     Case: 14-20764   Document: 00513370304     Page: 1   Date Filed: 02/04/2016




                      REVISED February 3, 2016

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 14-20764                           FILED
                                                                 January 29, 2016

JAY MARTIN BARRASH, M.D.,
                                                                   Lyle W. Cayce
                                                                        Clerk

             Plaintiff - Appellant

v.

AMERICAN ASSOCIATION OF NEUROLOGICAL SURGEONS,
INCORPORATED,

             Defendant - Appellee


                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Dr. Jay Martin Barrash is a neurosurgeon and former member of the
American Association of Neurological Surgeons (“AANS”) who regularly
testified as an expert witness in legal proceedings. Dr. Barrash provided
deposition testimony against Dr. Oishi, a fellow AANS member, in a medical
malpractice case. Dr. Barrash testified, among other things, that Dr. Oishi (1)
incorrectly placed a bone graft during the patient’s surgery and (2) failed to
adequately treat a post-operative infection, causing the patient to suffer
additional surgical procedures and leading to chronic pain and depression. Dr.
Oishi settled with the plaintiff and then filed a complaint against Dr. Barrash
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using the AANS’s internal grievance process. The complaint alleged the
following violations of the AANS Rules for Neurosurgical Medical/Legal Expert
Opinion Services: that Dr. Barrash failed to provide impartial testimony; that
Dr. Barrash failed to review all pertinent available medical information; that
Dr. Barrash failed to allow for differing medical opinions; that Dr. Barrash
lacked the training and experience necessary to testify; and that Dr. Barrash
charged excessive expert witness fees.
      The AANS’s Professional Conduct Committee (“PCC”) held a hearing for
the complaint. Dr. Barrash attended with his attorney and presented a
defense. The PCC concluded that (1) Dr. Barrash’s criticism of Dr. Oishi’s
failure to render adequate post-operative care was appropriate, but also that
Dr. Barrash (2) failed to review all of the pertinent and available medical
records prior to testifying—specifically, an intraoperative x-ray showing the
initial bone graft placement—and (3) failed to provide unbiased testimony. The
PCC recommended that Dr. Barrash’s AANS membership be suspended for six
months.
      Dr. Barrash appealed to the AANS Board of Directors (the “Board”), and
the Board downgraded the suspension to a censure. Dr. Barrash then exercised
his right to appeal to the AANS members at-large, providing a written
statement for consideration at the annual meeting. The members voted to
uphold the censure, and the AANS published it as follows: “Dr. J. Martin
Barrash, following an appeal to the AANS general membership on April 11,
2011, has been censured for giving expert testimony without having seen the
imaging studies relevant to that testimony, and for failure to provide unbiased
testimony during part of a deposition in a civil lawsuit.” Dr. Barrash resigned
from the AANS and filed suit, claiming that the censure harmed his future
employment opportunities as an expert witness. Dr. Barrash sued the AANS
for (1) tortious interference with prospective business relations; (2) breach of
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contract (the AANS bylaws); and (3) impairment of an important economic
interest from denial of due process.
      The district court dismissed the tortious interference and breach of
contract claims under Rule 12(b)(6). Both parties moved for summary
judgment on the remaining due process claim. The district court found that the
AANS failed to provide adequate notice on the charge of failing to provide
“unbiased testimony” 1 but met the requirements of due process on the charge
of “giving expert testimony without having seen the [relevant] imaging
studies.” The district court set aside the portion of the censure relating to
unbiased testimony but left the rest of the censure in place. Thus, the district
court granted the plaintiff’s motion in part, denied it in part, and granted the
defendant’s motion in part. Dr. Barrash appeals the district court’s adverse
summary judgment ruling and the 12(b)(6) dismissal of his breach of contract
claim. The AANS does not appeal the partial vacation of the censure.
                                            I.
      We review de novo a district court’s grant of summary judgment, and
summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Rogers v. Bromac Title Servs., LLC, 755 F.3d 347, 350 (5th
Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).
      Because Dr. Barrash’s claims arise under Texas law, we look to how
Texas courts resolve similar claims. See Hatley v. Am. Quarter Horse Ass’n, 552
F.2d 646, 654–56 (5th Cir. 1977). The AANS is a voluntary professional
association. “Texas courts will not interfere with the internal management of
voluntary associations so long as the governing bodies of such associations do


