Appendix — Vesom v. Atchison Hospital Association (No. 08-194)

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 06-3353

(D.C. No. 04-CV-2218-JAR)

[Filed May 15, 2008]

PITT VESOM, M.D.,

Plaintiff - Appellant,

es

ATCHISON HOSPITAL ASSOCIATION;

RYAN THOMAS, M.D.; DOUGLAS

GORACKE, M.D.; DONALD SWAYZE,

D.O.,

Defendants - Appellees.

ORDER AND JUDGMENT

* This order and judgment is not binding precedent except under

the doctrines of law of the case, res judicata, and collateral

estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10" Cir. R. 32.1.

Za

Before O’BRIEN, BRORBY, and GORSUCH,

Circuit Judges.

Dr. Pitt Vesom sued the Atchison Hospital

Association and several individual members of the

Atchison Hospital Medical Executive Committee when

they refused to recommend his medical staff privileges

be renewed. Dr. Vesom appeals from summary

judgment granted in favor of the defendants. We

AFFIRM.

I. BACKGROUND

Dr. Vesom is an American citizen born in Thailand.

He maintained medical staff privileges at the Atchison

Hospital in Atchison, Kansas, for a substantial period

between 1983 through 2003. In 2003, the Association

refused to renew his staff privileges, allegedly because

he was a “disruptive physician.” Vesom sued the

Atchison Hospital Association and three individual

physicians (collectively, the Hospital), claiming race

discrimination under 42 U.S.C. § 1981 and Title VI;

conspiracy under 42 U.S.C. § 1985(3); antitrust

violations under section 1 of the Sherman Act, 15

U.S.C. § 1; and claims alleging retaliatory discharge

and intentional interference with contract under

Kansas law.

A. Hospital Bylaws

Atchison Hospital Association is a not-for-profit

corporation formed in 1912. Governed under Kansas

law, the Association’s purpose is to provide quality

health care and medical services for the citizens of

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Atchison and the surrounding area.’ To admit and

treat patients at the Hospital, a doctor must be an

active member of the medical staff. In turn, the

physicians and dentists on the medical staff work

under the Medical Staff Bylaws which “establish the

mechanisms to carry out the direct and delegated

responsibilities of the Medical Staff in cooperation

with the Hospital Administration and the Governing

Board.” (R. Vol. II at 493.) The “Governing Board” is

the Board of Directors which has “the ultimate

responsibility for the operation of the Hospital and for

providing patient care.” (/d.)

The medical staff elects officers to the Medical

Executive Committee (MEC). The MEC is comprised

of the Chief of Staff, the Vice Chief of Staff, the

Secretary/Treasurer, the immediate past Chief of Staff

and one “member at large” elected from the active

medical staff. According to the Bylaws, the MEC

oversees the functions of the medical staff and acts on

their behalf, but its authority is limited to “making

recommendations to the Governing Board;” and its

“actions are not binding until approved by the .. .

Board.” (Ud. at 499.)

The MEC’s duties include, among others,

recommending the acceptance or rejection of an

application for medical staff privileges or an

application for renewal, required every two years.

Once accepted, there is no guarantee staff privileges

will be renewed solely because the professional is

licensed to practice in Kansas. Only those who mect

' Atchison is a community of approximately 12,000 people.

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and maintain the qualifications, standards and

requirements of the applicable rules and regulations

will be accepted for renewal of staff privileges.

Should the MEC recommend a practitioner’s

privileges not be renewed, the Bylaws provide a

system to challenge the adverse decision. The

practitioner must be given written notice containing a

statement of the reasons for the action and a

description of fair hearing rights. The practitioner can

request a hearing before a Fair Hearing Committee

consisting of not less than five disinterested outside

physicians.

The MEC, the Governing Board and _ the

practitioner may each have legal counsel at the

hearing. All parties have the right to offer oral and

documentary evidence and to cross-examine the

witnesses. According to the defendants, the Fair

Hearing Committee is permitted to conduct

independent interviews, research and review. It then

must issue ae report of its findings and

recommendations to the Chief Executive Officer

(CEO), who forwards the report to the practitioner and

the other members of the Board.

Within ten days of receiving the report, the

practitioner may request appellate review by the

Board on actions of the Hearing Committee “taken

arbitrarily, capriciously or with bias” or “not supported

by the evidence.” The review is limited to the record

presented to the Fair Hearing Committee. The Board

then issues a final decision.

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B. Dr. Vesom’s History with the Hospital’

Dr. Vesom, a Board Certified internist and

cardiologist, was granted privileges at the Hospital in

September, 1983. With the exception of a few

colleagues, Vesom was excluded from the staff

members’ social events and activities. Although

Vesom was “highly qualified,” the majority of the staff

members routinely refused to refer their cardiac

patients to Vesom’s care. (RK. Vol. III at 1279.) His

wife, a certified pathologist, was unable to find

employment with Atchison Hospital.

Dr. Vesom was the Chairman of at least one service

section (primarily emergency services) from 1985

through 1995. In 1986, 1987 and 1991, he was a

member of the MEC. In June 1996, Dr. Vesom

voluntarily resigned and sold his medical practice to be

with his family in Thailand.’ He returned to Atchison

in 1998 and requested reappointment. The MEC

recommended he not be reappointed and Vesom

requested a fair hearing pursuant to the Bylaws.* The

Governing Board eventually chose not. to follow the

MEC recommendation and approved Vesom’s

conditional reappointment upon his approval of an

“Agreement and Release.” (R. Vol. III at 1026.) The

* The facts are set forth in the light most favorable to Dr. Vesom.

See Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004).

* The purchasing group, Mid-America Cardiology Associates,

continues to provide cardiology services in Atchison.

‘In 1998, the MEC was composed of Dr. Goracke (Chief of Staff),

Dr. Campbell, Dr. Sontheimer, Dr. Shriwise and Dr. Eplee.

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Agreement provided a one-year. provisional

appointment with proctoring by an independent

cardiologist and written reports of his behavior from

specific Hospital departments.* Vesom also stipulated

to a provision recognizing a concern Vesom may

engage in future disruptive behavior:

During his tenure on the Medical Staff, Dr.

Vesom shall enjoy all the rights and privileges

and be subject to all the rules, restrictions and

sanction as may be granted or imposed by the

Bylaws upon any physician on the Medical

Staff, including but not limited to, any and all

section thereof governing or relating to

“Disruptive Physicians.”

(R. Vol. Il at 1030.) Vesom’s next reappointment

request in 2001 was approved without incident and he

was granted privileges for two years.

In December 2002, Vesom _ submitted a

Reappointment Information Form and_ other

documents for his 2003 reappointment. Each renewal

packet included an Authority and Liability Waiver

which states:

I further waive any rights under Educational

Rights and Privacy Act or any statute granting

immunity to such Boards or Committees and

further agree to hold harmless such President,

Board or Committees evaluating my application

* The departments included Social Services, Nursing, Emergency

Room and the Intensive Care Unit.

Va

from any claim or action by or on my behalf in

the event such application for reappointment is

denied for any reason.

(R. Vol. If at 565.) At the time Vesom applied for

renewal of his privileges, the MEC consisted of Dr.

Goracke (Chief of Staff), Dr. Swayze (Vice Chief of

Staff), Dr. Jones (Secretary/Treasurer), Dr. Rider

(member at large), and Dr. Thomas (past Chief of

Staff).

Shortly before the MEC met to consider Vesom’s

renewal application, he and two other staff physicians,

Dr. Ware and Dr. Tayiem, made complaints regarding

the Hospital’s peer review process concerning one of

Dr. Thomas’ patients.° On January 3, 2003, these

three doctors met with Dr. Goracke and the CEO of the

Hospital, Virgil Bourne, to discuss their complaints.

On January 22, 2003, Vesom, Ware and Tayiem sent

their complaints in a letter to the Board of Directors of

the Hospital. One day later, a special meeting of the

Board was convened to discuss “pressing medical staff

issues.” (R. Vol. III at 1177.) In attendance were

Board members Bourne, Goracke and the Hospital’s

legal counsel, Andrew Ramirez. The only action taken

was to terminate the Hospital’s agreement with Dr.

Ware.

© Dr. Tayiem is a Palestinian physician who joined in the

complaints regarding the peer review process. Tayiem remains in

active status at the hospital and was a member of the MEC during

the discovery period.

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C. Denial of Privileges

In February 2003, the MEC met and determined it

would recommend Dr. Vesom’s renewal of privileges be

denied and Ware’s provisional privileges’ be

terminated. Eventually, the reasons given for denial

were based on the “disruptive physician” provisions of

the Bylaws. These provisions prohibit:

1. attacks (verbal or physical) leveled at

individuals, Hospital personnel or

patients which are personal, irrelevant or

go beyond the bounds of fair professionai

conduct;

3. non-constructive criticism addressed to

its recipient in such a way as to

intimidate, undermine confidence,

belittle or imply’ stupidity or

incompetence;

4. refusal to accept Medical Staff

assignments, Or to participate’ in

committee or departmental affairs on

anything but his or her own terms or to

do so in a disruptive manner;

7. verbal or physical threats of retribution,

litigation or violence directed at

individuals, Hospital personnel or

patients; or

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8. use of foul, abusive language.

(R. Vol. I at 150-51.) On February 18, 2003, Bourne

sent Drs. Vesom and Ware identical letters notifying

them of the MEC’s adverse recommendation based on

the conclusion they were disruptive physicians. On

February 24, 2003, Goracke, Bourne and Ramirez met

with the Board. The minutes of this meeting state:

The Executive/Credentials Committee further

informed the Board of their recommendation to

give David Ware .. . notice of Termination of

Provisional Active Staff Status and Privileges

effective March 18, 2003. They also informed

the Board of their recommendation to notify Pitt

Vesom ... of Termination of Active Staff

Privileges effective March 18, 2003.

(Vol. III at 1179.) The Board then met in executive

session with the Hospital’s attorney and the risk

manager.

Vesom requested a Fair Hearing on March 6, 2003.

Bourne responded with a letter delineating the specific

charges made against Dr. Vesom, an itemized listing

of the information used by the MEC in reaching its

recommendation (Vesom’s Credentials File), and the

witnesses expected to testify in support of the charges.

Vesom claims it was at this time he realized the MEC

would present alieged instances of disruptive conduct

but would not include exculpatory information and

documents. Prior to the Fair Hearing. he was provided

with copies of all the written exhibits that would be

used to supr ort the charges. The hearing ultimately

took place on January 24, 2004. Both the Hospital and

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Vesom were represented by attorneys and both parties

were permitted to offer testimony and evidence in

support of their positions. The Fair Hearing

Committee, a panel of five independent doctors, was

allowed to ask questions of their own. Understanding

its role was to determine whether the MEC’s decision

was “arbitrary, unreasonable or capricious,” the Fair

Hearing Committee unanimously determined the

evidence demonstrated Vesom had exhibited a

“pattern of disruptive behavior.” (R. Vol II at 731,

739.) Vesom requested appellate review before the

Board, which took place on March 25, 2004. The

Board affirmed the decision of the Fair Hearing

Committee and the MEC on April 2, 2004.

Throughout the appeal process, Dr. Vesom

maintained active medical staff privileges at the

Hospital. Afterward, he obtained privileges at

Cushing Hospital, approximately 25 miles away. In

September 2004, Vesom accepted an offer to practice

at a hospital in Poplar Bluff, Missouri.

Dr. Vesom filed this action against the Hospital

and Drs. Thomas, Goracke and Swayze. Dr. Vesom

claims these doctors conspired to deny him privileges

and preclude him from practicing in the community

because he is Asian and he had reported incidents of

professional incompetence committed by other doctors.

He asserted discrimination under 42 U.S.C. §§ 1981

and 1985, and Title VI of the Civil Rights Act of 1964.

He also claimed violations under the Sherman Act,

Kansas public policy (whistle-blowing) and intentional

interference with business relationships. The district

court granted summary judgment on all claims.

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On appeal, Vesom raises numerous issues. As to

his claims of racial discrimination, he contends the

district court erroneously determined the Hospital

Bylaws did not create a contract and there was no

factual issue whether the Hospital’s stated reasons for

its actions were pretextual. In large part, he

maintains the court’s ruling on pretext was due to the

court’s arbitrary evidentiary rulings. He further

contends the district court erred in granting summary

judgment on his Sherman Act claim, and his state law

whistle-blower and _ interference with business

relationship claims. Finally, he argues the waiver

contained in his renewal packet did not preclude his

lawsuit.

Il. DISCUSSION

We review the district court’s grant of summary

judgment de novo. See Stover, 382 F.3d at 1070.

Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). In

conducting our analysis, we view all of the facts and

draw all reasonable inferences from the record in favor

of the non-moving party. See Stover, 382 F.3d at 1070.

A. Evidentiary Rulings

Dr. Vesom claims the district court failed to

recognize the existence of a material issue of fact due

to its refusal to consider important admissible

evidence. Accordingly, we begin with the evidentiary

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challenges. “Evidentiary rulings are committed to the

discretion of the trial court, and we review them only

for abuse of discretion. Our review is even more

deferential where the evidentiary ruling concerns the

admissibility of what is claimed to be hearsay

evidence.” United States v. Ramirez, 479 F.3d 1229,

1245 (10th Cir. 2007), cert. denied, 128 S.Ct. 1074

(2908). “Under this standard, a trial court’s decision

will not be reversed unless the appellate court has a

definite and firm conviction that the lower court made

a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” Allen v.

Sybase, Inc., 468 F.3d 642, 659 (10th Cir. 2006).

1. Affidavits

Vesom claims the district court erred in failing to

consider statements contained in the affidavits of Dr.

Ware, Dr. Rider, Nurse Kathy Jackson and Rosetta

Birch, a former respiratory therapist. The court

disregarded parts of Ware and Rider’s affidavits

because the statements were based on inadmissable

hearsay or conclusory statements about the feelings

and intent of others. It struck the affidavits of Birch

and Jackson because Vesom failed to disclese these

witnesses until just before his response to the

summary judgment motion and offered no justification

for the delay.

A. Affidavits of Rosetta Birch and Kathy

Jackson

Rosetta Birch is a former respiratory therapist and

medical records clerk at the Hospital. Her affidavit

was signed on January 13, 2006, shortly before

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Vesom’s response to the Hospital’s motion for

summary judgment. One of the instances of Vesom’s

disruptive conduct involved an allegation that Birch

had complained about Dr. Vesom’s treatment of a

certain patient. Her affidavit contradicted the

allegation. In addition, Birch stated she never saw Dr.

Vesom “disrupt the flow of care to a patient.” (R. Vol.

III at 1299.) Her affidavit also stated that on more

than one occasion Birch heard the Hospital’s Risk

Management Officer remark that Dr. Vesom “neéds to

just go back to where he came from.” (/d.)

Kathy Jackson, a registered nurse at the Hospital

from 1969 until September 28, 2005, signed her

affidavit on January 6, 2006. During her last sixteen

years at the Hospital, Jackson was the head nurse in

the emergency room. She stated certain doctors did

not “appreciate[] constructive criticism and often

retaliated against those who critiqued hospital

procedures or standards” and, contrary to some of the

complaints regarding Vesom’s behavior to the

emergency room staff, she never found him to be

abusive or disruptive in the way he handled a

situation. (Jd. at 1301.)

In its reply brief, the Hospital urged the district

court to strike these affidavits because neither witness

was disclosed in Vesom’s original or amended witness

lists as required by Fed. R. Civ. P. 26(a)(1) & (e)(1).

Rule 37 states a party may not use such evidence

unless there is “substantial justification” and the

failure to disclose is harmless. Fed. R. Civ. P. 37.

According to the district court, the witnesses and their

testimony were known to Vesom and “it was feasible

...todisclose...these ... witnesses some time prior”

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to his summary judgment response. (Vol. I at 423.)

Because there was no substantial justification and the

witnesses were being used to defeat summary

judgment, it struck the affidavits.

The exclusion of evidence presented out of time is

“automatic and mandatory” unless the violation was

either justified or harmless. Finley v. Marathon Oil

Co., 75 F.3d 1225, 1230 (7th Cir. 1996). Vesom admits

the affidavits were submitted outside the discovery

time line and he did not seek to amend his earlier

disclosures. Nonetheless, he claims the court erred

because the witnesses (at least, Kathy Jackson) were

working at the Hospital during much of the discovery

phase and were only “willing to come forward and

testify” after the discovery deadline had passed.

(Appellant’s Br. at 35.) He also claims the failure to

disclose was harmless because the Hospital could have

deposed the witnesses before the reply brief deadline.

Vesom complains the district court “elevat{ed]

schedules and timetables over the duty to see that

justice is done.” (Appellant’s Reply Br. at 10.) We

disagree.

Birch and Jackson were no longer employed by the

Hospital for at least three months before their

affidavits were signed. There was sufficient time,

prior to filing his summary judgment response, to

amend earlier disclosures explaining the delay.

