                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0876n.06
                             Filed: December 20, 2007

                                                 No. 07-3156


                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

RAMAN TALWAR,

        Plaintiff-Appellant,

v.                                                           ON APPEAL FROM THE UNITED
                                                             STATES DISTRICT COURT FOR THE
CATHOLIC HEALTHCARE PARTNERS; ST.                            NORTHERN DISTRICT OF OHIO
RITA’S MEDICAL EXECUTIVE
COMMITTEE; HERBERT SCHUMM;
DAVID IMLER; ST. RITA’S MEDICAL
CENTER,

        Defendants-Appellees.

________________________________________/




BEFORE:          MERRITT and CLAY, Circuit Judges; and COX, District Judge.*

        CLAY, Circuit Judge. Plaintiff, Dr. Raman Talwar, appeals from an order granting

summary judgment on Plaintiff’s claims of racial discrimination under 42 U.S.C. § 1981 and breach

of contract in favor of Defendants Catholic Healthcare Partners, St. Rita’s Medical Executive

Committee, Herbert Schumm, David Imler and St. Rita’s Medical Center. Plaintiff also appeals the

district court’s denial of his motion to compel discovery and its finding that Defendants were entitled



        *
          The Honorable Sean F. Cox, United States District Court for the Eastern District of Michigan, sitting by
designation.
                                           No. 07-3156

to peer review immunity pursuant to Ohio Revised Code § 2305.251. For the reasons set forth

below, we AFFIRM the judgment of the district court.

                                         BACKGROUND

       Plaintiff, Raman Talwar (“Dr. Talwar”), was born in India and immigrated to the United

States in 1980. Dr. Talwar later became licensed as a physician and established a medical practice

in Lima, Ohio. In 1991, Dr. Talwar was granted medical staff privileges at St. Rita’s Medical Center

(“St. Rita’s”) where he practices general and vascular surgery. Dr. Talwar’s appointment to the

medical staff was made pursuant to the Medical Staff Bylaws (“Bylaws”) and the Medical Staff

Credentials Manual (“Credentials Manual”) of the hospital.

       The Surgical and Invasive Procedure Review Committee (“SIPR”) of St. Rita’s is a

committee that reviews medical cases for quality assurance pursuant to St. Rita’s Bylaws. In

September of 2003, SIPR conducted a quality of care review of one of Dr. Talwar’s vascular surgery

cases. At the conclusion of the review, SIPR concluded that Dr. Talwar’s case raised quality of care

concerns and forwarded its findings to the St. Rita’s Medical Executive Committee (“MEC”) for

further action. Pursuant to the Bylaws, MEC is responsible for the evaluation of the clinical

competency of medical staff at St. Rita’s and may request investigations of medical staff.

       On September 23, 2003, MEC informed Dr. Talwar of SIPR’s findings and asked him to

respond to the quality of care concerns in writing. After reviewing the case and Dr. Talwar’s written

response, MEC hired the Greeley Company, a third-party review organization, to conduct a partial

review of Dr. Talwar’s practice. The Greeley Company found quality of care concerns with Dr.

Talwar’s practice in eleven of the nineteen cases reviewed.


                                                 2
                                            No. 07-3156

       In April of 2004, after reviewing the findings of the Greeley Company, and pursuant to the

Bylaws and Credentials Manual, MEC initiated a formal investigation. Dr. Talwar was advised of

the investigation and the Greeley findings by MEC members Dr. Herbert Schumm and Dr. David

Imler. Dr. Schumm and Dr. Imler requested that Dr. Talwar refrain from exercising his surgical

privileges during the pendency of the investigation. Dr. Talwar was also permitted to present an

expert report for the investigative committee’s consideration.

       After considering the interview with Dr. Talwar, the Greeley report as well as the report of

Dr. Talwar’s expert, the investigative committee determined that there was insufficient evidence to

substantiate the quality of care concerns raised by SIPR and recommended that the investigation be

terminated. The committee also recommended that MEC restore Dr. Talwar’s surgical privileges.

       Following the conclusion of the investigation, Dr. Talwar brought suit against St. Rita’s, Dr.

