                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 24, 2007
                           FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court

    J. CLARK BUNDREN, M .D.,

               Plaintiff-Appellant,

    v.                                                 No. 06-3270
                                                (D.C. No. 05-CV-1040-JTM )
    JOEL PARRIO TT, M .D.,                               (D . Kan.)

               Defendant-Appellee.


    BARRY SCHIFRIN; RICHARD
    FIELDS; JOHN FULLERTON; GARY
    LU STG ARTEN ; TH E A M ER ICAN
    C OLLEGE O F O BSTETR IC IA NS
    AND GYNECOLO GISTS,

               Amici Curiae.



                             OR D ER AND JUDGM ENT *


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 10th Cir. R. 32.1.
      J. Clark Bundren, M .D., appeals from the district court’s order granting

summary judgment for Joel Parriott, M .D., on Dr. Bundren’s complaint for

defamation, tortious interference with prospective business advantage, and

tortious interference with contract. 1 W e affirm.

                                       FACTS

      1. Dr. Parriott and the Brandt Suit

      Dr. Parriott is an obstetrician and gynecologist with a practice in Salina,

Kansas. In the Spring of 1999, Pamela Brandt, who planned an at-home birth,

contacted him to obtain a blood test and a fetal ultrasound. Dr. Parriott provided

these services. Although a nurse subsequently attended the at-home birth,

Dr. Parriott was not present. M rs. Brandt’s child was born w ith a prolapsed cord

and suffered serious brain injuries. The nurse was later criminally prosecuted for

her role in the at-home birth. M rs. Brandt sued Dr. Parriott and the nurse in

Kansas state court for malpractice.

      Dr. Bundren is a full-time faculty member at the University of Oklahoma

C ollege of M edicine, w ith a teaching speciality in obstetrics and gynecology. A t

the time of the Brandt suit, he was also involved in litigation consulting.



1
       Dr. Bundren has not included a separate copy of his complaint in his
appendix. The copy of his complaint we have, attached as an exhibit to
Dr. Parriott’s summary judgment memorandum, does not contain a cause of action
for intentional interference with contract. Aplt. App., Vol. I, at 155-65. It does
contain a cause of action for intentional infliction of emotional distress, which
neither party mentions in this appeal.

                                          -2-
M rs. Brandt designated him as a medical expert in her malpractice action against

Dr. Parriott.

      On January 30, 2002, Dr. Bundren prepared an expert report that

M rs. Brandt’s attorneys submitted to the Kansas court. In this report, he stated:

      It is my opinion, to a high degree of medical probability, that Doctor
      Parriott failed to adequately assess Pamela Brandt and warn her of
      her risks for injury to herself or her child . . . if she were to
      undertake a home delivery. Had D octor Parriott warned her of these
      risks, a home delivery would not have been undertaken and the injury
      to the child would have been prevented.

Aplt. App., Vol. II, at 246. Dr. Bundren later gave a deposition in which he

reiterated his view that Dr. Parriott had departed from the standard of care

applicable to an obstetrician under the circumstances.

      Both Dr. Parriott and the nurse settled with M rs. Brandt. Dr. Parriott paid

her $10,000. He did not, however, admit liability. His agreement with her

specified that the payment was designed only to reimburse her attorneys for

incurred expenses.

      2. The ACO G Complaint

      A t all times relevant to this appeal, Drs. Parriott and Bundren were fellow s

of the A merican C ollege of O bstetricians and Gynecologists (“ACOG”). ACO G

has been critical of what it views as the lack of adequate standards for expert

witness testimony. Its Code of Professional Conduct includes rules governing




                                         -3-
expert testimony, and it has prepared an Expert W itness Affirmation for fellows

to follow when providing expert evidence or testimony.

      In accordance with its bylaws, ACOG has adopted a set of procedures

(“Procedures”) for handling complaints against fellows, and for imposing

disciplinary sanctions including termination of fellowship in connection with such

complaints. Complaints before ACOG’s grievance committee are confidential, to

be discussed only with the complainant, the members of the committee, and the

respondent.