Instead, Dr. Vesom chose to sandbag. He submitted

the affidavits of two new and unannounced witnesses

who were available at the time of his Fair Hearing, in

an attempt to defeat summary judgment. He offers

nothing to support his speculation that these witnesses

were not willing to come forward until some time in

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2005. Even if true, Dr. Vesom knew they had

knowledge of material facts long before then. The

admissibility of the affidavits under Rule 56(e) does

not remove them from the district court’s sound

discretion to impose sanctions under Rule 37(c). The

district court did not abuse its discretion.

b Affidavits of Dr. Rider and Dr. Ware

The Hospital requested the court strike the

affidavits of Drs. Rider and Ware to the extent the

declarations were not based on personal knowledge,

contained inadmissible hearsay or were merely

conclusory statements. The district court granted the

motion. Dr. Vesom contends the court misapplied Rule

701 of the Federal Rules of Evidence which permits

testimony characterizing the behavior of other

members of the MEC as “angry,” “hostile” or

“retaliatory.” See United States v. Welch, 745 F.2d

614, 617-18 (10th Cir. 1984) (allowing lay opinion

defendant was angry but appeared lucid).

i) Dr. Rider’s Testimony

Dr. Rider’s testimony was presented in two

affidavits and his deposition.’Dr. Rider’s testimony

recounts his attendance as the at-large member of the

MEC committee meetings in Janu iry and February

2003. He states the other MEC members were “angry”

with Dr. Vesom. However, Rider goes further, stating

the doctors were angry because Dr. Vesom had voted

‘ Dr. Rider’s deposition was taken on March 29, 2005. He

submitted affidavits on August 30, 2004, and January 12, 2006.

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for an outside peer review of Dr. Thomas’ treatment of

a patient and at a later meeting, disputed the peer

reviews accuracy. Rider also stated the MEC

members were angry with Vesom’s discussions with

Bourne and his letter to the Board concerning the

inadequate practices at the Hospital. While Dr. Rider

was certainly in a position to observe what he believed

to be angry behavior, he does not recount any specific

statements that would support his conclusion as to the

reason for the other members’ anger.

In his second declaration, Rider stated the

committee members did not discuss specific instances

of behavior supporting a conclusion that Dr. Vesom

was disruptive prior to the decision to recommend

non-renewal. Rather, the determination that Vesom’s

privileges would not be renewed was a foregone

conclusion, bolstered by the Hospital attorney’s

counsel to the members that their decision could be

justified in terms of Bylaw violations. The list of

Bylaw violations and the exhibits from Vesom’s

credential files used at the Fair Hearing were compiled

by the Hospital’s attorney only after the decision to

deny a renewal of Vesom’s privileges. The district

court considered this testimony.

Dr. Rider concluded, however, “The animus directed

at Dr. Vesom by members of the MEC was not the

result of disruptive behavior on his part. Rather, it was

the result of professional jealousy of a better qualified

foreign born doctor whose competition and demanding

standards of care were resented by the hospital

employed medical! staff doctors.” (Ud. at 1296.) Again,

he offers no personal observation of specific statements

or conduct by the members to support his opinion.

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“Under Fed. R. Evid. 701, the testimony of a lay

witness in the form of opinions or inferences is

admissible if those opinions or inferences are (a)

rationally based on the perception of the witness and

(b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.’

Gossett v. Okla. ex. rel. Bd. of Regents for Langston

Univ. , 245 F.3d 1172, 1179 (10th Cir. 2001) (quotations

omitted). In Gossett, we reversed the district court’s

rejection of an affidavit which included the opinion of

a University instructor that a student was the victim

of gender discrimination. We determined the opinion

was admissible because:

?

[The] affidavit demonstrate|d] . . . her position

as an instructor in the Nursing School and on

the Admissions Committee provided her with

the opportunity to observe firsthand for several

years the School’s policies and practices with

respect to its treatment of male students. Her

opinion was a means of conveying her

impression based on what she had herself

perceived, and it was predicated upon concrete

facts within her own _ observation and

recollection.

Id. at 1180.

While Dr. Rider personally witnessed the actions of

the MEC and may have formed an opinion from his

observations, the district court properly excluded his

ultimate opinion — that the decision was based, at least

in part, on Vesom’s place of birth.

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We need not decide if this evidence is inadmissible

because it violated Rule 701. Rather, Rider’s second

affidavit directly contradicts his previous deposition

statements under oath.® While an affidavit will not be

disregarded merely because it conflicts with a prior

sworn statement, it deserves no consideration when it

“constitutes an attempt to create a sham fact issue.”

Burns v. Bd. of County Comm’rs of Jackson County,

Kan., 330 F.3d 1275, 1282 (10th Cir. 2003).

To determine whether an affidavit is a sham, we

consider “whether the affiant was cross-examined

during his earlier testimony, whether the affiant had

access to the pertinent evidence at the time of his

earlier testimony or whether the affidavit was based

on newly discovered evidence, and whether the earlier

testimony reflects confusion which the affidavit

attempts to explain.” 7d. Dr. Rider’s deposition was

taken on March 29, 2005. He testified in detail

regarding the ongoing animosity between the

hospital-employed physicians (Thomas, Goracke and

Swayze) and the independent physicians (Ware, Rider,

Arkom, Growney and Vesom). When asked how Dr.

Ware’s termination (a non-minority) supported Dr.

Vesom’s claim of racial discrimination, Dr. Rider

responded: “Well, as I say, I think Dr. Vesom’s case is

-- there may be some element that may be related to

® “[1)t is consistently held that an order or judgment which is

correct in ultimate effect will not be disturbed on appeal even

though the lower tribunal relied upon a wrong ground or gave an

untenable reason for its action. The issue on appeal is the

correctness in ultimate effect of an order or judgment, not the

reason or reasons given therefor by the trial court.” First Nat'l

Bank v. Luther, 217 F.2d 262, 266 (10th Cir. 1954).

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race, but I would consider that a small consideration.”

(R. Vol. III at 1059.) When later pressed with the

question: “So you would agree .. . that race did not

play a part in the decision to recommend

non-reappointment of Vesom’s' medical staff

privileges,” Rider responded: “I really don’t have

enough information of the thinking of the other

members of the staff to make a statement one way or

another.” (Ud. at 1063.)

Rider’s declaration in response to the Hospital’s

motion for summary judgment was signed on January

12, 2006. It does not purport to clear up any confusion

during the deposition nor does it claim Rider was

exposed to new evidence. Therefore, the declaration

should be disregarded as a sham or because, as he

testified in his deposition, it was not based on Rider’s

personal knowledge.

ii) Dr. Ware’s Testimony

Dr. Ware’s declaration was executed on January 12,

2006. The district court struck paragraphs “2, 3, 4, 5,

7 and 8" as hearsay and Dr. Ware’s “opinions about the

feelings and attitudes of certain physicians towards

plaintiff.” (R. Vol. I at 424.) Vesom maintains the

alleged hearsay statements were admissible as the

admissions of party-opponents and Dr. Ware’s lay

opinion was admissible under Rule 701.

Dr. Ware’s declaration states he was recruited to

Atchison in July 2002. He _ recounts an incident

shortly after his recruitment where Dr. Bourne gave

Ware a tour of the facility. During the tour, Bourne

identified Dr. Vesom and stated: “Watch out for him.

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He'll stab you in the back!” (R. Vol. III at 1306.)

Shortly thereafter, defendant Dr. Thomas told Ware he

“hated” Dr. Vesom and “it was no secret.” Ud.) While

golfing with defendant Dr. Goracke, Ware testified

Goracke “made disparaging remarks about Dr.

Vesom.” (Jd.) Dr. Ware opined that “the feelings and

attitudes expressed against Dr. Vesom were, in part,

based upon the fact that he was a foreign born doctor

coupled with his standard of providing high quality

care to his patients.” (Id.)

We agree the statements of Goracke and Thomas

are admissible as the admissions of a party-opponent.

Rule 801(d)(2)(A) of the Federal Rules of Evidence

provides: “A statement is not hearsay if... [t]he

statement is offered against a party and is... the

party’s own statement, in either his individual or a

representative capacity ....” But the remainder of Dr.

Ware’s statements are hearsay. Like Dr. Rider, Dr.

Ware fails to present personally observed statements

or conduct as the basis for his opinion. Therefore, the

district court did not err in excluding this evidence.

2. Documentary Evidence

Vesom maintains the district court erred in

refusing to admit documents from his Credential Files

® Ware also stated the Hospital was aware of Vesom’s complaints

to Kansas health authorities because Ware made comments to

various hospital personnel, including Dr. Goracke, prior to the

February 2003 MEC meeting, regarding both he and Vesom’s

intentions to report their complaints outside the Hospital. The

district court did not strike this testimony.

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for lack of proper authentication. Vesom contends this

evidence was admissible on summary judgment

because the content of the material would be

admissible at tnial. Pastran v. K-Mart Corp., 210 F.3d

1201, 1203 n.1 (10th Cir. 2000). Further, the parties

had stipulated in a pre-trial order that the documents

contained in Vesom’s Credential Files were business

records and could be introduced without further

foundation.

As an initial matter, Vesom has failed to point us to

the specific documents he believes were erroneously

disregarded by the district court. While the record

reveals the Huspital did request specific documents be

disregarded, not all of those documents have been

included in the record. The documents which are

available are handwritten or contain handwritten

notes — none identify the author. Given this record, we

cannot say the district court abused its discretion in

failing to consider the pages we have viewed. See

United States v. McClaichey, 217 F.3d 823, 835-36

(10th Cir. 2000) (to the extent defendant did not cite to

the specific evidence in the record, the issue was

waived).

In sum, the district court did not abuse its

discretion in striking the affidavits of Rosetta Birch

and Kathy Jackson. The affidavits of Drs. Ware and

Rider regarding their subjective beliefs as to the

intent, thoughts or motivations of others were

correctly stric’en. To the extent the district court

disregarded testimony stating certain persons were

physically observed tu be “angry” or the statements of

party-opponents, we will consider such evidence on

appeal.

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B. Racial Discrimination Claims

When the plaintiff bringing a claim under § 1981"°

and Title VI" offers no direct evidence of

discrimination, we apply the burden-shifting scheme

of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).’? See Antonio v. Sygma Network, Inc., 458 F.3d

'0 42 U.S.C. § 1981 provides in relevant part:

(a)... All persons... shall have the same right in every

State ... to make and enforce contracts... .

(b) For purposes of chis section, the term “make and

enforce contracts” includes the making, performance,

modification, and termination of contracts, and the

enjoyment of all benefits, privi’~ges, terms, and conditions

of the contractual! relationship.

————

To establish a prima facie case, the plaintiff must show “(1) that

the plaintiff is a member of a protected class; (2) that the

defendant had the intent to discriminate on the basis of race; and

(3) that the discrimination interfered with a protected activity as

defined in § 1981.” Hampton v. Dilla. d’s Dept. Stores, Inc., 247

F.3d 1091, 1102 (10th Cir. 2004).

'' Title V1, codified at 42 U.S.C. § 2000d states, “No person in the

United States shall, on the ground of race, color, or national

origin, be excluded from participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity

receiving Federal financial assistance.”

'* We recognize this is not an “employment” action and the parties

agree Dr..Vesom’s status with the Hospital was as an independent

contre_cor. However, courts routinely follow the McDonnell

Douglas model when considering claims of racial discrimination

brought by non-employees or independent contractors. See

23a

at 1177, 1181 (10th Cir. 2006). “Under McDonnell

Douglas, if the plaintiff can establish a prima facie

case of discrimination or retaliation, the burden shifts

to the defendant to show a _ legitimate

non-discriminatory or non-retaliatory reason for the

adverse employment action.” Id. “If the defendant

meets this burden, the burden shifts back to the

plaintiff to demonstrate that the defendant’s proffered

reason is pretext.” Id.

Dr. Vesom claims the “istrict court wrongly

rejected his claim that the Hospital Bylaws created a

contractual interest sufficient to support Vesom’s

§ 1981 claim. The Kansas Supreme Court has not

decided the question whether hospital bylaws create a

contract and those states which have decided the issue

are in disagreement.” Fortunately, we need not reach

Hampton, 247 F.3d at 1107 (non-employee).

'S Compare Van v. Anderson, 66 Fed. Appx. 524, *1 (5th Cir. 2003)

(unpublished) (“[SJection 1981 claims, breach of contract claims,

and tortious interference claims al] fail as a matter of law... .

[Neither the medical staff bylaws nor his business relationship

with his patients could constitute a contractual relationship upon

which liability could be predicated.”); Madsen v. Audrain Health

Care, Inc., 297 F.3d 694, 699 (8th Cir. 2002) (Missouri courts have

held that “hospita] bylaws cannot be considered a contract under

Missouri law because consideration is lacking.”), with Samuel v.

Herrick Mem’ Hosp., 201 F.3d 830, 835 n.1 (6th Cir. 2000)

(Florida has . . . legislat{ed] that a hospital must promulgate

bylaws and those bylaws create a binding contract between the

physician and the hospital.”); Marrese v. Deaconess Hosp., 966

F.2d 1456, *6 n.8 (7th Cir. 1992) (unpublished) (“[T]he Indiana

courts, ... have recognized that hospital medical staff bylaws can

constitute a contract between the hospital and its medical staff.”).

24a

this issue of first impression. Assuming for the

purposes of this case she Hospital Bylaws created a

contract sufficient to support Dr. Vesom’s § 1981 claim,

and also assuming he has established a prima facie

case under both § 1981 and Title VI, he fails to

establish the Hospital’s proffered reason for its actions

was a pretext disguising a racially discriminatory

animus.

C. Pretext

Under Tenth Circuit precedent, pretext may be

shown by “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action

that a reasonable factfinder could rationally find them

unworthy of credence and_hence infer that the

employer did not act for the asserted

non-discriminatory reasons.” Morgan v. Hilti, Inc.,

108 F.3d 1319, 1323 (10th Cir. 1997) (quotations

omitted). A plaintiff can make a showing of pretext

with evidence that the defendant’s stated reason for

termination was false. Kendrick v. Penske Transp.

Serus., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000).

Evidence tending to show pretext permits an inference

that uhe employer acted for discriminatory reasons.

Morgan, 108 F.3d at 1323. At the summary judgment

stage, if a plaintiff advances evidence establishing a

prima facie case and evidence upon which a factfinder

could conclude that the defendant’s alleged

nondiscriminatory reasons for the employment

decisions are pretextual, the case should go to the

factfinder. Jd. “We do not always require actual

evidence of discrimination because, ‘[i]n appropriate

circumstances, the trier of fact can reasonably infer

25a

from the falsity of the explanation that the employer is

dissembling to cover up a discriminatory purpose....

Moreover, once the employer’s justification has been

eliminated, discrimination may well be the most likely

alternative explanation, especially since the employer

is in the best position to put forth the actual reason for

its decision.” Swackhammer v. Sprint / United Mgmt.

Co., 493 F.3d 1160, 1168 (10th Cir. 2007) (quoting

Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S.

133, 147 (2002)).“ “However, it is not always

permissible for the factfinder to infer discrimination

from evidence that the employer’s explanation is

unworthy of belief.” Jd. “[I)f the record conclusively

revealed some other, nendiscriminatory reason for the

employer’s [adverse employment] decision, or if the

plaintiff created only a weak issue of fact as to whether

the employer’s reason was untrue and there was

abundant and uncontroverted independent evidence

that no discrimination had occurred,’ the fact that the

employer’s explanation was unworthy of belief would

no longer be sufficient to create an inference of

discrimination.” Jd. (quoting Reeves, 530 U.S. at 148).

Dr. Vesom finds it “incredible” that the district

court found evidence of a post hoc justification for the

denial of his reappointment, yet failed to deny

summary judgment. He argues this finding, alone,

'* Although Reeves spoke in terms of judgment as a matter of law

under Fed. R. Civ. P. 50, “the standard for granting summary

judgment ‘mirrors’ the standard for judgment as a matter of law,

such that ‘the inquiry under each is the same.” Reeves, 530 U.S.

at 150 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250-51 (1986)).

26a

permits an inference that the stated reason for

termination “is plainly false and pretextual and ample

evidence of mendacity.” (Appellant’s Br. at 34.) His

argument misapprehends his burden. While Dr.

Rider’s testimony states the four other members of the

MEC decided to recommend denial of Vesom’s renewal

application before they reviewed the Bylaws, Dr.

Vesom failed to present any evidence this decision was

motivated by racial animus. See Patel v. Midland

Mem 'l Hosp. & Med. Ctr., 298 F.3d 333, 342 (5th Cir.

2002) (“More importantly, even if Dr. Patel could

connect these events to his 1999 suspension, he still

fails to create a question of fact for the jury that race

motivated his suspension.”).

In Reeves, the Supreme Court determined the

defendants were not entitled to judgment as a matter

of law because “in addition to establishing a prima

facie case of discrimination and creating a jury issue

as to the falsity of the employer’s explanation,

petitioner introduced additional evidence that [the

employer] was motivated by age-based animus and

was principally responsible for petitioner’s firing.”

Reeves, 530 U.S. at 151. Dr. Vesom’s claims fail on

both factors.’®

'S The district court concluded (albeit in the context of Dr. Vesom’s

Sherman Act claim), the Board independently made the ultimate

determination to deny a renewal of Vesom’s privileges and there

was no evidence suggesting the Board did not act independently

in accepting the MEC’s recommendation after the Fatr Hearing

procedure was completed. On appeal, Vesom responds by stating,

“(t}here is significant evidence that the Fair Hearing Panel and

the Board of Directors exercised no real authority over the

determination to terminate Vesom; rather, they acted

27a

“[W]hen a plaintiffs evidence supports a

nondiscriminatory motive for the employer’s action

and the plaintiff presents no evidence to undermine

that motive, summary judgment for the employer is

appropriate.” Swackhammer, 493 F.3d at 1168. Dr.

