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NANAVATI v. BURDETTE TOMLIN MEM. HOSP.

October 2, 1986

Suketu H. Nanavati, M.D., Plaintiff,
v.
Burdette Tomlin Memorial Hospital; Executive Committee of the Medical Staff of Burdette Tomlin Memorial Hospital and Robert J. Sorenson, M.D., Defendants; Robert J. Sorenson, M.D., Plaintiff, v. Suketu H. Nanavati, M.D., Defendant



The opinion of the court was delivered by: COHEN

 This complex, multi-issue case, which included claims and counterclaims among Dr. Suketu H. Nanavati, Dr. Robert J. Sorenson, the Burdette Tomlin Memorial Hospital ("BTMH" or "the Hospital") *fn1" and the Executive Committee of the Hospital's Medical Staff ("the Executive Committee") *fn2" was tried before a jury for nine weeks. Sixty-five witnesses were presented, nine lawyers and their staffs participated in the case, and eleven separate opinions, 4 before trial and 7 during trial, were filed by this Court. Forty-five special interrogatories were submitted to the jury. The jurors deliberated for 4 days, and, during this time, communicated with the Court on 8 occasions.

 Presently before the Court are post-trial motions by plaintiff/counterclaim-defendant, Dr. Nanavati, defendant/counterclaim-plaintiff, Burdette Tomlin Memorial Hospital, and defendant, the Executive Committee. Dr. Nanavati moves for a judgment notwithstanding the verdict ("j.n.o.v.") pursuant to Fed. R. Civ. P. 50(b), and, in the alternative, for a new trial pursuant to Fed. R. Civ. P. 59(a). BTMH and the Executive Committee also move herein for j.n.o.v. and, alternatively, for a new trial. *fn3"

 I. BACKGROUND

 The factual predicate for this case is somewhat difficult to summarize, as it consists of events taking place over a number of years. Without purporting to illuminate every nuance of the matter, we shall set forth a brief account of the facts.

 Approximately three weeks after his arrival at BTMH, Dr. Nanavati, having encountered resistance to his attempts to share immediately in the reading of EKG's sought assistance in attaining the privilege from the Executive Committee of the Medical Staff. A few days later, evidently angered upon being told that he must await Dr. Sorenson's decision regarding the date he could expect to begin reading EKG's, Dr. Nanavati verbally inquired, at a meeting of the entire medical staff, why an "inferiorly qualified" physician controlled the EKG readings. Trial transcript of June 2, 1986 at pp. 81-84. *fn4" Thus was fired the opening shot of an economic battle -- a competitive fight -- between these two doctors for the control of medical care of cardiac patients in Cape May County.

 Subsequent to this incident, with the apparent achievement of a complete alienation of Dr. Sorenson, Dr. Nanavati proceeded to challenge a variety of matters concerning hospital practices and patient care within Cape May County. These challenges included public accusations that Dr. Sorenson was incorrectly interpreting EKG's, quarrels with nursing personnel, and confrontations with members of BTMH's Medical Staff. Eventually, purportedly because the Hospital determined that he was disruptive, overly aggressive, and incapable of working harmoniously with others, attempts were made to revoke Dr. Nanavati's staff privileges. A brief litany of some of the key occurrences follows.

 In June of 1982, Dr. Nanavati filed a charge against BTMH with the Equal Employment Opportunity Commission ("EEOC") alleging national origin discrimination. In August of 1982, charges were filed with the Executive Committee seeking Dr. Nanavati's termination from the medical staff. On September 9, 1982, Dr. Nanavati filed a second charge against BTMH with the EEOC alleging unlawful retaliation. On November 12, 1982, Dr. Nanavati's staff privileges at BTMH were deemed terminated. Five days later, on November 17, 1982, pursuant to a complaint filed in the Chancery Division of the Superior Court of New Jersey, a temporary restraining order was issued which reinstated Dr. Nanavati to the BTMH staff. On March 8, 1983, Dr. Nanavati filed his complaint in the instant case. On March 17, 1985, pursuant to its holding, on January 14, 1985, that the Hospital and the Executive Committee violated the medical staff bylaws by the manner in which they handled the disposition of the charges against Dr. Nanavati, the Chancery Division of the New Jersey Superior Court entered a judgment permanently enjoining BTMH and the Executive Committee from attempting to terminate Dr. Nanavati's staff privileges based upon the earlier charges. *fn5"

