Talal Hamdan v. Indiana University Health Nort , 880 F.3d 416 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1074
TALAL S. HAMDAN, M.D.
Plaintiff-Appellant,
v.
INDIANA UNIVERSITY HEALTH NORTH HOSPITAL, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-195-WTL-MJD — William T. Lawrence, Judge.
____________________
ARGUED DECEMBER 13, 2017 — DECIDED JANUARY 22, 2018
____________________
Before WOOD, Chief Judge, and MANION and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Dr. Talal Hamdan, a U.S. citizen
of Middle-Eastern (Palestinian) descent, sued Indiana Univer-
sity Health North Hospital, Inc. for discriminating against
him based on race. Dr. Hamdan was not an employee of the
hospital and so could not sue under Title VII of the Civil
Rights Act of 1964. He sued instead under 42 U.S.C. § 1981, a
law first enacted as part of the Civil Rights Act of 1866, after
2 No. 16-1074
ratification of the Thirteenth Amendment, to protect the abil-
ity of newly freed slaves to enter into and enforce contracts,
especially contracts regarding land and their labor. Dr.
Hamdan alleged discrimination regarding the benefits, privi-
leges, terms, and conditions in his contractual relationship
with the hospital.
A jury trial ended with a verdict for the hospital. Dr.
Hamdan then moved for a new trial. He argued that the dis-
trict court had erred in allowing the hospital to ask him im-
peachment questions relating to his prior work at other hos-
pitals. Dr. Hamdan contends the subjects of these questions
were both irrelevant and privileged under state peer-review
statutes. We find no abuse of discretion and affirm the judg-
ment of the district court.
I. Factual and Procedural Background
Dr. Hamdan was an interventional cardiologist with priv-
ileges at the hospital from 2008 to 2012. He asserts that he suf-
fered hostile treatment from his colleagues because of his
Middle-Eastern background and that the hospital turned a
blind eye to the mistreatment. His colleagues, on the other
hand, complained about him. They told the hospital that he
had engaged in unprofessional conduct, performing risky
procedures and making offensive, demeaning, and disre-
spectful comments to colleagues and staff.
The hospital responded by forcing Dr. Hamdan to partici-
pate in a peer-review discipline process. The process is trig-
gered when an incident report is filed against a doctor. A com-
mittee of the doctor’s peers then reviews the doctor’s actions
and may recommend discipline. The hospital’s peer-review
committee issued Dr. Hamdan two disciplinary letters. He
No. 16-1074 3
successfully challenged the charges through an appeal pro-
cess, and the hospital’s board of directors ultimately voided
the letters. In 2012, however, Dr. Hamdan resigned from the
hospital and relinquished his hospital privileges.
Dr. Hamdan then filed this suit against the hospital under
42 U.S.C. § 1981 for race discrimination, alleging that the hos-
pital failed to stop hostile behavior by his colleagues. He al-
leged, for example, that colleagues barricaded a conference-
room door with tables so that he could not pray there and
made comments about his “kind.” More generally, he alleged
in the language of § 1981 that the hospital denied him the
same conditions of a contractual relationship that a “white cit-
izen” would have enjoyed.
During discovery the hospital obtained information from
Dr. Hamdan’s prior employers about a variety of problems in
his work at four hospitals—one in Louisiana where Dr.
Hamdan did his residency, another in Michigan where he did
a cardiology fellowship, and two in Indiana where he had
worked for several years more recently.
The case went to trial. During opening statements, Dr.
Hamdan’s lawyer told the jury he would be asking for be-
tween fifteen and fifty-six million dollars for damage to Dr.
Hamdan’s reputation. Dr. Hamdan testified on direct exami-
nation about his reputation. He swore that it was “untar-
nished” before he received the now-voided disciplinary let-
ters from the defendant hospital. The judge then agreed with
the hospital that “the door has indeed been opened regarding
Dr. Hamdan’s reputation and how the adverse letters have af-
fected a reputation.” The judge allowed the hospital to cross-
examine the doctor about “other incidents” bearing on his
4 No. 16-1074
reputation solely for the purpose of establishing [his] reputa-
tion in the medical community.”
On cross-examination, the hospital questioned Dr.
Hamdan at length about his employment history before join-
ing the hospital. No documents about Dr. Hamdan’s prior
work history were actually introduced into evidence. Dr.
Hamdan conceded orally that former colleagues had filed in-
cident reports about him before he affiliated with the defend-
ant hospital. He testified, however, that he did not remember
particular accusations from those incident reports, such as
over-sedating patients, behaving inappropriately at a pa-
tient’s bedside, or interacting poorly with staff. He also testi-
fied that he could not recall allegations that he had been con-
descending and non-collaborative or verbally degrading of
colleagues.
Dr. Hamdan’s appeal highlights one particular portion of
the cross-examination about his reputation for dishonesty.
The focus was whether Dr. Hamdan had been placed on a six-
month probation at a Michigan hospital for lying to his peers
and behaving unprofessionally. After the court had sustained
Dr. Hamdan’s objection to admitting a document on the inci-
dent, the questioning proceeded:
Q Dr. Hamdan, you’re not denying, though, that you
were placed on probation for six months during
your fellowship at Wayne State, though, are you?