      On February 8, 2004, Dr. Parriott filed a complaint with A COG against

Dr. Bundren. Dr. Parriott alleged that “Dr. Bundren’s testimony [in the Brandt

suit] was in violation of the principles outlined in [A COG’s] Expert W itness

Affirmation.” Aplt. App., Vol. I, at 101. Dr. Parriott completed a pre-printed

form ACOG required to accompany the complaint. The instructions printed on

the complaint form specified that ACOG’s Grievance Committee would not

consider “[m]atters that involve review of an expert witness’ testimony, except in

cases of factual misrepresentation and perjury on fact-based issues.” Id. at 108.

The form required Dr. Parriott to respond to several questions about the

complaint, including the following:

      Does this complaint involve a factual misrepresentation and/or
      perjury on fact-based issues as part of an expert witness’ testimony?
      Yes or No (Circle one)

Id. at 109. Dr. Parriott circled “Yes.” Id.

                                         -4-
      ACOG accepted the complaint for review and notified Dr. Bundren of the

pendency of the complaint against him. He submitted several inquiries to ACOG

about members of the prospective hearing panel. Finding the responses to his

queries unsatisfactory, and convinced that the ACOG forum would be biased

against him, Dr. Bundren filed the present action in federal district court.

      3. Federal Litigation

      ACOG’s Procedures provide that if a complaint submitted to it later

becomes the subject of litigation, the complaint will be dismissed. Accordingly,

ACOG dismissed Dr. Parriott’s complaint after this suit was filed. Dr. Bundren

later resigned from AC OG .

      In his federal complaint, Dr. Bundren alleged that Dr. Parriott had accused

him of “committ[ing] the crime of perjury.” Id. at 161. He further charged that

Dr. Parriott filed the ACOG complaint “to retaliate against witness Bundren for

his privileged truthful testimony.” Id. His libel per se claim asserted that

“Dr. Parriott stated that [Dr. Bundren] had committed a crime, that crime being

perjury. This statement was libel per se and requires no pleading or proof of

special damages.” Id. at 162. 2 Dr. Bundren further charged that Dr. Parriott “has

made false accusations against [Dr. Bundren] with the intent to injure




2
      This appears to be an inaccurate statement of Kansas law. See Polson v.
Davis, 895 F.2d 705, 708 (10th Cir. 1990) (stating Kansas no longer recognizes
defamation per se claims).

                                         -5-
[D r. Bundren] in his prospective advantage of being employed as an expert

witness in future litigation.” Id. at 163.

      In granting summary judgment for D r. Parriott on the defamation claim,

the district court reasoned that (1) Dr. Parriott never actually accused Dr. Bundren

of perjury in the ACOG complaint; (2) the ACOG complaint contained

Dr. Parriott’s opinions, which were not actionable under Kansas law; (3) the

allegations in the ACOG complaint were substantially true; (4) there was no

evidence that the ACOG complaint was communicated with the intent of harming

Dr. Bundren’s reputation; and (5) there w as no evidence that Dr. Bundren’s

reputation was actually harmed. On the tortious interference with contract and

prospective business advantage claims, the district court reasoned that there was

no evidence that Dr. Parriott knew of Dr. Bundren’s consulting business or his

relationships w ith law yers, or that Dr. Parriott sought intentionally or maliciously

to harm Dr. Bundren’s existing contractual or prospective advantages. Finally,

the district court found Dr. Parriott immune from damages under the Health Care

Quality Improvement Act, 42 U.S.C. §§ 11101 - 11152 (HCQIA), because the

ACOG complaint was a “professional review action” within the meaning of that

statute. See id. §§ 11111(a)(1), 11112(a).




                                             -6-
                                    ANALYSIS

      1. Standard of Review

      “W e review de novo the district court’s summary judgment decision,

applying the same standard as the district court.” Butler v. Compton, 482 F.3d

1277, 1278 (10th Cir. 2007). 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 a judgment as a matter of law.” Fed. R. Civ. P.

