
USCA1 Opinion

	




        June 3, 1992        UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1763                               TAREK H. ELGABRI, M.D.,                                Plaintiff, Appellant,                                          v.                             MARY D. LEKAS, M.D., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                                 Cyr, Circuit Judge,                                      _____________                             and Stahl,* District Judge.                                         ______________                                 ____________________            Cornelius  J.  Moynihan,  Jr.  with  whom  Sue  Zanne Worrell  and            _____________________________              __________________        Peabody & Brown were on brief for appellant.        _______________            W.  James McKay (for  appellee Robinson)  and John  J. Barton (for            _______________                               _______________        appellee Duva) with whom Adler Pollock & Sheehan Incorporated, Taylor,                                 ____________________________________  _______        Anderson &  Travers,  Dennis  J.  McCarten, Hanson,  Curran,  Parks  &        ___________________   ____________________  __________________________        Whitman,  David  W. Carroll,  Roberts,  Carroll,  Feldstein &  Peirce,        _______   _________________   _______________________________________        Christopher  H. Little,  Judith  Kapuscinski,  Tillinghast, Collins  &        ______________________   ___________________   _______________________        Graham,  William Jestings, and Carroll,  Kelly & Murphy  were on joint        ______   ________________      ________________________        brief for appellees.                                  ____________________                                 ____________________        ____________________        *Of the District of New Hampshire, sitting by designation.                 STAHL,  District  Judge.    This  is an  appeal  from  a                         _______________            nineteen-day  jury trial.   Plaintiff-appellant Dr.  Tarek H.            Elgabri  alleged  various  violations  of  state  and federal            antitrust laws, as  well as  a common law  claim of  tortious            interference with prospective business relationships, against            various doctors  affiliated at  four Rhode  Island hospitals.            The jury found for defendants on all counts.  On appeal,  Dr.            Elgabri  challenges  the  jury  instructions,  the  order  of            examination  of witnesses,  and various  evidentiary rulings.            We affirm.                                      Background                                      Background                 Dr. Elgabri  is an otolaryngologist practicing  in Rhode            Island.  Otolaryngology is commonly referred to as "ear, nose            and throat"  (ENT)  medicine.    He began  his  residency  in            otolaryngology at the University  of Minnesota.  While there,            however, he  encountered difficulties and  was terminated for            cause after his  first year.   He finished  his residency  at            Rhode Island Hospital.                   In  1984, after  concluding his  residency, Dr.  Elgabri            opened  his  own practice  in  Rhode  Island.   He  submitted            applications for privileges  at various hospitals  throughout            the state.  Hospital  privileges allow a doctor to  treat and            admit  patients   at  a  given  institution.     He  received            privileges  at Notre  Dame Hospital, Cranston  Hospital, Kent                                         -2-            County  Memorial  Hospital, and  Memorial Hospital.   Despite            numerous attempts over the  course of several years, however,            he  failed to  receive privileges  at Miriam  Hospital, Roger            Williams  Hospital,  Rhode Island  Hospital,  and St.  Joseph            Hospital.                   On November  9, 1989,  Dr. Elgabri brought  suit against            six  doctors:    Dr.  Mary  Lekas,  surgeon-in-chief  of  the            otolaryngology  department  at  Rhode  Island  Hospital;  Dr.            Steven Issenberg, director of the division  of otolaryngology            at Roger Williams General Hospital; Dr.  Hani Zaki, a medical            doctor specializing in  otolaryngology who has  privileges at            the four  hospitals that  denied Dr. Elgabri  privileges; Dr.            Mendell Duva,  the chief of the  otolaryngology department at            St. Joseph  Hospital; Dr.  Mendell Robinson, director  of the            division  of  otolaryngology  at  Miriam  Hospital;  and  Dr.            Wexler,   the   present   director   of   the   division   of            otolaryngology  at Roger  Williams  Hospital.1   Each of  the            above-named defendant  doctors  is  affiliated  at  the  four            hospitals which denied plaintiff privileges.                   Dr.  Elgabri alleged:  1) defendants violated   1 of the            Sherman  Act by agreeing not to deal with him and encouraging            others  not to  deal with him,  thereby constituting  a group            boycott; 2) defendants  violated    2 of the  Sherman Act  by                                            ____________________            1.   The case against Dr. Wexler was dismissed with prejudice            after day twelve of the jury trial.                                         -3-            conspiring  to monopolize  the provision  of ENT  medical and            surgical  services  in  the  relevant  market; 3)  defendants            monopolized the referral of patients  to ENT doctors and have            maintained their monopoly by denying plaintiff privileges, an            essential facility to his practice of medicine; 4) defendants            wilfully contracted, combined, and  conspired in restraint of            trade  in violation  of Rhode  Island antitrust  law;  and 5)            defendants tortiously interfered with plaintiff's prospective            business relationships by preventing him from obtaining staff            privileges.                  