A You know, I don’t remember being placed on pro-
bation.
Q You discussed that fact when you interviewed at
Lafayette Hospital, didn’t you?
A I’m telling you I don’t remember.
No. 16-1074 5
Q And during that interview, you were asked why
you had not disclosed the probation? Do you recall
that?
A Remind me. I don’t remember.
Q And why you had not answered that on their appli-
cation where they had asked about it. Do you recall
telling the interviewer that you had forgotten to in-
dicate it?
A Okay.
Q So I understand your testimony, Doctor, today is
your testimony you don’t remember whether or not
you were placed on six-month probation at Wayne
State?
A That is correct.
Q And if your records from that institution show that
you were, you would have no basis to dispute that,
would you?
A I would not.
App. 50–51. Note that Dr. Hamdan never admitted that the
probation or underlying dishonesty occurred. The hospital
also never admitted extrinsic evidence to corroborate the fac-
tual foundation for these questions on cross-examination.
During closing argument, though, the hospital’s lawyer said
that Dr. Hamdan had been given six months’ probation for ly-
ing to his colleagues, a punishment that “most people would
not likely forget; but Dr. Hamdan testified he had no memory
of it.” Dr. Hamdan’s counsel did not object to the comment.
The jury returned a verdict for the hospital, and the court en-
tered judgment accordingly.
6 No. 16-1074
Dr. Hamdan then moved for a new trial. As relevant to this
appeal, he argued that the court erred by permitting the hos-
pital at trial to try to impeach him with questions about mat-
ters that were confidential and/or privileged under the
peer-review statutes of the three pertinent states, Indiana,
Louisiana, and Michigan. He did not argue, however, that the
questions involved matters privileged under Federal Rule of
Evidence 501. The hospital countered that the evidence was
relevant and that there is no peer-review privilege in federal
cases.
The district court denied the motion for a new trial. The
court first found that Dr. Hamdan had forfeited his argument
that the impeachment materials were privileged because he
had objected to discussion of them based only on Federal Rule
of Evidence 404 and relevance grounds. To the extent that Dr.
Hamdan had mentioned the state peer-review statutes and
confidentiality, he had done so only to support his argument
that the complaints were not relevant to his claim of reputa-
tional injury. He had not argued at trial that the impeachment
evidence was inadmissible because it was privileged under
the applicable peer-review statutes. And even if Dr. Hamdan
had not forfeited the issue, the court said, he had not pre-
sented sufficient evidence about the incident reports filed by
former colleagues to show that they fell under the peer-re-
view statutes. As for Dr. Hamdan’s relevance argument, the
judge stood by his prior rulings, adding: “If, in fact, Dr.
Hamdan had a poor reputation at various hospitals, the peer-
review privilege would not necessarily foreclose that reputa-
tion from following him in his career.”
No. 16-1074 7
II. Analysis
On appeal Dr. Hamdan first challenges the district court’s
ruling that he did not properly preserve his argument that the
impeachment materials were privileged under the state
peer-review statutes. But Dr. Hamdan concedes that he never
explicitly invoked Federal Rule of Evidence 501, which gov-
erns evidentiary privileges in federal court, in his written or
oral objections. He offers two reasons for finding that the hos-
pital had sufficient notice of the objection anyway. Neither is
persuasive.
First, Dr. Hamdan contends that both he and the court
throughout the proceedings had used the term “confidential-
ity” interchangeably with “privilege.” But Dr. Hamdan ar-
gues on appeal that confidentiality and privilege are two dis-
tinct ideas that are not interchangeable. Using them inter-
changeably in the district court was not sufficient to alert the
district court to the argument Dr. Hamdan actually makes on
appeal.
Second, Dr. Hamdan observes that the peer-review mate-
rials were subject to an agreed protective order providing that
privileged matter would retain its privileged character de-
spite disclosure in discovery. That’s true, but the problem
stems from the trial itself. The forfeiture is based on Dr.
Hamdan’s failure to assert a peer-review privilege before the
district court at trial. We agree with the district court that Dr.
Hamdan forfeited his argument about state statutory privi-
leges.
Forfeiture aside, the district court was not required to ap-
ply those state statutes here. First, federal courts apply the
federal common law of evidentiary privileges—not
8 No. 16-1074
state-granted privileges—to claims like Dr. Hamdan’s that
arise under federal law. See Fed. R. Evid. 501; University of
Pennsylvania v. EEOC, 493 U.S. 182, 188–89 (1990); Northwest-
ern Memorial Hospital v. Ashcroft, 362 F.3d 923, 926 (7th Cir.
2004); EEOC v. Illinois Dep't of Employment Security, 995 F.2d
106, 107–08 (7th Cir. 1993). A party arguing for a new eviden-
tiary privilege under Rule 501 must confront the general ob-
stacle that evidentiary privileges are disfavored because they
impede fact-finding by excluding relevant information. See
University of Pennsylvania, 493 U.S. at 189; United States v.