Vesom unquestionably established he was disliked,

even hated, by other members of the medical staff and

members of the MEC. He also established his renewal

application was rejected shortly after he and two other

perfunctorily,” citing generally to EEOC v. BCI Coca Cola Bottling

Co. of Los Angeles, 450 F.3d 476, 484-86 (10th Cir. 2006), cert.

granted, 127 S.Ct. 852 and dismissed 127 S.Ct. 1931 (2007).

(Appellant’s Br. at 45.) This issue was not raised in the racial

discrimination context below. However, we stated in BCI:

[Blecause a plaintiff must demonstrate that the actions of

the biased subordinate caused the employment action, an

employer can avoid liability by conducting an independent

investigation of the allegations against an employee. In

that event, the employer has taken care not to rely

exclusively on the say-so of the biased subordinate, and

the causal link is defeated. Indeed, under our precedent,

simply asking an employee for his version of events may

defeat the inference that an employment decision was

racially discriminatory. Employers therefore have a

powerful incentive to hear both sides of the story before

taking an adverse employment action against a member

of a protected class.

Id. at 488 (citation omitted). It is undisputed the Board made its

decision only after five independent physicians (not associated

with the Hospital) heard arguments and received evidence from

Dr. Vesom, through his attorney, at the Fair Hearing. Vesom fails

to offers any reason why the causal chain was not broken at this

point.

28a

physicians (one Caucasian male and one Palestinian

male) complained about the peer review procedures at

the Hospital. It is also undisputed that both Dr.

Vesom and the Caucasian physician were denied

renewal of their privileges. The reasons given to both

physicians for the MEC’s actions were identical.

Dr. Vesom claims “virtually all of the alleged

disruptive activity of Dr. Vesom centered on his

attempts to improve the quality of health care at the

Hospital, or his complaints that he was being

discriminated against because of his race by the

Hospital administration.” (Appellant’s Br. at 44.)

While Dr. Vesom may believe his race was a factor, he

has not come forth with any evidence of his allegation.

Indeed, the only evidence of the MEC’s motivations

reveals an ongoing and escalating animosity between

the independent physicians (including Dr. Vesom) and

physicians employed by the Hospital. Because Dr.

Vesom failed to submit any admissible evidence of

racial discrimination, the district court appropriately

granted summary judgment in favor of the Hospital.

D. Sherman Act Claim

Section 1 of the Sherman Act states:

Every contract, combination in the form of a

trust or otherwise, or conspiracy, in restraint of

trade or commerce among the several States, or

with foreign nations, is declared to be illegal.

Every person who shall make any contract or

engage in any combination or conspiracy hereby

declared to be illegal shaJ] be deemed guilty of

a felony....

29a

15 U.S.C. § 1. To succeed on a Sherman Act claim, a

plaintiff must show concerted action and an

unreasonable restraint of trade. Systemcare, Inc. v.

Wang Labs. Corp., 117 F.3d 1137, 1139 (10th Cir.

1997). An antitrust injury must be analyzed from the

consumer’s viewpoint. Mathews v. Lancaster Gen'l.

Hosp., 87 F.3d 624, 641 (3d Cir. 1996). Thus, Dr.

Vesom needs to show the Hospital’s conduct “affected

the prices, quantity or quality of goods or services, not

just his own welfare.” Id.; see also Sanjuan v. Am. Bd.

of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th

Cir. 1994). The district court concluded, inter alia, Dr.

Vesom failed to submit evidence of any anti-trust

injury. There was no evidence he had exclusive

contracts with his patients or that the Board’s decision

drove up prices of cardiology service to any patient.

Vesom claims the court’s ruling must be reversed

because he was denied staff privileges for “the purpose

of diminishing the competition for services in the

Atchison community.” (Appellant’s Br. at 45.)

However, he fails to cite to record evidence apart from

asserting Dr. Rider’s testimony established the

defendants’ “concerted actions produced an

anti-competitive effect.” (Jd. at 46.) Assuming these

assertions are sufficient to avoid waiving this issue on

appeal, they are not enough to establish any error in

the court’s ruling.

E. Kansas Whistle-Blower Claim

Dr. Vesom claims the district court erred in

concluding his status, akin to an independent

contractor, precluded his public policy claim against

the Hospital under the Kansas whistle-blower law.

30a

“When the federal courts are called upon to interpret

state law, the federal court must look to the rulings of

the highest state court, and, if no such rulings exist,

must endeavor to predict how that high court would

rule.” Stickley v. State Farm Mut. Auto. Ins. Co., 505

F.3d 1070,1077 (10th Cir. 2007) (quotation omitted).

The Kansas whistle-blower statute provides as follows:

(a) No employer shall discharge or otherwise

discriminate against any employee for making

any report pursuant to K.S.A. 65-4923" or

65-4924.

(b)Any employer who violates the provisions of

subsection (a) shall be liable to the aggrieved

employee for damages for any wages or other

benefits lost due to the discharge or

discrimination plus a civil penalty in an amount

not exceeding the amount of such damages.

Such damages and civil penalty shall be

recoverable in an individual action brought by

the aggrieved employee. If the aggrieved

employee substantially prevails on any of the

allegations contained in the pleadings in an

action allowed by this section, the court, in its

6 Kan. Stat. Ann. § 65-4923(a) provides in relevant part:

If a health care provider, or a medical care facility agent

or employee who is directly involved in the delivery of

health care services, has knowledge that a health care

provider has committed a reportable incident, such health

care provider, agent or employee shall report such

knowledge ....

dla

discretion, may allow the employee reasonable

attorney fees as part of the costs.

Kan. Stat. Ann. § 65-4928. The Kansas Supreme court

has authorized a whistle blower action in tort by an

at-will employee for retaliatory termination. See

Palmer v. Brown, 752 P.2d 685 (Kan. 1988). Its

rationale for this extension was based in part on public

policy grounds. See id. at 687-90. The Kansas

Supreme court has not addressed whether the statute

covers an independent contractor.

Dr. Vesom contends the termination of his staff

privileges was based, at least in part, on his

complaints to the Board and the Kansas Health

Department regarding the Hospital’s peer review

procedures and professional incompetence of certain

doctors. He concedes Palmer and the Kansas statutory

protections do not reference the status of an

independent contractor. However, he urges we apply

Board of County Commissioners, Waubansee County,

Kansas v. Umbehr, which teaches that an independent

contractor’s entitlement to public policy protections

must be resolved in the context of surrounding facts.

518 U.S. 668, 678-81 (1996) (bright-line rule

distinguishing between employees and independent

contractors leaves Constitutional rights unduly

dependant on how the service provider's title is

labeled). Dr. Vesom asserts a physician’s economic

reliance on his relationship with the Hospital

constitutes a fact pattern demonstrating an

entitlement to whistle-blower protection under public

policy considerations and Kansas common law. We

decline Vesom’s invitation to create state law for

Kansas.

32a

The Kansas whistle-blower statute is plain and

unambiguous. It clearly provides a medical provider's

protection from retaliation by its employer. The plain

language does not include independent contractors.

Thus, the district court properly refused to extend that

protection outside its legislative boundaries. See

Graham v. Dokter Trucking Grp., 161 P.3d 695, 703

(Kan. 2007) (“[P}ublic policy is usually the arena of the

legislative branch.”); Higgins v. Abilene Mach., Inc.,

172 P.3d 1201, 1204 (Kan. App. 2007) (issue of public

policy is for the legislature to consider in the form of

an unambiguous statute); Palmer, 752 P.2d at 687-88

(“Before courts are justified in declaring the existence

of public policy, . . . it should be so thoroughly

established as a state of public mind so united and so

definite and fixed that its existence is not subject to

any substantial doubt.”) (quotation omitted). Dr.

Vesom does not aliege a constitutional violation as was

the case in Waubansee. He fails to explain why

Supreme Court precedent should control a state

common law claim or why a federal court should

expand state law based on public policy, despite the

presence of an unambiguous state statute. While, in

the future, Dr. Vesom may be able to persuade the

Kansas legislature to modify the existing statutes, it is

not our place to create new law for the Kansas

legislature or its state courts.

33a

F. Intentional Interference Claim

Kansas recognizes a cause of action for tortious

interference with a prospective business advantage or

relationship. Turner v. Halliburton Co., 722 P.2d

1106, 1115 (Kan. 1986). “The requirements for this

tort [are]: (1) the existence of a business relationship

or expectancy with the probability of future economic

benefit to the plaintiff; (2) knowledge of the

relationship or expectancy by the defendant; (3) that,

except for the conduct of the defendant, plaintiff was

reasonably certain to have continued the relationship

or realized the expectancy; intentional misconduct by

defendant; and (5) damages suffered by plaintiff as a

direct or proximate cause of defendant’s misconduct.”

Id. (internal citations omitted). Tortious interference

with contractual expectations or a prospective business

advantage are predicated on malicious conduct by the

defendant and “is aimed at. . . protecting future or

potential contractual relations.” Id.

Vesom complains the district court ruled against

him on his interference claim, even though “the

termination of his medical staff privileges interfered

with his business relations with the thousands of

patients he had treated in the 20+ years he practiced

in Atchison.” (Appellant’s Br. at 51.) However, Dr.

Vesom does not address the reason the district court

ruled against him — he failed to submit actual evidence

of interference besides his own conclusory statements.

Vesom presented no contractual relationship or

exclusive arrangement with his patients on which to

base his prospective loss. He proffered no affidavit

identifying one person who did not engage Dr. Vesom

due to his loss of privileges at the Hospital. On the

34a

other hand, the Association came forward with

undisputed evidence that Vesom continued to exercise

his staff privileges at the Hospital until April 2004,

when the Board accepted the MEC’s recommendation.

It is also undisputed that, after he left Atchison, Dr.

Vesom maintained privileges at Cushing Memorial

Hospital in Leavenworth, Kansas (approximately 25

miles from Atchison), and Horton Community Hospital

in Horton, Kansas (approximately 20 miles from

Atchison). He admittedly continued to see patients at

Cushing until his voluntary resignation of his

privileges at both hospitals to start a practice in Poplar

Bluff, Missouri.

Because Dr. Vesom bears the burden of persuasion

regarding his damages at trial, the Association “need

not negate [Vesom’s] claim.” Libertarian Party of N.M.

uv. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007).

Rather, the Association need only “point[{] out to the

court a lack of evidence on an essential element of

[Vesom’s] claim.” /d. The Association has done so.

Vesom must respond with “specific facts” from which

a rational trier of fact could find in his favor. Id.“({Tjhe

facts must be identified by reference to affidavits,

deposition transcripts, or specific exhibits incorporated

therein.” Id.

On appeal, Vesom makes no attempt to meet this

burden. His argument to the district court was equally

unambitious. He argued, “{pJlainly, plaintiff had a

thriving medical practice which was destroyed by

defendants’ intentional and unlawful misconduct.” (R.

Vol. lat 355.) This statement is not followed by record

cites. Moreover, Vesom’s affidavit statement gives no

indication that he has suffered damages. Indeed,

35a

there is some evidence in the record demonstrating his

new practice in Missouri may be far more lucrative

than his Kansas practice. Dr. Vesom’s “[c]onmciusory

allegations . . . do not establish an issue of fact under

Rule 56.” Bruner v. Baker, 506 F.3d 1021, 1025 (10th

Cir. 2007). The district court properly granted

summary judgment on this cleim.

IIt. CONCLUSION

Because there is no pretext, Dr. Vesom’s § 1981

racial discrimination claim fails. With the demise of

his § 1981 claim, his § 1985(3) conspiracy claim cannot

stand. Dr. Vesom’s failure to present any facts

supporting damages requires summary judgment be

granted in favor of the Association on his Sherman Act

claim and his state claim for interference with

prospective business relations. We decline to extend or

modify Kansas law on public policy grounds,

eliminating Dr. Vesom’s state whistle-blower claim.

Having sufficiently sifted through state law in

concluding summary judgment is appropriate on all

claims, we need not address Dr. Vesom’s waiver under

Kansas law.

AFFIRMED.

ENTERED FOR THE COURT

Terrence L. O’Brien

Circuit Judge

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

No. 04-2218-JAR

[Filed September 22, 2006]

PITT VESOM, MLD.,

Plaintiff,

VS.

ATCHISON HOSPITAL ASSOCIATION,

et al.,

Defendants.

ee ee ee ee a ed

MEMORANDUM AND ORDER

Plaintiff Pitt Vesom, M.D. filed this action against

Atchison Hospital Association (“AHA”) and three

physicians, Ryan Thomas, M.D., Douglas Goracke,

M.D., and Donald Swayze, D.O., who were members of

the AHA Medical Executive Committee (““MEC”), and

who voted to deny _plaintiffs application for

reappointment of medical and staff privileges at AHA.

Plaintiff contends that the denial of his staff privileges

at AHA resulted from an agreement and conspiracy to

fabricate reasons for refusing to continue his staff

37a

privileges because he is Asian, he had reported

incidents of professional incompetence at AHA, and

because defendants prevented or restrained him from

practicing medicine in the Atchison community.

The Court now considers the following motions: (1)

plaintiffs Motion for Leave to file Declaration and

Exhibits under Seal (Doc. i83); (2) defendants’ Motion

for Summary Judgment (Doc. 161); (3) defendants’

Motion to Exclude Declaration and Expert Testimony

of John-Henry Pfifferling, Ph.D. (Doc. 142); and (4)

defendants’ Motion to Exclude Affidavits and Expert

Testimony of Kurt V. Krueger, Ph.D. (Doc. 145). As

described more fully below, the Court grants plaintiffs

Motion for Leave to File Declaration and Exhibits

under Seal, grants defendants’ Motion for Summary

Judgment, and denies as moot both of defendants’

motions to exclude expert testimony.

I. Summary Judgment Standard

Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law.”’ A fact is only material under this

standard if a dispute over it would affect the outcome

of the suit.* An issue is only genuine if it “is such that

a reasonable jury could return a verdict for the

' Fed. R. Civ. P. 56(c).

* Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

38a

nonmoving party.” The inquiry essentially determines

if there is a need for trial, or whether the evidence “is

so one-sided that one party must prevail as a matter of

law.”

The moving party bears the initial burden of

providing the court with the basis for the motion and

identifying those portions of the record that show the

absence of a genuine issue of material fact.® “A movant

that will not bear the burden of persuasion at trial

need not negate the nonmovant’s claim.”° The burden

may be met by showing that there is no evidence to

support the nonmoving party’s case.’ If this initial

burden is met, the nonmovant must then “go beyond

the pleadings and ‘set forth specific facts’ that would

be admissible in evidence in the event of trial from

which a rational trier of fact could find for the

nonmovant.”® When examining the underlying facts of

the case, the Court is cognizant that all inferences

must be viewed in the light most favorable to the

3 Td.

* Td. at 251-52.

° Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

® Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.

2003) (citing Celotex Corp., 477 U.S. at 325).

"Id.

* Id.

39a

nonmoving party and that it may not make credibility

determinations or weigh the evidence.”

When deciding a summary judgment motion, the

Court may consider evidence submitted, if admissible

in substance, even if it would not be admissible, in

form, at the trial..° The Tenth Circuit recently

explained,

Parties may, for example, submit affidavits in

support of summary judgment, despite the fact

that affidavits are often inadmissible at trial as

hearsay, on the theory that the evidence may

ultimately be presented at trial in an admissible

form. Nonetheless, “the content or substance of

the evidence must be admissible.” Thus, for

example, at summary judgment courts should

disregard inadmissible hearsay statements

contained in affidavits, as those statements

could not be presented at trial in any form. The

requirement that the substance of the evidence

must be admissible is not only explicit in Rule

56, which provides that “[slupportingand

opposing affidavits shall . . . set forth such facts

as would be admissible in_ evidence,”

Fed.R.Civ.P. 56(e), but also implicit in the

court’s role at the summary judgment stage. To

determine whether genuine issues of material

* Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587

(1986).

' Argo v. Blue Cross Blue Shield, 452 F.3d 1193, 1199 (10th Cir.

2006).

40a

fact make a jury trial necessary, a court

necessarily may consider only the evidence that

would be available to the jury.”

II. Factual Background

A. Evidentiary Objections

At the outset, the Court notes that significant

portions of the voluminous recitation of facts by both

parties are immaterial to the resolution of the

summary judgment motion. Although they aid in the

Court’s understanding of the context of the claims

made in this case, they do not impact the resolution of

claims and affirmative defenses under the applicable

summary judgment standard. There are a number of

evidentiary issues the Court must resolve before

determining the material] uncontroverted facts in this

matter. In their reply memorandum, defendants move

to strike numerous declarations submitted by plaintiff

with his response, including plaintiffs own

declarations made subsequent to his deposition.

Specifically, defendants seek to strike the declarations

of Dr. James Rider, Kathy Jackson, Rosetta Birch, Dr.

David Ware, and Dr. James Asher on various grounds.

Plaintiff filed a separate motion for leave to file his

third declaration with exhibits under seal (Doc. 194).

In response, defendants argue that the third

declaration is irrelevant and a “sham affidavit,” and

should not be filed for the same reasons that they

oppose consideration of plaintiffs second declaration.

"' Id. (quoting Thomas v. Int'l Bus. Machs., 48 F.3d 478, 485 (10th

Cir. 1995); Fed. R. Civ. P. 56(e)) (citations omitted).

