# Opposition Brief — El Shahawy v. Harrison > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1945%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1995 - **Citation:** 516 U.S. 821 ## Text @ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1945%3A2. Public record. Not legal advice.