Schumm, Dr. Imler and Catholic Healthcare Partners for a number of claims, including racial

discrimination under 42 U.S.C. § 1981 and breach of contract. Talwar v. Catholic Healthcare

Partners, 2006 WL 3526792 (N.D. Ohio 2006). During the course of discovery, Plaintiff filed a

motion to compel discovery of documentation related to MEC deliberations leading up to the request

for an external review of his cases as well as the investigatory committee’s final report. The district

court denied Plaintiff’s motion to compel discovery.

       Defendants later moved for summary judgment, asserting that Plaintiff failed to present

sufficient evidence to support his claims. Moreover, Defendants argued that even if Plaintiff

established liability, they were protected under Ohio’s peer review immunity statute. The district

court granted summary judgment in favor of Defendants on all claims. Plaintiff now timely appeals.


                                                  3
                                            No. 07-3156

                                          DISCUSSION

                                        Standard of Review

       This Court reviews a district court's grant of summary judgment de novo. Monette v.

Electronic Data Sys. Corp., 90 F.3d 1173, 1176 (6th Cir. 1996). Summary judgment is appropriate

if, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, 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 movant is entitled to a judgment as a

matter of law.” Fed.R.Civ.P. 56(c). As the moving parties, Defendants bear the burden of showing

the absence of a genuine issue of material fact as to at least one essential element on each of

Plaintiff's claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Plaintiff, as the non-

moving party, must then present sufficient evidence from which a jury could reasonably find for him.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). This Court must then determine

“whether the evidence presents sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. In making this

determination, this Court must draw all reasonable inferences in favor of Plaintiff. See National

Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997).

I.     SECTION 1981 CLAIM OF RACIAL DISCRIMINATION

       Enacted as part of the Civil Rights Act of 1866, 42 U.S.C. § 1981 provides that “[a]ll persons

within the jurisdiction of the United States shall have the same right in every State and Territory to

make and enforce contracts” without regard to race. 42 U.S.C. § 1981. The statute defines the

phrase “make and enforce contracts” to include the “making, performance, modification, and


                                                  4
                                            No. 07-3156

termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the

contractual relationship.” 42 U.S.C. § 1981(b). Before the district court, Plaintiff alleged that he

was discriminated against “with respect [to] the terms, conditions, and privileges of his contract with

defendant because of color.” (J.A. at 14)

               1. Contractual Relationship Between the Parties

       “Section 1981 offers relief when racial discrimination blocks the creation of a contractual

relationship, as well as when racial discrimination impairs an existing contractual relationship, so

long as the plaintiff has or would have rights under the existing or proposed contractual

relationship.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). Defendants argue that

Plaintiff may not prevail in his § 1981 claim because he has not established the existence of a

contractual right that was allegedly blocked or impaired by racial discrimination. Although Plaintiff

acknowledges that he does not have a formal employment contract with the hospital, he submits that

the hospital’s Bylaws and Credentials Manual constitute contracts. Both parties agree that Ohio law

controls for the purpose of determining whether a contract exists. Applying Ohio law, the district

court concluded that Plaintiff did not present sufficient evidence from which a jury could find that

a contract existed between the parties.

       Under Ohio law, staff bylaws may constitute a contract where “there can be found in the

bylaws an intent to be bound.” Munoz v. Flower Hosp., 507 N.E.2d 360, 365 (Ohio Ct. App. 1985).

Accordingly, we examine the language of the Bylaws and Credentials Manual to determine whether

the parties evinced an intent to be bound. See Bouquett v. St. Elizabeth Corp., 43 Ohio St. 3d 50,




                                                  5
                                            No. 07-3156

52 (Ohio 1989) (“[B]efore we can determine if appellant medical center is bound by the staff bylaws,

we must consider the language of the bylaws at issue.”).