4la

The Court ordered plaintiff to submit this third

declaration for in camera review so that it may decide

those issues. The Court has now reviewedthe

declarations in question, as well as reviewed in camera

plaintiffs third declaration and supporting exhibits by

plaintiff.

1. Plaintiff's Declarations

Plaintiff submitted two declarations with his

response to the summary judgment motion, titled

Vesom Declaration I (“Vesom I”) and Vesom

Declaration II (“Vesom II”). Plaintiff relies on these

declarations to support various factual statements in

his response brief. At the time he filed his response,

plaintiff also filed a motion to file a third declaration,

along with attached exhibits, under seal (“Vesom III”).

To be clear, there is no citation in the fact section of

plaintiffs response memorandum to Vesom III,

although plaintiff does discuss the declaration in the

argument section. Defendants ask the Court in their

reply to disregard all portions of plaintiffs “affidavit”

that are either not based on personal knowledge, or

create “sham” fact issues. Defendants also filed a

separate response to the motion to file a_ third

declaration under seal on the same grounds.

Sham Affidavit

Defendants argue that Vesom II and III should be

stricken because they constitute “sham affidavits,”

2 The Court will discuss defendants’ objections as applied to both

Vesom [IT and IIT.

42a

since they were composed long after plaintiffs

deposition and attempt to change the answers he gave

during that deposition. The Court may not disregard

Vesom II and III simply because they conflict with

plaintiffs prior sworn statements.** But “such evidence

may be disregarded when a court concludes that the

evidence is merely an attempt to create a sham fact

issue.”"* “[T]he utility of summary judgment as a

procedure for screening out sham fact issues would be

greatly undermined if a party could create an issue of

fact merely by submitting [evidence] contradicting his

own prior testimony.”” The Court looks at the

following factors to determine if Vesom II or III

present a sham fact issue: “whether the [party] was

cross-examined during his earlier testimony, whether

the [party] had access to pertinent evidence at the time

of his earlier testimony, or whether the [contested

evidence] was based on newly discovered evidence, and

whether the earlier testimony reflects confusion which

the [contested evidence] attempts to explain.””®

Vesom was deposed on March 28 and June 18,

2005. It appears from the transcripts that plaintiff was

not cross-examined by his own counsel during the

deposition. Discovery was due to be complete in this

'S Martinez v. Barnhart, 177 Fed. App’x 796, 800 (10th Cir. 2006).

'* Id. (citing Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.

1986)).

© Franks, 796 F.2d at 1237.

” Fel.

43a

case on July 15, 2005.*’ Plaintiff argues that the

documents attached to Vesom II and Vesom III were

not produced to him until May 25, 2005, and that

KDHE documents were not made available to him

until June 16, 2005, two days before the second day of

his deposition. Plaintiff maintains that he “did not

know of the content of these records and could not

have testified from his personal knowledge of these

examples of disparate treatment.” The Court agrees

that plaintiff could not have answered questions about

these documents during his deposition.

Defendants point the Court to one example of

plaintiffs attempt to create a sham issue of fact.

Defendants argue that during plaintiffs deposition, he

itemized instances of alleged discrimination that

formed the basis of his Complaint. At the conclusion of

the March 28 deposition, counsel for defendants

remarked: “Also marked as Vesom Deposition Exhibit

No. 114 a one page handwritten notes {sic] that was

on the inside cover of Dr. Vesom’s version of Vesom

Deposition Exhibit No. 101 that he has referred to as

an itemized list of the specific instances, I believe of

racial discrimination.”* Plaintiffs counsel responded,

“We agree that is Exhibit 114, notes of some of his

complaints about discrimination.”’’ At the June 18

deposition, plaintiff answered defendants’ questions

about Exhibit 114. At one point, defendants’ counsel

7 See Doc. 95 at 2.

8 (Doc. 164, Ex. 35, Vesom Depo. at 306.) The Court is unable to

locate this deposition exhibit in the record.

'9 Id. at 307.

44a

asked if the exhibit constituted a “full compilation of

all the incidents that you believe support the fact that

you were racially discriminated against.”” Plaintiff

replied, “That is correct.”"" Defendants argue that

Vesom II and III are subsequent attempts to change

this answer and create sham fact issues.

The Court declines to find that these affidavits are

“sham affidavits” as defendants urge. Defendants seem

particularly concerned that plaintiff repeatedly refers

to actions that constitute “disparate treatment” of

Asian physicians compared to other similarly situated

physicians at Atchison Hospital Association.

Defendants maintain that “[nlowhere was disparate

treatment, or the specific ‘examples’ and arguments

contained in the Declaration, mentioned.” The Court is

not persuaded by this argument. Plaintiff alleges a

number of counts in his Complaint that are based on

race discrimination. “Disparate treatment... is the

most easily understood type of discrimination. The

employer simply treats some people less favorably

than others because of their race. Proof of

discriminatory motive is critical.”*” Disparate

treatment is simply a way of referring to intentional

discrimination, as compared to disparate impact

claims which “involve employment practices that are

facially neutral in their treatment of different groups

9 (Doc. 164, Ex. 36, Vesom Depo. at 357-58.)

2) Id. at 358.

2 Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006)

(quoting /nt’l Bd. of Teamsters v. United States, 431 U.S. 324, 335

n.15 (1977)).

45a

but that in fact fall more harshly on one group than

another and cannot be justified by business necessity.

Proof of discriminatory motive . . . is not required.””

Although the Court sincerely doubts the term

“disparate treatment” was originally coined by plaintiff

without the guidance of his attorney, the Court finds

no impropriety or unfair surprise in its inclusion in the

declarations. The question of its materiality will be

addressed under the Court’s discussion of the

substantive discrimination counts, as this evidence

primarily points to plaintiffs perceived differences in

treatment between himself and other physicians at

AHA.

Further, the Court finds that the differences in

plaintiffs deposition and his declarations do not

amount to the creation of a sham issue of fact. The

deposition transcript reveals that plaintiffs counsel

clarified at the end of the first day of testimony, that

Deposition Exhibit 114 alleged some of the instances of

discriminatory conduct. Further, unlike most cases

that strike an affidavit as improper on these grounds,

plaintiff added to an answer given in his deposition,

rather than changing his answers entirely. Given that

plaintiff was not cross-examined, and that he did not

have an opportunity to review many of the documents

discussed in his declaration prior to the deposition, the

Id. The Court accepts that plaintiff's claims encompass claims

of intentional discrimination. Nothing in the briefs or the pretrial

order suggest that plaintiff advances a cause of action

encompassing “harassment,” as defendants suggest in their Reply.

(Doc. 193 at 28.)

46a

Court declines to strike them on the grounds that they

constitute sham affidavits. .

Personal Knowledge Requirement

Fed. R. Evid. 602 requires that a testifying witness

“halve] personal knowledge of the matter” testified

to.7* Also, Fed. R. Civ. P. 56(e) requires that affidavits

be made on personal knowledge and “set forth such

facts as would be admissible in evidence... . The court

may permit affidavits to be supplemented or opposed

by depositions, answers to interrogatories, or further

affidavits.” “Under the personal knowledge standard,

an affidavit is inadmissible if ‘the witness could not

have actually perceived or observed that which he

testifies to.”*° Statements of “mere belief in an

affidavit must be disregarded.””©

The Court finds that Vesom II and III contain

plaintiffs statements based on personal knowledge;

recitations of his attorney’s correspondence with

defendants; and reaction, beliefs, and opinions

concerning certain documents provided to him through

discovery in this case. The majority of Vesom II

contains plaintiffs arguments about why each

document in his credentials file is “manufactured to

make it appear that my behavior was inappropriate.”

*4 Fed. R. Evid. 602.

* Argo v. Blue Cross Blue Shield, 452 F.3d 1193, 1200 (10th Cir.

2006).

6 Id. (quoting Tavery v. United States, 32 F.3d 1423, 1427 n.4

(10th Cir 1994))

47a

in the course of making this point, plaintiff construes

the hospital bylaws, recites exhibits, and makes legal

and factual arguments. Often, plaintiffs contentions

make reference to “manufactured” or “doctored”

documents created by defendants. Vesom III similarly

construes documents produced through discovery, but

covered by protective order.

The Court disregards the statements in plaintiffs

declarations to the extent he attempts to construe and

interpret other summary judgment evidence. Such

construction and interpretation is not an appropriate

task for a witness’s affidavit, which is a tool used to

present facts and not beliefs and argument.”’ While the

Court will duly consider plaintiffs arguments made in

his summary judgment brief—the appropriate forum

for argumentation—it will not consider’ such

arguments couched in a party’s own affidavit, which

should represent pure statements of fact. Instead, the

Court construes the summary judgment record under

the applicable guidelines and determines if the

uncontroverted evidence sufficiently demonstrates a

genuine issue of material fact.

27 For example, plaintiffs statement that “[t]he failure to give

notice also contravened the hospital bylaws and_ their

requirements for dealing with disruptive behavior... .” (Doc. 182

4 13), is clearly a conclusory interpretation of other evidence in

the record—the Hospital Bylaws. Although this type of legal

argument is appropriate for the Court’s consideration on the

summary judgment motion, it is inappropriate as a submission of

fact. Indeed, it appears that much of plaintiffs statement of

additional material facts is cut and pasted directly from the

witnesses’ declarations.

48a

There are many statements in Vesom II and III

that are not based on personal knowledge, but are

conclusory opinions. Examples of such statements in

Vesom II include: “[T]he aforementioned medical staff

at AHA ... conspired to prevent me from practicing at

AHA;” and “When I reapplied for privileges at AHA in

i998 ... my application was treated differently from

any other application received prior to or since that

date.” The Court declines to itemize each and every

incidence of such statements, as Vesom II spans

fourteen pages and contains sixty-one paragraphs of

statements and Vesom III spans three pages with

eleven paragraphs of information. The Court will

disregard all statements in Vesom IT and III that are

not supported by other portions of the record, or that

do not represent statements based on plaintiffs

personal knowledge. The Court will only consider, for

purposes of determining the uncontroverted evidence,

those statements that plaintiff could have perceived or

observed, and will construe the evidence in the hght

most favorable to plaintiffas the non-moving party. As

such, the Court grants plaintiff's motion to file the

declaration and exhibits under seal ( Doc. 183)

and orders the Clerk’s Office to file under seal

the declaration and exhibits delivered to the

Court for in camera review.

2. Birch and Jackson Declarations

Defendants urge the Court to strike the

declarations of Rosetta Birch and Kathy Jackson

because they were not properly disclosed under Fed. R.

Civ. P. 26. Rule 26(a)(1) requires the parties to

provide, without waiting for a discovery request, the

name of each person “likely to have discoverable

49a

information that the disclosing party may use to

support its claims or defenses, unless solely for

impeachment.” Under Rule 26(e), the parties are under

a duty to supplement these initial disclosures.

Sanctions for violating the disclosure rules in Rule 26

are provided for in Rule 37:

A party that without substantial justification

fails to disclose information required by Rule

26(a) or 26(e)(1), or to amend a prior response to

discovery as required by Rule 26(a)(2), 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.”

Plaintiff filed an amended witness and exhibit list

on February 1, 2005, which did not list either Birch or

Jackson as witnesses. Supplemental disclosures under

Fed. R. Civ. P. 26(e) were ordered to be served by June

6, 2005. The record does not reveal that an amended

witness list or a Notice of Service for supplemental

disclosures under Rule 26(e) was filed after the

February 1, 2005 disclosures. Birch and Jackson both

dated their declarations in January 2006, soon before

the response to the summary judgment motion was

filed. Plaintiff uses these declarations to support

additional material facts in his response to summary

judgment. Specifically, plaintiff uses the Birch

Declaration to support his contention that certain

documents relied upon by defendants in their decision

not to renew plaintiffs privileges, contain false

* Fed. R. Civ. P. 37(c)(1).

50a

information. Both declarations are used to support

plaintiffs contention that.any legitimate reason for the

denial of his privileges is a pretext for discrimination.

Because these declara.ions are being used byplaintiff

to support elements of his discrimination claims, the

Court finds that the failure to disclose Birch and

Jackson as potential witnesses, who could then be

deposed by defendants, is not harmless.

Under these circumstances, the Court is unable to

find that plaintiff was substantially justified in failing

to disclose this information. Both witnesses attest that

they were employed by AHA for years, during the

same period of time that plaintiff was affiliated with

the hospital. These are not instances of witnesses who

were unknown to the plaintiff. Neither declaration

relies upon documents that were not produced prior to

the deadline to file supplemental disclosures. Even if

these witnesses were discovered after that deadline,

Rule 26 imposes a continuing duty upon parties to

supplement their disclosures. Certainly, it was feasible

for plaintiff to disclose these two witnesses some time

prior to when he responded to the summary judgment

motion.

Because the Court finds that plaintiff was not

substantially justified in withholding this information,

and that the failure to disclose was not harmless, the

Court grants defendants’ motten to strike the Birch

and Jackson declarations.

3. Dr. Rider’s Declaration

Defendants move to strike Dr. James Rider’s first

declaration (“Rider I”), because it contains hearsay

5la

statements and is not based on personal knowledge.

Much like plaintiffs declarations, Dr. Rider’s

declaration contains both facts based on personal

knowledge, as well as conclusory opinions or beliefs.

The Court finds that Dr. Rider’s account of the

committee meetings he attended are based on personal

knowledge. However, his conclusions about how the

other members felt toward plaintiff could not be based

on personal knowledge.

Alternatively, Dr. Rider’s belief that the other

committee members were “angry” at plaintiff, as

stated in paragraph 2, must be based on things those

members told him, which is inadmissible hearsay

evidence. Inadmissible hearsay evidence in an affidavit

is not to be considered on a motion for summary

judgment.”? However, the Court finds that as a

member of the MEC at the time the decision about

plaintiffs privileges was made, Dr. Rider does have

firsthand, personal knowledge of events. that

transpired in the meetings that he attended and

during the _ collective decision-making process.

Therefore, the Court will only disregard the

declaration to the extent it states Dr. Rider’s

conclusory beliefs about the feelings or intent of

others.

*? Treff v. Galetka, 74 F.3d 191, 195 (10th Cir. 1996); Ryan v.

Shawnee Mission Unif. Sch. Dist. No. 512, 438 F. Supp. 2d 1233,

1236 (D. Kan. 2006).

52a

4. Dr. Ware’s Declaration

Defendants move to strike Dr. David Ware’s

Declaration because it contains inadmissible hearsay

and is not entirely based on personal knowledge. The

Court agrees. Paragraphs 2, 3, 4, 5, 7, and 8 all

amount to inadmissible hearsay—the witness is

recounting statements he heard that were made by

other declarants. The Court does not anticipate any

exclusion or exception to the hearsay rule that would

apply to these statements. Further, Dr. Ware states

his opinions about the feelings and attitudes of certain

physicians toward plaintiff. The Court will only

consider the small amount of Dr. Ware’s declaration

that is based on admissible evidence and will not

consider hearsay statements or statements about Dr.

Ware’s conclusory opinions.

5. Dr. Asher’s Declaration

Defendants move to strike Dr. James Asher’s

declaration because it is not based on personal

knowledge. Dr. Asher was the chief executive officer of

AHA for a number of years until his retirement. in

1990. He was responsible for recruiting plaintiff to

establish a practice in Atchison in 1983. Much of Dr.

Asher’s declaration is based on information that “he

has learned” or that is his “belief.”*° As defendants

*° For example. in paragraph 4: “I have learned from staff at AHA

..” and “ I believe the reduction in the size and function of the

ICU is directly related to the termination of [his] staff privileges.”

In paragraph 5: “It is my belief... that the decision to get rid of

[plaintiff] was and continues to be economically destructive to the

53a

point out, much of Dr. Asher’s statements concern

events that occurred after he retired in 1990. There is

no basis provided in the declaration for his personal

knowledge of these later events. Therefore, because

Dr. Asher’s declaration relies almost entirely on

hearsay and information that Dr. Asher has not

acquired through personal knowledge, the Court

disregards the majority of the declaration.

6. Authentication of Documents

Defendants argue that many documents filed in

support of plaintiff's summary judgment response are

not properly authenticated and are_ therefore

inadmissible. Specifically, defendants object to a

number of handwritten notes filed as attachments to

Vesom II.

Unauthenticated documents, once challenged,

cannot be considered by a court in determining

a summary judgment motion. In order for

documents not yet part of the court record to be

considered by a court in support of or in

opposition to a summary judgment motion they

must meet a two-prong test: (1) the document

must be attached to and authenticated by an

affidavit which conforms to rule 56(e); and (2)

the affiant must be a competent witness

through whom the document can be received

into evidence .. . . Documentary evidence for

which a proper foundation has not been laid

hospital... .” and “I have learned that... the hospital census has

been drastically reduced.”

54a

cannot support a summary judgment motion,

even if the documents in question are highly

probative of a central and essential issue in the

case.”

The Court agrees with defendants that the

handwritten notes attached to Vesom II do not appear

to be authenticated under this standard. It appears to

the Court that, at the very least, these notes were

written by more than one person. These documents

could only be authenticated in Vesom II if Vesom

himself composed all of these handwritten notes, or if

he was familiar with the handwriting.* Because

Vesom II does not set forth either method of

authentication, the Court may not consider these

documents.