      1 The district court generally uses the phrase “improper advocacy,” a phrase the PCC
used in their report. But the censure uses the phrase “unbiased testimony.” For clarity and
consistency, we use the phrase “unbiased testimony” here.
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not substitute legislation for interpretation and do not overstep the bounds of
reason or violate public policy or the laws of [Texas] while doing so.” Burge v.
Am. Quarter Horse Ass’n, 782 S.W.2d 353, 355 (Tex. App.—Amarillo 1990, no
writ). “If the courts were to interfere every time some member, or group of
members, had a grievance, real or imagined, the non-profit, private
organization would be fraught with frustration at every turn and would
founder in the waters of impotence and debility.” Juarez v. Texas Ass’n of
Sporting Officials El Paso Chapter, 172 S.W.3d 274, 280 (Tex. App.—El Paso
2005, no pet.). Under this doctrine of judicial non-intervention, a Texas court
will conduct judicial review of a voluntary association’s internal operations
“only when the actions of the organization are illegal, against some public
policy, or are arbitrary or capricious.” Dallas Cty. Med. Soc’y v. Ubiñas-Brache,
68 S.W.3d 31, 41 (Tex. App.—Dallas 2001, pet. denied) (citations omitted).
      As a result, both Texas courts and this court (when adjudicating Texas
law claims) have recognized due process challenges as a limited grounds for
judicial intervention in the internal affairs of a private organization. See
Stevens v. Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71, 75, 76 n.1
(Tex. App.—Houston 2007, pet. denied); Hatley, 552 F.2d at 656–57. In this
context, “[t]he essential elements of due process . . . are notice and an
opportunity to be heard and to defend in an orderly proceeding adapted to the
nature of the case.” Adams v. Am. Quarter Horse Ass’n, 583 S.W.2d 828, 834
(Tex. Civ. App.—Amarillo 1979, writ ref’d n.r.e.). Dr. Barrash raises a due
process challenge to the portion of the censure relating to his failure to review
all pertinent and available records. First, Dr. Barrash argues that the PCC
failed to provide him with critical evidence before the hearing, thereby denying
him fair notice; second, Dr. Barrash argues that the district court’s partial
vacation of the censure requires that the entire censure be vacated.


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a. Notice Challenge
       “The term ‘due process of law’ is synonymous with ‘the law of the land,’
and its essential elements are notice, and an opportunity to be heard and to
defend in an orderly proceeding adapted to the nature of the case.” Masonic
Grand Chapter of Order of E. Star v. Sweatt, 329 S.W.2d 334, 337 (Tex. Civ.
App.—Fort Worth 1959, writ ref’d n.r.e.). Here, Dr. Barrash received his initial
notice through a charging letter submitted by Dr. Oishi. The letter alleged that
Dr. Barrash testified “without having reviewed the intraoperative X-rays that
clearly demonstrate[d] proper hardware and bone graft placement,” in
violation of clause B.2 of the Rules for Neurosurgical Medical/Legal Expert
Opinion Services. 2 The PCC scheduled a hearing several months later, and Dr.
Barrash appeared at the hearing with counsel and presented a defense. Dr.
Barrash claims that the PCC failed to provide him with a copy of the
intraoperative x-ray films before the hearing, denying him fair notice.
       Some weeks prior to the hearing, however, the AANS notified Dr.
Barrash that it possessed the x-ray films, and that the films and a viewing box
would be present at the hearing. Dr. Barrash never requested advance copies
of the films or an opportunity to review them. Dr. Barrash now claims that the
AANS’s failure to provide him with an advance copy of the “smoking gun”
evidence violates due process. Dr. Barrash was fully aware that the x-rays
would play a central role at the hearing, yet he made no effort to review them
in advance, despite having weeks to do so. Furthermore, Dr. Barrash’s due
process argument that the failure to provide an advance copy of the x-ray
violated the AANS’s internal bylaws governing disciplinary proceedings
assumes that those bylaws inform our due process inquiry; they do not. Due


       2 Clause B.2 states: “The neurosurgical expert witness shall review all pertinent
available medical information about a particular patient prior to rendering an opinion about
the appropriateness of medical or surgical management of that patient.”
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process in this context is satisfied by notice and a hearing even when an
organization’s bylaws require more. See Whitmire v. Nat’l Cutting Horse Ass’n,
No. 2-08-176-CV, 2009 WL 2196126, at *5 (Tex. App.—Fort Worth July 23,
2009, pet. denied) (rejecting due process challenge because “[the plaintiff’s]
complaints address the technical aspects of the [organization’s] application of
its rules to her, but do not allege a wholesale deprivation of due process or the
opportunity to be heard”). As a result, we find no due process violation on the
issue of fair notice. 3
b. Partial Vacation of Censure
       The district court found that the AANS did not provide sufficient due
process in adjudicating the charge of failing to provide unbiased testimony. 4
The district court ordered the AANS to expunge that portion of the censure but
allowed the rest of the censure to remain, despite stating that “[i]t is
unknown—perhaps unknowable—how the PCC would have proceeded had it
only the violation of Rule B2 in mind when it issued its disciplinary
recommendation to the AANS Board of Directors.” Dr. Barrash argues that
because the district court set aside one of the two bases for the censure, it
should have set aside the whole censure, because there is no way to determine
whether the censure would have occurred at all absent both bases.
       This is an issue of first impression. We are not aware of any case where
a court found only a partial due process violation, resulting in only a partial
vacation of an association’s adverse action. Cf. Hatley, 552 F.2d at 657