       The Credentials Manual provides that the Manual may be revised or amended by the

hospital’s Board of Trustees “on its own initiative” after providing notice to MEC. (J.A. at 178) In

addition, the preamble to the Bylaws state that the procedures promulgated to insure the quality of

medical care at the hospital are “subject to the ultimate authority of the hospital’s Board of

Trustees.” (J.A. at 114) In interpreting similar bylaws and guidelines containing conditional

language such as “subject to” or “on its own initiative,” Ohio courts have found that the presence

of such language is evidence of a lack of mutuality between the parties. See Munoz v. Flower Hosp.,

507 N.E.2d 360, 365 (Ohio Ct. App. 1985).

       For example, in Munoz v. Flower Hospital, the Ohio Court of Appeals considered a breach

of contract claim alleged by an anesthesiologist after being denied reappointment by the defendant

hospital. 507 N.E.2d at 362. The court rejected the plaintiff’s contention that the hospital’s staff

bylaws constituted a contract because they were “subject to the ultimate authority of the applicable

governing bodies,” including the hospital’s board of trustees. Id. at 365. The court concluded that

“[t]he obvious interpretation of the bylaws’ preamble is that the trustees are, and therefore the

hospital is, not to be bound by the staff bylaws and that there is no contractual relationship arising

from these staff bylaws because there is no mutuality of obligation between the parties.” Id.; accord

Holt v. Good Samaritan Hosp. and Health Ctr., 590 N.E.2d 1318, 1322 (Ohio Ct. App. 1990);

Wilkey v. McCullough-Hyde Memorial Hosp., 2007 WL 3047234, at *10 (S.D. Ohio 2007); Nilavar

v. Mercy Healthsystem-Western Ohio, 494 F.Supp. 2d 604, 622-23 (S.D. Ohio 2005). But see


                                                  6
                                             No. 07-3156

Rahimi v. St. Elizabeth Med. Ctr., Inc., 1997 WL 33426269, at *6 (S.D. Ohio 1997) (unpublished)

(finding staff bylaws expressed an intent to be bound where the hospital board of trustees vested a

right in the medical staff to disciplinary hearing and appeal procedure, which placed an obligation

on the board of trustees); Awadalla v. Robinson Mem’l Hosp., 1992 WL 188333, at *3 (Ohio Ct.

App. 1992) (unpublished) (finding staff bylaws could constitute a contract where the chairman of

the board of trustees testified “that the board never relayed to the medical staff an intention not to

be bound by the bylaws”). Based upon the similarity of the language contained in the Bylaws and

Credentials Manual and the language at issue in Munoz, it would seem that no contractual

relationship existed between the parties.

        Courts applying Ohio law, however, have also examined extrinsic evidence to determine

whether a hospital intended to be bound. See Nilavar, 494 F.Supp. 2d at 622-23 (analyzing

evidence of negotiations between hospital and plaintiff in determining whether staff bylaws

constituted a contract under Ohio law). Plaintiff in the instant case offers a letter of reappointment

dated December 3, 2004 as evidence that Defendant intended to be bound. The letter states, in

pertinent part, “[t]his reappointment is subject to all terms and conditions of your initial appointment,

any previous appointments, the bylaws, rules and regulations, credentials manual and policies and

procedures of this hospital and medical staff that are in force during the term of your reappointment.”

(J.A. at 294)

        The letter, however, sheds little light on the intent of the parties to be contractually bound

by the procedures set forth in the Bylaws or the Credentials Manual. The letter merely reaffirms that

Plaintiff’s appointment will be subject to existing guidelines and policies as represented by the


                                                   7
                                             No. 07-3156

Bylaws and Credentials Manual, both past and present. The self-declared purpose of the Bylaws and

Credentials Manual is to protect the best interests of patients, regulate activities of the medical staff,

and insure the provision of quality medical care for the hospital’s patients, not to declare or create

contractual rights of individual members of the medical staff. However, even assuming that the

Bylaws and Credentials Manual do create a contractual relationship between the parties, we find that

Plaintiff has not produced sufficient evidence to sustain his claim of racial discrimination under §

1981.