On  May 29, 1991, the jury found in favor of defendants            on all claims.  Plaintiff appealed.                                      Discussion                                      Discussion                 Plaintiff raises five issues on appeal:  1)  whether the            district  court   erred  in   instructing  the  jury   as  to            defendants' motivations; 2) whether the district court  erred            in  its  instructions  regarding the  "essential  facilities"            claim;  3) whether the court erred in instructing the jury to            utilize  a  "rule of  reason"  analysis  regarding the  group            boycott  claim;  4)  whether  the  district  court  erred  in            preventing plaintiff from  examining defendants on direct  as            part of his case-in-chief; and  5) whether the district court            erred  in various  evidentiary  rulings made  throughout  the            trial.                                         -4-                 A. Jury Instructions                    _________________                 Dr.  Elgabri  challenges  three  aspects  of   the  jury            instructions.  He first objects to the court's instruction as            to motivation under his    2 Sherman Act claim  involving the            denial  of  essential  facilities.     The  court  gave  this            instruction:                      If  the  Defendants in  this  case acted,                      even  in  part,   with  an  intention  to                      promote good patient care to  protect the                      patients  and  the  hospitals   from  the                      actions   of   physicians  who   are  not                      unquestionably   qualified    under   all                      professional standards, their actions are                      lawful  under the  antitrust  laws.   If,                      however,  the  Defendants  used the  peer                      review  process for  the sole  purpose of                      promoting  their   own  self-interest  as                      competitors, then their  actions are  not                      immune from liability.            Plaintiff argues that the instruction improperly required the            jury to find for the defendants unless their  sole motivation            was  anti-competitive.    Dr.  Elgabri also  objects  to  the            court's refusal to give a "per se"  instruction regarding his            "group boycott"  claim and challenges the  court's refusal to            instruct regarding  his claim that defendants interfered with            his own  patients' utilization of various  essential hospital            facilities.    We  need not  tarry over  the adequacy  of the            jury instructions  in this  case because plaintiff  failed to            preserve properly  his objections.   Rule  51 of  the Federal            Rules of Civil Procedure states in pertinent part:                      No party may  assign as error  the giving                      or  the failure  to  give an  instruction                                         -5-                      unless that party objects  thereto before                                                         ______                      the jury retires to consider its verdict,                      stating distinctly the matter objected to                      and   the   grounds  of   the  objection.                      Opportunity  shall be  given to  make the                      objection out of the hearing of the jury.            (Emphasis  added).   "We  have consistently  and emphatically            held  that  failure  to   follow  the  letter  of   the  rule            constitutes  a  waiver of  the objection."     Cordero  v. De                                                           _______     __            Jesus-Mendez, 867 F.2d 1, 5 (1st Cir. 1989); see also Lash v.            ____________                                 ___ ____ ____            Cutts,   943  F.2d  147,  152  (1st  Cir  1991);    Smith  v.            _____                                               _____            Massachusetts Instit. of Technology, 877 F.2d 1106, 1109 (1st            ___________________________________            Cir.), cert. denied, 493 U.S. 965 (1989).                   _____ ______                  After  the  judge  charged  the   jury,  the  following            exchange took place:                      THE  COURT: Would  you please  deliver to                      the Marshal the instruction I read to the                      jury, the verdict form and the exhibits?                      Draw the alternate jurors                      THE CLERK:  Alternate No. 1,  Susan Dome.                      Alternate No. 2, Luther Wechestein.                      THE COURT: The  Court will designate Miss                      Gramaldi as Foreperson                      Counsel, come to the bench, please.                      (COLLOQUY AT BENCH)                      THE  COURT:  Any  grievous  omissions  or                      corrections  right  now  before the  jury                      goes  out, anything that's egregious.  Is                      there  anything  misleading or  something                      like that?                      MR. CARROLL (attorney  for defendant  Dr.                      Lekas): No, your honor.                                         -6-                      THE COURT: All right, okay, I'm  going to send them                                 ________________________________________                      out and then take exceptions.                      ____________________________                      I'm  going  to ask  Mr.  Wechestein, Miss                      Dome to remain.  The other members of the                      jury  may  retire  now  to  commence your                      deliberations.                      Take them out, Marshal.                      ______________________                      (DELIBERATING JURY EXITS COURTROOM)            (Emphasis added).                   After   the  court   dismissed  the  jury   to  commence            deliberations   and  briefly  conversed  with  the  alternate            jurors, the following discussion occurred:                      THE  COURT:  I know that I do not have to                      remind Counsel of  the rule in  the First                      Circuit  that  you don't  talk  to jurors                      before or after verdicts without an order                      of the Court.  You're aware of  that I am                      sure.                      Now, how about  the instructions,  what's                      _________________________________________                      the  objections?  Let me  get  my set  of                      _________________________________________                      instructions.                      ____________                      MR. MEDEIROS (attorney for  plaintiff Dr.                      Elgabri):  Your Honor,  I would just make                      the comments  in the order  that they are                      in the instructions,  rather than in  any                      particular order of priority.            (Emphasis added).  Plaintiff then proceeded  to object to the            jury instructions at issue on this appeal.                   "We have  warned trial  attorneys countless  times `that            Rule 51 means what it says . . . .'"   Linn v. Andover Newton                                                   ____    ______________            Theological  Sch.,  Inc.,  874  F.2d 1,  5  (1st  Cir.  1989)            _________________________            (quoting Jordan v. United States Lines, Inc., 738 F.2d 48, 51                     ______    _________________________            (1st  Cir.  1984)).    Appellant's trial  counsel  voiced  no                                         -7-            objection  to  the  court's  instructions  "before  the  jury            retire[d]"  as required  by Rule  51 in  an unbroken  line of            decisions  in  this Court.    Although  the phrasing  of  the            district  court's inquiry  may have  contributed to  a belief            that little  might be  gained by asserting  objections before            the jury  retired, trial counsel  was obligated to  object in            the manner  required by  Rule 51.   It is  the obligation  of            trial counsel, as well as the trial court, to comply with the            strict requirements of the Rule.2                 In the absence of  compliance with the dictates  of Rule            51, we review  for plain  error.  "However,  the plain  error            rule  `should be  applied sparingly  and only  in exceptional            cases  or under  peculiar  circumstances to  prevent a  clear            miscarriage of justice.'"  Wells Real Estate, Inc. v. Greater                                       _______________________    _______            Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (quoting            ______________________            Nimrod  v. Sylvester,  369 F.2d  870, 873  (1st  Cir. 1966)),            ______     _________            cert.  denied,  488  U.S.  955  (1988).    In  reviewing  the            _____  ______            instructions given by the district court using this standard,            we find no "miscarriage of justice."                 B. Establishment of Mode and Order of Examination of                    _________________________________________________                    Witnesses                    _________                                            ____________________            2.  Plaintiff's counsel subsequent to argument  has cited the            court to Bouley v. Continental Casualty Co., 454 F.2d 85 (1st                     ______    ________________________            Cir.  1972).   However, our  unbroken line  of cases  make it            clear  that  insufficient compliance  with  Rule  51 will  be            overlooked  only  in  exceptional  cases  or  under  peculiar            circumstances to prevent a clear miscarriage of justice.  Coy                                                                      ___            v. Simpson Marine Safety  Equip., Inc., 787 F.2d 19,  26 (1st               ___________________________________            Cir. 1986).  This is not such a case.                                         -8-                 Dr. Elgabri  argues that his ability  to call defendants            during his case-in-chief was  improperly limited by the trial            court.  He contends that he  has an "unfettered right to call            the  adverse party on direct examination as part of his case-            in-chief  and  to  interrogate by  leading  questions without            restrictions."                   As  part  of  his   case-in-chief,  Dr.  Elgabri  called            defendant Dr. Lekas.  After some examination  of the witness,            the  court  informed plaintiff  during  a  recess that  "it's            unfair sometimes for  a Plaintiff to  prove his case  through            the  mouth of the Defendant."  Dr. Elgabri then continued his            examination of Dr. Lekas.                   After the  day's testimony,  the court decided  to limit            plaintiff's examination of defendants in his case-in-chief to            subject matter  that  could  not  be obtained  in  any  other            fashion.  The  court suggested that plaintiff could prove the            essential  nature of  a  defendant's testimony  in a  proffer            prior  to  the examination  of  each  defendant.   Defendants            promised  that they  would take  the stand  as part  of their            case-in-chief and  the court  indicated that  plaintiff would            have ample  opportunity to  cross-examine them at  that time.            The court further indicated that no limits would be placed on            the scope of cross-examination.  Plaintiff thereafter made no            further  proffers  and  vigorously cross-examined  the  other            defendants during their presentations.                                           -9-                 We  find  that plaintiff  did  not  have an  "unfettered            right"  to call  defendants during  his case-in-chief.   Rule            611(a) of the  Federal Rules of Evidence  states in pertinent            part:                      The   court  shall   exercise  reasonable                      control   over  the  mode  and  order  of                      interrogating  witnesses  and  presenting                      evidence   so   as   to   (1)   make  the                      interrogation and presentation  effective                      for the ascertainment of the truth, [and]                      (2) avoid needless consumption of  time .                      . . [.]            The  mode and  order of  questioning thus  lies in  the trial            court's discretion.   See United  States v. Nivica,  887 F.2d                                  ___ ______________    ______            1110,  1120  (1st Cir.  1989),  cert. denied,  494  U.S. 1005                                            _____ ______            (1990).   We  do  not disturb  decisions regarding  courtroom            management  unless  these decisions  amount  to  an abuse  of            discretion that prejudices appellant's case.  Loinaz v. EG&G,                                                          ______    _____            Inc.,  910 F.2d  1, 6  (1st Cir.  1990); see  also 3  Jack B.            ____                                     ___  ____            Weinberg & Margaret A. Berger, Weinstein's Evidence   611[01]                                           ____________________            at 611-17 (1991)  ("Once the judge  exercises his power,  his            decision is virtually immune to attack and will be overturned            only in the rare case where the appellate court finds a clear            abuse of discretion that seriously damaged a party's right to            a fair trial.").                   Dr.  Elgabri argues  that  Fed. R.  Evid. 611(c),  which            allows  for leading  questions of  adverse parties  on direct            examination, requires  the court to allow  direct examination                                         -10-            of defendants in his  case-in-chief.3  Rule 611(c)  does not,            however, impose such a requirement.  Rather, Rule 611(c) only            requires  that  the court  allow  a  plaintiff who  calls  an            adverse  party  on direct  to  use leading  questions  in his            examination  because the  witness is  presumed hostile.   See                                                                      ___            Fed.  R. Evid. 611(c), advisory committee's  note; see also 3                                                               ___ ____            Weinstein's Evidence   611[05] at 611-82 to 611-83.            ____________________                 In this case, the court reasonably held that plaintiff's            examination of defendants should  be limited in the described            manner  in  order  to   make  the  presentation  of  evidence            effective  and  to   avoid  needless  consumption   of  time.            Further, plaintiff  does not argue  that he failed  to obtain            evidence  as a result of the district court's limiting of his            presentation of his  case; he  only objects to  the order  of            presentation.  We therefore find no reversible error.                 C. Evidentiary Errors                    __________________                 Dr. Elgabri  challenges four evidentiary  rulings of the            district court.  He contends that the court erred in refusing            to admit evidence that defendant Dr.  Issenberg was unable to                                            ____________________            3. Fed. R. Evid. 611(c) states in pertinent part:                 Leading questions should not  be used on the direct                 examination of a witness except as may be necessary                 to  develop the  witness'  testimony.    Ordinarily                 leading  questions should  be  permitted on  cross-                 examination.  When a  party calls . . .  an adverse                               _____________________________________                 party,  .  .  .  interrogation may  be  by  leading                 ___________________________________________________                 questions.                 _________            (Emphasis added).                                         -11-            perform a tracheotomy.  Plaintiff also challenges the court's            exclusion of a letter  from the New England Otolaryngological            Society notifying Dr. Elgabri  that his presentation was "the            winner among those presented by residents from the other  New            England teaching hospitals."  He further contests the court's            refusal  to admit a letter of  recommendation written by Mrs.            Eleanor  Edmonds, an  operating  room nurse  at Rhode  Island            Hospital and  director of  operating room services.   Finally            Dr. Elgabri  argues that  the court improperly  admitted into            evidence segments of testimony from a Minnesota state case he            had previously instituted.                      1.   Dr.   Issenberg's   "Inability"   to   Perform                           ______________________________________________            Tracheotomy            ___________                 Plaintiff  attempted to  ask  defendant Dr.  Robinson on            cross-examination whether he was aware that Dr. Issenberg was            unable to perform  a tracheotomy.4   In a  conference at  the            bench, the parties disputed the circumstances surrounding Dr.            Issenberg's  "refusal"  to  perform   a  tracheotomy  in  the            emergency room.   Dr.  Issenberg's counsel explained that his            client  had  not  refused  or  been  unable  to  perform  the            procedure, but  rather that he had  considered it appropriate            that  a general surgeon  perform the procedure.   