3! In re Harris, 209 B.R. 990, 996 (B.A.P. 10th Cir. 1997) (quoting

11 James Wm. Moore, et al., Moore’s Federal Practice

§§ 56.10(4]{clli], 56.14[2]}[c] (8d ed. 1997)); see also Toney v.

Cuomo, 92 F. Supp. 2d 1186, 1196 (D. Kan. 2000), affd, 221 F.3d

1353 (10th Cir. 2000).

32 See Fed. R. Evid. 901(b).

55a

B. Uncontreverted Facts*

The following facts are cither uncontroverted,

stipulated to, or viewed in the light most favorable to

plaintiff. Plaintiff is a medical doctor licensed to

practice medicine by the Kansas Board of Healing

Arts, certified in the specialties of cardiology and

internal medicine. Plaintiff is a citizen of the United

States and of Kansas, but was born in Thailand and

has Thai ancestry. Defendant AHA is a not-for-profit

corporation organized and existing under the laws of

the State of Kansas and has its principal place of

business in Atchison, Kansas.** In 2003, defendants

33 Tn the future, the parties are encouraged to follow the local rules

in this district on page limitations, as well as content of briefs,

which encourages a concise statement of facts. D. Kan. R. 7.1, 7.6

(limiting the argument section of briefs and memoranda to thirty

(30) pages if no prior leave of court requested and providing for

content of briefs). Moreover, plaintiffs practice of controverting

facts with general citations to exhibits, or a general reference to

his statement of additional material facts, presents a cumbersome

task for the Court in determining the truly uncontroverted

material facts in this matter. Given that plaintiff submitted 116

paragraphs of additional facts (many of which are repetitive of

facts already narrated by defendants), the Court should not be

presumed to glean which statements or general references

plaintiff contends specifically controvert the statements made by

defendants. Plaintiffs counsel is strongly discouraged from this

method of controverting factual statements and the Court declines

to conduct a fishing expedition to uncover evidentiary support for

plaintiff's contention that certain facts are controverted when not

provided with a specific citation to the record. See D. Kan. R.

56.1(b).

4 42 U.S.C. § 2000d.

56a

Ryan Thomas, M.D., Douglas Goracke, M.D., and

Donald Swayze, D.O., were members of the Hospital’s

MEC. Dr. Thomas is a board certified family

practitioner with obstetrical privileges and was the

past Chief of Medical Staff. Dr. Goracke is a board

certified anesthesiologist and was Chief of Staff at the

time. Dr. Swayze is a board certified surgeon and was

Vice Chief of Staff at the time.

The Bylaws

The Atchison Hospital Medical Staff Bylaws

(“Bylaws”) are organized by the medical staff at AHA.”

They “establish the mechanisms to carry out the direct

and delegated responsibilities of the Medical Staff in

cooperation with the Hospital Administration and the

Governing Board.” The Governing Board (“Board”) is

a group of individuals who constitute the Board of

Directors at AHA, “having the ultimate responsibility

for the operation of the Hospital and for providing

patient care.”

The medical staff are practicing and licensed

physicians and dentists who have been formally

appointed and enjoy the privilege of attending patients

at AHA. The Bylaws state that the medical staff

agrees to accept and abide by the Bylaws. Under the

Bylaws, membership to the medical staff is a privilege

and no physician is “entitled to membership to the

Medical Staff or to the exercise of particular clinical

privileges at the Hospital merely by virtue of the fact

———— ee

°5 The parties agree that the December 19, 2002 Bylaws, attached

to defendants’ motion for summary judgment, govern this dispute.

57a

that he/she . . . has previously had Medical staff

membership or privileges in this Hospital.” Physicians

are appointed medical staff privileges at AHA for a

two-year period. After such period is over, physicians

must file an application for reappointment if they wish

to maintain their privileges.

Disruptive Behavior Provisions

Among other things, the Bylaws dictate that, as a

condition to accepting medical staff membership, the

member must agree to “conduct him/herself in a

professional, cooperative manner with colleagues and

members of the Hospital Staff.” Also, Article X of the

Bylaws dictates AHA’s policies concerning medical

staff conduct and the impaired provider. This article

provides guidelines for medical staff concerning

unacceptable disruptive behavior. This list includes,

but is not limited to: impertinent and inappropriate

comments (or illustrations) made in patient medical

records and physicians’ orders or other official

documents including the impugning of the quality of

care in the Hospital or attacking particular

individuals, nurses, or Hospital policies; non-

constructive criticism addressed to the recipient in

such a way that intimidates, undermines confidence,

belittles, or implies stupidity or incompetence; refusal

to accept medical staff assignments or participate in

committee or departmental affairs on anything but his

or her own terms or to do so in a disruptive manner;

and verbal or physical threats of retribution, litigation

or violence directed at individuals, Hospital personnel

or patients.

Sa

Under Article X, any reports of violations of

disruptive conduct or the impaired provider provision

must be in writing and submitted and investigated in

accordance with Article XII, which governs “Corrective

Action.” Corrective action requires any report

regarding a medical staff member to be made to the

Chief of Staff. The procedures set forth for

implementation of corrective action in Appendix B

provide that upon receiving notice of a reportable

incident, including for disruptive behavior, “any officer

of the Medical Staff, the chairperson of a Service or

Committee, the Chief Executive Officer of the Hospital

or any member of the Governing Board of the Hospital

may request corrective action against such

practitioner.” If corrective action is requested, then the

MEC investigates the report and submits a written

report. of the investigation to the Board. Before the

report is made, however, the practitioner has the

opportunity to interview with the MEC so that he or

she may discuss, explain, or refute the nature of the

charge. The summary is then submitted with the

report to the Board. Ultimately, the Board either

approves or modifics the MEC recommendation.

The MEC

The medical staff elects three officers for the

purpose of carrying out certain functions on behalf of

the staff. These officers are the Chief of Medical Staff.

Vice Chief of Staff, and Secretary/Treasurer and they

are nominated and elected by the medical staff to serve

one-year terms. The Medical Executive Committee

(“MEC’”) consists of these three officers, as well as the

immediate past Chief of Staff and a “member at large”

elected from the active medical staff annually. In

59a

gencral, the MEC is charged with oversecing the

functions of the medical staff. “Its authority is limited,

however, to making recommendations to the

Governing Board.”” The Credentials Committee

consists of the members of the MEC and evaluates new

applicants to the medical staff, as well as those

members applying for reappointment. In 2003,

defendants Dr. Thomas, Dr. Goracke, and Dr. Swayze

were members of the MEC. At that time, Dr. Thomas

was the past Chief of Medical Staff, Dr. Goracke was

Chief of Staff, and Dr. Swayze was Vice Chief of Staff.

In addition to the defendant, the MEC included Dr.

James Rider, who was a membcr-at-large, and Dr.

Michael Jones, who was the Secretary/Treasurer.

Neither of these members of the Executive Committee

are parties to this dispute.

Application Process and

Fair Hearing Procedures

Physicians seeking medical staff membership must

apply in writing after a preapplication screening

process. The Credentials Committee then collects all of

the documentation (licenses, references, etc.) and

prepares 4 report to submit along with the application

and supporting material to the Chief of Staff for review

by the MEC. The MEC then investigates and makes a

recommendation to the Board whether the application

should be granted, and if so, if any restrictions should

apply. The MEC is to evaluate evidence of character,

yrofessional and ersonal competence, and

if

qualifications and ethical standing of the practitioner

” (Doc. 164, Ex. 4A, Bylaws at 11 7 2.)

60a

before making its recommendation. Finally, the Board

reviews the application material and is the ultimate

authority in granting a practitioner privileges and

decides whether to accept or reject the MEC’s

recommendation.

Once the period of appointment ends, which is

usually after two years, the medical staff member

must be reappointed to continue their privileges. The

same procedures apply to the reappointment process

as the initial appointment process, in addition to the

procedures set forth in Appendix A. Section 5(f) of

Appendix A provides a list of fourteen criteria upon

which the MEC bases its recommendation for

reappointment. This criteria includes attendance at

medical staff meetings and participation in staff

duties; compliance with the Bylaws; and behavior in

the Hospital, including cooperation with medical and

Hospital personnel. The MEC recommends to the

Board whether a staff member’s privileges should be

increased, reduced, terminated, or remain the same.

Finally, the Board reviews the MEC’s recommendation

and the application materials, and makes the final

reappointment decision.

The denial of reappointment by the Board, and/or

a recommendation by the MEC to deny reappointment

are adverse recommendations that trigger the Fair

Hearing Procedure set forth in the Bylaws. Under the

Fair Hearing Procedures, the practitioner against

whom the decision has been made is given special

notice in writing of the recommendation or decision,

which must contain a statement of and reasons for the

recommendation or decision and inform’ the

practitioner of his or her right to request a hearing.

6la

Appendix A of the Bylaws sets forth the procedures

specific to the Fair Hearing. If a hearing is requested,

the Chief Executive Officer and/or the Chief of Staff

appoints a Hearing Committee, which must be

composed of at least five members composed of medical

staff or outside physicians who have not been actively

involved in the consideration of the matter at previous

levels of investigation or consideration.

At the hearing, the practitioner, the MEC and

Board may each have counsel present. Each party is

entitled to call and examine witnesses, to introduce

written evidence, to crossexamine any witnesses, to

challenge any witness and to rebut any evidence. The

Hearing Committee may consider any pertinent

material on file with AHA and any evide ice produced

at the hearing, including “any information regarding

the practitioner who requested the hearing, including,

but not limited to, any material contained in the

records of the Hospital regarding the practitioner who

requested the hearing, so long as such material has

been admitted into evidence at the hearing and the

affected practitioner had the opportunity to comment

thereon, or, by other evidence, to refute it.” Appendix

A requires the CEO to promptly send a copy of the

Hearing Committee’s written report of its

recommendation to the practitioner and Chief of Staff

by certified mail.

Appendix A also allows for a practitioner to appeal

an adverse recommendation from the Hearing

Committee within ten days. The appeal must be held

only on the record upon which the Hearing Committee

recommendation was made based on the grounds of:

(1) substantial and prejudicial failure on the part of

62a

the Hearing Committee to comply with the Bylaws

orrequirements of law; (2) an arbitrary or capricious

decision, or decision made with bias; or (3) the action

of the Hearing Committee is not supported by evidence

in the record. Appellate review is conducted by the

Board. The Board then must render a final decision in

writing within ten days after the appellate review

hearing.

1998 Application

Plaintiff was first granted medical staff privileges

at AHA in 1983. He was born in Thailand, came to the

United States in 1977, and became a United States

citizen in 1996. During his time at AHA, plaintiff and

his wife felt socially ostracized by other physicians at

AHA. Plaintiff applied for and was_ granted

reappointment every two years after his initial

appointment until 1996. On July 22, 1996, plaintiff

voluntarily resigned his staff privileges and left the

Atchison community and spent a period of time in

Thailand. In March 1998, plaintiff returned and

applied for appointment at AHA. On October 9, 1998,

the MEC recommended that plaintiff not be granted

staff membership privileges. Plaintiff requested a fair

hearing, but the Board did not follow the MEC

recommendation. Instead, the Board offered plaintiff

a conditional reappointment, which granted him staff

membership on a provisional one-year basis pursuant

to a Settlement Agreement.*’ The Settlement

Agreement provided for an independent proctor to

*’ Plaintiff was due for reappointment, however, in two years

pursuant to the Bylaws.

63a

review plaintiffs medical records for three months,

and to review the manner of practice used by plaintiff,

including critiquing care decisions and monitoring the

results of care rendered. For nine months, 30% of

plaintiffs medical records would be _ reviewed

randomly. The proctor would report his reviews to the

CEO, the MEC, and to plaintiff. The Settlement

Agreement also required certain departments to

submit written reports for the purpose of identifying

any problems or concerns that arose regarding

plaintiffs interaction with medical and hospital staff.

Also part of this agreement is a condition that during

plaintiffs provisional period, he is not to be alone with

any female employee or patient within the Hospital,

except in emergency situations. Finally, the

Settlement Agreement releases the parties from any

lability or claims that arose before the agreement. The

Settlement Agreement provides for AHA’s response to

inquiries about whether plaintiffs privileges had ever

been suspended, revoked, or disciplined:

On December 19, 1995, Dr. Vesom’s clinical

privileges were summarily suspended by

decision of the Hospital’s Chief of Staffand CEO

for non-compliance with recommendations of

the Kansas Medical Society-Medical Advocacy

Program (“KMS-MAP”). Thereafter, the

Hospital was informed that Dr. Vesom was in

compliance with the recommendations of KMS-

MAP. Accordingly, on December 22, 1995 the

summary suspension was withdrawn prior to

any hearing.”

38 (Doc. 163, Ex. 38 J 16.)

64a

The Settlement Agreement is signed by plaintiff and

by Dr. W. David Drew, President and CEO of AHA at

the time.

On February, 27, 2001, plaintiff was notified that

his next application for reappointment was approved

by the Board. Plaintiff was never an employee of AHA

or of the individual defendants.

~~—

Plaintiffs Complaints

The Peer Review Committee at AHA performs peer

review for the Medical Staff, utilizing criteria and

indicators established by the Medical Staff. Under the

Bylaws, the Chief of Staff reviews cases and the MEC

then performs a screening. fhe committee meets ten

times per year.

On January 3, 2003, plaintiff and Dr. David Ware

met with the CEO of the Hospital, Virgil Bourne, and

Chief of Staff, Dr. Goracke, about concerns and

recommendations they had about certain hospital

policies. According to a letter signed by plaintiff, Dr.

Ware, and Dr. A.K. Tayiem documenting these

concerns, AHA “employees” had been systematically

violating the federal and state health rights of its

patients for years through its over-reliance on

generalist care and sham-peer reviews, and blatantly

discriminating against the federal rights of

independent specialists by sanctioning them “at the

behest” of its own generalists. The physicians asked for

such changes as, among other things, peer review of

major cases by outside reviewers and less political

credentialing of physicians. This letter was sent to

William R. Thornton, the Chairperson of the Board of

—_

65a

Directors, on January 22, 2003. Thornton responded

on January 29, 2003 that he had forwarded the letter

on to the Risk Manager for investigation.

On January 23, 2003, the Board of Directors held a

meeting where they discussed Dr. Ware’s contract. A

motion passed unanimously to implement a clause in

Dr. Ware’s contract that terminates the contract with

or without cause upon ninety days written notice. The

Board agreed to immediately serve notice of this

decision to Dr. Ware by letter.

On March 4, 2003, Mary Kabriel, a_ risk

management specialist with the Kansas Department

of Health and the Environment (“KDHE”), Bureau of

Health Facilities, arrived at AHA for an unannounced

survey due to a report that had been filed against

AHA. Later, it became known that Dr. Ware and

plaintiff had complained about the handling of a

particular case where a mother suffered an amniotic

fluid embolism during birth. Dr. Ware and plaintiff

were critical of the peer review process in that case

and argued for outside peer review. In Vésom I,

plaintiff concedes that he filed this report with the

KDHE, and that it was not investigated until after he

was notified of the denial of his application for

reappointment. Kabriel cu-ducted a total of six on-site

visits to AHA in March 2003.

2003 Reappointment

When plaintiff applied for reappointment on

December 15, 2002, he signed an “Authority and

Liability Waiver.” The waiver states:

66a

I further waive any rights under Educational

Rights and Privacy Act or any statute granting

immunity to such Boards or Committees and

further agree to hold harmless such President,

Board or Committees evaluating my application

from any claim or action by or on my behalf in

the event such application for reappointment is

denied for any reason.

The waiver is a on a preprinted form and further

states that the applicant, “agree[s} to abide by the

Bylaws, Rules and Regulations of the Medical/Dental

Staff.””

In February 2003, the MEC reviewed plaintiffs

application and the records from his “credentials file”

at AHA. On February 18, 2003, plaintiff was provided

a three-page letter signed by CEO Bourne, titled

Notice of Adverse Recommendation and Fair Hearing

Rights that fully advised plaintiff of his rights under

the Fair Hearing provisions of the Bylaws. The reasons

for the denial of plaintiff's reappointment stated in the

letter are: (1) “failure to comply with Medical Staff

Bylaws and Rules and Regulations’; (2) “[his] behavior

in the hospital, which showed a lack of cooperation

with medical and hospital personnel as it relates to

patient care, and the orderly operation of AHA, and

[his] general attitude toward AHA and its personnel”;

(3) “failfure] to discharge [his] responsibilities -—for

Staff, Committee and Hospital functions for which [he]

was responsible by staff category assignment,

appointment, and election or otherwise”; (4) “[he]

3° (Def. Ex. 7.)

67a

engaged in verbal attacks on individuals and AHA

personnel that were personal, irrelevant, and went

beyond the bounds of fair professional conduct”; (5)

“{he) made impertinent and inappropriate comments

in official documents, including the impugning of the

quality of care in AHA and attacked particular

individuals and AHA policies”; (6) “[he] engaged in

non-constructive criticism addressed to recipients in

such a way as to intimidate, undermine confidence,

belittle, or imply stupidity or incompetence”; (7) “[he]

refused to accept Medical Staff assignments or

participate in committee or departmental affairs on

anything but [his] own terms, and did so in a

disruptive manner’; (8) “{he] made verbal threats of

retribution and litigation towards individuals and

AHA personnel including members of the Medical

Staff’; and (9) “{he] used abusive language.”