        2. Prima Facie Case of Racial Discrimination

        “A plaintiff may establish a claim of discrimination either by introducing direct evidence of

discrimination, or by proving circumstantial evidence which would support an inference of

discrimination.” Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000). In the instant

case, Plaintiff has not offered any direct evidence of racial discrimination. “[D]irect evidence is that

evidence which, if believed, requires the conclusion that unlawful discrimination was at least a

motivating factor in the employer's actions.” Jacklyn v. Schering Plough Healthcare Prods. Sales

Corp., 176 F.3d 921, 926 (6th Cir.1999). It does not require the fact finder to draw any inferences

to reach that conclusion. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). We have

held that to prevail in a claim of race discrimination under § 1981 based on circumstantial evidence,

a plaintiff must meet the tripartite standard of proof for Title VII cases established by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248 (1981). Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir.

1999); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992).


                                                    8
                                                     No. 07-3156

         Under McDonnell Douglas-Burdine, Plaintiff must establish a prima facie case of racial

discrimination. McDonnell Douglas, 411 U.S. at 802. A prima facie case is established where a

plaintiff demonstrates that 1) he is a member of a protected class; 2) he was qualified for his job and

performed it satisfactorily; 3) despite his qualifications and performance, he suffered an adverse

employment action; and 4) that he was replaced by a person outside of the protected class or treated

less favorably.1 Johnson, 215 F.3d at 572-73 (citing McDonnell Douglas, 411 U.S. at 802). If this

prima facie case is met, “[t]he burden of production then shifts to the defendant to articulate a

legitimate, non-discriminatory reason for its actions.” Christian v. Wal-Mart Stores, Inc., 252 F.3d

862, 868 (6th Cir. 2001).

         To ultimately prevail, Plaintiff must show that Defendants’ proffered race neutral explanation

“was not its true reason, but a pretext for discrimination.” Id. Plaintiff may meet this burden by

showing 1) that the reasons given have no factual basis; 2) the stated reasons were not the actual

reasons; or 3) that the reasons given were insufficient to justify the defendant’s action. Johnson, 215

F.3d at 574. While the parties do not dispute the first three elements of the prima facie case, they

do dispute, however, whether Plaintiff offered sufficient proof that he was treated less favorably than

others outside of his protected class.

         Before the district court, Plaintiff asserted that he believed he was the victim of racial

discrimination. As proof, Plaintiff submitted an affidavit stating that he had not practiced medicine

         1
            W e have recognized that “[t]here is ample precedent for requiring a distinct formulation of the burden shifting
framework in differing factual circumstances.” Christian, 252 F.3d at 869. Although the relationship between the parties
is not the kind of employment relationship to which the McDonnell Douglas-Burdine test is traditionally applied, we find
that the parameters of this test are sufficiently applicable to this context. See Benjamin v. Brachman, 2007 W L 2264513,
at *15 (6th Cir. 2007) (unpublished). But see Jeung v. McKrow, 264 F.Supp. 2d 557 (E.D. Mich 2003) (applying
modified McDonnell Douglas-Burdine test in § 1981 claim arising from termination of medical staff privileges).

                                                             9
                                             No. 07-3156

in a manner warranting investigation. Plaintiff further argued that “the Defendants did with malice

and evil intent, wrongfully investigated [sic] Dr. Talwar due to his race and yet did not so treat other

similarly situated white doctors.” (J.A. at 264) Although Plaintiff points to no other doctor outside

of his protected class that was treated differently, he argues that the failure of the hospital to comply

with the investigative procedures set forth in the Bylaws and Credentials Manual by initiating two

investigations demonstrates that he was treated less favorably than individuals outside of his

protected class. We disagree.

        We have suggested that the failure to follow internal disciplinary procedures constitutes

evidence of discrimination. See Durante v. Ohio Civil Rights Comm’n, 1990 WL 68856, at *3 (6th

Cir. 1990) (unpublished) (“Evidence of disparate application of disciplinary procedures in the

termination decision is merely evidence relevant to the ultimate question of discriminatory

discharge.”); Felder v. Nortel Networks Corp., 187 F. App’x 586, 595 (6th Cir. 2006) (unpublished)

(suggesting that failure to adhere to internal disciplinary procedures may serve as evidence of

discrimination). Plaintiff has not, however, established that this process has been applied differently

to other non-minority members of the staff, nor has Plaintiff put forward the names of other doctors

who were treated more favorably by MEC in other quality of care investigations by being subjected

to a single investigation under similar circumstances or evaluated under more lenient standards.