Nixon, 418 U.S. 683, 710 (1974) (privileges “are in derogation
of the search for truth.”); United States v. Wilson, 960 F.2d 48,
50 (7th Cir. 1992); Memorial Hospital for McHenry County v. Sha-
dur, 664 F.2d 1058, 1061–62 (7th Cir. 1981). This court has de-
clined to recognize a federal peer-review privilege, reasoning
that the need for truth outweighs the state’s interest in sup-
plying the privilege. Memorial Hospital, 664 F.2d at 1061–62;
see also Adkins v. Christie, 488 F.3d 1324, 1328–29 (11th Cir.
2007) (rejecting privilege in doctor’s § 1981 discrimination
case); Virmani v. Novant Health Inc., 259 F.3d 284, 293 (4th Cir.
2001) (following Memorial Hospital and rejecting privilege).
Even if the state laws applied, the judge did not abuse his
discretion in allowing the impeachment questions about inci-
dent reports. Dr. Hamdan did not establish that the particular
impeachment questions were prohibited by the states’
peer-review statutes. The central purpose of those statutes is
to bolster the effectiveness of a hospital’s peer-review commit-
tees in improving patient care and medical services by pro-
tecting from disclosure the proceedings and reports of the
committees. See Memorial Hospital, 664 F.2d at 1062; George v.
Christus Health Southwestern Louisiana, 2016-412 (La. App. 3
Cir. Oct. 12, 2016), 203 So. 3d 541, 551, citing Smith v. Lincoln
No. 16-1074 9
Gen. Hospital, 605 So. 2d 1347, 1348 (La. 1992). The purpose of
the privilege is not furthered by protecting from disclosure
evidence of a doctor’s poor reputation in a suit in which the
doctor alleges that others have damaged his reputation.
The scope of the peer-review privilege also does not cover
the types of questions that Dr. Hamdan was asked. The privi-
lege is limited. As with other evidentiary privileges, where
the peer-review privilege applies, it protects certain commu-
nications from disclosure, not the underlying facts discussed
in those communications. If a penitent confesses a crime to his
priest, for example, neither may be asked about the confession
itself, but the penitent may certainly be asked about the facts
of the crime. Similarly here, the hospital was entitled to ask
Dr. Hamdan about facts he knew about his own past and rep-
utation, regardless of whether any peer-review committee
had investigated those incident reports or complaints. See
George, 203 So. 3d at 551. Those questions did not invade any
privileged realm of another hospital’s peer-review process. 1
Dr. Hamdan also argues that the district court abused its
discretion in concluding that the impeachment questions
were relevant. We find that the judge acted well within his
1 The one incident where the cross-examination went further involved
the reported probation in Michigan. The transcript shows that counsel was
asking questions based on a letter. Dr. Hamdan testified that he did not
remember the letter or an accusation of dishonesty. The letter itself did not
come into evidence, though the extended and specific questioning on the
basis of the letter must have signaled to the jury that the letter in fact said
what the lawyer’s questions asserted. Either that or the lawyer was exe-
cuting an Oscar-worthy bluff. For the other reasons in the text, however,
we find no reversible error. Also, Dr. Hamdan’s repeated and sometimes
sarcastic claims that he did not remember any complaints or discipline
surely did not help his credibility with the jury.
10 No. 16-1074
discretion. As the judge noted at trial, Dr. Hamdan testified
that he lost employment and other income-earning opportu-
nities because the hospital had tarnished his reputation. The
hospital simply tried to introduce evidence that his reputation
in the medical community was not untarnished before he
came to the hospital. We agree with the judge that evidence
about Dr. Hamdan’s problems with colleagues and staff in
prior hospitals would be relevant to his reputation and to the
extent to which he might have deserved damages for any ac-
tions the defendant hospital took.
Finally, Dr. Hamdan argues that the hospital struck a low
blow in closing argument by reminding the jury that he had
not remembered whether he had been given six months of
probation in the Michigan hospital. Dr. Hamdan points out
correctly that the probation does not have any basis in the ad-
mitted evidence. Dr. Hamdan himself testified that he did not
remember the matter, and the hospital introduced no other
evidence to prove the probation was in fact imposed.
This portion of the closing argument does not call for a
new trial. Dr. Hamdan at least forfeited any objection on the
point by failing to object during the argument itself. See Soltys
v. Costello, 520 F.3d 737, 745 (7th Cir. 2008) (failure to object to
comments in closing argument “waived” challenge on ap-
peal); see generally United States v. Socony-Vacuum Oil Co., 310
U.S. 150, 238–39 (1940) (“counsel for the defense cannot as a
rule remain silent, interpose no objections, and after a verdict
has been returned seize for the first time on the point that the
comments to the jury were prejudicial”). To the extent there
was a problem with the defense argument, the district judge
could have cured it with a few well-chosen words to remind
the jury about the difference between lawyers’ questions and
No. 16-1074 11
evidence. (One example: “Have you stopped kicking your
dog?” The question itself is not evidence that the witness even
has a dog, let alone that he has ever kicked it. What matters as
evidence is the witness’s answer to such a loaded and often
objectionable question.) Without at least an objection, there is
no sound basis for ordering a new trial.
The judgment of the district court is AFFIRMED.