On February 24, 2003, the Board of Directors met

and the MEC/Credentials Committee informed the

Board of their recommendation to give Dr. Ware notice

of Termination of his provisional privileges effective

March 18, 2003. The MEC/Credential Committee

further informed the Board of their recommendation to

notify plaintiff of termination of his medical staff

membership effective March 18, 2003.

On March 6, 2003, plaintiff delivered a written

request for a hearing to the Chief Executive Officer of

AHA.* The March 6, 2003 letter advised AHA that

plaintiff had retained counsel to represent his

* Plaintiff requested a hearing in writing within thirty days of

receipt of the February 18, 2003 letter, as provided by the Bylaws.

68a

interests in the matter, and that any questions

regarding scheduling of the hearing should be directed

to the attention of his attorney, Charles Kugler.

By letter dated March 18, 2003, AHA sent plaintiff

a Notice of Hearing stating the place, time, and date of

the Fair Hearing. The letter identified five proposed

members of the Fair Hearing Panel. Pursuant to the

letter, plaintiff was expressly given the right to object

to any of the individuals identified to serve on the Fair

Hearing Panel with whom plaintiff believed he was in

direct economic competition. The letter identified the

specific charges made against plaintiff, and included

an itemized listing of the specific information upon

which the MEC relied in making its recommendation.

The letter also identified the witnesses that would be

requested to testify at the Fair Hearing in support of

the charges against plaintiff.

By letter dated March 21, 2003, plaintiffs legal

counsel acknowledged receipt of the March 18, 2003

letter and made written objections to the composition

of two of the proposed members of the Fair Hearing

Panel.

On June 5, 2003, AHA provided plaintiffs counsel

with all of the written exhibits that would be (and

were) used at the Fair Hearing in support of the

charges against him.*' Subsequent amended notices of

hearing were sent to plaintiff and ultimately the Fair

Hearing was scheduled for January 22, 2004. Plaintiff

*' This particular fact was stipulated to in the Pretrial Order and

will be deemed uncontroverted.

69a

was given a new opportunity to object to the

composition of the Fair Hearing Panel in each

amended notice. Plaintiff was also provided with

another copy of all expected exhibits on January Q,

2004, just prior to the hearing.

The Hearing Panel was composed of five

physicians, only one of whom was from Atchison. At

the Hearing, plaintiff was represented by Charles

Kugler, plaintiffs attorney in this action. The MEC

was represented by Andrew Ramirez. Each party had

the opportunity to present witnesses and offered

testimony to support their case. The witnesses were

crossexamined by the other party. The attorneys

provided statements of their position at the Hearing.

The members of the Fair Hearing Panel were

permitted to ask questions of the parties, the

witnesses, and the attorneys during the Hearing.

Plaintiff presented evidence, including exhibits and

documents to the Fair Hearing Panel. The Fair

Hearing Panel voted to uphold the MEC’s

recommendation to not reappoint plaintiff to the

medical staff. Dr. Mark Lierz, an adult and pediatric

urologist from St. Joseph, Missouri, wrote the report of

the Panel’s findings as Chair of the Panel. Dr. Lierz

noted that plaintiff had “an established pattern of

disruptive behavior that created a poor environment

for hospital personnel, medical staff, paticnts and his

physician colleagues as he was warned on multiple

occasions that this was in direct violation of the

Medical Staff Bylaws.”

An Appeal! Hearing was conducted before the Board

on March 25, 2004. Plaintiff was allowed legal counsel

and to make oral argument at the hearing. On April 2,

70a

2004, the Board issued its written decision and decided

to not reappoint plaintiff to the medical staff, effective

April 2, 2004. The Board’s decision was based on the

recommendation of the MEC and the Hearing Panel.

Between February 18, 2003, when plaintiff received

notice of the MEC’s adverse recommendation, and

April 2, 2004, when tne Board issued its decision on

appeal, plaintiff had maintained active medical staff

privileges at AHA. After his appeal was denied,

plaintiff resigned his other medical staff privileges

with Cushing Memorial and with Horton County

Hospital and decided to relocate to Poplar Bluffs,

Missouri.

III. Discussion

Plaintiff asserts in his Complaint the following

claims: (1) race discrimination under 42 U.S.C. § 1981;

(2) race discrimination under Title VI of the Civil

Rights Act of 1964; (3) conspiracy to discriminate

under 42 U.S.C. § 1985(3); (4) an antitrust violation

under Section 1 of the Sherman Act;* (5) retaliatory

discharge in violation of Kansas public policy; and (6)

intentional interference with business relations under

Kansas law. Defendants assert there is no evidence

creating a genuine issue of material fact on any of

plaintiffs claims and assert various defenses to suit,

including waiver. The Court first addresses the

substantive claims alleged by plaintiff. Then, the

Court will turn to the affirmative defense of waiver.

"15 USC. § 1.

Tla

A. Race Discrimination under Sections

1981 and Title VI

Section 1981, as amended by the Civil Rights Act of

1981, states:

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 off

all laws and proceedings for the security of

persons and property as is enjoyed by white

citizens, and shall be subject to like

punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to

no other.**

In a similar vein, Title VI of the Civil Rights Act of

1964 provides that no personal shall, “on the ground of

race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be

subjected to discrimination under any program or

activity” covered by Title VI.** “[P]rivate individuals

may sue to enforce § 601 of Title VI and obtain both

* 42 U.S.C. § 1981(a).

“ Pub. L. 88-352, Title VI, § 601, 78 Stat. 252 (codified at 42

U.S.C. § 2000d). The parties have stipulated that AHA is the

recipient of federal financial assistance within the meaning of

Title VI.

72a

injunctive relief and damages.” Title VI only

prohibits intentional discrimination.“

It is undisputed that plaintiff was not an employee

of AHA, nor of the individual defendants. Plaintiffs

legal status in relation to defendants is that of an

independent contractor.*’ Yet, plaintiff formulates the

elements of his Section 1981 claim under the

McDonnell-Douglas Corp. v. Green*® burden-shifting

framework, normally applicable in employment

discrimination cases that involve’ termination.

Defendants object that McDonnell-Douglas is

inapplicable because plaintiff is not an employee.

Defendants also maintain that plaintiff did not have a

contractual relationship with AHA, such that would

allow for a claim under Section 1981.

“In the employment discrimination context, claims

brought pursuant to Section 1981 and Title VI are

*® Alexander v. Sandoval, 532 U.S. 275, 280 (2001).

aa A

*” See, e.g., Shah v. Deaconess Hospital, 355 F.3d 496 (6th Cir.

2004) (applying the common law agency test to determine that

plaintiff surgeon was an independent contractor of the hospital,

in accord with the Fourth, Seventh, and Fifth Circuits);

McPherson v. HCA-HealthOne, LLC., 202 F. Supp. 2d 1156,

1164-68 (D. Colo. 2002) (collecting cases). See generally

Lambertsen v. Utah Dept. of Corr., 79 F.3d 1024, 1028-29 (10th

Cir. 1996) (discussing how to determine employer-employee

relationship for purposes of anti-discrimination statutes).

* 411 U.S. 792 (1973).

73a

governed by the same evidentiary framework as claims

brought under Title VII; that is, in the absence of

direct evidence of discrimination,” the court applies

the burden-shifting scheme of McDonnell-Douglas and

Texas Department of Community Affairs v. Burdine.”

Under this framework, plaintiff must first prove a

prima facie case of race discrimination.” If plaintiff is

able to sustain this burden, the burden of production

shifts to defendants to “articulate a legitimate,

nondiscriminatory reason for rejection.” If defendants

sustain that burden, the burden of production shifts

back to plaintiff to show that defendants’ proffered

reason for rejection is false, or merely a pretext, and

the presumption of discrimination created by

establishing a prima facie case “drops out of the

” Here plaintiff does not appear to argue that direct evidence of

race discrimination is present, as he advocates the McDonnell-

Douglas burden-shifling framework in the Pretrial Order. Yet, in

his sponse, he maintains that certain comments made by

“individuals associated with the Hospital,” constitute direct

evidence of discrimination. As the Court will discuss in more

detail when it evaluates pretext, these stray comments are

insufficient to support a claim of intentional discrimination.

°° 450 U.S. 248 (1981); see Antonio v. Sygma Network, Inc.,

__F.3d__, No. 05-1374, 2006 WL 2361633, at *2 (10th Cir. Aug. 16,

2006); Maldonado v. City of Altus, 433 F.3d 1294, 1307 (10th Cir.

2006); Black Educ. Network, Inc. v. AT & T Broadband, LLC, 154

Fed. App’x 33, 44 (10th Cir. 2005).

°! See Burdine, 450 U.S. at 252-53; McDonnell Douglas Corp.,411

U.S. at 802.

°? See McDonnell Douglas Corp., 411 U.S. at 802.

T4a

picture.” Although the burden of production shifts

back and forth between the parties, the ultimate

burden of persuasion remains at all times with the

plaintiff.”

Despite the fact that these claims do not arise in

the employment context, the Court may still apply the

McDonnell-Douglas test for indirect evidence of

intentional discrimination.” Also, multiple courts

have utilized the McDonnell-Douglas test for

intentional discrimination claims when a physician

makes such a claim against hospital entities for

suspension or termination of staff privileges.”

The Court rejects the formulation of the prima facie

case that plaintiff advocates in the Pretrial Order and,

instead, would apply the elements of a claim under

Section 1981 in the nonemployment context, as

articulated by the Tenth Circuit in Hampton v. Dillard

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143

(2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993)).

“ Burdine, 450 U.S. at 253.

°° PAS Commce’ns, Inc. v. Sprint Corp., 139 F. Supp. 2d 1149, 1167

(D. Kan. 2001) (collecting cases supporting use of McDonnell

Douglas in a variety of Section 1981 cases).

® See, e.g., Patel v. Midland Memorial Hosp. & Med. Ctr., 298

F.3d 333, 341-344 (5th Cir. 2002), cert. denied, 537 U.S. 1108

(2003); Jeung v. McKrow, 264 F. Supp. 2d 557, 566-67 (E.D. Mich.

2003); Van v. Anderson, 199 F. Supp. 2d 550, 562-70 (N.D. Tex.

2002), affd, 66 ked. App’x 524 (5th Cir. 2003).

15a

Department Stores, Inc.®’ Plaintiff must show, (1) he is

a member of a protected class; (2) that defendants had

an intent to discriminate on the basis of race; and (3)

the discrimination interfered with a protected activity

as defined in section 1981.°° Plaintiff claims that

defendants interfered with the protected activity of

making and enforcing a contract. It is undisputed that

plaintiff is a member of a protected class. Defendants

seek summary judgment because they argue plaintiff

is unable to prove that he had a contract interest that

defendants interfered with, and further, that there is

no evidence of intentional discrimination.

1. Interference with the Making and

Enforcement of a Contract

Under Section 1981(b), to “make and enforce

contracts” includes: “the making, performance,

modification, and termination of contracts, and the

enjoyment of all benefits, privileges, termss and

conditions of the contractual relationship.” To state a

°' 247 F.3d 1091 (10th Cir. 2001), cert. denied, 534 U.S. 1131

(2002). As the Court has already stated, it is uncontested that

plaintiff is not an employee of AHA, nor any of the individual

defendants. See Bhatt v. Brownsville Gen. Hosp., No. 03-1578,

2006 WL 167955, at *17 n.2 (W.D. Pa. Jan. 20, 2006) (explaining

that the prima facie case for wrongful termination is inapplicable

in a case where the physician is not an employee of the hospital).

58 Hampton, 247 F.3d at 1101; see also Patel, 298 F.3d at 341-44;

Pamintuan v. Nanticoke Memorial Hosp., Inc., No. 96-233-SLR,

1998 WL 743680 (D. Del. 1998), aff'd, 192 F.3d 378 (3d Cir. 1999).

But see Jeung, 264 F. Supp. 2d at 568 (applying a modified prima

facie case).

76a

claim under Section 1981 for interference with a

contract, it must involve, “the actual loss of a contract

interest, not merely the possible loss of future contract

opportunities.””? Although most litigation under

Section 1981 arises from employment discrimination

claims, it has also been applied to claims regarding the

retail sector and the restaurant industry if a contract

is established.

The parties dispute whether the Bylaws created a

contract interest upon which plaintiff may base his

Section 1981 claim.”' Plaintiff points the Court to cases

that he believes show that other courts have allowed

claims under Section 1981 by physicians who are

denied medical staff benefits without proving the

existence of a contract. First, plaintiff points the Court

to Jatoi v. Hurst-Euless-Bedford Hospital Authority,”

where the Fifth Circuit remanded back to the district

court to make specific findings on the elements of the

prima facie case and did not speak to the contract

issue.® Next, plaintiff cites Islami v. Covenant Medical

- Hampton, 247 .F.3d. at 1104.

© Id. at 1102.

© The Court is unclear about why plaintiff insists that he need not

prove he had “vested contract rights.” ‘The Court evaluates this

prong of the prima facie case as whether he had an enforceable

contract interest, as the statute explicitly requires.

© 807 F.2d 1214 (5th Cir. 1987).

8 Id. at 1219.

T7a

Center,” which did not consider a claim under Section

1981, but did find that, under Iowa law, the hospital

bylaws created a contract between the defendants and

the physician plaintiff in the context of a breach of

contract action.” The Supreme Court of Iowa later

disagreed with that holding.® Finally, plaintiffs cite

Janda v. Madera Community Hospital,®*’ which also

found that hospital bylaws created a contract between

the hospital and the physician plaintiff under

California law.”

Neither party identifies, nor is the Court able to

locate, Kansas law on the issue of whether hospital

bylaws create an enforceable contract between the

hospital and its medical staff. The closest the Kansas

Supreme Court has come to answering this question

was in the context of a breach of contract action by a

radiologist who sued a hospital for breach of contract

based on due process provisions in the hospital

bylaws.°? The Kansas Supreme Court declined to

address the issue before this Court, stating: “The

* 822 F. Supp. 1361 (N.D. Iowa 1992).

© Id. at 1370-71.

*° Tredrea v. Anesthesia & Analgesia, P.C., 584 N.W.2d 276,

285-87 (lowa 1998).

®7 16 F. Supp. 2d 1181, 1186 (E.D. Cal. 1998).

(™ Id. at 1188.

©? Dutta v. St. Francis Reg. Med. Ctr., Inc., 867 P.2d 1057, 1062

(Kan. 1994)

78a

threshold issue in Lewisburg was whether the bylaws

formed a contract with the plaintiff radiologist as a

member of the medical staff. St. Francis, in this case

at bar, has admitted to the contractual relationship.”” .

Therefore, the Court must predict how Kansas courts

would resolve the issue.

As discussed in the cases cited by plaintiff, there is

a split of authority outside of the jurisdiction.”' It is

also difficult to discern a general rule from these cases.

Plaintiff quotes Corpus Juris Secundum for the

proposition that “a hospital’s medical staff bylaws

constitute a contract between the hospital and its

medical staff, particularly where the hospital and its

staff indicate an intent to be bound by their terms, but

not otherwise.””” But the revised version of this section

states that there is also authority that “absent express

language to the contrary, a hospital’s medical staff

bylaws do not constitute a contract between the

hospital and its staff physicians, since the essential

element of valuable consideration is absent.””

” Id. (discussing Lewisburg Comm’y Hosp. v. Alfredson, 805

S.W.2d 756 (Tenn. 1991)).

” See Janda, 16 F. Supp. 2d at 1184—85 (collecting cases); Islami,

822 F. Supp. at 1370 (same); Rahimi v. St. Elizabeth Med. Ctr.,

Inc., No. C3-96-126, 1997 WL 33426269, at *5-—-7 (S.D. Ohio July

16, 1997); Kessel v. Monongalia County Gen. Hosp., 600 S.E.2d

321, 326 (W. Va. 2004); Tredrea, 584 N.W.2d at 285-87.

” 41 C.J.S. Hospitals § 16 (1991).

** 41 C.J.S. Hospitals § 27 (2006).

79a

The Court concludes that the better-reasoned line

of cases hold that hospital bylaws do not create a

contract. Like the bylaws discussed in Tredrea, the

Bylaws here do not imply an agreement for continued

staff privileges. In fact, the Bylaws explicitly provide

that medical staff privileges are not a right and that

staff members have no entitlement to continued staff

privileges.

The preamble to the Bylaws state:

the physicians and dentists practicing at

Atchison Hospital Association, . . . hereby

organize themselves in conformity with these

Bylaws, which establish the mechanisms to

carry out the direct and delegated

responsibilities of the Medical Staff in

cooperation with the Hospital Administration

and the Governing Board of the Hospital, and

do hereby agree to accept and abide by the

following Bylaws and _ such Rules and

Regulations which are adopted in accord with

these Bylaws.

The Court finds that these Bylaws do not create a

contract between physicians and the hospital. AHA

gave no consideration for any agreement created by

the Bylaws, despite the fact that plaintiff was required

to abide by them as a consequence of medical staff

privileges. Further, the Bylaws are required to be

4

passed by state regulation,’* so AHA is merely

See K.A.R. 28-34-5a(b).

80a

complying with the law in promulgating Bylaws.” The

Court finds, like the Supreme Court of Iowa, that

construing medical staff bylaws as a contract could

actually be contrary to-public policy:

[W]e believe it would improperly impinge on the

statutory mandate to the board of directors to

establish criteria for staff privileges, perpetuate

the problems that had led to the establishment

of the independent contractor system, and

ultimately affect the successful operation of the

hospital. Such a contract, impacting as it would

on the statutory responsibilities of the hospital

on matters affecting staff qualifications, might

well be argued to be against public policy. In

any event, we conclude that continued staff

privileges are not implied by the bylaws, and we

will not give the bylaws the effect of a contract.”