56(c). W e examine the record and all reasonable inferences that might be draw n

from it in the light most favorable to the non-moving party. Antonio v. Sygma

Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006). Finally, we may affirm on

any basis supported by the record, even though not relied on by the district court.

Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1163 n.17 (10th Cir. 2004).

      2. H CQ IA Immunity

      Because H CQIA immunity, if established, would affect all of D r. Bundren’s

claims, we address it first. The HCQIA “provide[s] qualified immunity from

damages actions for hospitals, doctors and others who participate in professional

peer review proceedings.” Brown v. Presbyterian Healthcare Servs., 101 F.3d

1324, 1333 (10th Cir. 1996). “[A] peer review participant is immune from private

damage claims stemming from the peer review action” if the peer review action




                                         -7-
meets certain standards specified by Congress. Id. For immunity to apply, the

review action must be taken:

      (1) in the reasonable belief that the action was in the furtherance of
      quality health care,
      (2) after a reasonable effort to obtain the facts of the matter,
      (3) after adequate notice and hearing procedures are afforded to the
      physician involved or after such other procedures as are fair to the
      physician under the circumstances, and
      (4) in the reasonable belief that the action was w arranted by the facts
      known after such reasonable effort to obtain facts and after meeting
      the requirement of paragraph (3).

42 U.S.C. § 11112(a). 3

      The district court concluded that “[Dr.] Parriott is not liable in damages for

submitting his ACOG complaint, because the organization’s grievance procedure

is a ‘professional review action’ within the meaning of the Act.” A plt. App., Vol.

II, at 448. This analysis, however, is insufficient to justify an award of qualified



3
       HCQIA provides an additional protection for those who supply information
to a professional review body. It states that

      no person (whether as a witness or otherwise) providing information
      to a professional review body regarding the competence or
      professional conduct of a physician shall be held, by reason of
      having provided such information, to be liable in damages under any
      law of the United States or of any State (or political subdivision
      thereof) unless such information is false and the person providing it
      knew that such information was false.

Id. § 11111(a)(2).

     Because Dr. Parriott does not rely on this basis for his assertion of
immunity, we do not analyze its applicability.


                                         -8-
immunity under HCQIA. W hile the district court identified the four qualifying

factors in § 11112(a) in its decision, it made no further finding concerning

whether the ACOG proceeding satisfied these factors. The district court in effect

converted H CQ IA ’s qualified immunity into an absolute immunity for the ACO G

participants, in violation of the statutory requirements.

      HCQIA does provide that “[a] professional review action shall be presumed

to have met the [qualifying] standards . . . unless the presumption is rebutted by a

preponderance of the evidence.” 42 U.S.C. § 11112(a). But Dr. Bundren both

attacked the fairness of the ACOG proceeding, and contended that it was not

undertaken in the furtherance of quality health care. Given these attacks on the

ACOG proceeding, the district court should have determined whether Dr. Bundren

had overcome the presumption that the § 11112(a) factors were met. It did not do

so.

      W e could perhaps decide the § 11112(a) issue in the first instance as part of

our de novo review of summary judgment. Rather than attempt to resolve these

difficult issues for the first time on appeal, however, we will turn instead to the

primary basis for the district court’s summary judgment disposition: the merits of

Dr. B undren’s claims. W e affirm summary judgment on the merits.




                                          -9-
      3. Defamation Claim

      The elements of the tort of defamation in K ansas are: “false and defamatory

words, comm unicated to a third party, which result in harm to the reputation of

the person defamed.” Hall v. Kan. Farm Bureau, 50 P.3d 495, 504 (Kan. 2002).

The district court found that Dr. Bundren failed to satisfy any of the elements of

his defamation claim. It concluded that Dr. Parriott’s statements were

substantially true. W e need not go that far. Dr. Bundren’s failure to demonstrate

the existence of a genuine and material fact issue concerning any one of the

essential elements of his claim is sufficient to justify summary judgment against

him. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.