 The legal claims advanced by the parties in the present case included a claim by Dr. Nanavati against the Hospital and the Executive Committee for an alleged violation of the 1870 Civil Rights Act, 42 U.S.C. § 1981; *fn6" a claim by Dr. Nanavati against the Hospital, the Executive Committee and Dr. Sorenson pursuant to the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., and the New Jersey Antitrust Act, N.J.S.A. 56:9-1 et seq.; claims under New Jersey law for tortious interference with prospective economic business advantage by Dr. Nanavati and by Dr. Sorenson, each against the other; and defamation claims by the Hospital and Dr. Sorenson against Dr. Nanavati.

 These claims were presented to the jury for decision by use of a set of 45 special interrogatories, which were drafted by the parties and the Court and submitted with the consent of all counsel. *fn7" The jury's determination, as molded by this Court, was as follows:

 A verdict of "No Cause for Action" on Dr. Nanavati's § 1981 claim, see special interrogatory questions A1-A7; a verdict of "No Cause for Action" in favor of Dr. Sorenson on Dr. Nanavati's antitrust claim, but against the Hospital and its Executive Committee, in the amount of $350,000.00, which, tripled pursuant to the Sherman Act totalled $1,050,000.00, (B1-B11); a verdict of "No Cause for Action" in favor of Dr. Sorenson on Dr. Nanavati's claim against him for tortious interference with prospective economic advantage, (C1-C5); a verdict in favor of Dr. Sorenson and against Dr. Nanavati on Dr. Sorenson's claim for tortious interference with prospective economic advantage in the amounts of $100,000.00 as compensatory damages and $300,000.00 as punitive damages, (F1-F5); and, on the defamation claims by the Hospital and Dr. Sorenson against Dr. Nanavati, verdicts in favor of the Hospital in the amounts of $100,000.00 as compensatory damages and $50,000.00 as punitive damages, and in favor of Dr. Sorenson against Dr. Nanavati in the amounts of $100,000.00 as compensatory damages and $500,000.00 as punitive damages. (D1-D7[2d] & E1-E8).

 II. DISCUSSION

 Motions for a judgment notwithstanding the verdict are governed by Federal Rule of Civil Procedure 50(b), which provides:

 
Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict.

 The standard for granting a motion for j.n.o.v. is the same as for a directed verdict. Skill v. Martinez, 91 F.R.D. 498, 503 (D.N.J. 1981). Such a motion is to be granted only when the evidence, exposed to the light which most strongly favors the party against whom the motion is directed, supports but one reasonable conclusion, and that conclusion contradicts the jury's verdict. E.g., Hild v. Bruner, 496 F. Supp. 93, 97 (D.N.J. 1980).

 
A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . .

 A district court may grant a new trial if doing so would prevent injustice or would correct a verdict which is palpably contrary to the clear weight of the evidence. American Bearing Co., Inc. v. Litton Industries, 729 F.2d 943, 948 (3d Cir.), cert. denied, 469 U.S. 854, 105 S. Ct. 178, 83 L. Ed. 2d 112 (1984); 6A J. Moore, Moore's Federal Practice, para. 59.08[5], at 59-140, 59-152 (2d ed. 1982). In deciding whether the jury's verdict was against the weight of the evidence, a court should be careful not to substitute its judgment for that of the jury. A court is not free to reweigh evidence and set aside a jury verdict merely because it thinks another result is more reasonable. E.g., Litman v. Massachusetts Mutual Life Ins. Co., 739 F.2d 1549 (11th Cir. 1984); Lanza v. Poretti, 537 F. Supp. 777 (E.D. Pa. 1982). To do so would usurp the jury's prime function, Borbely v. Nationwide Mutual Ins. Co., 547 F. Supp. 959, 980 (D.N.J. 1981), thereby eroding the party's Seventh Amendment and common law right to a trial by a jury of his peers. Shushereba v. R.B. Industries, Inc., 104 F.R.D. 524, 527 (W.D. Pa. 1985). The authority to grant a new trial, however, is within the broad discretion of the trial court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980) (per curiam); American Bearing, supra, at 948.