Counsel for            Dr.  Elgabri argued that there was no general surgeon on duty                                            ____________________            4.  During  Dr.  Robinson's  testimony, he  stated  that,  in            writing a negative letter about plaintiff which was placed in            plaintiff's  file at Miriam  Hospital, he had  relied to some            extent on information received from Dr. Issenberg.                                         -12-            at the  time and  that Dr. Issenberg's  "refusal" constituted            negligence.  The court  observed that Dr. Issenberg's alleged            negligence  during the  incident  in the  emergency room  had            little  to  do with  the  issues at  trial.   The  court then            decided  that the testimony would be "getting a long way from            wherewe're going,"andthereforesustained defendants'objection.                 Rule 403  of the  Federal Rules  of Evidence requires  a            court  to  balance  the  relevance of  evidence  against  the            substantial risk  of prejudice  and the cumulative  nature of            the evidence.  Miller v. Town of Hull, 878 F.2d 523, 529 (1st                           ______    ____________            Cir. 1989).  A decision to exclude evidence under Rule 403 is            within the discretion  of the  trial court.   We will  review            such a ruling only for abuse of discretion.  United States v.                                                         _____________            Rodriguez Cortes, 949 F.2d 532, 541 (1st Cir. 1991).              ________________                 We find  no abuse of  discretion.  The  court reasonably            found that the evidence, though marginally relevant, was only            tangentially  related  to  the  issue  at  hand.   The  court            determined that  the evidence  would only confuse  the issues            which  were at  the heart  of the  litigation.   It  was well            within  the court's  discretion to  exclude the  evidence for            that reason.                      2. Exclusion of Prize Notification Letter                         ______________________________________                 As noted above, Dr. Elgabri  attempted to admit a letter            from the New England Otolaryngological Society notifying  him            that his case presentation was the winner among presentations                                         -13-            made by residents from  New England teaching hospitals.   The            court excluded  it  as hearsay.    Plaintiff argues  that  it            should have been admitted under the business record exception            to the hearsay rule.5  Fed. R. Evid. 803(6).                 Rulings  of the  district  court under  Rule 803(6)  are            reversed only for abuse of discretion.  Belber v. Lipson, 905                                                    ______    ______            F.2d  549, 552  (1st Cir.  1990).   "Admission as  a business            record  requires `the  testimony  of the  custodian or  other            qualified witness.'   This  testimony is essential.   Without            such  a witness the writing must be excluded."  Id. (citation                                                            ___            omitted).   Dr.  Elgabri never  offered  the testimony  of  a            custodian or  other qualified  witness.  We,  therefore, find            that the court properly excluded the letter.6                      3. Other Evidentiary Objections                         ____________________________                 We briefly address Dr.  Elgabri's remaining claims.  Dr.            Elgabri  argues  that  the  court  improperly excluded  Nurse            Edmond's  letter.    He  claims  that  the  letter  had  been            authenticated  as  part  of  his application  file  at  Roger            Williams  Hospital.     The  letter,  however,  was  properly            excluded as  inadmissible hearsay  not within  any exception.                                            ____________________            5.  Plaintiff also argues that the court should have admitted            the letter under  the "catch-all exception."   Fed. R.  Evid.            803(24).   Because plaintiff  failed to  offer  proof in  the            court below that  the requirements of Rule  803(24) were met,            we deem this claim waived.  See Fed. R. Evid. 103(a)(2).                                         ___            6.  We also note that the letter's substance did find its way            into evidence through plaintiff's uncontradicted testimony.                                         -14-            Fed. R. Evid.  802.  Even  if we assume  that the letter  was            part of his application file, Dr. Elgabri failed to produce a            qualified witness or custodian of records to authenticate the            letter as a business record.  See Belber, 905 F.2d at 552.                                          ___ ______                 Finally, Dr.  Elgabri  states without  elaboration  that            testimony from a Minnesota  state court litigation instituted            by  him was improperly admitted.   It is  a settled appellate            rule,  however, "that  issues  adverted to  in a  perfunctory            manner,   unaccompanied   by   some   effort   at   developed            argumentation, are deemed waived."  United States v. Zannino,                                                _____________    _______            895  F.2d 1,  17  (1st Cir.),  cert.  denied, 494  U.S.  1082                                           _____  ______            (1990).   Finding  that  Dr. Elgabri  failed  to develop  any            argument after raising this issue, we deem this claim waived.                                      Conclusion                                      Conclusion                 For  all of the  above reasons,  we affirm  the district            court's challenged rulings.  Affirmed.                                         _________                                         -15-