1998) (“‘[W ]here the non moving party will bear the burden of proof at trial on a

dispositive issue’ that party must ‘go beyond the pleadings’ and ‘designate

specific facts’ so as to ‘make a showing sufficient to establish the existence of an

element essential to that party’s case’ in order to survive summary judgment.”)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). W e affirm

summary judgment because Dr. Bundren failed to show that Dr. Parriott made

false and defamatory statements about him.

      a. Accusation of Perjury

      The district court concluded that Dr. Parriott did not accuse Dr. Bundren of

perjury merely by circling the word “Yes” on a form that referred to “factual

misrepresentation and/or perjury.” Aplt. A pp., Vol. I, at 109 (emphasis added).

                                        -10-
W e agree. Contrary to Dr. Bundren’s position, a witness who makes a factual

misrepresentation under oath does not necessary commit perjury. Perjury

includes “intentionally, knowingly and falsely . . . [s]wearing, testifying,

affirming, declaring or subscribing to any material fact upon any oath or

affirmation legally administered in any cause, matter or proceeding before any

court, tribunal, public body, notary public or other officer authorized to

administer oaths.” Kan. Stat. Ann. § 21-3805(a)(1) (emphasis added). To commit

perjury, a w itness must know or believe that his ow n testimony is false; his mere

misinterpretation of the facts is insufficient. Thompson v. State, No. 92,753, 2005

W L 2950410, at *4 (K an. Ct. App. Nov. 4, 2005) (unpublished).

       Dr. Parriott’s complaint charged Dr. Bundren with: (1) giving testimony

based on an incomplete review of the available facts; (2) giving testimony outside

his area of clinical expertise; (3) giving testimony regarding medical facts that

was inaccurate and misleading; and (4) failing to demonstrate a causal

relationship between the alleged substandard treatment and the medical outcome.

The ACOG complaint was replete with opinionate language that suggested

sloppiness, bias, or a rush to judgment on Dr. Bundren’s part, but it did not

charge him with perjury: i.e., intentionally, knowingly, and falsely swearing to a

material fact. 4



4
       The complaint accused Dr. Bundren of “an incomplete review of the facts
                                                                  (continued...)

                                         -11-
       Dr. Bundren also argues that Dr. Parriott accused him of perjury because



4
 (...continued)
available to him,” of conducting a “selective. . . review [of] the testimony of
plaintiffs . . . that supported his preformed conclusions,” of concluding that a
complete review of plaintiffs’ testimony was unnecessary, and of ignoring
“testimony from Dr. Parriott’s deposition . . . that directly contradicted his
wrongful conclusion.” Aplt. A pp., Vol. I, at 103.
        The complaint further charged that Dr. Bundren “ignored or was unaware
of an avalanche of information that contradicted his position.” Id. (emphasis
added). It asserted that he proceeded on an erroneous premise without relevant
clinical experience and without awareness of appropriate standards or protocol.
Id. at 104. It charged him with medical misstatements, including the opinions he
expressed concerning whether a “50 gram glucola screening test must be given
with special consideration to the patient’s pretest diet,” id. at 105; whether “a
discrepancy in a patient’s fundal height as it relates to gestational age [is] an
independent risk factor for the patient despite that discrepancy being explained by
the patient’s sonogram,” id.; whether “the plaintiff’s failure to gain w eight over a
ten-week time frame put her at high risk,” id. at 106; and whether “the patient’s
age of 40 in the absence of other comorbidities placed her at high risk,” id.

       Finally, the complaint contained this opinion-based conclusion:

       Dr. Bundren is a plaintiff’s expert. He has testified almost
       exclusively on behalf of the plaintiff in a significant number of
       malpractice proceedings. In this case, his testimony is based not on a
       “complete and objective” evaluation of all the information available
       to him. Rather, it is an opinion crafted to favor the plaintiff where
       information is selectively chosen to support an already predetermined
       and erroneous conclusion. His goal is not to facilitate a “just
       resolution to the proceeding”, but to act as a medical mouthpiece for
       the plaintiff. He opines outside his area of clinical experience and
       misrepresents his clinical opinion as the standard of care. Further, he
       often bases this opinion on medical misinformation. At the very
       least, he fails to recognize that actions or opinions that differ from
       his still fall within the standard of care. I would ask that the
       Grievance Committee find Dr. Bundren’s testimony in violation of
       the Code of Ethics regarding expert witness testimony.