 A. Dr. Nanavati's Motions for a Judgment Notwithstanding the Verdict or a New Trial

 Dr. Nanavati contends that certain legal errors, and a record which shows that the jury's verdicts were against the weight of the evidence, require either entry of a j.n.o.v. or granting of a new trial on the defamation claims against him, Dr. Sorenson's tortious interference claim against him, and his own claim for race discrimination. We shall address each of these contentions in turn.

 1. Defamation claims

 Before delving into the specifics of Dr. Nanavati's contentions regarding the defamation verdicts, it is important to present some chronicle of the procedural history of the defamation claims against him.

 On May 10, 1984, Dr. Sorenson filed a complaint against Dr. Nanavati alleging, inter alia, that Dr. Nanavati has defamed him. On April 8, 1986, this Court granted Dr. Nanavati's motion for summary judgment with respect to Dr. Sorenson's defamation claim on the ground that Dr. Sorenson had not pled his defamation claim with sufficient particularity, despite the passage of a significant period of time and the concurrent opportunity to supplement or amend his original complaint. Slip op. of April 8, 1986 at pp. 7-10. Shortly thereafter, Dr. Sorenson moved this Court to reconsider that decision to grant summary judgment. In so doing, he specifically requested that the defamation count be restored so that he might pursue a claim based on the allegedly defamatory statements contained in an article entitled "Nanavati: diagnosis led to death," which had been published in The Sun, an Atlantic County Newspaper, on May 11, 1983. See Dr. Sorenson's memorandum in support of motion for reconsideration at p. 4. We granted Dr. Sorenson's motion, ordering that the summary judgment granted in favor of Dr. Nanavati on Dr. Sorenson's claim be vacated insofar as it precluded Dr. Sorenson's action based on statements contained in the article entitled "Nanavati: diagnosis led to death." Slip op. of May 12, 1986. The alleged defamatory statements in the article, attributed to Dr. Nanavati, were as follows:

 
I was concerned about everyone's life after that, I saw that man (the patient's husband) and I had to cover up for this doctor (Sorenson).
 
How can Dr. Meister (the expert who reviewed Dr. Sorenson's reading of the EKG's) be right when the patient is dead[?]
 
The correct interpretation (of the EKG's) would have saved her life because a pulmonary embolism is fully treatable if it is diagnosed and quickly handled.

 In addition to allowing an action on the above statements, this Court permitted Dr. Sorenson to supplement his pleadings, at trial, to assert an additional defamation claim. The statement upon which the additional claim was based was allegedly made in November of 1985 by Dr. Nanavati to a nurse, Anne O'Neil. Ms. O'Neil testified, on June 30, 1986, that Dr. Nanavati had referred to Dr. Sorenson as a "senile old doctor that had been there [at the Hospital] for twenty years killing patients." *fn8" Trial Transcript of June 30, 1986 at p. 160, lines 14 & 15.

 BTMH filed a defamation claim against Dr. Nanavati on May 10, 1983 as a counterclaim to Dr. Nanavati's complaint against it. This defamation claim, as it went to the jury, was based on the following statements allegedly made by Dr. Nanavati:

 
The correct interpretation of EKG's would have saved her life because pulmonary embolism is fully treatable if it is diagnosed and quickly handled.
 
I never knew medicine could be so shallow (referring to the practice of medicine at BTMH).

 Evidence was presented at trial that, with the exception of the statement allegedly made to Anne O'Neil and the alleged "so shallow" statement, which was apparently made only to Mr. Watson, *fn9" Dr. Nanavati made all of the above statements both to William Watson, a reporter for the Atlantic City Press, and to Don Russell, a reporter for The Sun. The articles which ensued from the conversations between Dr. Nanavati and these reporters were admitted into evidence in this case without objection. *fn10" The article by Mr. Watson, published on May 10, 1983 in the Atlantic City Press, entitled "Nanavati: Faces $1M. Countersuit," was admitted as Defendants' Exhibit 1297, and the article by Mr. Russell, published May 11, 1983 in The Sun, entitled "Nanavati: Diagnosis led to death," was admitted as Defendants' Exhibit 2153. In addition, the jury heard the testimony of William Watson, the recipient of the alleged slanderous statements and the author of the May 10, 1983 Press article.

