. The Court need not resolve this

issue because the Court finds that the arbitration panel properly

excluded the TECS Report on separate grounds.

era te athe AN dS a RO y

App. 5

Union De Tronquistas Local 901, 763 F.2d 34, 39-40 (1st Cir.

1985).

The Court finds that the arbitrators’ refusal to receive

the TECS Report was not an “egregious error which

resulted in adversely affecting the rights” of the plain-

tiffs. The TECS Report was compiled in 1990, years after

this case was filed. There is no indication that the sce-

narios depicted in the TECS Report took place during the

period of time relevant to this case. Assuming arguendo

that the TECS Report does accurately depict the cardio-

vascular program at the times relevant to this case, the

plaintiffs had ample opportunity to offer proof of their

theory by providing direct evidence. The plaintiffs failure

to do so does not create the exceptional circumstances

contemplated in the case law vacating arbitrator awards.

In sum, the Court finds that the plaintiffs have failed to

meet their burden to establish that the TECS Report was

improperly excluded.

The plaintiffs next argue that the arbitrators improp-

erly denied discovery of the “Horty, Springer & Mattern

documents” (“Horty documents”). Horty, Springer &

Mattern, a law firm, represented the Hospital during the

period of time when Dr. Shahaway’s medical privileges

were terminated.> After a hearing and in camera review of

the documents, the chairman of the arbitration panel

denied the plaintiffs’ motion to compel production based

upon the attorney-client privilege. At the arbitration

> The Hospital Board voluntarily produced certain docu-

ments produced between it and the law firm. It objected, how-

ever, to the production of those documents which contained the

menta! impressions of counsel.

App. 6

hearing the plaintiffs made a similar request, which was

again denied by the chairman.®

The Court finds that, under the preceding authority,

the plaintiffs have failed to meet their burden to show

that the arbitration panel improperly denied discovery of

the Horty documents.

The plaintiffs next argue that: (1) the arbitrators’

failure to enter an award within the allotted time [under

the arbitration agreement] requires vacatur of the award;”

(2) there was evident partiality in the arbitrators; (3) there

was a repudiation of the agreement by the defendants;

and (4) the award was procured by undue means.

The plaintiffs have failed to cite legal authority to

support these arguments. Notwithstanding the plaintiffs’

failure in that regard, the Court again finds that the

plaintiffs have failed to meet their burden.

Accordingly, it is ORDERED:

(1) That the plaintiffs’ motion to vacate arbitration

award (D-482) is DENIED.

(2) That the defendants’ motion for enforcement of

settlement agreement (D-483) is GRANTED and

Endispute, Inc. is ORDERED to deliver the original

mutual release executed by the plaintiffs and original

6 The designated United States Magistrate Judge consid-

ered and denied the same request by Orders of August 4, 1986,

and August 25, 1986.

7 The case cited by plaintiffs, lerna v. Arthur Murray Int'l,

Inc., 833 F.2d 1472 (11th Cir. 1987), does not stand for the propo-

sition asserted.

App. 7

stipulation for dismissal with prejudice executed by

counsel for the parties.

(3) That this case is DISMISSED.

DONE AND ORDERED at Tampa, Florida this 8th

day of SEPT., 1993.

/s/ Elizabeth A. Kovachevich

ELIZABETH A. KOVACHEVICH

UNITED STATES

DISTRICT JUDGE

Copies to

Counsel of Record

App. 8

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 93-3367

D. C. Docket No. 82-1207-CIV-T-15

MAHFOUZ EL SHAHAWY, M.D., M.S., F.A.C.C.,

Individually and MAHFOUZ EL SHAHAWY, M.D.,

P.A., a Florida Professional Assoc.,

Plaintiff-Appellant,

versus

WILLIAM T. HARRISON, JR., Individually,

F. EDWARDS RUSHTON, M.D., Individually,

JOHN N. CARLSON, M.D., Individually,

WILLIAM L. PAGE, M.D., Individually,

RICHARD J. SARKIS, M.D., Individually, Et Al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

(March 20, 1995)

Before COX and BLACK, Circuit Judges, and FAY, Senior

Circuit Judge.

PER CURIAM: AFFIRMED. See 11th Cir. R. 36-1.

“Costs taxed against plaintiff-appellant.”

App. 9

Judgment Entered: March 20, 1995

For the Court: Miguel J. Cortez, Clerk

By: /s/ Karleen McNabb

Deputy Clerk

ISSUED AS MANDATE: APR 28 1995