The Court agrees with the reasoning of the

Supreme Court of Iowa. This Court predicts that under

Kansas law, the bylaws do not constitute a contract

between. medical staff and the hospital. There is a lack

of consideration, lack of intent to be bound, and it is

contrary to public policy to take away the authority of

the Governing Board as “the ultimate authority in the

hospital.”’’ Accordingly, the Court finds that plaintiff

5 See Kessel vu. Monongalia County Gen. Hosp. Co., 600 S.E.2d 32,

326 (W. Va. 2004); Tredrea, 584 N.W.2d at 285.

% Tredrea, 584 N.W.2d at 287.

” K_A.R. 28-34-5(a); see Doc. 163, Ex. 4a at 29 (“The Governing

Board of the Hospital shall have the ultimate authority in

8la

is unable to establish a genuine issue of material fact

over the third element of a prima facie case, which

requires him to show that defendants interfered with

the making or enforcement of a contract.

2. Pretext

Assuming arguendo plaintiff is able to satisfy the

prima facie elements of a Section 1981 and Title VI

claim, defendant must offer a_ legitimate,

nondiscriminatory reason for the discrimination.

Defendants argue that they abided by the peer review

process according to the Bylaws in denying plaintiffs

application for reappointment in 2003 because he was

a disruptive physician. Plaintiff, in turn, argues that

this reason is simply a pretext for discrimination.

The Court finds that defendants offer legitimate,

non-discriminatory reasons for denying plaintiffs

application for reappointment, and proceeds _ to

determine if this act was a pretext for discrimination.

“A plaintiff can show pretext by revealing such

weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's

proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them

unworthy of credence.” Plaintiffs typically show

granting a practitioner clinical privileges and in all actions

concerned with the exercise or limitation of the same.”).

* Mickelson v. New York Life Ins. Co., _F.3d__, 2006 WL

2468302, at *9 (10th Cir. Aug. 28, 2006) (quoting Green v. New

Mexico, 420 F.3d 1189, 1192-93 (10th Cir. 2005) (internal

quotations omitted)).

82a

pretext in one of these three ways: (1) evidence that

defendant’s stated reasons for the adverse employment

action was false; (2) evidence that defendant acted

contrary to a written company policy prescribing the

action to be taken by defendant under the

circumstances, and (3) evidence that the defendant

acted contrary to an unwritten policy or practice when

making the decision.” Plaintiff also may show pretext

through evidence that the “employer’s proffered non-

discriminatory reasons [were] either a post hoc

fabrication or otherwise did not actually motivate the

employment action (that is, the proffered reason is a

pretext).”*° Defendants argue that plaintiffs only

evidence of pretext is in the form of his own conclusory

opinions, found in his deposition testimony and

various declarations. The Court will now turn to each

of plaintiffs arguments that the denial of his

reappointment based on disruptive behavior was

pretextual.

Comments and Conduct

First, plaintiff argues that many physicians,

including the individual defendants, made

discriminatory comments to him or about him duriag

his tenure at AHA. Yet, he specifically references only

two comments in his argument. First, he references a

loud comment made by Dr. Harry Franz, now

9 Plotke v. White, 405 F.3d 1092, 1102 (10th Cir. 2005) (quoting

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th

Cir. 2000)).

® Id. (quoting Fuentes v. Perskie, 32 F.1d 759 764 (3d Cir. 1994)).

83a

deceased, at a barbeque for the hospital employees and

physicians, that they should give plaintiff chopsticks

to eat with.®! Second, in his deposition, he talks about

how Dr. Eplee “years ago” laughed at his accent while

dictating a medical chart, and implied that he spoke

slowly. The Court finds that these comments do not

amount to either direct evidence of discrimination or

of pretext. The comment plaintiff attributes to Dr.

Franz, now deceased former member of the Executive

Committee, was admittedly made “years ago” and at

least some time before 1998.” Similarly, the incident

with Dr. Eplee occurred many years prior to the

decision not to renew plaintiffs privileges. At best,

these are discriminatory comments made _ by

nondecision- makers, which carry little evidentiary

weight. “Discriminatory incidents which occurred

either several years before the contested action or

anytime after are ‘not sufficiently connected to the

employment action in question to demonstrate

pretext.”** The contested action here took place in

2003, years after these comments were made sometime

prior to 1998. These stray remarks should not even be

®! He also references a statement by “a member of Hospital

Management” who said that “Dr. Vesom should just go back where

he came from.” Plaintiff makes no reference to who made this

comment, when it was made, or which paragraph of factual

assertions or declaration it comes from. The Court has searched

the record as is unable to locate the source of this comment.

82 (Doc. 182, Vesom Depo. at 169, 174.)

8° Heno v. Sprint /United Mgmt. Co., 208 F.3d 847, 856 (10th Cir.

2000) (quoting Simms v. Oklahoma, 165 F.3d 1321, 1330 (10th

Cir. 1999)).

84a

admitted on summary judgment, “unless plaintiff can

link them to personnel] decisions or the individuals

making those decisions.”™ Plaintiff makes no attempt

to do.

Next, plaintiff argues that he and his wife were

socially ostracized by his fellow physicians at AHA and

that they refused to refer patients to him for care

unless it was an emergency that came up at night or

on the weekend. Again, plaintiff does not explain who

specifically engaged in this conduct, nor how it related

to the ultimate decision to not reappoint him

Plaintiff's deposition testimony indicates that he and

his wife were socially excluded by other physicians for

a long period of time, beginning years before. Plaintiff

enjoyed staff privileges during the majority of this

time, and was reappointed after initially being turned

down for privileges in 1999 and reappointed in again

2001.

Proffered Reason was Post Hoc Fabrication

Plaintiff argues that Dr. Rider’s testimony provides

evidence of pretext because he presents an alternate

interpretation of the basis for the MEC’s decision not

to recommend that he be reappointed. According to Dr.

Rider, members of the MEC had decided not to

*4 Id.; see also Van v. Anderson, 199 F. Supp. 2d 550, 567 (N.D.

Tex. 2002), affd, 66 Fed. App’x 524 (5" Cir. 2003) (explaining that

stray remarks and threats were insufficient to establish direct

evidence of discrimination); Patel v. Midland memorial Hosp. &

Med. Ctr., 298 F.3d 333, 341-344 (5th Cir. 2002), cert. denied, 537

U.S. 1108 (2003).

85a

recommend reappointment before actually discussing

the grounds for doing so. The Court finds that Dr.

Rider’s declaration supports the allegation that

members of the MEC made the decision not to renew

plaintiffs staff privileges before determining a basis

upon which to do so. However, Dr. Rider’s declaration

does not support the allegation that the true reason

behind the decision was racial animus.

As previously discussed, the Court disregards this

declaration to the extent it provides conclusory

opinions about the feelings and intent of others. At

best, Dr. Rider’s declaration supports the argument

that the decision to not reappoint plaintiff to the

medical staff was the result of plaintiffs and Dr.

Ware’s active disagreement with members of the MEC

regarding the handling of certain peer review cases. In

fact, the only statement made by Dr. Rider that even

intimates there was a race-based motivation in

deciding not renew plaintiffs privileges is the

following paragraph from his second declaration:

The animus directed at Dr. Vesom by members

of the MEC was not the result of disruptive

behavior on his part. Rather, it was the result of

professional jealously of a better qualified

foreign doctor whose competition and

demanding standards of care were resented by

the hospital employed medical staff doctors.”

As described in the Court’s evidentiary ruling, this

statement amounts to a conclusory opinion to which

® (Doc. 182, Rider Declaration II J 4.)

86a

Dr. Rider cites no supporting facts and for which he

has no personal knowledge. Further, both declarations

more clearly support his view that the decision not to

renew plaintiffs staff privileges was the result of

hostility due to plaintiffs and Dr. Ware’s complaints

about the peer review process at AHA. To be sure, Dr.

Rider discusses the letter Dr. Vesom and Dr. Ware

wrote on January 22, 2003, criticizing peer review at

AHA: “This letter further served to anger my fellow

committee members who then decided to not renew the

hospital privileges of Dr. Vesom and Dr. Ware.”™ Even

though plaintiff provides evidence of an ad _ hoc

fabrication of the reasons behind the denial of his

reappointment, the Court finds that he has failed “to

create a question of fact for the jury that race

motivated |the decision].”°”

Stated Reason for Decision is Contrary to the

Bylaws

Although not explicitly referenced in his argument,

plaintiff contends in his declarations and factual

recitations, that AHA and the MEC did not comply

with the Bylaws in denying him reappointment.

Specifically, plaintiff maintains that if he was a

“disruptive physician” under the Bylaws, he was

entitled to “corrective action” under Appendix B when

the complaints were made. Instead, plaintiff contends

that the MEC reviewed his credentials file that

included a number of complaints made during his

°° (Doc. 182, Rider Declaration I at 2.)

*” Patel, 298 F.3d at 342 (emphasis in original).

87a

tenure that he never had a chance to explain or refute.

Defendants argue that plaintiff was never entitled to

corrective action under Appendix B, and that they

complied with the Fair Hearing procedures set forth in

Appendix A, as the recommendation and ultimate

decision not to reappoint plaintiff constituted a

triggering action for a Fair Hearing and not for

corrective action. Plaintiffs argument appears to be

that if the complaints referenced in his credentials file

were valid, he would have been accorded corrective

action each time a complaint was made. Instead, he

claims that the Fair Hearing process was the first

opportunity he had to review many of these documents

and complaints, and is therefore’ circumstantial

evidence of pretext.

The Court finds that this disagreement is based on

a patent misreading of the Bylaws by plaintiff. The

Bylaws require allegations of disruption, under the

criteria set forth in Article X, to be reported. If a report

is made, Appendix B procedures apply for corrective

action. However, Appendix B explicitly provides that,

“any officer of the Medical Staff, the chairperson of a

Service or Committee, the Chief Executive Officer of

the Hospital or any member of the Governing Board of

the Hospital may request corrective action against

such practitioner.” If corrective action is requested,

then the MEC investigates the report and submits a

written report of the investigation to the Board. Before

the report is made, however, the practitioner has the

opportunity to interview with the MEC so that he or

she may discuss, explain, or refute the nature of the

charge. The summary is then submitted with the

report to the Board. Ultimately, the Board either

approves or modifies the MEC recommendation.

88a

Contrary to plaintiffs contentions, this procedure

never gets underway unless an officer, Chair of a

committee, or the CEO of AHA requests corrective

action.

Appendix B does not, by its plain terms, require

corrective action be taken every time a report is filed.

Therefore, even if plaintiff is correct that the MEC and

Board evaluated his credentials file containing

allegations that he was never able to explain, this does

not contravene the Bylaws. It is clear from the

undisputed facts in this matter that defendants

complied with the Fair Hearing procedures set forth in

Appendix A of the Bylaws, which apply when a

member is denied reappointment to the medical staff.

Similarly Situated Individuals

Plaintiff points to his third declaration as proof

that similarly-situated Caucasian medical staff

members were treated more favorably than he was. A

plaintiff may show pretext by proving that similarly

situated nonprotected individuals were treated more

favorably for committing comparable conduct.”

“Similarly situated employees are those who deal with

the same supervisor and are subject to the same

standards governing performance evaluation and

discipline.” As previously discussed, Vesom III

88 Kendrick v. Penske Transp. Serus., Inc., 220 F.3d 1220, 1232

(10th Cir. 2000).

*° Rivera v. City & County of Denver, 365 F.3d 912, 922-23 (10th

Cir. 2004) (quoting Aramburu v. Boeing Co., 112 F.3d 1398, 1404

(10th Cir.1997) (internal quotation marks omitted)).

89a

consists of plaintiffs opinions and explanations of

certain confidential documents located in other

physicians’ credentials files. According to plaintiff,

these documents reveal inconsistencies in the

treatment of nonprotected physicians compared to

him.

Plaintiff attaches “Topic Incident Reports” with

regard to two of the physicians, which briefly

summarize incidences of problems reported, the

physicians’ response, and the committee findings,

comments, and recommendations. But these reports do

not indicate who the “Committee” is, or what

procedure the committee went through in order to

reach the conclusion it did. There is no evidence

presented by plaintiffs third declaration that leads the

Court to believe that these reports were reviewed in

the context of applications for renewal of medical staff

privileges. Nor do all of these reports ceal with the

same time period, and therefore the same MEC, as the

period during which plaintiff applied for and was

denied renewal of staff privileges.

Of these two physicians, one was also investigated

by the KDHE after it received a complaint from

plaintiff in January 2003. The allegation regarded

the peer review of a particular medical decision by this

physician and the KDHE found the complaint

substantiated. The hospital records show that the

* Although not discussed in detail by the parties, this appears to

be a separate complaint from the complaint regarding peer review

of the maternal mortality after birth, which caused the KDHE to

investigate in March 2003.

90a

committee reviewing this allegation reviewed the case

as a follow-up to the KDHE survey twice in 2003, and

ultimately found the case to be within the standard of

care and determined that no further action should be

taken. Again, thisis nota similarly situated individual

to plaintiff. The stated reason for the decision to not

reappoint plaintiff was based on a pattern of

disruptive behavior, not a complaint over peer review

in a particular case.

The third physician plaintiff references in his

declaration was up for reappointment in the Fall of

2001. This physician had a documented mental! illness

and problems with alcohol dependency. Documents

attached to plaintiffs declaration show that this

information was disclosed to the MEC upon the

physician’s reapplication and that at least one

physician intervened on the physician’s behalf and was

personally monitoring this physician’s performance.

The documentation further shows that the MEC

addressed these issues with that physician and

assured itself that the physician had sought help

through an impaired physicians group and was being

treated with a number of medications. The Court fails

to see how this physician is at all similarly situated to

the plaintiff. First, the application was filed in 2001,

the same year that plaintiff was reappointed for the

last time, without incident. In 2003, a different MEC

was in place when plaintiff was not reappointed.

Plaintiff has not admitted, nor contended that medical

impairments were involved in the decision not to

renew his privileges. Further, the issue was not

ignored by the MEC, but was discussed with this other

applicant and other individuals on the medical staff

were monitoring the physician and would report to Dr.

9la

Thomas, Chief of Medical Staff at the time, about this

physician’s progress. In fact, this appears to be more

similar to the circumstances of the MEC’s first

recommendation in 1998 to deny plaintiff privileges,

which was later rejected by the Board, under the

conditions set forth in the Settlement Agreement.

Further, defendants have come forward with

evidence that Dr. Tayiem, who is Palestinian, also had

objections to the peer review process but that his

medical staff privileges were unaffected. Dr. Tayiem

also signed the letter that plaintiff and Dr. Ware sent

to the Board in January 2003. Dr. Tayiem is a much

more similarly situated individual! to plaintiff, in that

he made the same types of complaints and was of a

foreign nationality. The fact that Dr. Tayiem did not

suffer from a denial of medical staff privilege

reappointment belies plaintiff's conclusory allegations

that the MEC declined to renew his privileges based on

race.

This is a case where summary judgment is

appropriate because, “the record conclusively revealed

some other, nondiscriminatory reason for the

employer’s decision, or... the plaintiff created only a

weak issue of fact as to whether the employer’s reason

was untrue and there was abundant and

uncontroverted independent evidence that no

discrimination occurred.””’ Defendants’ motion for

summary judgment is granted on plaintiffs Section

1981 and Title VI claims.

9! Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148,

120 S. Ct. 2097, 2109, 147 L. Ed. 2d 105 (2000).

G2a

B. Conspiracy under Section 1985(3)

The essential elements of a claim under Section

1985(3) are: (1) a conspiracy; (2) to deprive plaintiff of

equal privileges and immunities; (3) an act in

furtherance of the conspiracy; and (4) an injury

resulting therefrom.*” Section 1985(3),

does not ‘apply to all tortious, conspiratorial

interferences with the rights of others,’ but

rather, only to conspiracies motivated by ‘some

racial, or perhaps otherwise class-based,

invidiously discriminatory animus. The other

‘class-based animus’ language of _ this

requirement has been narrowly construed and

does not, for example, reach conspiracies

motivated by an economic or commercial bias.”

As the Court has already explained, there is no

genuine issue of material fact concerning the second

element of this claim—an intent to deprive plaintiff of

equal privileges or immunities. Plaintiff has failed to

present a genuine issue of material fact that would

allow a reasonable factfinder to conclude that the

decision to not reappoint him to the medical staff was

due to an invidiously discriminatory animus.

Therefore, summary judgment is granted on this

claim.

% Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993).

8 Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971))

(citations omitted).

C. Sherman Act

Plaintiffs fourth claim asserts a violation of Section

1 of the Sherman Act. He maintains that defendants

conspired to deny him staff privileges at AHA for the

purpose of unreasonably restraining trade, causing

him to suffer economic losses. Section 1 of the

Sherman Act states that:

Every contract, combination in the form of trust

or otherwise, or conspiracy, in restraint of trade

or commerce among the several States, or with

forcign nations, is declared to be illegal. Every

person who shall make any contract or engage

in any combination or conspiracy hereby

declared to be illegal shall be deemed guilty of

a felony.”