 a. Listener's Understanding

 On his post-trial motions, Dr. Nanavati first contends that the defamation plaintiffs, Dr. Sorenson and BTMH, failed to prove that the actionable defamatory words were understood in their defamatory sense by the listeners. He urges that the evidence in this case with respect to the listeners' understanding is so deficient that no rational jury could have inferred that the statements were understood in their defamatory meaning. *fn11"

 After reviewing the evidence presented to the jury, we must reject Dr. Nanavati's contention. The jurors were clearly presented with the requisite minimum quantum of evidence from which they could infer that the listeners understood the statements made to them as defamatory. With regard to the statements made to the newspaper reporters, Mr. Watson and Mr. Russell, we hold that there was sufficient evidence in the record to support an inference regarding the reporters' understanding of the defamatory nature of the words used by Dr. Nanavati. Mr. Watson was called as a witness in this case, and his testimony presented the jury with a reasonable basis for inferring his understanding of Dr. Nanavati's statements. Similarly, although Mr. Russell did not testify at the trial, his article published in The Sun on May 11, 1983, quoting Dr. Nanavati's allegedly slanderous statements, which was admitted into evidence, displayed his understanding of the alleged slanderous statements in their defamatory sense. The jury's findings as to the meanings of the slander uttered to the reporters thus had sufficient support in the evidence.

 With respect to the statement allegedly made by Dr. Nanavati to Ms. O'Neil, we also find ample support in the record for the jury's inference that the statement was understood to be defamatory. Although Ms. O'Neil's testimony with respect to this statement reveals that, upon hearing the statement, she verbally objected thereto, and even protested to Dr. Nanavati that such a view was only his opinion, see trial transcript of June 30, 1986 at p. 159, this evidence does not render unreasonable the jury's inference that Ms. O'Neil understood the words to be defamatory. Indeed, this evidence can clearly be said to support an inference that Ms. O'Neil fully understood the statement made to be defamatory, since she apparently felt that some protestation was appropriate. At the very least, a jury question was presented regarding Ms. O'Neil's understanding of the statements.

 b. Expression of Opinion

 Dr. Nanavati has argued extensively that the statements made to reporters Watson and Russell are protected expressions of opinion. With respect to the statements made which resulted in the articles published on May 10, 1983 in the Press, and on May 11, 1983 in The Sun, we reject Dr. Nanavati's argument without further discussion. *fn12" In our ad litem opinion filed July 10, 1986, we held that these statements were not protected expressions of pure opinion, see slip op. of July 10, 1986 at p. 7, and we have not been persuaded that this holding was erroneous.

 With regard to the allegedly defamatory statement made to Mr. Watson to the effect that Dr. Nanavati "never knew medicine could be so shallow," Dr. Nanavati urges this Court to hold that this statement was improperly submitted to the jury, both because it was not asserted in the Joint Final Pretrial Order and because it is a protected expression of pure opinion. Although we recognize that this statement, in contrast to the other statements made to reporters which were submitted to the jury, was not asserted as a ground for defamation until the trial was underway -- and therefore was not included within the Joint Final Pretrial Order and was not considered by the Court in our ad litem ruling regarding the actionable nature of the statements -- we nonetheless cannot accept Dr. Nanavati's contention that a j.n.o.v. or a new trial is therefore required. Assuming, without deciding, that the statement at issue here would have been held to have been a protected expression of opinion, had it been submitted to this Court for ruling, *fn13" we shall not set aside the jury's verdict in favor of the Hospital on this basis. Dr. Nanavati's failure to timely raise this defense with respect to the "so shallow" statement, after having been on notice that the Hospital intended to assert a defamation claim based thereon, see transcript of July 15, 1986 at p. 66-67, can be said to constitute a waiver of this defense. Moreover, after a thorough search of the record, we are convinced that no prejudice accrued to Dr. Nanavati by virtue of the submission of this statement to the jury. The evidence in this case is sufficient, without regard to the "so shallow" statement, to support the jury's verdict in favor of the Hospital on the defamation claim.

 c. Constitutional Malice

 Dr. Nanavati next argues that there was insufficient evidence in the record to establish that he had the requisite constitutional malice at the time he made the statements found by the jury to be defamatory. Because such a state of mind was ...


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