Rather, all we have before us on the question of whether Plaintiff was treated less favorably than

others outside of his protected class are Plaintiff’s conclusory allegations. Such “conclusory and

unsupported allegations, rooted in speculation, do not meet the burden” of the prima facie case. Bell

v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003).


                                                   10
                                             No. 07-3156

        The district court also correctly concluded that, assuming that Plaintiff can establish a prima

facie case of discrimination, Defendants offered a legitimate, race-neutral explanation. Defendants

assert that patient safety was the basis for the commencement of an investigation of Plaintiff’s

practice. According to Defendants, the investigation at issue stemmed from a September 2003

review of one of Plaintiff’s surgical cases. In satisfying their burden of production before the district

court, Defendants presented evidence of the Greeley report which suggested that Plaintiff’s treatment

of patients was inappropriate in eleven out of nineteen cases reviewed. Plaintiff has offered no

evidence to refute this explanation as pretextual. Instead, Plaintiff merely argues that patient safety

is no excuse to contravene established policy. Again, such a conclusory allegation is wholly

insufficient and does little to demonstrate that patient safety “was not [Defendants’] true reason, but

a pretext for discrimination.” Christian, 252 F.3d at 868. Therefore, Plaintiff’s § 1981 claim must

fail as he did not rebut Defendants’ race neutral explanation and therefore failed to meet his burden

under the McDonnell Douglas-Burdine tripartite test.

II.     BREACH OF CONTRACT

        Plaintiff alleges that the district court improperly granted summary judgment with respect

to his breach of contract claim. Plaintiff asserts that Defendants breached their contract with him

in three ways: 1) the commencement of two separate investigations of alleged improprieties; 2) the

failure to disclose the initiation of an investigation; and 3) the ordering of a temporary suspension

pending the outcome of the investigation. Assuming the existence of a contract, we address each

of these contentions in turn.



                                                   11
                                            No. 07-3156

                1. Multiple Investigations of Alleged Improprieties

       Plaintiff asserts that Defendants breached their contract by constituting two investigative

committees rather than the single committee that is authorized in the Credentials Manual. The

Credentials Manual provides that the MEC shall act on all requests for an investigation. It also notes

that outside consultants may be used by the MEC. The Credentials Manual’s investigation procedure

provides as follows:

                The Medical Executive Committee shall meet as soon as practical after
                receiving a request for an investigation. If, in the opinion of the Medical
                Executive Committee, the request contains sufficient information to warrant
                an investigation, the Medical Executive Committee shall conduct an
                investigation, or shall appoint an individual or a committee to conduct the
                investigation.


(J.A. at 166)

       Plaintiff asserts that both the MEC and an appointed committee conducted investigations,

in contravention of the provisions of the Credentials Manual. After taking all reasonable inferences

in Plaintiff’s favor, we find that there is insufficient evidence to support a finding that two

investigations took place. The Bylaws provide MEC with broad authority to consider “information”

prior to initiating a formal investigation, such as the use of outside consultants to substantiate an

allegation of inadequate patient care. Consideration of a quality of care complaint prior to the

commencement of a formal investigative committee by seeking additional information, therefore,

does not constitute a separate investigation. Moreover, as Defendants point out, even if two

investigations took place, the Credentials Manual authorizes MEC to take “any and all other action

deemed appropriate under the circumstances” upon the conclusion of an investigation. (J.A. at 168)

                                                 12
                                            No. 07-3156

Therefore, the initiation of two investigations does not by itself constitute a violation of the Bylaws.

Thus, we find that Defendants were entitled to summary judgment as a matter of law on Plaintiff’s

claim of breach of contract as a result of “two investigations.”

                2. Failure to Disclose the Initiation of an Investigation


        Plaintiff claims that the Defendants breached their contract through their failure to disclose

the initiation of an investigation. The Credentials Manual states “[t]he medical staff may be notified

that an investigation is being conducted . . . .” (J.A. at 166 (emphasis added)) However, before the

report of the investigation is made “the individual shall be informed of the general nature of the

allegations giving rise to the investigation requested, and the individual shall be invited to discuss,

explain or refute the allegations.” (J.A. at 167) Thus, the language of the Credentials Manual is

permissive with respect to notification of the initiation of an investigation but mandatory with

respect to an individual being notified prior to its conclusion. As the district court correctly noted,

“[t]here is no requirement that the individual be informed o[f] the investigation until he is invited

to interview with investigators.” Talwar v. Catholic Healthcare Partners, 2006 WL 3526792, at *4

(N.D. Ohio 2006). Consequently, there was no dispute of a material fact on this point and summary

judgment was appropriately granted to Defendants.