Generally, the Sherman Act only prohibits restraints

on trade that are unreasonable.” The plaintiff must

establish: (1) concerted action in the form ofa contract,

combination, or conspiracy, and (2) an unreasonable

restraint of trade.”

* 15 U.S.C. § 1.

* Diaz v. Farley, 215 F.3d 1175, 1182 (10th Cir. 2000) (citing N. W.

Wholesale Stationers, Inc. v. Pac. Stationary & Printing Co., 472

U.S. 284, 289 (1985)).

% Systemcare, Inc. v. Wang Labs. Corp., 117 F.3d 1137, 1139 (10th

Cir. 1997) (overruling McKenzie v. Mercy Hospital, 854 F.2d 365

(10th Cir. 1988)).

94a

“A doctor's unreasonable exclusion from the

relevant market via adverse and unfair peer review

proceedings obviously affects patient choice and

concomitantly, interferes with competition in the

marketplace.””’ Normally, courts apply a “rule of

reason” analysis to Section 1 cases, which requires “the

fact finder [to] weigh{] all of the circumstances of a

case in deciding whether a restrictive practice should

be prohibited as imposing an unreasonable restraint

on competition.” Under such review, the misuse of

the peer review process is unjustified.”

Defendants argue that there was no concerted

action or conspiracy and that denying staff benefits is

not a plainly anti-competitive activity. Plaintiff argues

that Dr. Rider’s declaration supports the allegation

that “concerted actions of defendants” drove plaintiff

from the Atchison community, which produced an anti-

competitive effect on interstate commerce. Plaintiff

argues that he was injured because he was driven from

a practice he had developed over a period of more than

twenty years.

Dr. Rider’s declarations attest to what occurred at

certain MEC meetings at which he was present.

Taking his declarations as true, plaintiff has

established concerted activity among some members of

” Cohlmi.s v. Ardent Health Serus., L.L.C., _F. Supp. 2d__, 2006

WL 2441942, at *6 (N.D. Okla. Aug. 9, 2006) (collecting cases).

*% Diaz, 215 F.3d at 1182.

® Cohimia, 2006 WL 2441942, at *

95a

the MEC.'® However, as defendants stress, the Board

was the ultimate authority who denied plaintiffs

reappointment application and plaintiff has come

forward with no evidence of concerted action by

members of the Board. “Where a hospital Board has

ultimate decision making authority, ‘[s}imply making

a peer review recommendation does not prove the

existence of a conspiracy [among the hospital and its

staff]; there must be something more suchas a

conscious commitment by the medical staff to coerce

the hospital into accepting its recommendation.”

Plaintiff has not come forward with any evidence

suggesting that the Board did not act independently in

following the MEC’s recommendation, after the Fair

Hearing process was invoked and_ utilized by

plaintiff." The evidence is consistent with AHA’s

lawful motive of following its Bylaws in denying

plaintiffs reappointment. Therefore, plaintiffisunable

to present a genuine issue of material fact over

whether there was concerted action by defendants and

defendants’ motion for summary judgment on this

claim is granted.

‘0° Based on Dr. Rider’s declaration, he did not join in this activity.

0! Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 639-40 (3d Cir.

1996) (quoting Oksanen v. Page Memorial Hosp., 945 F.2d 696,

706 (4th Cir. 1991)}; see Todorov v. DCH Healthcare Authority,

921 F.2d 1438, 1459 (11th Cir. 1991).

02 Mathews, 87 F.3d at 640 (explaining that there must be

evidence that excludes the possibility of independent action by the

Board).

96a

Also, plaintiff fails to come forward with evidence

tending to show an injury to consumers due to the

Board’s decision. Plaintiffargues that “the evidence” in

this case shows anti-competitive activity, without any

specific reference to the record. As already discussed,

there is no evidence that plaintiff had exclusive

contracts with any of his patients, or that the Board’s

decision drove up prices of cardiology service to patient

consumers. To show an antitrust injury, plaintiff

would need to show that defendants’ conduct “affected

the prices, quantity or quality of goods or services,’ not

just his own welfare.” “A claim that a practice

reduces (particular) producers’ incomes has nothing to

do with the antitrust laws, which are designed to drive

producers’ prices down rather than up.”™ Plaintiff has

not come forward with any evidence, beyond

conclusory opinions that certain general physicians

refused to refer patients to him, that the decision not

to reappoint him affected prices or the quality of goods

or services. Even assuming plaintiffs belief about the

non-referrals is true, this was happening well before

the 2003 decision not to reappoint him. The Court

finds no genuine issue of material fact over the

existence of an antitrust injury and grants defendant’s

motion on this claim.

13 Id. at 641 (quoting Tunis Bros. Co. v. Ford Motor Co., 952 F.2d

715, 728 (3d Cir. 1991)).

104 Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d

247, 251 (7th Cir. 1994), cert. dented, 516 U.S. 1159 (1996).

97a

D. State Law Claims

Defendants further argue that they are entitled to

summary judgment on the state law claims on the

merits. Because the Court grants summary judgment

to defendants on the federal claims, the Court is

authorized to decline supplemental jurisdiction over

the remaining state law claims.’ Whether to exercise

supplemental jurisdiction is committed to the court’s

sound discretion.’ 28 U.S.C. § 1367 “reflects the

understanding that, when deciding whether to exercise

supplemental jurisdiction, ‘a federal court should

consider and weigh in each case, and at every stage of

the litigation, the values of judicial economy,

convenience, fairness and comity.”

Upon a pretrial disposition of the federal claims,

district courts will generally dismiss the state law

claims without prejudice.’ This general practice is in

' 28 U.S.C. § 1367(c)(3).

' City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 172-73

(1997); see Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 541

(10th Cir. 1995).

'" City of Chicago, 522 U.S. at 173 (quoting Carnegie-Mellon

University v. Cohill, 484 U.S. 343, 350 (1988)); see also Gold v.

Local 7 United Food & Commercial Workers Union, 159 F.3d

1307, 1310(10th Cir. 1998), overruled on other grounds by Styskal

v. Weld County Commr’s, 365 F.3d 855 (10th Cir. 2004).

18 Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (collecting

cases); see also Roe v. Cheyenne Mountain Conference Resort, Inc.,

124 F.3d 1221, 1237 (10th Cir. 1997).

98a

keeping with the holdings of the Supreme Court and

’ the Tenth Circuit.’ “Notions of comity and federalism

demand that a state court try its own lawsuits, absent

compelling reasons to the contrary.”''° Nevertheless, in

this case, the Court concludes that judicial economy

and convenience weigh heavily in favor of exercising

supplemental jurisdiction and deciding the state law

claims on summary judgment. This case is now two

years old and the events forming the basis of plaintiffs

state law claims are identical to those already

considered by the Court in deciding the federal claims.

Therefore, the Court exercises supplemental

jurisdiction and proceeds to decide the remaining state

law claims.

1. Whistleblower Retaliation

Plaintiff argues that his medical staff privileges

were terminated because he reported complaints about

peer review and the standard of care at AHA to the

KDHE, and was therefore retaliated against for his

“whistleblowing” activity. Under Kansas law,'*' there

is a_ so-called whistleblower’s exception to the

employment-at-will doctrine.'’* The at-will

109 Ball, 54 F.3d at 669.

9 Thatcher Enters. v. Cache County Corp., 902 F.2d 1472, 1478

(10th Cir. 1990).

''' The parties do not contest that Kansas law controls the State

law claims in this matter.

"2 Zinn v. McKune, 949 F. Supp. 1530, 1536-37 (D. Kan. 1996),

aff'd, 143 F.3d 1353 (10th Cir. 1998).

99a

employment doctrine normally allows for the employer

or employee to terminate the employment relationship

at any time, for any reason.''* The Kansas Supreme

Court has recognized that “termination of an employee

in retaliation for the good faith reporting of a serious

infraction of such rules, regulations, or the law by a co-

worker or an employer to either company management

or law enforcement officials (whistle-blowing) is an

actionable tort.”'™

To establish a prima facie case of retaliation for

whistleblowing, the plaintiff has the burden to show,

(1) a reasonably prudent person would have concluded

that the employee’s coworker or employer was engaged

in activities in violation of rules, regulations, or the

law pertaining to public health, safety, and the general

welfare, (2) that the employer had know!edge of the

employee’s reporting of such violation prior to

discharge of the employee, and (3) that the employee

was discharged in retaliation for making the report.’

Additionally, the “whistle blowing must have been

done out of a good faith concern over the wrongful

activity reported rather than from a corrupt motive

such as malice, spite, jealousy or personal gain.”'’®

"3 Id. at 1536 (citing Moyer v. Allen Freight Lines, Inc., 885 P.2d

391 (Kan. Ct. App. 1995)).

"4 Palmer v. Brown, 752 P.2d 685, 690 (Kan. 1988).

'' Zinn, 949 F. Supp. at 1537.

"6 Td,

100a

Plaintiff must prove this claim by a preponderance of

the evidence that is clear and convincing in nature.'””

Defendants argue that plaintiff fails to establish a

genuine issue of material fact on this claim because (1)

he was not an employee of the hospital, (2) the tort

does not extend to independent contractors, (3) the

claim is preempted by other causes of action in the

Complaint, and (4) there is no causation between

plaintiff's report to the KDHE and the decision to not

reappoint him to the medical staff. Because the Court

agrees that plaintiff has failed to come forward with

evidence that he was an employee of defendants, his

claim fails as a matter of law.

As the Court has already stated, it is undisputed

that plaintiff was not an employee of AHA or any of

the individual defendants.'’* The Court concluded in

its discussion of the discrimination claims that he is

properly classified as an independent contractor. In

Parsells v. Manhattan Radiology Group,’ Judge

Lungstrum recognized that a “clear majority” of cases

have held that a claim for retaliation for

whistleblowing does not extend to independent

contractors.'”° Because the plaintiffs in that case had

not addressed the issue in their brief, the court

ordered them to show cause why the claim should not

"’ Id. (citing Ortega v. IBP, Inc., 874 P.2d 1188 (1994)).

18 See also supra note 44.

9 255 F. Supp. 2d 1217, 1236-37 (D. Kan. 2003).

‘2 Id. (collecting cases).

1Ola

be dismissed on those grounds, as it had already found

that the plaintiffs were independent contractors and

not employees under Title VII. No further order was

issued by the court after the parties briefed the issue,

however, as a stipulation of dismissal was filed soon

after.

Plaintiff argues that Parsells should not control

here because Judge Lungstrum did not rule on the

summary judgment motion as to this tort. While the

Court acknowledges that Parsells did not grant

summary judgment to the defendant on this ground,

the court did point to the overwhelming majority

position of the courts not to extend whistleblower

protection to independent contractors or non-

employees. This tort is only an exception to the

employment-at-will doctrine and is based on “the

wrongful conduct of an entity with the power to

terminate the employee.” Plaintiffhas come forward

with no law to the contrary and no evidence that he

should be considered an employee,'” nor does he even

contest this point.

Plaintiffs only argument is that medical staff

physicians at AHA and employees of the hospital

“performed the same services .. . under the same

regulatory scheme.” The only evidence plaintiff brings

forward to support this statement is his own

'2! Zinn, 949 F. Supp. at 1538.

122 See, ¢.g., McPherson v. HCA HealthOne, LLC., 202 F. Supp. 2d

1156, 1164 —68 (D. Colo. 2002) (considering but rejecting the

medical staff physician plaintiff's arguments about why he should

be considered an employee of the hospital).

102a

declaration.'** He argues in his declaration that “the

only difference is the independent physicians bill for

the services directly to the patient or third-party

payer, while the Hospital compensates its employed

physicians with a salary.” But, he argues they are

subject to the same rules and regulations. The Court

is not persuaded by this evidence. Plaintiff makes no

attempt to argue how these facts defeat his

independent contractor status, or under what legal

theory this cause of action would be applicable to him.

They are simply conclusory opinions or beliefs made by

him about purely legal arguments.

Defendants met their burden of pointing to the

absence of evidence on the point of plaintiff's

employment status, yet plaintiff was unable to come

forward with evidence that would present a genuine

issue of material fact. Because the Court finds that

there is no genuine issue of material fact about

whether plaintiff was an employee of AHA, it grants

defendants summary judgment and declines to address

their remaining arguments.’

' (Doc. 181 at 22 7 24, citing Vesom II J 2.)

'’ The Court notes, however, that plaintiffs reliance on

Wabaunsee County v. Umbehr is misplaced. 518 U.S. 668 (1996).

That case dealt with distinguishing between employees and

independent contractors with regard to First Amendment free

speech rights. Certainly, plaintiff must concede that he is

advancing a state law claim here that is not constitutional in

nature.

103a

2. Intentional Interference with Business

Relations

To establish a claim for tortious interference with

business relations under Kansas law, plaintiff must

show, (1) the existence of a business relationship or

expectancy with the probability of future economic

benefit to the plaintiff; (2) knowledge of the

relationship or expectancy by the defendants; (3) that,

except for the conduct of the defendants, plaintiff was

reasonably certain to have continued the relationship

or realized the expectancy; (4) intentional misconduct

by defendant; and (5) damages suffered by plaintiff as

a direct or proximate cause of defendant’s

misconduct.’ Malice is a predicate for tortious

interference. '”

Under the first element of this tort, plaintiff alleges

in the Complaint that he maintained relationships and

expectancies with a large number of patients in the

Atchison market with the probability of future

economic benefit to him from those relationships.

Defendants argue that plaintiff has failed to come

forward with evidence to support that fact. Plaintiffs

response to the summary judgment motion is the

conclusory statement, “[pjlainly, plaintiff had a

thriving medical practice which was destroyed by

defendants’ intentional and unlawful misconduct. This

'2 E.g., Turner v. Halliburton Co., 722 P.2d 1106, 1115 (Kan.

1986).

'% L&M Enters., Inc. v. BEI Sensors & Sys. Co., 231 F.3d 1284,

1288 (10th Cir. 2000).

104a

point is wholly unsupported by defendants’ moving

papers.”

The only evidence the Court is able to locate on this

point is plaintiffs own declaration where he states

that he had a thriving medical practice in Atchison

that was destroyed when he no longer had a local

hospital to which he could refer patients. He states

that this “forced” him to move to Poplar Bluffs,

Missouri. But plaintiff stated in his deposition that he

was allowed to maintain active medica] staff privileges

during the fourteen month period between receiving

notice of the MEC’s recommendation and the decision

on appeal, until April 2, 2004. Further, it is

undisputed that plaintiff still had privileges at two

other hospitals, Horton Community Hospital and

Cushing Memorial Hospital. Until plaintiff voluntarily

moved to Poplar Bluff, Missouri, he continued to treat

patients at these hospitals. Nor is there any evidence

that plaintiff had an exclusive arrangement with any

of his patients.’

Plaintiff misapprehends the summary judgment

burden. Defendants need only point to the absence of

evidence on an essential element of this claim before

the burden shifts back to plaintiff to come forward

with facts to show a genuine issue of material fact. A

'27 See Van v. Anderson, 199 F. Supp. 2d 550, 565 (N.D. Tex. 2002)

(finding no tortious interference with patient contracts where

plaintiff admitted in deposition that he continued to admit

patients to the hospital after receipt of notice of committee

recommendation and that plaintiff did not have exclusive

arrangements with patients), affd, 66 Fed. App’x 524 (5th Cir.

2003).

105a

one paragraph response to this showing is insufficient.

The Court finds plaintiffhas failed to produce evidence

upon which a reasonable factfinder could conclude that

plaintiff enjoyed a business relationship or expectancy

with his patients.

F. Waiver

Defendants raise a number of defenses to plaintiffs

claims in their summary judgment motion. Having

granted summary judgment to defendants on all of

plaintiffs claims on the merits, the Court need not

address each and every defense raised. Out of an

abundance of caution, however, the Court proceeds to

discuss the affirmative defense of waiver. Defendants

argue that all of plaintiffs claims are barred by the

Authority and Liability Waiver (“the Waiver”) that

plaintiff signed on December 15, 2002 when he applied

for reappointment to the AHA staff. Plaintiff contends

that the cases cited by defendants are inapplicable to

an application for medical staff privileges, that waivers

of prospective claims for intentional torts or statutory

violations are void as against public policy, and that

waivers for civil rights violations are “absolutely void.”

“The existence of a release is an affirmative defense;

the defendant bears the burden of establishing it.”’**

Plaintiff relies on a number of cases that stand for

the proposition that an employee's rights under Title

VII may not be prospectively waived, as it would

defeat the “paramount congressional purpose behind

'28 White v. Gen. Motors Corp., 908 F.2d 669, 672 (10th Cir. 1990),

cert. denied, 498 U.S. 1069 (1991).

106a

Title VII.”'? Defendants make the overarching

argument that because plaintiff was not an employee

of AHA or of any of the individually named defendants,

he may not now rely upon employment discrimination

theories of recovery, such as analogies to Title VII.

Although plaintiff does not assert a claim here under

Title VII, he does assert race discrimination under

Title VI and Sections 1981 and 1985(3).

The issue of the effect of a release or covenant not

to sue is a legal question.’” In Kansas, a release is

treated as a contract and a party who signs a written

contract “is bound by its provisions regardless of

failure to read or understand the terms, unless the

contract was entered into through fraud, undue

influence, or mutual mistake.” As a general rule in

Kansas, the court must ascertain the intent of the

parties and “if the language of the written

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