Id. at 107.

                                         -12-
the instructions accompanying the complaint form required that a complaint

involving expert witness testimony be entertained only in cases of “factual

misrepresentation and perjury on fact-based issues.” Aplt. App., Vol. I, at 108

(emphasis added). The use of the word “and” here cannot reasonably be

understood to require that such a complaint allege both perjury and factual

misrepresentation. Rather, the only logical reading is that it is merely a way of

stating that either perjury or factual misrepresentation is sufficient. In any event,

taken as a whole, Dr. Parriott’s complaint itself does not accuse Dr. Bundren of

perjury.

             b. Statements of O pinion

      The complaint was also non-defamatory to the extent it presented

Dr. Parriott’s opinion of Dr. Bundren’s conduct, with the factual basis for that

opinion fully disclosed. A statement of opinion “is actionable only if it implies

the allegation of undisclosed defamatory facts as the basis of the opinion.”

Restatement (Second) of Torts § 566 (1977). 5 In other words, provided that the

facts underlying an opinion are fully disclosed and those facts are themselves not

false and defamatory, the opinion is not actionable. See id. cmt. “c.” M ost of




5
      Although the Kansas Courts have not expressly adopted § 566, they have
adopted or applied other Restatement pronouncements pertaining to defamation
law, see, e.g., Hein v. Lacy, 616 P.2d 277, 284 (Kan. 1980) (applying Restatement
(Second) of Torts §§ 580A and 581A), and we believe the Kansas Supreme Court
would apply § 566 if presented with this question.

                                         -13-
Dr. Parriott’s ACOG complaint consists of statement of his opinions concerning

the quality and reliability of Dr. Bundren’s expert testimony. The factual basis

for those opinions is disclosed in the complaint.

      The question remains whether the factual statements underlying

Dr. Parriott’s opinion are themselves false and defamatory. W e need not go so far

as the district court, which determined that the statements were substantially true.

Rather, we simply note that while Dr. Parriott’s summary judgment memorandum

contained a thorough discussion of the factual statements in his ACOG complaint

and the evidence in support of them, see Aplt. App., Vol. I, at 23-28,

Dr. Bundren’s response was entirely devoid of references to the evidence to

controvert the statements made in Dr. Parriott’s complaint and cited in support of

summary judgment, see id., Vol. II, at 278-82. M oreover, in 71 pages of

appellate briefing, Dr. Bundren has failed to identify a single piece of evidence in

the record that would support his claim that Dr. Parriott made materially false and

defam atory factual statements in his ACOG complaint. 6 This being the case, w e



6
       On page 20 of his reply brief, Dr. Bundren does finally contest a potentially
defam atory factual statement contained in Dr. Parriott’s ACOG complaint. He
asserts that Dr. Parriott’s assertion that Dr. Bundren misstated the reason for one
of M rs. Brandt’s visits to Dr. Parriott’s office is inconsistent with two statements
in Dr. Parriott’s treatment notes. Dr. Bundren mentions this omission in support
of his argument that a jury rather than ACOG should decide issues of credibility
between the two doctors. But he characterizes this as a “seemingly petty factual
question” see Aplt. Reply Br. at 20, that involves “nothing more than complaints
about credibility issues,” id. at 19-20. This argument fails to demonstrate a
                                                                         (continued...)

                                         -14-
cannot conclude that there exists a genuine issue of fact concerning whether the

statements are false. It is not our task to comb through the summary judgment

record for evidence to support Dr. Bundren’s position. See, e.g., Fernandez v.

M ora-San M iguel Elec. Co-op, Inc., 462 F.3d 1244, 1252-53 (10th Cir. 2006).