                3. Temporary Suspension

        Plaintiff alleges that Defendants breached their contract when two members of MEC,

Defendants Schumm and Imler, temporarily suspended his surgical privileges without following the

procedure set forth in the Credentials Manual. The relevant provision of the Credentials Manual


                                                  13
                                              No. 07-3156

provides that any Chief of Staff, Department Chief or CEO may summarily suspend the privileges

of medical staff “whenever such action is necessary to prevent harm, immediate injury or damage

to the mental or physical safety and well being of any patient, employee or other person . . . .” (J.A.

at 168) The Credentials Manual also requires that the summary suspension “shall not be for more

than fourteen days,” and that MEC must be notified for review. (Id.) In addition, the impacted staff

member must be notified of the suspension. Plaintiff contends that he was “threatened”and

involuntarily ceased his surgical privileges, thus constituting a suspension without the proper

procedural safeguards. Defendants, however, assert that Plaintiff voluntarily relinquished his

surgical privileges.

        The district court did not address Plaintiff’s allegation of an improper suspension of his

surgical privileges as a basis for his breach of contract claim. Nevertheless, because the claim was

raised before the district court, we will address it here. In the case at bar, the resolution of this claim

essentially comes down to Plaintiff’s word against that of Defendants; however, it is unnecessary

for us to decide whether this factual dispute constitutes a material dispute of fact such that it was

improper for the court below to grant summary judgment. Rather, the district court’s failure to

address this claim at summary judgment is harmless inasmuch as Defendants are insulated from

liability on this claim under Ohio’s peer review immunity statute, as discussed below.

III.    PEER REVIEW IMMUNITY

        We now consider whether Defendants are insulated from liability with respect to Plaintiff’s

state law claims under Ohio’s peer review immunity statute. Plaintiff alleges that the district court



                                                    14
                                            No. 07-3156

erred in finding that Defendants were protected by peer review immunity under Ohio Rev. Code §

2305.251. Ohio’s peer review immunity statute provides, in relevant part, that

       [n]o health care entity shall be liable in damages to any person for any acts,
       omissions, decisions, or other conduct within the scope of the functions of a peer
       review committee of the health care entity. No individual who is a member of or
       works for or on behalf of a peer review committee of a health care entity shall be
       liable in damages to any person for any acts, omissions, decisions, or other conduct
       within the scope of the functions of the peer review committee.

Ohio Rev. Code § 2305.251(A). Under Ohio law, a “health care entity” includes those entities that

conduct, as part of their regular business, professional credentialing or quality review involving the

competence, professional conduct, or quality of care provided by health care providers. Ohio Rev.

Code § 2305.25(A)(1). A “peer review committee,” as used in the statute, includes a committee that

“[c]onducts professional credentialing or quality review activities involving the competence of,

professional conduct of, or quality care provided by health care providers.” Ohio Rev. Code §

2305.25(E)(1)(a).

       On appeal, Plaintiff does not challenge the fact that Defendant St. Rita is a covered “health

care entity” or that the MEC is a “peer review committee.” Nor does Plaintiff contest the fact that

Defendants Schumm and Imler are covered as members of the “peer review committee.” Rather,

Plaintiff asserts that the district court erred in its determination that he did not present sufficient

evidence to overcome the immunity provided to Defendants under the statute. We find Plaintiff’s

argument to be unavailing.

       To overcome the peer review immunity privilege, “the party seeking relief must present clear

and convincing evidence that defendants acted with actual malice.” Wall v. Ohio Permanente Med.