       3  Dr. Barrash also seeks to challenge, on appeal, the substantive findings of the PCC,
arguing that the x-ray was neither pertinent nor available when he testified. The PCC—and
by extension, the AANS—ruled that the x-ray was pertinent and that Dr. Barrash should not
have testified without reviewing it. Rather than raising a genuine due process challenge, Dr.
Barrash simply disagrees with the substantive judgment of the PCC and asks this court to
substitute its own judgment in the field of neurology. We decline to do so.
        4 In short, the district court found that the charges failed to provide Dr. Barrash with

sufficient notice of the nature and identity of the alleged unbiased testimony.
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(association’s decision to refuse to register a horse without a hearing violated
due process); Sweatt, 329 S.W.2d 334 (association’s expulsion of member
without providing an adequate opportunity to prepare a defense violated due
process). We nonetheless conclude that the district court ruled correctly.
Because Dr. Barrash received due process on the charge of failing to review all
pertinent and available records prior to testifying, any further review of the
AANS’s subsequent censure of that misconduct is precluded by the Texas
doctrine of judicial non-intervention.
       Furthermore, we find it unnecessary to debate whether the Board and
the members at-large would have censured Dr. Barrash absent both charges. 5
The critical question is whether Dr. Barrash was afforded due process, not
whether a single rule violation merits something less than a censure under the
AANS’s disciplinary system. Given that the AANS substantiated the charge of
“failure to review” after a lengthy hearing, we find that the choice of a censure
versus a lesser alternative is a matter of degree, not fundamental fairness.
Finally, while the district court ordered only a partial vacation of the censure,
the AANS certainly could have vacated the entire censure had it deemed such
action appropriate. Its decision to leave the remaining portion of the censure
in place is, in and of itself, an internal management decision entitled to judicial
deference—one which Dr. Barrash could have possibly challenged within the
organization had he not resigned his membership shortly after being censured.
Because the AANS provided adequate due process on the charge of failing to
review all pertinent and available records before publication, the district court
did not err by leaving this part of the censure undisturbed.



       5 We consequently do not adopt the district court’s rationale for its ruling—that Dr.
Barrash bore the burden of proof to show “how the PCC would have proceeded had it only the
violation of Rule B2 in mind when it issued its disciplinary recommendation,” and that his
claim fails because “the record is simply not clear, either way” on that issue.
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                                    No. 14-20764
                                          II.
      We review de novo a district court’s grant of a motion to dismiss for
failure to state a claim under Rule 12(b)(6). Leal v. McHugh, 731 F.3d 405, 410
(5th Cir. 2013). “Dismissal is appropriate only if the complaint fails to plead
‘enough facts to state a claim to relief that is plausible on its face.’’’ Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
      Dr. Barrash claims that because he was a member of the AANS, the
association’s bylaws formed a contract between them. The bylaws include the
disciplinary procedures to be followed by the PCC. Dr. Barrash argues that the
AANS breached the bylaws when it censured him because the PCC did not
strictly comply with its own procedures. He claims that this breach caused
damages because he lost income opportunities as an expert witness following
publication of the censure.
      To date, no Texas court has allowed a plaintiff to challenge a professional
organization’s internal disciplinary procedures under a breach of contract
theory. See Whitmire, 2009 WL 2196126 at *5–6 (rejecting a breach of contract
claim where the plaintiff’s complaint “address[ed] the technical aspect of the
[association’s] application of its rules” but did not allege “a wholesale
deprivation of due process or the opportunity to be heard in violation of some
civil or property right”); Ubiñas-Brache, 68 S.W.3d at 42 (noting that “a breach
of contract action to maintain membership in a private association is not a
well-recognized or well-defined common law action in [Texas]”); see also Bryan
v. Jones, No. 2:05-CV-109, 2005 WL 1189882, at *3 (E.D. Tex. May 19, 2005)
(citing Ubiñas-Brache and dismissing plaintiff’s bylaws-based breach of
contract claim under Rule 12(b)(6)).
      Based on Texas precedent and the doctrine of judicial non-intervention,
we find that Dr. Barrash has failed to state a plausible breach of contract claim.
Dr. Barrash’s breach of contract claim is little more than a disagreement with
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the disciplinary decision of the AANS, and it is therefore precluded by the
doctrine of non-intervention.
                                           III.
      Dr. Barrash received sufficient due process, including notice, a hearing,
and multiple levels of appeal, before he was censured for failing to review all
pertinent and available records prior to testifying. Because the district court
found only one basis of the censure to be unsupported by due process, the
district court was correct in setting aside only that portion of the censure.
Furthermore, no Texas court has recognized a breach of contract challenge to
a private association’s disciplinary process. Dr. Barrash thus failed to state a
plausible breach of contract claim on which relief could be granted, and the
district court properly dismissed. AFFIRMED.




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