      4. Intentional Interference Claim s

      As the district court noted, to prove a claim of intentional interference with

contract or with prospective business advantage, Kansas law requires the plaintiff

to show that the alleged wrongdoer sought intentionally or maliciously to harm

his existing contractual or prospective business advantage. See Burcham v.

Unison Bancorp, Inc., 77 P.3d 130, 150 (Kan. 2003) (stating elements of tortious

interference with contract); Turner v. Haliburton Co., 722 P.2d 1106, 1115 (Kan.

1986) (stating elements of tortious interference w ith prospective business

advantage). The district court determined that Dr. Bundren had failed to establish

the requisite intent to interfere with Dr. Bundren’s expert witness practice,

because the ACOG complaint Dr. Parriott pursued involved a confidential

process. Dr. Bundren responds that Dr. Parriott did a poor job of redacting the

patient’s name in the materials submitted to ACOG. Aplt. Opening Br. at 30. H e

fails to discuss how this shows malice against D r. Bundren.




6
 (...continued)
genuine issue of material fact concerning Dr. Bundren’s defamation claim.

                                        -15-
      Dr. Bundren also asserts that malice is demonstrated because Dr. Parriott

failed to inform ACOG in his complaint that (1) Dr. Parriott had listed

Dr. Bundren on his ow n w itness list in the state court suit, and (2) the release

Dr. Parriott signed with the Brandts and their attorneys in the state court suit

implicitly released Dr. Bundren, since he was an agent of the Brandts’ attorneys.

These allegations, even if true, fail to demonstrate that Dr. Parriott filed the

ACOG complaint with a malicious intent to interfere w ith Dr. Bundren’s expert

witness practice.

      5. Denial of Dr. Bundren’s M otion for Summary Judgment

      In addition to granting Dr. Parriott’s motion for summary judgment, the

district court denied Bundren’s cross-motion. It stated:

      [T]he court can under no circumstances grant the motion for
      summary judgment of the plaintiff. That motion is grounded on a
      narrative of facts w hich is w holly free from any specific citations to
      the evidence, disregarding the requirements of D.Kan.R. 56.1(d).
      Further, much of the evidence appended to plaintiff’s motion takes
      the form of various articles and other documentary exhibits which are
      offered without verification, foundation, or demonstration that the
      evidence is grounded on personal knowledge rather than hearsay.
      Accordingly, there is no factual grounding for plaintiff’s motion.

Aplt. App., Vol. II, at 450.

      Dr. Bundren’s only argument in opposition to the district court’s reasoning

is that his response to Dr. Parriott’s motion for summary judgment was similarly

deficient, but the district court did not exclude it. Aplt. Opening Br. at 6. This

hardly demonstrates that the district court abused its discretion in applying the

                                          -16-
local rule to deny Dr. Bundren’s summary judgment motion or that it erred in

excluding the exhibits.

      6. M otion to Strike Amicus Brief and Portions of Appellant’s Brief

      Finally, Dr. Parriott has moved to strike portions of Dr. Bundren’s brief and

the brief of amici who support his position in this matter. He contends that

Dr. Bundren and the amici have advanced arguments and/or cited to facts not

contained in the district court record, and that Dr. Bundren has failed to provide

adequate record references in his brief.

      W e agree with Dr. Parriott that Dr. Bundren’s brief is not adequately

supported by references to the district court record. W e caution counsel to

provide adequate references to facts developed in the district court record. See

Fed. R. App. P. 28(a)(7), (e). Particularly in light of our disposition of this case,

however, w e find it unnecessary to strike portions of Dr. Bundren’s brief.

      W ith regard to the brief of amici, a certain leeway may be appropriate for

citation to materials such as “testimony in Congressional hearings, and citations

to information on various websites” in support of amici’s policy-based arguments.

See M otion to Strike, at 4. In any event, the brief concerns only the H CQIA

issue, which we have not found it necessary to resolve on the merits.




                                           -17-
      The judgment of the district court is A FFIRM ED. Appellee’s motion to

strike is denied.


                                                 Entered for the Court



                                                 W ade Brorby
                                                 Senior Circuit Judge




                                      -18-