                                                  15
                                             No. 07-3156

Group, Inc., 119 Ohio App. 3d 654, 666 (Ohio Ct. App. 1997); Jacobs v. Frank, 60 Ohio St. 3d 111,

116 (Ohio 1991). “Actual malice in this context requires proof that defendants made statements in

connection with the peer review process with knowledge they were false or with reckless disregard

for whether they were true or false.” Wall, 199 Ohio App. 3d at 666.

        Plaintiff asserts that Defendants acted with actual malice as a result of statements made by

Schumm and Imler during a conversation in which they informed Plaintiff of the ongoing

investigation and requested that he voluntarily abstain from exercising his surgical privileges.

Specifically, Plaintiff asserts that Defendants acted with actual malice when they informed him that

he would be reported to the National Practitioner’s Database if he did not voluntarily give up his

privileges. Plaintiff asserts that Defendants knew that this statement was false at the time that it was

made because such reports can be forwarded only after the imposition of summary suspension

proceedings. However, the mere fact that Defendants’ statement was inaccurate is insufficient to

serve as proof that Defendants were aware of the falsity of the statement at the time it was made.

Indeed, “mere inaccuracies in statements and alleged improper motivations by speakers are

insufficient to show actual malice.” Wall, 199 Ohio App. 3d at 666. Because Plaintiff failed to

produce evidence regarding Defendants’ knowledge or reckless disregard of the falsity of the

inaccurate statement, summary judgment was properly granted to Defendants.

IV.     DENIAL OF PLAINTIFF’S MOTION TO COMPEL DISCOVERY

        In Plaintiff’s last assignment of error, he asserts that the district court abused its discretion

by summarily denying his motion to compel discovery regarding the minutes of the MEC meeting

where a vote to authorize an investigative committee took place. “[I]t is well established that the

                                                   16
                                             No. 07-3156

scope of discovery is within the sound discretion of the trial court.” Hayes v. Equitable Energy Res.

Co., 266 F.3d 560, 571 (6th Cir. 2001) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229,

1240 (6th Cir.1981)). Consequently, we review rulings concerning the scope of discovery for abuse

of discretion. United States v. Dairy Farmers of America, Inc., 426 F.3d 850, 862 (6th Cir. 2005).

        Plaintiff alleges that the district court abused its discretion by failing to conduct an in camera

inspection of the minutes to determine which, if any, of the material was discoverable. Defendants

argue that the district court properly declined to conduct an in camera inspection of the MEC minutes

at issue because such records are not discoverable under Ohio law. See Ohio Rev. Code § 2305.252

(“Proceedings and records within the scope of a peer review committee of a health care entity shall

be held in confidence and shall not be subject to discovery or introduction in evidence in any civil

action against a health care entity or health care provider . . . .”). Even assuming that the district

court improperly denied Plaintiff’s motion to compel discovery, such an error would not require

reversal by this Court as we find the error, if any, to be harmless. In the case at bar, Plaintiff has not

demonstrated how he was ultimately prejudiced by the denial of discovery or whether the availability

of the committee’s records would have established a disputed material fact. See Wolotsky v. Huhn,

960 F.2d 1331, 1338 (6th Cir. 1992) (upholding denial of discovery as nonprejudicial where records

to be sought did not address any material element of the plaintiff’s claim).

        With respect to Plaintiff’s § 1981 racial discrimination claim, records regarding MEC’s vote

to authorize an investigative committee would not have assisted in establishing an element of the

prima facie case. The minutes would not have shed light on any contractual right that existed

between the parties nor would it have disclosed whether physicians outside of Plaintiff’s protected

                                                   17
                                            No. 07-3156

class were subject to a different procedure under the Bylaws. With respect to Plaintiff’s breach of

contract claim, as discussed above, even assuming that Plaintiff could prove that the committee

conducted two investigations, it would not have established that a breach of contract occurred.

Because the minutes recording MEC’s vote to authorize an investigative committee would not have

assisted Plaintiff in establishing a disputed material fact with respect to either his claim of racial

discrimination or breach of contract, any error made by the district court in denying his motion to

compel discovery was harmless. We need not, therefore, disturb the judgment of the district court.

                                          CONCLUSION

       For the reasons stated above, we AFFIRM the judgment of the district court.




                                                 18
